Gossett v. State, 27515

• Decision Date: 01 June 1955
• Docket Number: No. 27515,27515
• Parties: Princess GOSSETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 59

282 S.W.2d 59

162 Tex.Crim. 52

Princess GOSSETT, Appellant, v. The STATE of Texas, Appellee.

No. 27515.

Court of Criminal Appeals of Texas.

June 1, 1955.

King C. Haynie, Houston, for appellant.

Dan Walton, Dist. Atty., Houston, for the State.

WOODLEY, Judge.

After more mature consideration in the light of the State's motion for rehearing, we have decided that we were in error in our original opinion wherein we reversed the original conviction of appellant because of a variance between the forged instrument described in the statement of facts as that offered in evidence and the instrument described in the indictment. That opinion is now withdrawn.

Upon an indictment charging her with forgery, appellant pleaded guilty before the court, a jury being waived, and on April 14, 1954, a judgment was entered upon the plea and the evidence heard, adjudging appellant guilty of forgery and assessing her punishment at 5 years in the penitentiary.

The judgment further provided 'imposition of sentence deferred--defendant released on own recognizance pending following terms of adult probation law. Terms of probation--not to violate the law of this or any other state or the United States.'

Appellant apparently accepted the judgment and probation, no notice of appeal having been given before the expiration of the term during which the judgment was entered.

On November 5, 1954, a motion praying for the revocation of probation was filed alleging that on October 21, 1954, appellant violated the terms of her probation in that she committed the offense of passing a worthless check, and alias capias was ordered issued for the arrest of appellant.

Hearing was had on November 12, 1954, and on the same day sentence was pronounced reciting 'It appearing to the court this same defendant has violated the terms to probation heretofore accorded her, she having again violated the laws of this State by unlawfully passing a worthless check, * * *'

Appellant's notice of appeal was noted in the sentence and bond on appeal was set at $5,000, and on November 23rd recognizance on appeal was entered into by appellant and her sureties.

The statement of facts on the revocation hearing shows that on October 12, 1954, appellant signed two checks totalling the sum of $65, which were cashed for her, and that such checks were not honored by the bank upon which they were drawn because she had no account in said bank.

The evidence further shows that the checks were paid off prior to the hearing but after the motion for revocation had been filed, and alias capias ordered.

The proof showing that appellant acquired $65 by drawing and cashing the checks upon a bank where she was unknown and had no account is sufficient to show a violation of art. 567b, Vernon's Ann.P.C., in making and delivering a check with intent to defraud, knowing that the maker has not sufficient funds in the bank upon which the checks were drawn for the payment thereof. Watson v. State, 154 Tex.Cr.R. 616, 229 S.W.2d 621.

Sec. 3 of art. 781b, Vernon's Ann.C.C.P., provides that the court shall determine the terms and conditions of probation and may include among them the following:

'that the probationer shall:

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

'(b) Avoid injurious or vicious habits;

'(c) Avoid persons or places of disreputable or harmful character;

'(d) Report to the probation and parole officer as directed;

'(e) Permit the probation and parole officer to visit him at his home or elsewhere;

'(f) Work faithfully at suitable employment as far as possible;

'(g) Remain within a specified place;

'(h) Pay his fine, if one be assessed, in one or several sums, and make restitution or reparation in any sum that the court shall determine; and

'(i) Support his dependents.'

Sec. 5 of art. 781b, V.A.C.C.P., provides that a probationer may be arrested for violation of any of the conditions of the probation and the court, 'after a hearing without a jury, may continue or revoke the probation'.

The clemency extended by the court is upon conditions contractual in nature, the probationer accepting the clemency under the conditions imposed.

The proceeding to revoke probation is therefore not a trial, and the court without a jury is, under the statute, authorized to pass upon the issue of whether the probationer has violated the terms of probation, and if so, he may, in his discretion, revoke or continue the probation as he deems proper. Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774.

No abuse of discretion on the part of the trial judge is shown in revoking the probation and pronouncing sentence.

Appellant also seeks a reversal of the original conviction for forgery wherein sentence was first pronounced after the revocation of probation, and for that purpose on February 4, 1955, which was the last day of the November 1954 term of the Criminal District Court, gave notice of appeal.

The State contends that the appeal from the conviction cannot be entertained by this Court because, under the provisions of the Adult Probation and Parole Law, art. 781b V.A.C.C.P., the right of the probationer to appeal is accorded at the time he is placed on probation, which was at the February 1954 term, and that notice of appeal was not given prior to the expiration of that term as required by art. 827, C.C.P.

Appellant, on the other hand, contends that imposition of sentence was deferred when probation was granted, which prevented the appeal of the conviction until sentence was imposed.

Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225, is cited as authority for holding that appellant has timely and properly perfected her appeal from the conviction as well as from the revocation of probation.

Lamkin v. State was an appeal from a conviction which was perfected after the suspended sentence granted in the judgment had been revoked by reason of a subsequent felony conviction. The suspended sentence law under consideration contained no provision for appeal from a judgment prior to sentence.

Following the decision of this Court in the Lamkin case, the Legislature amended Article 779, V.A.C.C.P., and expressly provided that no appeal might be taken from a judgment upon which sentence had been suspended, even after the suspended sentence had been revoked. This legislation had the effect of overturning our holding in the Lamkin case and was a direct expression of legislative intent against the policy of permitting an appeal from a conviction long after the same was secured.

Art. V, Sec. 5, of the Constitution of Texas, Vernon's Ann.St. provides in part 'The Court of Criminal Appeals shall have appellate jurisdiction co-extensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.'

There is nothing in the Constitution of Texas which would prevent the legislature from providing for an appeal to this Court, in a criminal case, of a judgment upon which no sentence had been pronounced, the privilege of appeal not being constitutional but dependent upon the statute.

The legislature has seen fit to provide for appeal before sentence from a judgment carrying a death penalty. They have not seen fit to provide for an appeal from a judgment providing for a suspension of sentence. Prior to the present act no appeal has been provided in other conviction until the judgment has become final which, in felony cases, includes pronouncement of the sentence.

Sec. 1 of art. 781b, V.A.C.C.P. clearly provides that the trial court may suspend the imposition as well as the execution of sentence and place the defendant on probation. Sec. 5 of said statute grants the right of appeal in probation cases in the following language:

'The right of the probationer to appeal to the Court of Criminal Appeals for a review of the trial and conviction, as provided by law shall be accorded the probationer at the time he is placed on probation. When he is notified that his probation is revoked for violation of the conditions of probation and he is called on to serve a jail or penitentiary sentence he may appeal the revocation.'

The legislature has authority to regulate the jurisdiction of this Court and to prescribe rules to be observed in prosecuting an appeal, so long as its acts are not violative of the Constitution. 4 Tex.Jur., pp. 17-18, Sec. 2.

We know of no constitutional provision which was overridden or disregarded by the legislature when they provided that the time to appeal for a review of the trial and conviction should be the time the defendant is placed on probation.

It is suggested that because of the provisions of art. 829, C.C.P., a defendant who failed to appeal when the imposition of sentence was suspended and he was placed on probation, may appeal for a review of the trial and conviction as well as from the revocation when sentence is pronounced and he is called upon to serve time in jail or in the penitentiary.

The correctness of this contention is dependent upon whether or not the judgment assessing a jail or penitentiary term for a felony constitutes a conviction, where the imposition of sentence is suspended and the defendant is placed on probation.

Art. 827, V.A.C.C.P. provides that an appeal is taken by giving notice thereof in open court, at the term of court at which conviction is had, and having same entered of record.

Our holding that an appeal lies to this Court from such a judgment, though the imposition of sentence is suspended, precludes the idea that such judgment is not 'a conviction' until sentence is pronounced.

Art. 829, C.C.P. deals with the right to appeal after as well as before sentence. It was in effect when the sentence in any felony case was not to be pronounced until after the appeal had been decided. Paschal's Digest, art. 3148(683); Hartley's Digest, Sec. 473; O'Connell v. State, 18 Tex. 343.

Since the enactment...