McNew v. State

• Citation: 608 S.W.2d 166
• Decision Date: 15 February 1978
• Docket Number: No. 56669,No. 3,56669,3
• Parties: W. J. McNEW, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 166

608 S.W.2d 166

W. J. McNEW, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 56669.

Court of Criminal Appeals of Texas, Panel No. 3.

Feb. 15, 1978.

Rehearing Denied Dec. 23, 1980.

G. Ernest Gilkerson, San Angelo, for appellant.

Rick Hamby, Dist. Atty., and Don Richard, Asst. Dist. Atty., Big Spring, for the State.

Before ROBERTS, PHILLIPS and VOLLERS, JJ.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for theft of one head of cattle. ¹ The trial judge assessed the appellant's punishment at ten years' confinement in the Texas Department of Corrections.

The appellant contends that: (1) the trial court erred by sentencing the appellant to ten years; (2) Article 42.12, Section 3d, Vernon's Ann.C.C.P., is void and unconstitutional; (3) the trial judge failed to admonish the appellant that if he revoked the appellant's probation he could sentence the appellant to any term of years allowed under V.T.C.A., Penal Code, Sec. 31.03; (4) the trial judge failed to hold a hearing limited to the determination of whether to proceed with an adjudication of guilt, as required by Article 42.12, Section 3d(b), Vernon's Ann.C.C.P.; (5) the trial judge failed to admonish the appellant that he could request a final adjudication of guilt at the time that the adjudication of the appellant's guilt was deferred; (6) the trial judge abused his discretion by assessing a ten-year sentence for theft of one head of cattle; and (7) the trial judge erred by failing to either hold a hearing to allow the appellant to introduce the affidavit upon which the information was based or to order the affidavit to be made part of the transcript. We affirm.

The appellant waived indictment ² and entered a plea of guilty. After a trial before the court, the trial judge, pursuant to Article 42.12, Section 3d(a), Vernon's Ann.C.C.P., deferred further proceedings without an adjudication of guilt and placed the appellant on probation for five years. ³ One of the conditions of the appellant's probation imposed by the trial judge was that the appellant "(2) (c)ommit no offense against the laws of this or any other state or the United States."

On December 20, 1976, the State filed its amended motion to revoke. The motion to revoke alleged that the appellant had violated condition two of his probation by committing the offense of robbery.

On December 20, 1976, a hearing was held on the State's amended motion to revoke. At the close of that hearing, the trial judge found that the appellant had pleaded guilty to the offense of theft of one head of cattle on May 20, 1976, that the appellant had been placed on probation at that time for a term of five years, and that the appellant had violated a condition of his probation. The trial judge therefore revoked the appellant's probation and then found that the appellant was guilty of the offense of theft of one head of cattle. The trial judge thereafter assessed the appellant's punishment at ten years. ⁴

The appellant's first ground of error is that the trial judge erred in assessing his punishment at imprisonment for ten years after he had revoked the appellant's probation and entered a finding of the appellant's guilt. Specifically, the appellant asserts that the trial judge, under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), could not sentence the appellant to any period of imprisonment greater than the five-year probation originally given him, and that, in any event, the State had waived its right to any period of imprisonment greater than five years when the prosecutor recommended a five-year probation under Article 42.12, Section 3d(a).

The appellant's contention that the trial judge was prohibited from assessing more than five years due to North Carolina v. Pearce, supra, is controlled by our decision in Walker v. State, 557 S.W.2d 785 (Tex.Cr.App.1977). In Walker we rejected an identical contention regarding Article 42.12, Section 3d(a).

The appellant's contention that the State waived its right to sentence the appellant to more than five years is without merit. The State can recommend a specific punishment to the trial judge, but that recommendation is never binding upon the court. Washington v. State, 545 S.W.2d 461 (Tex.Cr.App.1976); Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975). The appellant has also made numerous other contentions in his first ground of error. Although we have reviewed them and found them to be without merit, we note that they are multifarious and not in compliance with Article 40.09(9), Vernon's Ann.C.C.P. The appellant's first ground of error is overruled.

The appellant's second contention is that Article 42.12, Section 3d, Vernon's Ann.C.C.P. is unconstitutional. The appellant argues that although Article 42.12, Section 3d empowers trial judges to put defendants on probation before they have been convicted, Article 4, Section 11-A of the Texas Constitution does not allow a defendant to be granted probation until after he has been convicted.

Article 4, Section 11-A, of the Texas Constitution states:

"The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe."

Article 4, Section 11-A was adopted in 1935. It evolved as a response to Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912), which held that legislation permitting trial courts to suspend the execution of sentences and set aside and annul former judgments was unconstitutional as, inter alia, an infringement of the Governor's pardoning power. Thus, Article 4, Section 11-A created an exception which permitted the Legislature to create legislation providing for trial courts to suspend the execution of sentences. Of course, it has consistently been held that legislation permitting trial courts to suspend pronouncement or imposition of sentences was constitutional. See Snodgrass v. State, supra; Baker v. State, 70 Tex.Cr.R. 618, 158 S.W. 998 (1913).

Thus, Article 4, Section 11-A, is a limited grant of clemency to the courts by the people. Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973). It provides that "after conviction" the trial court may suspend the imposition or execution of sentence and place a defendant on "probation." Burson v. State, 511 S.W.2d 948 (Tex.Cr.App.1974).

Article 42.12, Section 3d, provides:

"Sec. 3d. (a) When in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation on reasonable terms and conditions as the court may require and for a period as the court may prescribe not to exceed 10 years. However, upon written motion of the defendant requesting final adjudication filed within 30 days after entering such plea and the deferment of adjudication, the court shall proceed to final adjudication as in all other cases.

"(b) On violation of a condition of probation imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 8 of this Article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had not been deferred.

"(c) On expiration of a probationary period imposed under Subsection (a) of this section, if the court has not proceeded to adjudication of guilt, the court shall dismiss the proceedings against the defendant and discharge him. The court may dismiss the proceedings and discharge the defendant prior to the expiration of the term of probation if in its opinion the best interest of society and the defendant will be served. A dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense, except that upon conviction of a subsequent offense, the fact that the defendant had previously received probation shall be admissible before the court or jury to be considered on the issue of penalty."

Article 42.12, Section 3d provides, inter alia, that a defendant may be placed on "probation" when certain specifically enumerated requirements are met. At the outset, we note that the appellant had an opportunity to demand a final adjudication within thirty days after he entered his plea. However, the appellant accepted the benefits of the statute he now alleges is unconstitutionally void.

However, the appellant's argument is facially meritorious. Article 4, Section 11-A prohibits the granting of probation until after conviction. The appellant asserts that Article 42.12, Section 3d provides for probation before conviction. Thus, if the procedure enumerated in Article 42.12, Section 3d(a) is a "conviction," "probation" under Article 42.12, Section 3d(a) must be held constitutional. However, if the procedure enumerated in Article 42.12, Section 3d(a) is not a "conviction," then "probation" under Article 42.12, Section 3d(a) can still be held constitutional if it is not the equivalent of "probation" as utilized in Article 4, Section 11-A of the Constitution.

We initially consider whether the procedure delineated in Article 42.12, Section 3d(a) is a "conviction" within the meaning of Article 4, Section 11-A. The term "conviction" is not defined by the Constitution or the Code of Criminal Procedure. However, this Court has...