Fronatt v. State, 53091

Decision Date17 November 1976
Docket NumberNo. 53091,53091
Citation543 S.W.2d 140
CourtTexas Court of Criminal Appeals
PartiesRichard Jule FRONATT, Appellant, v. The STATE of Texas, Appellee.
OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation.

On November 12, 1973, the appellant was found guilty, upon his plea, of the felony offense of breaking and entering a coin-operated machine. His punishment was assessed at four (4) years probated. Condition (a) of appellant's probation was that he 'Commit no offense against the laws of this State or of any other State or of the United States.'

On May 16, 1975, the State filed its motion to revoke probation. The motion alleged that appellant violated condition (a) of his probation in that appellant

'. . . on or about May 13, 1975 committed the offense of Possession of Criminal Instruments in the 1400 block of Wood Hollow in Harris County, Texas.'

On June 30, 1975, a hearing was held on the motion to revoke; at its conclusion, the court found that appellant had violated the terms of his probation

'. . . in that on or about the 13th day of May, A.D. 1975 (appellant) did unlawfully possess criminal instruments in Harris County, Texas with intent to commit theft, a felony.'

Accordingly, the court revoked appellant's probation and imposed sentence.

By his first two grounds of error, appellant contends that the State's motion to revoke did not adequately allege a violation of the criminal law; that the language of the allegation was too vague and indefinite to adequately apprise appellant of what he would be called upon to defend against; and that as such, the motion to revoke was fundamentally defective.

Without reaching the merits of these contentions, we note that appellant waived a reading of the motion to revoke probation and did not object to or request clarification of the State's allegation on the grounds now asserted. Such failure renders it unnecessary for this Court to consider the alleged grounds of error. Willey v. State, 501 S.W.2d 84, 85 (Tex.Cr.App.1973); McClure v. State, 496 S.W.2d 588, 590 (Tex.Cr.App.1973) (and cases there cited).

Appellant's first two grounds of error are overruled.

By his next two grounds of error, the appellant contends that the revocation of probation cannot be sustained for violation of V.T.C.A., Penal Code, Sec. 16.01(a)(1), because said statute is unconstitutional in that it is vague, indefinite, over-broad and fails to inform the public of what acts constitute criminal conduct. V.T.C.A., Penal Code, Sec. 16.01, entitled 'Unlawful Use of Criminal Instruments', provides that:

'(a) A person commits an offense if:

(1) he possesses a criminal instrument with intent to use it in the commission of an offense; or

(2) with knowledge of its character and with intent to use or aid or permit another to use in the commission of an offense, he manufactures, adapts, sells, installs, or sets up a criminal instrument.

(b) For purposes of this section, 'criminal instrument' means anything that is specially designed, made, or adapted for the commission of an offense.

(c) An offense under this section is a felony of the third degree.'

In Universal Amusement Co. v. Vance, 404 F.Supp. 33 (S.D.Tex.1975), Vacated in part on other grounds, sub nom. Butler v. Dexter, 425 U.S. 262, 96 S.Ct. 1527, 47 L.Ed.2d 744 (1976), there is found a discussion of Sec. 16.01. The court stated that from the clear language of the statute itself and the practice commentary thereto it can be seen that the statute

'. . . is a statute aimed at incipient crime--possession of a criminal instrument, with the specific intent to use the instrument in the commission of a crime. Not only is it not aimed at an instrument which has lawful uses, but it is not aimed at overt criminal actions at all.' Id., at p. 48.

'The statute, Sec. 16.01 of the Texas Penal Code, is clearly drawn and very specific. . . . The statute was obviously designed to deal with a very small class of property which can be used only for the commission of crime and to deal with persons in possession of such property or engaged in the manufacture or adaptation of the property exclusively for use in criminal activities, before the criminal activities are undertaken or completed.' Id., at p. 51.

We subscribe to the views stated in Universal, and decline to hold Sec. 16.01 unconstitutional on the bare allegations that it is vague, indefinite and overbroad.

By his next ground of error, the appellant contends that the...

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15 cases
  • Universal Amusement Co., Inc. v. Vance, 75-4312
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 28, 1977
    ...Court of Criminal Appeals had not recently approved of the manner in which the lower court interpreted the statute. See Fronatt v. State, 543 S.W.2d 140 18 Appellants cite Dexter's motions for continuance in his misdemeanor trial as evidence that he was not anxious for a determination of hi......
  • McDonald v. State
    • United States
    • Texas Court of Criminal Appeals
    • April 23, 1980
    ...of revocation of probation proceedings is limited to a determination of whether the trial court abused its discretion. Fronatt v. State, 543 S.W.2d 140 (Tex.Cr.App.1976). In such a proceeding, the trial court is the sole trier of the facts, the credibility of the witnesses and the weight to......
  • Nobby Lobby, Inc. v. City of Dallas
    • United States
    • U.S. District Court — Northern District of Texas
    • April 24, 1991
    ...appealed, the Texas Court of Criminal Appeals adopted the federal district court's analysis of Section 16.01. See Fronatt v. State, 543 S.W.2d 140, 142 (Tex.Crim.App.1976) (quoting Universal Amusement Co. v. Vance, 404 F.Supp. 33, 48, 51 (S.D.Tex.1975), and stating that "we subscribe to the......
  • Nobby Lobby, Inc. v. City of Dallas
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 1, 1992
    ...Criminal Appeals had adopted the district court's view of the statute. Universal, 559 F.2d at 1294-95 n. 17 (citing Fronatt v. State, 543 S.W.2d 140, 142 (Tex.Crim.App.1976)). The Texas courts have continued to adhere to the narrow construction of § 16.01 in Universal and As a result, Texas......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • May 4, 2021
    ...574 (Tex. Crim. App. [Panel Op.] 1980) 3:755 Fraser v. State 523 S.W.3d 320 (Tex.App.—Amarillo 2017) 12:131, 13:115 Fronatt v. State 543 S.W.2d 140 (Tex. Crim. App. 1976) 5:10 Fry v. State 915 S.W.2d 554 (Tex. App.— Houston [14th Dist.] 1995, no pet.) 3:1770 Fuentes v. State 991 S.W.2d 267 ......
  • Criminal instruments
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 1
    • May 4, 2021
    ...that case. But see Guerra v. State , 396 S.W.3d 233, 241 (Tex. App-Eastland 2013, p.d.r. granted), which states: “In Fronatt v. State , 543 S.W.2d 140, 142 (Tex.Crim.App.1976), the Texas Court of Criminal Appeals, quoting with approval the opinion in Universal Amusement Co. v. Vance , 404 F......

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