Gordon v. State, s. 57414

• Decision Date: 27 September 1978
• Docket Number: Nos. 57414,57415,No. 3,s. 57414,3
• Citation: 575 S.W.2d 529
• Parties: Robert GORDON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 529

575 S.W.2d 529

Robert GORDON, Appellant, v. The STATE of Texas, Appellee.

Nos. 57414, 57415.

Court of Criminal Appeals of Texas, Panel No. 3.

Sept. 27, 1978.

Opinion On State's Motion For Rehearing Jan. 10, 1979.

Jeffrey A. Kearney, Fort Worth, for appellant.

Tim Curry, Dist. Atty., Marvin Collins, Joseph Drago, III, Stephen R. Chaney and Candyce W. Howell, Asst. Dist. Attys., Fort Worth, for the State.

Before ROBERTS, PHILLIPS and VOLLERS, JJ.

OPINION

ROBERTS, Judge.

These are appeals from orders of the court revoking the appellant's probation in two cases. (Cause No. 10085 (our Cause No. 57,414) and Cause No. 10238 (our Cause No. 57,415) in Criminal District Court No. 3 of Tarrant County.) The trial judge found that the appellant had violated a condition of each of his probations, and sentenced the appellant in each case to four years' confinement in the Texas Department of Corrections. However, the sentence in Cause No. 10238 (our Cause No. 57,415) reflects that the trial judge ordered that the punishment in Cause No. 10238W (our Cause No. 57,415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate. ¹

The appellant contends that the allegations in the State's motion to revoke were fundamentally defective and that the trial judge could not cumulate the sentences.

On May 12, 1977, the appellant pleaded guilty to the offense of unauthorized use of a motor vehicle in Cause No. 10085 (our Cause No. 57,414) and to the offense of theft of property over $200 and under $10,000 in Cause No. 10238W (our Cause No. 57,415). The appellant was assessed a four-year probationary term in each case. One of the conditions of each of the appellant's probations was that he "a. (c)ommit no offense against the laws of this State or any other State or the United States."

On June 13, 1977, the State filed a motion to revoke in both of the cases. Each motion alleged, in part, that the appellant had violated a condition of his probation in that:

"(T)he said ROBERT GORDON, in the County of Tarrant and State aforesaid, on or about the 8th day of June, 1977, did then and there unlawfully, intentionally and knowingly operate, without the effective consent of the owner, Leroy Rogers, one motor-propelled vehicle, to-wit: automobile, against the peace and dignity of the State."

On July 26 and 27, 1977, a hearing was held on the State's motions. At the close of that hearing, the trial judge found that the appellant had violated a condition of each of his probations by unlawfully, intentionally and knowingly operating an automobile without the effective consent of Leroy Rogers, the owner, as alleged in the motion to revoke. The trial judge sentenced the appellant to four years' confinement in each case, but further ordered that the punishment in Cause No. 10238W (our Cause No. 57,415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate.

The evidence adduced at the hearing reveals that on the evening of June 8, 1977, at approximately 9:30 p. m., Gary Utley, a manager at Bill McDavid Pontiac in Fort Worth, heard what sounded like a vehicle running into a chain at the east end of the car lot. At the same time, he heard a customer yell, "The guy's stealing the car." Utley saw a 1975 Chevrolet El Camino being driven over a chain blocking the exit from the car lot. Utley ran to his car and pursued the El Camino for approximately six blocks. At that time, he saw the driver. Utley then stopped pursuing the El Camino and returned to the car lot. When he returned to the car lot, Officer Dan Miller of the Fort Worth Police Department had arrived to investigate the incident. Utley explained what happened and Miller broadcast a description of the El Camino and the license plate number over his police radio.

Shortly thereafter, Officers Chesshire and Owen, each in a marked police car, and Officer Thompson, on a police motorcycle, located the El Camino and a high speed chase ensued. Additional police units, including a police helicopter, assisted Chesshire, Owen and Thompson. During the chase, Owen saw the appellant driving the El Camino.

Eventually, the El Camino was driven to 314 Templeton. The appellant and the passenger got out and started to run around the house located at 314 Templeton. Thompson continued to pursue the two men, first on his motorcycle and later on foot, and he eventually caught both men. However, the appellant broke away from Thompson and attempted to gain entry into the house at 314 Templeton. At that time, Chesshire apprehended the appellant.

The appellant's first contention is that the State's allegations in the motions to revoke were fundamentally defective for failing to allege what condition of his probations the appellant allegedly violated.

In each case, the State's motions for revocation alleged:

"the Defendant, ROBERT GORDON, was ordered by the Court to commit no offense against the laws of this State or any other State or the United States. The Defendant, ROBERT GORDON, in the County of Tarrant and State of Texas, on or about the 8th day of June, 1977 did then and there knowingly and intentionally appropriate property, other than real property, to-wit: one automobile of the value of $200, or more, but less than $10,000. from the owner, Leroy Rogers, without the effective consent of the owner and with intent to deprive the owner of the property;

"COUNT TWO: and it is further presented in and to said Court that the said ROBERT GORDON, in the County of Tarrant and State aforesaid, on or about the 8th day of June, 1977, did then and there unlawfully, intentionally and knowingly operate, without the effective consent of the owner, Leroy Rogers, one motor-propelled vehicle, to-wit: automobile, against the peace and dignity of the State."

In each case, the trial judge's order revoking probation relied on the second paragraph of the State's allegations. In neither case did the appellant file a motion to quash on the basis of the ground relied upon on appeal.

In Garner v. State, 545 S.W.2d 178, 179 (Tex.Cr.App.1977), we stated:

"(W)hile the allegations in a motion to revoke probation do not require the same particularity of an indictment or information, in all fairness the allegations as to violation of probation should be fully and clearly set forth in the revocation motion, so that the defendant and his counsel might be informed as to that upon which he will be called to defend." (Citations omitted)

We hold that the appellant was given fair notice that the State was going to attempt to prove that the appellant had violated condition "a" of his probationary terms.

Furthermore, in the absence of a motion to quash, any error was waived. Johnson v. State, 498 S.W.2d 198 (Tex.Cr.App.1973). Cf. Barrow v. State, 505 S.W.2d 808 (Tex.Cr.App.1974). Appellant's first contention is without merit.

The appellant's second contention is apparently one of first impression for this Court: Does a trial judge have the power to order a cumulation of sentences when he revokes felony probation and neither the original judgment suspending the imposition of sentence and placing the defendant on probation nor the order placing the defendant on probation provides for a cumulation of the sentences? ²

Our inquiry begins with Article 42.08, Vernon's Ann.C.C.P., which states:

"When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly."

It is well established that where a trial judge does not order that two sentences in two different prosecutions shall be cumulative, the terms of imprisonment automatically run concurrently. Ex Parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1970). Thus, the appellant argues that since the judgments placing him on probation did not indicate that the sentences were to be cumulative, the attempted cumulation after revocation was ineffective.

In Ex Parte Crawford, 36 Tex.Cr.R. 180, 36 S.W. 92 (1896), this Court held that where a cumulation order was attached to and made a part of the sentence rather than the judgment proper, the cumulation order was not void; that the sentence is in fact the final judgment in a case; and that while a cumulation order could be placed in both the judgment and the sentence, there is no necessity that the order be placed in both the judgment and the sentence. Therefore, this Court held that a cumulation order in a sentence is proper.

In cases where felony probation is granted, there is no sentence until after probation is revoked, if at all, because the imposition of sentence is suspended. Article 42.12, Vernon's Ann.C.C.P.; Teel v. State, 432 S.W.2d 911 (Tex.Cr.App.1968). Therefore, the trial judge in the present case could not have placed the cumulation order into the sentence until the appellant's probations were revoked. However, this does not mean that the trial judge could not have properly placed the cumulation order into the judgment granting probation and the order granting probation. ³

Thus, the underlying issue that must be resolved is When does a trial judge have to order the cumulation of punishment where he has suspended the imposition of sentence and placed the defendant on felony probation. In other words, must the trial judge order cumulation when he grants felony probation and include such order in the judgment...