Basaldua v. State

• Decision Date: 02 November 1977
• Docket Number: No. 54427,54427
• Citation: 558 S.W.2d 2
• Parties: Jorge BASALDUA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 2

558 S.W.2d 2

Jorge BASALDUA, Appellant,

v. The STATE of Texas, Appellee.

No. 54427.

Court of Criminal Appeals of Texas.

Nov. 2, 1977.

State's Motion for Rehearing Denied Nov. 30, 1977.

James C. Harrington, San Juan, for appellant.

Oscar McInnis, Dist. Atty. and Terry D. Key, Asst. Dist. Atty., Edinburg, for the State.

OPINION

ONION, Presiding Judge.

This is a purported appeal from an order refusing to alter or modify conditions of probation. ¹

On July 7, 1975 appellant entered a guilty plea before the court after having waived trial by jury for the offense of possession of a usable quantity of marihuana of more than four ounces. His punishment was assessed at three (3) years in the Department of Corrections and a fine of $200.00. The imposition of the sentence was suspended and the appellant was placed on probation for three (3) years subject to certain probationary conditions, which included:

"h. Pay his fine, if one be assessed, and all court costs including $100.00 attorney's fees (Court appointed attorney) whether a fine be assessed or not, in one or several sums, and make restitution or reparation in any sum that the Court shall determine . . .

"$100 attorney fees payable $10 per month starting Aug. 1, 1975.

"h-1. Submit his person, place of residence and vehicle to search and seizure at any time of the day or night, with or without a search warrant whenever requested to do so by the Probation Officer or any other law enforcement officer."

It appears that at the time of the imposition of these conditions the appellant and his court-appointed counsel objected to these particular conditions but no appeal was taken at that time.

On November 3, 1975 the appellant filed a motion to modify conditions of probation asking that the two conditions be stricken from the order granting probation. A hearing on the motion was held on January 8, 1976, and the court took the matter under advisement. On March 23, 1976 the court denied the motion, and on April 1, 1976 the appellant gave notice of appeal from the order refusing to alter or modify the conditions of probation.

We are confronted initially with the procedural question of whether an appeal lies from such an order.

Article V, § 5 of the Texas Constitution provides for the jurisdiction of the Court of Criminal Appeals as follows:

"The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.

"The Court of Criminal Appeals . . . shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction. . . ."

Under such constitutional provision, the Legislature has the power to make proper exceptions to the right of appeal in criminal cases and regulate the appellate jurisdiction of the Court of Criminal Appeals, see Walker v. State, 537 S.W.2d 36, 38 (Tex.Cr.App.1976); De Silva v. State, 98 Tex.Cr.R. 499, 267 S.W. 271 (1924), and also to provide which writs the court may issue to enforce its own jurisdiction. Walker v. State, supra.

Article 4.03, Vernon's Ann.C.C.P., provides:

"The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law shall not exceed one hundred dollars."

Article 4.04, Vernon's Ann.C.C.P., provides:

"Sec. 1. In addition to the power and authority now vested in the Court of Criminal Appeals of the State of Texas, said court and each member thereof shall have, and is hereby given, power and authority to grant and issue and cause the issuance of writs of mandamus and certiorari agreeable to the principles of law regarding said writs, whenever in the judgment of said court or any member thereof the same should be necessary to enforce the jurisdiction of said court."

In Walker v. State, supra, it is stated:

"It is clear from the above constitutional and statutory provisions that the Court of Criminal Appeals has appellate jurisdiction in all criminal cases in the State with the exception made by law in Article 4.03, supra, relating to cases originating in the Justice of the Peace and Municipal Courts and tried de novo in a County Court where the fine then assessed is $100.00 or less. Bridges v. State, 423 S.W.2d 931 (Tex.Cr.App.1968); Leggio v. State, 489 S.W.2d 622 (Tex.Cr.App.1973). See also Article 4.03, supra, note # 7, and cases there cited.

"It is also clear from the constitutional provisions that the Court of Criminal Appeals and the Judges thereof have general authority to issue the writ of habeas corpus. Further, it may, as prescribed by law, issue such writs as may be necessary to enforce its own general jurisdiction. See Article 4.04, supra. See also State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973). The right of the court to issue writs, other than habeas corpus, is thus limited."

Further, it is established by statute that the Court of Criminal Appeals may review bond forfeiture in criminal cases by appeal or writ of error from a final judgment forfeiting the bail bond. See Articles 44.42, 44.43, 44.44, Vernon's Ann.C.C.P.; Walker v. State, supra; Glenn v. State, 155 Tex.Cr.R. 498, 236 S.W.2d 809 (1951); Kubish v. State, 128 Tex.Cr.R. 666, 84 S.W.2d 480 (1935); Hodges v. State, 73 Tex.Cr.R. 638, 165 S.W. 607 (1913); Jeter v. State, 86 Tex. 555, 26 S.W. 49 (1894); Swanson v. State, 169 Tex.Cr.R. 390, 334 S.W.2d 179 (1960).

The Court of Criminal Appeals will not exceed its jurisdiction as stated in 15 Tex.Jur.2d, Courts, § 23, p. 445:

". . . When a proceeding from which an appeal is attempted comes within none of the statutory or constitutional provisions conferring jurisdiction, the court will not exercise authority . . .."

We find neither constitutional nor statutory authority which would confer jurisdiction on this court to hear an appeal from an order entered pursuant to Article 42.12, § 6, supra (footnote # 1), altering or modifying probationary conditions or an order, as in the instant case, refusing to alter or modify such conditions. It must be remembered that this is not an appeal from an order granting probation, cf. Article 42.04, Vernon's Ann.C.C.P., nor is it an appeal from an order revoking probation. Article 42.12, § 8, Vernon's Ann.C.C.P. We conclude that this court lacks the authority to entertain a direct appeal from the order entered. See and cf.Walker v. State, supra; Hardin v. State, 157 Tex.Cr.R. 283, 248 S.W.2d 487 (1952); Morgan v. State, 135 Tex.Cr.R. 76, 117 S.W.2d 76 (1938); Griffin v. State, 29 S.W.2d 349, 350 (Tex.Cr.App.1930). See also Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974); Swanson v. State, supra.

Although the purported appellant has characterized the case as an appeal, he prays, by supplemental brief, that if this court decides that no appeal lies then the proceedings be considered as an application for writ of habeas corpus. He cites Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973), where the court was asked to issue a writ of mandamus which was beyond its jurisdiction since its jurisdiction was not endangered but where the court considered the pleadings as an application for writ of habeas corpus. If the facts raise a proper habeas corpus issue, then the proceedings should be considered as a habeas corpus proceeding since to dismiss the appeal and require a new and separate habeas corpus application would require a useless thing. See Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); Taylor v. State, 482 S.W.2d 246 (Tex.Cr.App.1972).

We conclude that the facts raise a proper habeas corpus issue and fall within our habeas corpus jurisdiction. ² See Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976).

"The writ of habeas corpus is intended to be applicable to all . . . cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law." Article 11.23, Vernon's Ann.C.C.P. (Emphasis added.)

Article 11.22, Vernon's Ann.C.C.P., defines "restraint" as:

". . . the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right." (Emphasis added.)

We conclude that the imposition of conditions of probation that contain unconstitutional infringements of freedom of action constitutes a "restraint" within the scope of habeas corpus relief. See Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977) (Concurring Opinion). Therefore, we will address appellant's constitutional arguments on the merits.

Appellant challenges the constitutionality of the Texas recoupment scheme which grants the trial court discretion to require, as a condition of probation, that a convicted defendant repay the county for providing him with court-appointed counsel. ³ Appellant argues that the plan violates the due process clauses of the United States and Texas Constitutions; that it violates the equal protection clauses of the United States and Texas Constitutions by imposing harsher sanctions on appellant for not paying for his appointed counsel than are imposed on those persons who fail to pay their private attorneys; and finally, that so charging an indigent defendant interferes with the exercise of his right to counsel.

Appellant relies primarily on the authority of James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (...