Kelly v. State, 44791

Citation483 S.W.2d 467
Decision Date03 May 1972
Docket NumberNo. 44791,44791
PartiesDoyle Gene KELLY, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Frank R. Jewell, Ennis, for appellant.

Ward P. Casey, County Atty., Waxahachie, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

This is an appeal from a revocation of probation.

The revocation of probation proceedings against appellants Doyle Gene Kelly and Jerry Dean Mitchell, Tex.Cr.App., 483 S.W.2d 481, this day decided, were held together; however, their cases will be considered separately on appeal because of the different fact situations involved.

Appellant Kelly was convicted of possession of marihuana on February 4, 1971, assessed a five (5) year sentence and placed on probation. Among the conditions of his probation was a provision that he '(A)void persons or places of disreputable or harmful character.'

The petition for revocation of probation alleges that appellant 'did violate his probation in that (he) did then and there associate and visit with persons and in places of disreputable and harmful character, to-wit: that (he) did then and there associate and visit with persons who were known narcotic users and persons who have been convicted of possession of narcotic (sic), and that further the said Doyle Gene Kelly did then and there associate and visit in a place where narcotics was (sic) being used and kept.'

The State's amended petition asserts that the persons of disrepute referred to are 'Jerry Dean Mitchell, a convicted narcotics possessor, Bernie Prachyl and Marion Harper,' and that the place of disrepute referred to is the 'premises located at 611 South Dallas Street, Ennis, Ellis County, Texas,' which was 'under the control of Bernie Prachyl' and which was also the 'place where narcotics were being used and kept.'

The record reflects that on February 14, 1971, acting pursuant to a search warrant based on information from an unidentified informant, three Ellis County Deputy Sheriffs entered the garage apartment at 611 South Dallas Street, Ennis, Texas. The apartment contained a single livingroom-bedroom area, a kitchen and a bathroom. Appellant was seated in the kitchen eating a piece of cake when the deputies arrived.

One of the officers testified that marihuana was found in three places in the livingroom-bedroom area and that none was found on or near Kelly but that there was an odor of marihuana in the air and on appellant's clothing.

Appellant contends that the court erred in failing to require proof of the charges against him beyond a reasonable doubt. However, this Court has held that a revocation proceeding was not in the nature of a criminal trial. Tate v. State, Tex.Cr.App., 365 S.W.2d 789; Branch v. State, Tex.Cr.App., 465 S.W.2d 160; Hood v. State, Tex.Cr.App., 458 S.W.2d 662. Further revocation may be based on a finding by the trial court that the terms of probation have been violated. Hall v. State, Tex.Cr.App., 452 S.W.2d 490; Ex parte Bruinsma, 164 Tex.Cr.R. 358, 298 S.W.2d 838; Seymour v. Beto, 5 Cir., 383 F.2d 384. In such a proceeding the judge is the sole trier of the facts, the credibility of the witnesses and the weight to be given their testimony. Hall v. State, supra; Maddox v. State, Tex.Cr.App., 466 S.W.2d 755; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165; and Farmer v. State, Tex.Cr.App., 475 S.W.2d 753. The only question before this Court is whether the trial court abused its discretion in revoking probation. Bennett v. State, Tex.Cr.App., 476 S.W.2d 281; Barnes v. State, Tex.Cr.App., 467 S.W.2d 437; Manning v. State, Tex.Cr.App., 412 S.W.2d 656; Seymour v. Beto,supra.

Appellant relies on In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1971), to support his contention that he is entitled to have the question of his revocation decided 'beyond a reasonable doubt.'

However, in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) the Supreme Court of the United States said that Winship, supra,

'. . . went no further than to confirm the fundamental right that protects 'the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."

and held that since neither a confession or the question of its voluntariness is an element of the crime charged, a judge could determine its admissibility by a less stringent standard; i.e., by a preponderance of the evidence, than is necessary to determine guilt or innocence.

Likewise, in the case at bar, we are not dealing with guilt or innocence, with an initial determination of criminal culpability as in Winship, supra. That issue was decided adversely to appellant at his original trial. The question at a revocation hearing is whether the appellant broke the contract he made with the court after the determination of his guilt. It should be remembered that a defendant is not entitled to probation as a matter of right; granting probation is entirely within the trial court's discretion.

The majority of this Court is committed to the viability of the probation laws and favors any logical interpretation of them which would tend to encourage the granting of probation where at all justified. We are convinced that the trial judge is more likely to grant probation in a case where he is assured that if the terms of probation are violated he might revoke the same, without undue delay and protracted litigation. We, therefore, conclude it is not only logically inconsistent but judicially unsound to suggest that the standard of proof necessary to revoke probation should be as stringent as the one necessary to support the initial conviction. 1

Appellant's first contention is overruled.

Appellant's next two contentions are that the court erred in failing to hold that the terms of his probation were indefinite and uncertain and that the court failed to show knowledge on the part of appellant that the alleged persons and places were disreputable and harmful.

The State contends that the fact that appellant was found in an apartment in which there was an odor of marihuana is sufficient circumstantial evidence to impute knowledge to appellant that he was in the company of harmful persons at a harmful place.

The record does not establish that either Prachyl or Harper had prior criminal records. Nitchell had been convicted of possession of marihuana in 1970 and was on probation at the time of this occurrence. Appellant Kelly testified that he knew nothing disreputable about Prachyl or Harper and that he knew Mitchell only by name but had never spoken to him. He and several others present testified no marihuana was smoked that evening.

Assuming that appellant did not know that the three individuals were of disreputable character as required by Jackson v. State, Tex.Cr.App., 464 S.W.2d 153, and Steed v. State, Tex.Cr.App., 467 S.W.2d 460, the fact that appellant, who had been convicted of possession of marihuana several days before and who admitted having smoked marihuana in Vietnam and knowing its odor, was found in an apartment where there was an odor of marihuana and where he admitted having been for several hours without a plausible explanation is sufficient for the judge to conclude that appellant knew he was at a harmful place in violation of his probation. Such a place was obviously harmful to the appellant since he was on probation for possession of marihuana.

Appellant's second and third contentions are overruled.

The dissent raises a question concerning the manner in which probation was granted which disturbs me. At no time during the hearing on the motion to revoke did the appellant raise a question as to the sufficiency of the order of probation. While I cannot condone the loose manner in which the original judgment 2 placing appellant on probation was worded, 3 nor the fact that there is no showing that the clerk complied with his duties under Article 42.12 6(a), Vernon's Ann.C.C.P., I have concluded there is no reversible error since the appellant never specifically claimed he was not aware of the terms of his probation but only claimed that they were vague and indefinite. See Blackshire v. State, Tex.Cr.App., 464 S.W.2d 108. Further, the record reflects that during sentencing the prosecutor called the court's attention to the fact that he believed that the court had specifically admonished the appellant to stay away from people who smoke marihuana and not to use it himself. The Honorable Bruce Allen presided at both the appellant's original trial and at the revocation hearing.

There is no abuse of discretion.

The judgment is affirmed.

ODOM, Judge (concurring).

In view of the importance of the decision reached in this case, I concur in the majority opinion, but feel that I should more fully express my reasons.

Appellant urges this court to require the utilization of the reasonable doubt standard in revocation hearings. I can find nothing which indicates that either common sense or the Constitution of the United States requires the state to meet this burden.

Whether a persons convicted of a crime should be placed on probation rests within the sound discretion of the trier of fact. e.g. Smith v. State, Tex.Cr.App., 468 S.W.2d 828; Campbell v. State, Tex.Cr.App., 456 S.W.2d 918; Glass v. State, Tex.Cr.App., 450 S.W.2d 320; Ponce v. State, Tex.Cr.App., 398 S.W.2d 570; Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135. As this court stated in Campbell v. State, supra: '. . . there is no right to either the court's or the jury's grace. . . .' An accused seeking probation bears the burden of proving his eligibility under the requirements of the Adult Probation Law. e.g. Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732; Herring v. State, Tex.Cr.App., 440 S.W.2d 649.

The granting of probation serves the function of protecting society while providing a means of rehabilitating lawbreakers. See, Mempha v. Rhay, 389 U.S. 128, 88 S.Ct....

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54 cases
  • Bradley v. State
    • United States
    • Texas Court of Criminal Appeals
    • April 5, 1978
    ...procedural and evidentiary requirements are not enforced as strictly as they would be in a criminal trial. Kelly v. State, Tex.Cr.App., 483 S.W.2d 467, 471 (concurring opinion) and examples cited therein. The relationship between the probationer and the court is contractual in nature. Espin......
  • Bradley v. State, 56475
    • United States
    • Texas Court of Criminal Appeals
    • November 26, 1980
    ...inapposite. We decline his invitation to declare the higher standard of proof applicable to revocation proceedings. See Kelly v. State, 483 S.W.2d 467 (Tex.Cr.App.1972). Neither do we agree that the application of the Barrientez rule is a denial of the right to effective assistance of couns......
  • Frazier v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 7, 1979
    ...1 E. g., Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.).2 E. g., Barnes v. State, 467 S.W.2d 437 (Tex.Cr.App.).3 E. g., Kelly v. State, 483 S.W.2d 467 (Tex.Cr.App.).4 Davenport v. State, 574 S.W.2d 73 (Tex.Cr.App.).1 This was a requirement of the former Suspended Sentence Law (Arts. 776-781,......
  • Capello v. State
    • United States
    • Texas Court of Appeals
    • August 9, 1989
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9 books & journal articles
  • Punishment Phase
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2016 Contents
    • August 17, 2016
    ...the viability of community supervision and shall exercise great discretion in granting this privilege whenever possible. Kelly v. State, 483 S.W.2d 467 (Tex. Crim. App. 1972). §20:91.4 Eligibilityfor Community Supervision A judge may grant community supervision except where the term of impr......
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    ...the viability of community supervision and shall exercise great discretion in granting this privilege whenever possible. Kelly v. State, 483 S.W.2d 467 (Tex. Crim. App. 1972). §20:91.4 Eligibility for Community Supervision A judge may grant community supervision except where the term of imp......
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    ...the viability of community supervision and shall exercise great discretion in granting this privilege whenever possible. Kelly v. State, 483 S.W.2d 467 (Tex. Crim. App. 1972). §20:91.4 Eligibility for Community Supervision A judge may grant community supervision except where the term of imp......
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    ...the viability of community supervision and shall exercise great discretion in granting this privilege whenever possible. Kelly v. State, 483 S.W.2d 467 (Tex. Crim. App. 1972). §20:91.4 Eligibility for Community Supervision A judge may grant community supervision except where the term of imp......
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