Hardman v. State, 66474
Citation | 614 S.W.2d 123 |
Decision Date | 18 March 1981 |
Docket Number | No. 66474,No. 3,66474,3 |
Parties | Steven Lyle HARDMAN, Appellant, v. The STATE of Texas, Appellee |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Paul Tatum, Nacogdoches, for appellant.
Robert Huttash, State's Atty., Alfred Walker, Asst. State's Atty., Austin, for the State.
Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.
Appeal is taken from an order revoking probation.
On February 2, 1978, in a trial before the court, appellant was convicted upon his plea of guilty of burglary of a vehicle. Punishment was assessed at 2 years, probated. On October 5, 1978, the State filed a motion to revoke appellant's probation. On the same day the motion to revoke was filed, a warrant was issued for appellant's arrest. The court held a hearing on the motion to revoke on April 16, 1980. Appellant's probation was revoked at the conclusion of the hearing.
Initially, appellant contends his original conviction is invalid. He maintains the court erred in accepting his plea of guilty without having the indictment read or securing a waiver of such reading.
The judgment in this case recites in part: "... and the Defendant ... pleaded guilty to the offense charged in the indictment...." There was no objection to the approval of the record. This matter is raised for the first time in this appeal.
Art. 26.11, V.A.C.C.P., provides as follows:
"The name of the accused having been called, if no suggestion, such as is spoken of in the four preceding Articles, be made, or being made is disposed of as before directed, the indictment shall be read, and the defendant asked whether he is guilty or not, as therein charged."
In Clardy v. State, Tex.Cr.App., 436 S.W.2d 535, the defendant presented a contention similar to that now presented and it was stated "Next, appellant urges that the trial court erred in accepting his plea of guilty without having the indictment read to him and without securing a waiver of such reading. He cites and relies upon Article 26.11, V.A.C.C.P., and Johnson v. State, 118 Tex.Cr.R. 291, 42 S.W.2d 782.
"We find from what has been said that there has been a compliance with Article 26.11, supra, contrary to appellant's contention." Id. at 536 and 537.
We conclude that the record in the instant case does not support appellant's contention concerning an alleged violation of Art. 26.11, supra. Moreover, in Reed v. State, Tex.Cr.App., 500 S.W.2d 497, it was held that a contention such as that now presented may not be raised for the first time on appeal.
Appellant next contends his original plea of guilty is invalid. He maintains the court failed to properly admonish him on the range of punishment in compliance with Art. 26.13, V.A.C.C.P.
The record from the plea of guilty proceeding reflects as follows:
Prior to accepting a plea of guilty, the court is to admonish the defendant of the range of punishment attached to the offense. Art. 26.13(a)(1), supra. If the record does not affirmatively show an admonishment as to the range of punishment, the guilty plea is invalid. McDade v. State, Tex.Cr.App., 562 S.W.2d 487.
Although the court gave appellant the admonishment after accepting his plea, the record further reflects that appellant was given the option of withdrawing the plea following the belated admonishment on the range of punishment. Appellant persisted in entering a plea of guilty. Under such circumstances, we find the court substantially complied with giving the required admonishment. See Whitten v. State, Tex.Cr.App., 587 S.W.2d 156; Art. 26.13(c).
Finally, appellant contends the court abused its discretion in revoking his probation. He maintains that the revocation hearing held after the expiration of the probationary term was unauthorized because of a lack of a diligent effort to apprehend him following the filing of the motion to revoke.
In Cotton v. State, Tex.Cr.App., 523 S.W.2d 673, the Court stated "Although we do not condone arbitrary delays in revocation proceedings, we do reiterate that to preserve such contention it is incumbent upon the probationer to raise and develop the issue at such hearing to secure appellate review."
Appellant did not raise his contention concerning a lack of diligence before or during the revocation hearing. Therefore, he has failed to preserve this alleged error in that it may not be raised for the first time on appeal. We find this contention to be without merit.
Appellant does not challenge the sufficiency of the evidence to support the court's order revoking probation. Nevertheless, the dissent would reverse the revocation order on the basis of unassigned error by employing an estoppel theory under contract law.
The record reflects that appellant's probation was revoked for failing to:
Anthony Chaviers testified that he was a probation officer in Nacogdoches County. After appellant received probation, Chaviers discussed the terms and conditions of the probation with him. Chaviers did not supervise appellant's probation because the reporting requirement was transferred to Harris County. Appellant was informed that he would be contacted with regard to when and with whom he was to report at the Harris County Probation Department.
Richard Brice testified that he was the chief probation officer for the 145th Judicial District Court. The State introduced a copy of an intrastate placement request sent by Brice to the Harris County Probation Department on April 24, 1978. The request was for appellant's probation to be supervised in Houston, but all restitution, fees and court costs to be mailed by appellant to the Nacogdoches County Probation Department. Finally, a copy of a letter Brice sent to appellant in Houston was introduced into evidence. The letter is dated April 24, 1978, and instructed appellant to contact the Harris County Probation Department between May 8 and 12, 1978.
Peter Zama testified that he was an adult probation officer in Houston. Zama stated that he received the request from Nacogdoches County that appellant's probation be supervised by the Harris County Probation Department. Zama wrote to appellant informing him of a date and time to report but, appellant never reported to the probation department in Houston. In July of 1978, the attempted supervision of appellant in Houston was terminated.
Brett Walker testified that he had been a probation officer in Nacogdoches County. Walker wrote to appellant in Houston on August 7, 1978, and informed him that he may be considered in violation of his probation by failing to report to the Harris County Probation Department. Appellant was instructed to contact a probation officer in Houston within 10 days of the letter.
The evidence thus reveals that appellant was instructed on at least four occasions to report to a probation officer in Houston and that he...
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...context that "when a unit of government is exercising its governmental powers, it is not subject to estoppel." See Hardman v. State, 614 S.W.2d 123, 128 (Tex.Cr.App.1981); see also State v. Durham, 860 S.W.2d 63, 67-68 (Tex.1993) (State in its sovereign capacity, unlike ordinary litigants, ......
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