Davenport v. State

• Decision Date: 15 November 1978
• Docket Number: No. 56013,56013
• Citation: 574 S.W.2d 73
• Parties: Johnny DAVENPORT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 73

574 S.W.2d 73

Johnny DAVENPORT, Appellant, v. The STATE of Texas, Appellee.

No. 56013.

Court of Criminal Appeals of Texas, En Banc.

Nov. 15, 1978.

Rehearing Denied Dec. 20, 1978.

John Langford, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Douglas Gelo, Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from an order revoking probation. On January 19, 1971, appellant pled guilty to the offense of possession of a narcotic drug and his punishment was assessed at six years in the Texas Department of Corrections. Imposition of sentence was suspended and probation was granted, subject to certain terms and conditions. Among the conditions of appellant's probation were that he commit no offense against the law, that he avoid injurious or vicious habits, and that he drink no alcoholic beverages and enter no place where such beverages are sold.

On September 3, 1976, the State filed a motion to revoke adult probation alleging:

"(O)n the thirteenth day of August, 1976, in the County of El Paso and State of Texas, the said defendant, Johnny Davenport, did then and there unlawfully, intentionally and knowingly drive and operate a motor vehicle, to-wit: 1970 Ford Pinto upon a public road and highway in said State and County, while the said Johnny Davenport was intoxicated and under the influence of intoxicating liquor."

A hearing was held on October 21, 1976, and the trial court denied the State's motion to revoke. Subsequent thereto, on November 1, 1976, the State filed another motion to revoke adult probation alleging as grounds the same factual basis that was alleged in the September 3 motion. ¹

On December 22, 1976, after having heard the second motion, the court found the State's allegations true and revoked appellant's probation.

Double Jeopardy Issue

The first contention presented by the appellant is that Article I, Sec. 14, of the Texas Constitution, and the United States Constitution's Fifth Amendment guarantee against double jeopardy applicable to the states through the Due Process Clause of the Fourteenth Amendment prohibit the State from twice subjecting the appellant to a revocation of probation proceeding based upon the same alleged probationary violation and fact situation. ²

At a revocation of probation proceeding, a defendant need not be afforded the full range of constitutional and statutory protections available at a criminal trial. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). At such a proceeding, guilt or innocence is not at issue, and the trial court is not concerned with determining the defendant's original criminal culpability. "The question at a revocation hearing is whether the appellant broke the contract he made with the court after the determination of his guilt." Kelly v. State, Tex.Cr.App., 483 S.W.2d 467, 469. Also of significance is the fact that ". . . the result of such a hearing to revoke is not a Conviction but a finding upon which the trial court might exercise its discretion by revoking or continuing probation." Hill v. State, Tex.Cr.App., 480 S.W.2d 200, cert. denied, 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667 (emphasis added.) "A probation revocation hearing is not . . . a criminal prosecution." Hill v. State, supra. It has been denominated as "administrative in nature." Hill v. State, supra.

In interpreting the Double Jeopardy Clause embodied in Art. I, Sec. 14, Tex.Const., ³ this Court held in Johnson v. State, 73 Tex.Cr.R. 133, 164 S.W. 833, "A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment or information . . . sufficient in form and substance to sustain a conviction, and a jury has been . . . impaneled and sworn to try the case," at 834. See Thompson v. State, Tex.Cr.App., 527 S.W.2d 888. We are thus constrained to hold that the double jeopardy protections of both the Texas and Federal Constitutions do not apply to a proceeding wherein the result is deemed to be neither a conviction nor acquittal, see Barber v. State, Tex.Cr.App., 486 S.W.2d 352; a proceeding that is not considered to be a trial, "as that term is used and contemplated by the Constitution in reference to criminal cases . . .," Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774, 776; Campbell v. State, Tex.Cr.App., 456 S.W.2d 918; a proceeding which is not considered to be a criminal prosecution, Hill v. State, supra, and is considered to be only "administrative in nature." Hill v. State, supra.

In Bass v. State, Tex.Cr.App., 501 S.W.2d 643, cert. denied 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 873, we rejected the defendant's contention that the revocation of his probation based "on the same evidence heard by the same court in denying a prior motion to revoke" violated double jeopardy protection. In that case, the testimony adduced at the first hearing was introduced again at a subsequent hearing to revoke, along with the information, judgment, sentence and mandate of affirmance of a conviction for misdemeanor embezzlement. The same offense was the subject of both of the State's motions to revoke probation. In finding no double jeopardy violations, we cited Settles v. State, Tex.Cr.App., 403 S.W.2d 417, and held, "The allegation in a motion to revoke probation that probationer has committed a particular offense when the motion is heard by the court does not constitute jeopardy and will not bar a subsequent prosecution for such offense." Bass, at 644.

In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court held, "(T)he risk to which the (Double Jeopardy) Clause refers is not present in proceedings that are not essentially criminal." Id., at 528, 95 S.Ct. at 1785.

In light of the nature of the probation revocation proceeding, we hold that the double jeopardy protection of the Texas and United States Constitutions is not applicable.

Res Judicata Issue

The appellant next contends that the trial court abused its discretion in refusing to dismiss the State's second motion to revoke probation because the prosecution of the second motion was barred by the doctrine of res judicata. Appellant contends that the doctrine of res judicata applies even where a plea of double jeopardy would not lie, and further argues that public policy considerations would be violated if the State were allowed to relitigate after it has been once litigated and the issues finally disposed of.

"(R)es judicata is the doctrine that an existing final judgment or decree, rendered on the merits, without fraud or collusion, by a court of competent jurisdiction, on a matter within its jurisdiction is conclusive of the rights of the parties or their privies in all other actions or suits in the same court, or in any other judicial tribunal of concurrent jurisdiction, on points and matters in issue in the first suit." Goldberg v. Goldberg, 425 S.W.2d 830, 831 (Tex.Civ.App., Ft. Worth 1968, no writ history). See also McGuire v. Commercial Union Insurance Co., 431 S.W.2d 347 (Tex.Sup.1968). Parr v. Parr, 543 S.W.2d 433 (Tex.Civ.App., Corpus Christi, 1976, no writ history).

It has also been held, however, that res judicata does not apply to administrative decision-making. See Bryant v. L. H. Moore Canning Co., 509 S.W.2d 432 (Tex.Civ.App. Corpus Christi, 1974), cert. denied 419 U.S. 945, 95 S.Ct. 79, 42 L.Ed.2d 74; Railroad Commission v. Phillips, 364 S.W.2d 408 (Tex.Civ.App. Austin, 1963); Killingsworth v. Broyles, 300 S.W.2d 164 (Tex.Civ.App. Austin, 1957).

In Hill v. State, supra, it was held that a probation revocation hearing is administrative in nature. Under Texas statutory law, this nature of the proceeding is apparent. Article 42.12, V.A.C.C.P., is the Adult Probation Law. In the opening sentence of the first section of that Act it is stated:

"It is the purpose of this Article to place wholly within the State courts of appropriate jurisdiction the responsibility for determining when the imposition of sentence in certain cases shall be suspended, the conditions of probation, and the supervision of probationers, in consonance with the powers assigned to the judicial branch of this government by the Constitution of Texas."

The administrative supervision of the probationer by the court is also stated in Sec. 3 of the Act:

"Any such person placed on probation, whether in a trial by jury or before the court, shall be under the supervision of such court."

We hold the supervision of probationers is an administrative function of the courts and not a judicial function, and that the revocation hearing and the decision to revoke probation or not is administrative in nature. We therefore hold that the doctrine of res judicata does not apply. See and cf. Bass v. State, supra; Wester v. State, Tex.Cr.App., 542 S.W.2d 403; Sappington v. State, Tex.Cr.App., 508 S.W.2d 840; Traylor v. State, Tex.Cr.App., 561 S.W.2d 492. The contention is overruled.

In his last contention appellant argues the evidence is insufficient to show he was intoxicated as alleged in the motion to revoke. Officer Lisowski, the arresting officer, testified that he stopped appellant because the car he was driving was moving at a rapid speed and almost collided with two cars as it made a right hand turn. When appellant stepped from the car he was very unsure of his footing and almost fell. During his conversation with the officer he came very close, and had a moderate odor of alcoholic beverage at two inches distance. The officer stated that in his opinion appellant had been drinking alcoholic beverages and was intoxicated. He also testified that a person may have only a moderate odor of alcohol and still be intoxicated. The contention is without merit.

We find no abuse of discretion and affirm the order revoking probation.

PHILLIPS, Judge, dissenting.

The majority concludes that the State's successful second effort to revoke ...