Frazier v. State, 61365

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 600 S.W.2d 271
• Docket Number: No. 61365,61365
• Parties: James Melton FRAZIER, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 07 November 1979

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600 S.W.2d 271 11 A.L.R.4th 990 James Melton FRAZIER, Appellant,
v.
The STATE of Texas, Appellee. No. 61365. Court of Criminal Appeals of Texas, En Banc. Nov. 7, 1979.
On Rehearing June 11, 1980.

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Charles E. Perry, Wichita Falls (on appeal only), for appellant.

Timothy D. Eyssen, Dist. Atty., Wichita Falls, Robert Huttash, State's Atty., Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PHILLIPS, Judge.

This is an appeal from a revocation of probation. Although appellant does not challenge the sufficiency of the evidence, we note in the interest of justice that there is no evidence to support the revocation.

On December 19, 1977, appellant pleaded guilty to the offense of aggravated assault on a police officer. Punishment was assessed at 6 years' imprisonment but the sentence was suspended and appellant was placed on probation. On September 18, 1978, the State filed a motion to revoke probation alleging that Frazier had violated the conditions of his probation by failing to report to his probation officer since March 21, 1978, by failing to pay a $250 fine, and by failing to pay his probation service fee.

Craig Valashek, Assistant Probation Officer for Wichita County, was the sole witness at the revocation hearing. He testified that appellant's probation officer was unavailable to testify that day, and that the district attorney had asked him to familiarize himself with appellant's probation file in order to present evidence at the hearing. He then testified to his recollection of the notations in the file showing that appellant had failed to adhere to the above conditions of probation. The probation office records themselves were not offered in evidence.

Valashek testified to facts of which he had no personal knowledge but which were supposedly evidenced by notations in appellant's file. His testimony was hearsay, and was not subject to any exception to the hearsay rule. Although the documents in the file may have been admissible as business records pursuant to Article 3737e, V.A.C.S., they were not offered in evidence, nor did Valashek read them into evidence. Compare Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975).

Appellant did not object to the admission of Valashek's testimony at the hearing. Hearsay is without probative value, however, and will not be considered in determining the sufficiency of the evidence. Lumpkin v. State, supra; Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975). This well-established rule of evidence has been applied to probation revocation hearings. Maden v. State, 542 S.W.2d 189 (Tex.Cr.App.1976). Compare Johnson v. State, 498 S.W.2d 198 (Tex.Cr.App.1973).

Valashek's testimony was the only evidence that the State introduced to show that appellant violated the conditions of his probation. There being no evidence to support the State's motion to revoke probation, the court abused its discretion in ordering appellant's probation revoked.

Over the dissent of this author the majority of this Court recently held in Davenport v. State, 574 S.W.2d 73 (Tex.Cr.App.1978), that the double jeopardy protections of the Constitution of the United States and the Texas Constitution do not apply to persons who are subjected to probation revocation proceedings. Therefore, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), do not apply to this case. Although the evidence is insufficient to support the revocation of probation, the State is not prohibited from reprosecuting this cause.

The judgment is reversed and the cause remanded.

ODOM, Judge, dissenting.

This case should not be reversed. It is true that Craig Valashek, Assistant Probation Officer for Wichita County, was testifying to facts of which he had no personal knowledge but which were obviously evidenced

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by notations in appellant's file. His testimony was therefore hearsay. Such testimony would be subject to the rule excluding hearsay from consideration as evidence, a rule which has been applied to probation revocation hearings. Maden v. State, 542 S.W.2d 189, 192 (Tex.Cr.App.). However, there was no objection to the State's attempt to introduce appellant's probation records through Valashek's hearsay testimony. This Court has frequently held that hearsay is without probative value, even if admitted without objection. See Lumpkin v. State, 524 S.W.2d 302, 305 (Tex.Cr.App.); Reynolds v. State, 489 S.W.2d 866, 872 (Tex.Cr.App.); Cherb v. State, 472 S.W.2d 273, 279 (Tex.Cr.App.). Hearsay testimony admitted at probation revocation hearings has fallen within that rule. Maden v. State, supra. I submit that we should reconsider these rules and hold that hearsay testimony admitted without objection at a probation revocation hearing should be accorded the same probative value as other evidence and may be considered in reviewing the sufficiency of the evidence to support a judgment revoking probation.

Texas and Georgia are the only two jurisdictions which have followed the rule that unobjected to hearsay testimony has no probative value and will not support a judgment. See Lumpkin v. State, 524 S.W.2d 302, 305 (Tex.Cr.App.); Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912); Eastlick v. Southern Ry. Co., 116 Ga. 48, 42 S.E. 499 (1902). See generally Annot., 79 A.L.R.2d 890 (1961). In addition, a few courts have held that hearsay testimony admitted without objection will not support a criminal conviction where it is the only evidence to sustain the conviction. See Glenn v. United States, 271 F.2d 880 (6th Cir. 1959); State v. Allien, 366 So.2d 1308 (La.1978) (hearsay recanted in-court by out-of-court declarants); People v. Hines, 12 Ill.App.3d 582, 299 N.E.2d 581 (1973) (hearsay expressly contradicted by testimony of defendant). In the overwhelming majority of jurisdictions, however, hearsay admitted without objection is accorded probative value and may be considered by the triers of fact for whatever it is worth logically. This extends to allowing such evidence to constitute sufficient evidence of the commission of an offense or a vital element of an offense. See, e. g., Turentine v. State, 384 N.E.2d 1119, 1121 (Ind.Ct.App.1979); People v. Maciejewski, 68 Mich.App. 1, 241 N.W.2d 736 (1976); State v. Charles, 538 S.W.2d 944, 946 (Mo.Ct.App.1976); Robinson v. State, 17 Md.App. 451, 302 A.2d 659, 665 (1973). See generally Annot., 79 A.L.R.2d 890 (1961). Long ago, courts which adhere to the majority rule spelled out why unobjected to hearsay may be relied upon to sustain a verdict or finding:

"The hearsay rule is merely an exclusionary principle limiting its admissibility and in no sense a canon of relevancy its probative force, where admitted without objection, being for the jury and not for the court to determine . . . 'Hearsay evidence usually is rejected because it lacks the corroboration of an oath or affirmation, and not because it has no material tendency to induce belief.' "

State v. White, 215 S.C. 450, 55 S.E.2d 785, 787 (1949). And, similarly:

"Hearsay evidence may accurately portray a given set of circumstances. The reasons which exclude such a portrayal do not detract from its truth or accurateness. These reasons are the legal barriers which have been erected by the law, and which, in the interest of justice, the parties may move aside. Under this reasoning the evidence is then competent to the full extent of such probative value as it may have under all the circumstances."

Poluski v. Glen Alden Coal Co., 286 Pa. 473, 133 A. 819, 820 (1926). Furthermore, it has been said of hearsay that "if relevancy were not assumed, no special rule of exclusion would be required." Barlow v. Verrill, 88 N.H. 25, 183 A. 857, 859 (1936). We agree with the rationale which underlies the majority rule.

In the area of probation revocation, the courts show still greater liberality in upholding the admission of hearsay testimony.

Clearly, this liberality is attributable largely to the different procedural and

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evidentiary standards applicable to...