Heath v. State

• Decision Date: 11 October 1989
• Docket Number: Nos. 2-88-304-C,2-88-305-CR,s. 2-88-304-C
• Citation: Heath v. State, 778 S.W.2d 208 (Tex. App. 1989)
• Parties: Michael Anthony HEATH, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 208

778 S.W.2d 208

Michael Anthony HEATH, Appellant, v. The STATE of Texas, State.

Nos. 2-88-304-CR, 2-88-305-CR.

Court of Appeals of Texas Fort Worth.

Oct. 11, 1989.

Wes Ball, Arlington, for appellant.

Tim Curry, Criminal Dist. Atty., C. Chris Marshall, Loretta Stauffer, Rolando Garcia, and John Harding, Asst. Dist. Attys., Fort Worth, for the State.

Before WEAVER, C.J., and FARRIS and LATTIMORE, JJ.

OPINION

WEAVER, Chief Justice.

Michael Anthony Heath appeals from a judgment revoking his probation, and sentencing him to eight years confinement in the Texas Department of Corrections. In four points of error, he contends that the trial court abused its discretion in revoking his probation because: 1) the probation was void as a matter of law; 2) the State failed to prove he had made an "actual" delivery of a simulated controlled substance to an undercover police officer; 3) the State failed to prove that he did not report to the probation office; and 4) the State failed to rebut his affirmative defense of Heath's inability to pay court costs and probation fees. We affirm, because we find that the evidence is sufficient to support the trial court's decision to revoke Heath's probation.

On May 12, 1988, Heath pled guilty to two separate offenses: 1) burglary of a habitation, and 2) aggravated robbery. See TEX.PENAL CODE ANN. secs. 30.02 and 29.03 (Vernon 1989). He was assessed ten years probation for each, to run concurrently. The conditions of his probation were as follows: he was 1) to commit no other offenses; 2) to report to the Adult Probation Office each month; 3) to pay court costs each month; and 4) to pay probation fees each month. After these conditions were explained to Heath, he signed a document listing the terms and conditions of his probation.

The record reflects that Heath was involved in a new offense on July 20, 1988. Heath was approached by an undercover police officer while sitting on the porch of his aunt's beauty shop. The officer indicated he wanted to make a cocaine purchase. Heath and the officer proceeded to the side of the building, and Heath pulled out a number of plastic bags and placed them on the ground for the officer to see. The undercover officer then asked Heath if the items were in fact cocaine. Heath replied in the affirmative and told the officer to pick out two items. The officer did so, paid Heath $20, and then left. Laboratory tests later revealed that the substance sold to Officer Moore was in fact benzocaine, a simulated controlled substance. Heath was then arrested and subsequently charged with the delivery of a simulated controlled substance. See TEX.REV.CIV.STAT.ANN. art. 4476-15b, sec. 1(2) (Vernon Supp.1989). On August 23, 1988, the State filed a motion to revoke Heath's probation.

Heath contends in point of error number one that the trial court abused its discretion in revoking his probation because said probation was void as a matter of law (per the aggravated robbery offense only). Heath argues, per TEX.CODE CRIM.PROC.ANN. art. 42.12, sec. 3g(a)(1)(D) (Vernon Supp.1989), that he was not eligible for probation for this offense and, therefore, that his probation is void as a matter of law. However, Heath failed to complain of this fact at the time his probation was assessed.

There is a split of authority in Texas as to the effect a "failure to complain at the time probation is assessed" may have on a defendant. The Houston Court of Appeals for the first District has held that an order of probation and subsequent order revoking probation are void if the probation is granted in violation of article 42.12, section 3g(a)(1)(C) (if defendant is found guilty of aggravated sexual assault, he is not eligible to receive a probated sentence). Dougherty v. State, 740 S.W.2d 516, 517 (Tex.App.--Houston [1st Dist.] 1987, no pet.). Dougherty cites State ex rel. Vance v. Hatten, 600 S.W.2d 828 (Tex.Crim.App.1980); State ex rel. Curry v. Gray, 599 S.W.2d 630 (Tex.Crim.App.1980); and Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. [Panel Op.] 1979) for authority. However, none of the cases relied on in Dougherty provide an analogous fact situation. In Vance, the State, not the defendant, was complaining about the court's grant of probation. Vance, 600 S.W.2d at 829. Therefore, the defendant did not challenge the court's authority to grant such probation after having first accepted the benefits of the court's leniency. For this same reason, Curry and Ex parte McIver are not applicable. Curry, 599 S.W.2d at 631; Ex parte McIver, 586 S.W.2d at 852-53. More recently, it has been held that an appellant is barred from complaining on appeal about any defect in a court's probated sentence after he has accepted the benefits of a court's leniency. Trcka v. State, 744 S.W.2d 677 (Tex.App.--Austin 1988, pet. ref'd). We find the Trcka reasoning more sound. Thus, we overrule point of error number one.

Heath urges in point of error number two that the trial court abused its discretion in revoking his probation because the State's evidence was insufficient to support its charge of his making an "actual" delivery of a simulated controlled substance to an undercover officer, as alleged in the first paragraph of the motion to revoke probation. Heath asserts that he did not actually deliver anything to the officer, but that if a delivery did occur, it was at best a "constructive" delivery. Officer Moore testified that Heath put the items on the ground in front of him for the officer to see, and then told the officer to pick out two of them. Officer Moore picked up two items, paid Heath $20 and left the scene. Heath asserts that "actual" delivery occurs only when a person completely transfers the possession and control of a substance from himself to another. Conaway v. State, 738 S.W.2d 692, 695 (Tex.Crim.App.1987). However, Conaway can be distinguished from the case herein because the defendant in Conaway delivered the drugs to a third person who then handed them to a police officer. Heath's situation does not involve a third party. The mere fact that the substance in Heath's possession was momentarily on the ground does not negate the fact that it went directly from Heath to Officer Moore. See Nevarez v. State, 767 S.W.2d 766 (Tex.Crim.App.1989); and Endsley v. State, 702 S.W.2d 307 (Tex.App.--Houston [1st Dist.] 1985, pet. ref'd). Thus, we overrule point of error number two.

In point of error number three, Heath asserts that the trial court abused its discretion in revoking his probation because the State failed to prove that Heath failed to report to the probation office in June. Heath's first meeting with his probation officer occurred on May 18, and at that time, he was told that he had to make his next visit on June 15. The probation records show he failed to report to the probation officer that day, however, and he was sent a letter on June 30 telling him to contact the office. Heath denies that he failed to report to the probation...