Dempsey v. State, 46849

• Court: Texas Court of Criminal Appeals
• Writing for the Court: ONION; ROBERTS
• Citation: Dempsey v. State, 496 S.W.2d 49 (Tex. Crim. App. 1973)
• Decision Date: 13 June 1973
• Docket Number: No. 46849,46849
• Parties: Albert Joe DEMPSEY, Appellant, v. The STATE of Texas, Appellee.

Page 49

496 S.W.2d 49

Albert Joe DEMPSEY, Appellant, v. The STATE of Texas, Appellee.

No. 46849.

Court of Criminal Appeals of Texas.

June 13, 1973.

Rehearing Denied July 3, 1973.

Donald W. Rogers, Jr., Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Andy Tobias, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

On November 16, 1969, appellant pleaded guilty before the court to the offense of murder without malice. The punishment was assessed at five yars, but the imposition of sentence was suspended and appellant was granted probation.

Among the conditions of probation was the requirement that appellant:

'(a) Commit no offense against the laws of this or any other State or the United States.'

On March 28, 1972, the State filed a motion to revoke appellant's probation alleging that appellant, 'on or about the 19th day of March, 1972, in Harris County, Texas, then and there was legally in a retail business establishment as an invitee and licensee, and while in said establishment, did then and there remove from their place in said establishment, merchandise of the value of less than fifty dollars, which was then and there being kept, stored and displayed for sale in said establishment, with the intent to fraudulently take said property and deprive the owner thereof, of the value of the same and to appropriate the same to the use and benefit of the said Albert Joe Dempsey.'

On June 2, 1972, a hearing was held on State's motion to revoke appellant's probation, and the record reflects that after the State read its motion, the appellant entered a plea of untrue. Immediately after the plea was entered, appellant orally urged that the motion be denied or quashed, and that the State be caused to replead in that the motion to revoke failed to state which particular retail establishment in Harris County the appellant was alleged to have been in, and that the motion did not particularize what merchandise the appellant was alleged to have taken.

In Campbell v. State, Tex.Cr.App., 456 S.W.2d 918, the defendant 'timely filed prior to the hearing a motion to quash the revocation motion alleging such motion did not comply with Article 42.12, V.A.C.C.P., and did not set out the alleged violation 'in intelligible words' so that he would be apprised just how he supposedly had violated his probation.' (emphasis supplied) In Campbell, the motion to revoke probation had alleged, 'That Defendant has violated the following conditions (b) of said probation in that (b) avoid injurious or vicious habits.'

As in the instant case, the trial court, in Campbell, overruled the motion to quash. In Campbell, this Court held that the trial court's failure to require the State to more specifically allege how defendant had violated his probation before revoking probation constituted an abuse of discretion.

In the instant case, appellant contends that the court abused its discretion in denying his motion and in support thereof cites Campbell v. State, supra, and the following cases which we find to be distinguishable from the instant case. Pollard v. State, 172 Tex.Cr.R. 39, 353 S.W.2d 449, is unlike the instant case in that under the general allegation in petition for revocation 'probationer might be called upon to meet proof of any violation at any time during the three years he was on probation.'

In Jansson v. State, Tex.Cr.App., 473 S.W.2d 40, this Court found 'the motion to revoke does not allege facts which would necessarily constitute a violation of the law.'

In Burkett v. State, Tex.Cr.App., 485 S.W.2d 578, the State's motion to revoke probation only alleged, 'That on or about October 7, 1971, and October 8, 1971, the defendant violated paragraphs (a), (b) and (c) of his Conditions of Probation.' Before announcing ready at the hearing, the probationer filed and presented to the trial court a motion in writing excepting to the allegations of the State's motion to revoke probation. This Court held the trial court's action in overruling probationer's motion and not requiring the State to amend the pleadings constituted an abuse of discretion.

In Kuenstler v. State, 486 S.W.2d 367, the revocation motion was not served upon probationer and his attorney until the date of the hearing and alleged that probationer 'Committed the offense of Felony Theft, subsequent to being placed on probation.' Prior to the hearing, appellant's counsel pointed out that the allegations of felony theft were 'vague, general and indefinite' and requested the State be required to amend. The State then orally announced they hoped to prove a fraudulent transaction involving real estate sales of land, giving the name of the injured party, and stated that the offense 'occurred in April of 1971, and, of course, in May of 1971.' Probationer then stated he was not prepared to defend against such new allegations involving complex real estate transactions. This Court concluded, 'We agree that appellant was denied the rudiments of due process by the failure to give him adequate and prior notice to enable him to prepare his defense.' This Court noted that it did not pass upon the validity of the 'oral motion or amendment, nor the sufficiency of the allegations.' There are no statutory provisions governing when a motion directed to the insufficiency of the pleading to revoke probation must be filed, or what form such motion shall take, nor is there statutory guidance in determining the sufficiency of the pleading. Thus, our determination must be based upon whether the trial court abused its discretion in overruling appellant's motion. See Cannon v. State, Tex.Cr.App., 479 S.W.2d 317; Barnes v. State, Tex.Cr.App., 467 S.W.2d 437; Manning v. State, Tex.Cr.App., 412 S.W.2d 656.

In the instant case, motion to revoke probation was filed on March 28, 1972. Counsel was appointed to represent appellant on April 27, 1972. Hearing on the motion to revoke was held on June 2, 1972. There is nothing to indicate that appellant and his counsel did not have a copy of the motion to revoke at the time of counsel's appointment more than thirty days before the hearing. There is no statutory period regarding when a copy of the State's motion shall be served upon probationer, but in Gist v. State, 160 Tex.Cr.R. 169, 267 S.W.2d 835, this Court held that the trial judge did not abuse his discretion in conducting a revocation hearing five days after the filing of the State's motion. See Kuenstler v. State, supra.

While the allegations in a motion to revoke probation need not strictly comply with the requirements of an indictment, Gonzales v. State, Tex.Cr.App., 456 S.W.2d 53, it should fully inform the probationer so that he and his counsel will know what he will be called upon to defend against. Wilcox v. State, Tex.Cr.App., 477 S.W.2d 900. In the instant case, the State's motion to revoke alleged that appellant had committed the offense of shoplifting on the 19th day of March, 1972, in Harris County, said motion containing all of the elements of the offense. Art. 1436e, V.A.P.C., See Willson's Criminal Forms, Seventh Edition, Sec. 1979. Only the store in which the alleged shoplifting occurred and the designation of the merchandise under the value of fifty dollars which was taken were omitted. The objection voiced to the State's motion to revoke in the instant case did not come until after the State had read its motion on the day of the hearing and appellant had entered a plea of untrue. Appellant then noted that 'prior to witnesses being called' he desired to object to the motion and dictated an oral motion to deny or quash the State's motion. ¹ After appellant's oral motion was overruled, no request for continuance was made by appellant nor was such a request made prior to that time.

While the State's motion to revoke leaves something to be desired, it contains the date of the alleged offense of shoplifting in the county in which the alleged offense occurred, recites that the value of the merchandise taken was under fifty dollars and sets forth all the elements of the offense. Appellant's counsel had been appointed more than a month prior to the hearing and no motion directed to the State's pleading to revoke was voiced until after appellant had entered his plea. Then such objection was made orally. Under the foregoing circumstances, we decline to hold that the court abused its discretion in overruling appellant's motion to deny or quash the State's motion to revoke.

Appellant contends that the trial court abused its discretion in revoking probation in that the evidence was insufficient to prove that appellant committed the offense of shoplifting.

Appellant urges that the meat market manager of the store could not, with certainty, state that the meat alleged to have been taken came from his store.

William Gordon, an employee of Stanley-Smith Security, testified that he was working at a Safeway Store at 7510 Belfort, in Houston, on March 19, 1972, when he observed appellant adjusting something inside his shirt. Upon approaching appellant, Gordon stated that appellant said, 'Man, I'll come clear with you,' and, 'Here it is.' Appellant then handed Gordon two packages of New York strip steaks. Appellant was taken to the back of the store, and Harvey Williams, meat market manager, was called. Appellant then removed two more packages of New York strip steaks from the front of his pants. The total price of the meat as reflected by the price tags affixed to the packages was $17.24. Appellant had less than five dollars on his person. Williams testified that the steaks were still cold and were placed back in stock. On direct examination, Williams stated that he was able to establish that the steaks were taken from the store in question. On cross-examination, it was developed that Williams based this...