Cooks v. State, 45128

• Decision Date: 01 March 1972
• Docket Number: No. 45128,45128
• Parties: Clarence E. COOKS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 280

477 S.W.2d 280

Clarence E. COOKS, Appellant, v. The STATE of Texas, Appellee.

No. 45128.

Court of Criminal Appeals of Texas.

March 1, 1972.

Fairweather & Hale, by Selden B. Hale, Amarillo, for appellant.

Tom Curtis, Dist. Atty., and F. G. Shackelford, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation.

Appellant was convicted June 30, 1970, of robbery by assault. The punishment was assessed by the jury at five years imprisonment. His application for probation was granted upon recommendation by the jury. Imposition of sentence was suspended and the appellant was placed on probation.

On February 19, 1971, a hearing was conducted on the State's amended motion to revoke probation. It alleged that the appellant, an employee of Dapper Dan Enterprises, Inc., did 'fraudulently embezzle, misapply and convert to his own use, without the consent of the said incorporated company, certain money . . . of the value of over $50.00 . . .' The court, having found that the defendant failed to comply with the condition of his probation that he 'commit no offense against the laws of this . . . state . . .' entered an order revoking appellant's probation and pronounced sentence.

It is appellant's sole contention on appeal that the trial court abused its discretion by admitting into evidence appellant's written confession. It is argued that the confession was made in violation of those constitutional rights enunciated in Miranda v Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Complaint is made that the appellant requested the assistance of counsel at the time of the taking of his statement, that this request was denied in the absence of any showing of 'positive waiver on his part, and such request tainted any confession taken by the State.'

Appellant's statement was taken by Lieutenant Jackson of the Amarillo Police Department. The record reflects that prior to questioning the appellant, Officer Jackson secured the presence of E. L. Booch, the chief probation officer for the district courts of Potter County. Both Jackson and Booch testified that the appellant was fully advised of his constitutional rights prior to the taking of any written statement. Booch testified that the appellant expressly told him that he understood his rights, that no promises were made to the appellant by either Booch or Lieutenant Jackson, and that, 'the entire procedure was taken in a normal...