Flournoy v. State

• Decision Date: 21 November 1979
• Docket Number: No. 61859,No. 2,61859,2
• Citation: 589 S.W.2d 705
• Parties: James Edward FLOURNOY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 705

589 S.W.2d 705

James Edward FLOURNOY, Appellant, v. The STATE of Texas, Appellee.

No. 61859.

Court of Criminal Appeals of Texas, Panel No. 2.

Nov. 21, 1979.

Norman Maples, Fort Worth, Ronald L. Goranson (on appeal only), Dallas, for appellant.

Tim Curry, Dist. Atty., William Kane and J. R. Molina, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from an order revoking probation and concomitant sentence to confinement for the offense of forgery by passing. Because an inordinate number of similar appeals are being brought to the Court, we have determined to review here important concepts that are at work in a probation revocation proceeding. To revisit them now, in the context of this matter, reminds us all of the rather limited scope of review available in this Court in an appeal against an order of a trial court revoking probation.

First, the factual setting: Four years and some seven months after being placed on probation for a five year period, appellant was arrested and charged with aggravated assault. When that occurrence came to the attention of his probation officer, he read an offense report concerning it and then put in motion the revocation procedures. ¹ The motion to revoke alleged a violation of four conditions:

That he commit no offense, by committing the aggravated assault;

That he report as directed, by failing to report during identified months;

That he pay a probation fee in a stated amount per month, by failing to pay it for identified months:

That he make restitution in a stated amount per month, by failing to pay it for identified months.

During the course of the hearing on its motion the State waived the first alleged violation. At the end of the hearing the trial court pronounced its findings that appellant had violated the other three conditions in particularized respects, and continued the cause for subsequent sentencing. On the later setting the trial court first announced it was reforming the judgment to Eliminate the allegations and its findings with respect to failure to make payments of the probation fee and for restitution. ² Thus, the order revoking probation is based Solely on findings of failure to report during two months in 1974, three months in 1975, three months in 1976 and January 1978, and in the face of undisputed reporting as required in every month thereafter through September 1978.

Second, the legal backdrop: Almost from the occasion of its first being stated in Baker v. State, 151 Tex.Cr.R. 454, 209 S.W.2d 769 (1948), that granting probation in a nonjury trial "rests entirely within the sound discretion of the trial court" has become axiomatic. ³ Exercise of that discretion is "absolute and unreviewable," Saldana v. State, 493 S.W.2d 778 (Tex.Cr.App.1973). When probation is granted, the trial court "extends clemency" and creates a relationship that is, "in a way, contractual that is, the court agrees with the convict that clemency by way of probation will be extended if he will keep and perform certain requirements and conditions, the violation of which will authorize the revocation of the probation," Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774, 775 (1951), Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59, 60 (1955), ⁴ Bradley v. State, 564 S.W.2d 727, 729 (1978). ⁵ Unlike most contracts, however, terms and conditions of a probation pact are subject to unilateral modification by the trial court, Article 42.12, Section 6, V.A.C.C.P. ⁶ Furthermore, the trial court may initiate an examination of contractual compliance or violation on the part of the probationer by causing his arrest and requiring his appearance at a hearing to revoke the agreement, Section 8(a), Ibid. Amid trappings of due process protections, Whisenant v. State, 557 S.W.2d 102, 104-105 (Tex.Cr.App.1977), upon conclusion of the hearing, the trial court "may either continue, modify, or revoke the probation," Id.

Noteworthy is that in providing the three alternative courses of action the Legislature made not the slightest suggestion of standards or guidelines to inform the discretion of the trial court, as it did in empowering the original grant of probation. ⁷

Third, the evidentiary concept: Due process considerations dictate, Inter alia, ⁸ that some reasonable measure be used to test sufficiency of evidence adduced to support allegations of violations and the findings thereon. After some experience in dealing with the problem, this Court adopted a preponderance of the evidence degree of proof in Scamardo v. State, 517 S.W.2d 293, 297-298 (Tex.Cr.App.1974), ⁹ and has continued to adhere to that measure, e. g., Keel v. State, 544 S.W.2d 151 (Tex.Cr.App.1976), declining to reexamine it as recently as Williams v. State, 586 S.W.2d 883 (Tex.Cr.App.1979).

Here, relying on the doctrine announced in Hartsfield v. State, 523 S.W.2d 683, 685 (Tex.Cr.App.1975) and followed in Davis v. State, 563 S.W.2d 264, 266 (Tex.Cr.App.1978), ¹⁰ appellant points to testimony that five probation officers serviced Tarrant County probationers. But, as the State points out and the record otherwise shows, appellant concedes missing January 1978 and "a few times" before then. While his concessions are not, perhaps, as strong as Greathouse v. State, 491 S.W.2d 149 (Tex.Cr.App.1973), cited by the State in its brief, the evidence as a whole is ample enough to preponderate in favor of and to support the findings of the trial court. Espinoza v. State, 486 S.W.2d 315 (Tex.Cr.App.1972), Barber v. State, 486 S.W.2d 352, 354 (Tex.Cr.App.1972), Carnes v. State, 478 S.W.2d 940 (Tex.Cr.App.1972); see Isabell v. State, 494 S.W.2d 572, 573 (Tex.Cr.App.1973). Thus, as an evidentiary matter, a violation of a condition of probation has been shown with the sufficiency required by due process protections.

Fourth, the discretionary concept: Still, though it be satisfactorily proven that one or more conditions of probation have been violated, ¹¹ the three statutory alternatives of continuation, modification or revocation of probation remain for the trial court to determine again, in its discretion. Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979), Beckworth v. State, 551 S.W.2d 414, 416 ¹² (Tex.Cr.App.1977), Barber v. State, 486 S.W.2d 352, 354 ¹³ (Tex.Cr.App.1972), Kelly v. State, 483 S.W.2d 467, 471 (Tex.Cr.App.1972) (Concurring opinion), Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59, 60 (Tex.Cr.App.1955), Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589, 591 (Tex.Cr.App.1954). While it has been said that "a trial judge is not accorded absolute discretion in the decision To revoke," Scamardo v. State, supra, 517 S.W.2d at 297, that statement is usually made in a context of some evidentiary or procedural shortcoming, just as it was in Scamardo, in Wester v. State, 542 S.W.2d 403, 405-406 (Tex.Cr.App.1976), in Franco v. State, 552 S.W.2d 142 (Tex.Cr.App.1977) and many similar cases.

Yet, when the finding of a violation of a condition of probation is supported by a preponderance of the evidence and procedural problems are not raised, the discretion of the trial court to choose the alternative of revocation is at least substantially absolute. That decision by the trial court is made by one who is on the scene, so to speak, who more often than not entered into the contract of probation with the accused, ¹⁴ who had one or more contacts with or reports concerning the probationer, who observed the probationer during court appearances in short, one who is more intimately familiar with the probationer than we who have only a dim profile drawn from a cold record before us. Thus, it is made in unique circumstances that truly are not susceptible to duplication on appeal.

This Court, therefore, early on adopted and regularly applies the credo: "The only question legitimately before this Court on a probation revocation proceeding is whether or not there was an abuse of discretion in the trial court," Isabell v. State, 494 S.W.2d 572, 573-574 (Tex.Cr.App.1973). When the proceedings are regular and the violation is properly proven, the question answers itself. We simply are not likely to substitute the collective judgment of members of the Court for the exquisite exercise of discretion by the trial court as indeed we should not. ¹⁵

Thus, though in this case some may reasonably believe it unfair to withdraw probation for failure to report on occasions scattered back over a period of four years, after all other allegations of misconduct were not sustained for one reason or another, the fact is that the motion to revoke, apparently triggered by the aggravated assault charge and arrest, was filed within five or six weeks. ¹⁶ We have not had pointed out to us, nor have we found, any prohibition against a motion to revoke probation alleging every known purported violation occurring within the probationary period. To the contrary, Article 42.12, Section 8, V.A.C.C.P., expressly provides, "At any time during the period of probation the court may issue a warrant for violation of Any of the conditions of the probation . . .," and a subsequent arrest on order of the court rendered within the period of probation is in conformity with that provision even though there is a delay in reporting the alleged violation to the court, Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466, 469 (1959) and Bobo v. State, 479 S.W.2d 947, 949 (Tex.Cr.App.1972). ¹⁷ That first alleged violation was waived by the State and two others were not upheld by the court below do not preclude the trial court from revoking probation on the single allegation that was supported by a preponderance of the evidence, Hilts v. State, 476 S.W.2d 283, 284 (Tex.Cr.App.1972). However, whether the trial court should have done so on that violation alone is just such a matter of discretion that this Court will not disturb.

The allegations respecting...