Hill v. State

• Decision Date: 21 December 1971
• Docket Number: No. 44340,44340
• Citation: 480 S.W.2d 200
• Parties: J.M. HILL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 200

480 S.W.2d 200

J.M. HILL, Appellant, v. The STATE of Texas, Appellee.

No. 44340.

Court of Criminal Appeals of Texas.

Dec. 21, 1971.

Rehearing Denied April 5, 1972.

Second Rehearing Denied June 7, 1972.

James F. Fanning, Comanche, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation.

On September 12, 1969, the appellant, after a change of venue from Stephens County, entered a plea of guilty before the court, to an indictment charging him with assault with intent to kill; punishment was assessed at five years imprisonment. The imposition of the sentence was suspended and the appellant placed on probation subject to certain conditions, among which was the provision that he "commit no offense against the laws of this state ..."

On December 17, 1970, the State filed a motion to revoke probation which alleged that appellant "on or about the 10th day of October, 1970, ... violated his probation by driving and operating a motor vehicle upon a public highway in Stephens County, Texas, while intoxicated and under the influence of intoxicating liquor."

Appellant filed an affidavit of indigency on December 22, 1970, at which time counsel was appointed. Eight days later, on December 30, the hearing on the State's motion to revoke probation was conducted.

Officers J.D. Kvapil and Thomas F. Hefner, Jr., of the Texas Department of Public Safety, testified that in addition to traveling at a speed in excess of the posted limit, appellant was driving his automobile "erratically", and was "weaving from side to side of the road." Results of the breathalyzer test administered by the officers revealed appellant's blood alcohol content to be .22 percent. ¹ Each officer testified that in his opinion the appellant was intoxicated.

"If such a defendant [in a proceeding to revoke probation] has no counsel, it shall be the duty of the court to inform him of his right to show cause why his probation should not be revoked; and if such a defendant requests such right, the court shall appoint counsel in accordance with Articles 26.04 and 26.05 of this Code to prepare and present the same; and in all other respects the procedure set forth in said Sec. 8 of this Article shall be followed."

Article 26.04, V.A.C.C.P., states:

"(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.

"(b) The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused."

While probation revocation hearings are criminal proceedings "where substantial rights of a criminal accused may be affected," Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, (1967), and "cannot be isolated from the context of the criminal process," Campbell v. State, 456 S.W.2d 918, 921 (Tex.Crim.App.1970), this court has consistently held that a hearing on a motion to revoke probation is not a trial in a constitutional sense. Campbell v. State, supra; Hulsey v. State, 447 S.W.2d 165 (Tex.Crim.App.1969); Cooper v. State, 447 S.W.2d 179 (Tex.Crim.App.1969); Tate v. State, 365 S.W.2d 789 (Tex.Crim.App.1963).

In Gist v. State, 160 Tex.Cr.R. 169, 267 S.W.2d 835 (1954), it was held that there was not an abuse of discretion when a hearing on the State's motion to revoke probation was conducted five days after the motion was filed. More recently, in Campbell v. State, supra, this court indicated that the strict provisions of Article 26.04 are not mandatory in revocation of probation proceedings. By footnote in Campbell it was said that where counsel has been appointed and the revocation hearing is held less than ten full days from the date of counsel's appointment a written waiver of such preparation period signed by the probationer and his appointed counsel in accordance with Article 26.04, V.A.C.C.P., is not required if they are willing to proceed. ²

Appellant's contention is raised for the first time on appeal. Appellant and his counsel proceeded with the hearing without objection. The record reflects no motion for a postponement or a continuance. There is no claim of injury to appellant and no attempt is made to show harm. Careful consideration of the record gives no indication of prejudice to appellant's rights. We find compliance with the requirement of the Sixth Amendment to the United States Constitution and Mempa v. Rhay, supra, that a defendant shall be afforded the aid and assistance of counsel at a probation revocation hearing. No abuse of discretion on the part of the trial court has been shown.

The order revoking appellant's probation and imposing sentence is affirmed.

Opinion Approved by the Court.

ROBERTS, J., not participating.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ODOM, Judge.

In his motion for rehearing, appellant renews his contention that the trial court erred by conducting the revocation hearing less than ten days after the appointment of counsel.

As we noted in our original opinion, appellant made no complaint to the trial court; and this argument was raised for the first time on appeal.

A probation revocation hearing is not an adversarial proceeding, a civil action, or a criminal prosecution. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963), cert. denied, Thompson v. United States Bd. of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963); Hood v. State, Tex.Cr.App., 458 S.W.2d 662. instead it is administrative in nature, a means of protecting society and rehabilitating lawbreakers. United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir.1970); United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970), aff'd per curiam, 438 F.2d 1027 (5th Cir.1971), cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1972).

While such a hearing is administrative in nature, both Texas statutory law ¹ and the United States Constitution ² provide that the probationer has the right to be assisted by counsel. The right to be assisted by counsel contemplates that such counsel shall have adequate time to prepare. However, belated appointment of trial counsel does not constitute a per se violation of constitutional rights. Chambers v. Maroney, 399 U.S. 42, 91 S.Ct. 1975, 26 L.Ed.2d 419 (1970). To constitute the denial of constitutional rights at trial, harm must be shown. Gallarelli v. United States, 441 F.2d 1402 (3rd Cir.1971); Rastrom v. Robbins, 440 F.2d 1251 (1st Cir.1971); United States ex rel. Rybarik v. Maroney, 435 F.2d 1292 (3rd Cir.1970); Lupo v. United States, 435 F.2d 519 (8th Cir.1970); Konvalin v. Sigler, 431 F.2d 1156 (8th Cir.1970). And in administrative proceedings objection may be waived where, as here, appellant makes no attempt to raise his objection until appeal. See generally, Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Ross v. Stewart, 227 U.S. 530, 33 S.Ct. 345, 57 L.Ed. 626 (1913); Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563 (1903).

Moreover, we do not construe Article 42.12, Sec. 3b, V.A.C.C.P., as requiring a different result. That statute provides, in part, that:

"If such defendant has no counsel, it shall be the duty of the court to inform him of his right to show cause why his probation should not be revoked; and if such a defendant requests such right, the court shall appoint counsel in accordance with Articles 26.04 and 26.05 of this Code to prepare and present the same; and in all other respects the procedure set forth in Sec. 8 of this Article shall be followed." ³

Article 26.04, V.A.C.C.P. provides:

"(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.

"(b) The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused."

Article 42.12, Sec. 8, V.A.C.C.P., provides, in part:

"At any time during the period of probation the court may issue a warrant for violation of any of the conditions of the probation and cause the defendant to be arrested. Any probation officer, police officer or other officer with power of arrest may arrest such defendant without a warrant upon the order of the judge of such court to be noted on the docket of the court. A probationer so arrested may be detained in the county jail or other appropriate place of detention until he can be taken before the court. Such officer shall forthwith report such arrest and detention to such court. Thereupon, the court shall cause the defendant to be brought before it and after a hearing without a jury, may either continue or revoke the probation and, if probation is revoked, shall proceed to dispose of the case as if there had been no probation.

".... 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 sentence in a jail or in an institution operated by the Department of Corrections, he may appeal the revocation."

It has long been the rule in this state that statutes should be given...