Ortega v. State

• Decision Date: 07 July 1993
• Docket Number: No. 3-91-251-CR,3-91-251-CR
• Citation: 860 S.W.2d 561
• Parties: Margarito ORTEGA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 561

860 S.W.2d 561

Margarito ORTEGA, Appellant, v. The STATE of Texas, Appellee.

No. 3-91-251-CR.

Court of Appeals of Texas Austin.

July 7, 1993.

Motion to Publish Granted Aug. 11, 1993.

Keith S. Hampton, Austin, for appellant.

Ronald Earle, Dist. Atty., William G. Reid, Asst. Dist. Atty., Austin, for appellee.

Before POWERS, KIDD and ONION, ^* JJ.

ONION, Justice.

This appeal is taken from an order revoking probation that had been granted following appellant's conviction for bribery. Following revocation, the trial court assessed appellant's punishment at ten years' imprisonment.

Appellant advances ten points of error. Appellant sets forth these points as follows:

1. The trial court abused its discretion in finding that appellant had failed to attend Alcoholics Anonymous meetings because the evidence was insufficient.

2. The trial court abused its discretion in denying appellant's special plea of collateral estoppel because the allegations in the State's motion to revoke probation had already been adjudicated in a previous judicial proceeding.

3. The trial court abused its discretion in overruling appellant's motion to continue probationer on probation because the trial court was mandatorily required to continue appellant on probation pursuant to Article 42.08 of the Code of Criminal Procedure.

4. The evidence was insufficient to revoke appellant's probation and the trial court should have granted appellant's motion for directed verdict.

5. The trial court denied appellant due process and due course of law in continuing the revocation hearing for nine months, then revoking him when he raised an objection.

6. The trial court denied appellant due process and due course of law in revoking appellant for failure to make probationary payments.

7. Article 42.12, § 24(b) of the Code of Criminal Procedure is unconstitutional because it conflicts with Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

8. The trial court denied appellant due process and due course of law in revoking appellant for failure to finish community restitution service.

9. The trial court denied appellant due process and due course of law in revoking appellant for failure to submit a urine sample.

10. Appellant has been denied due process and due course of law because he did not have a neutral or detached judge.

On November 6, 1989, appellant entered guilty pleas before the trial court to indictments charging bribery, aggravated perjury, and tampering with a governmental record. He was granted ten years' probation in each case subject to certain conditions. A motion to revoke probation was filed on August 16, 1990. After several re-settings, the revocation motion was called again on December 6, 1990. Without a hearing, the conditions of probation were modified and appellant was continued on probation. On May 3, 1991, an amended motion to revoke probation was filed. Appellant entered a plea of "true." The trial court revoked probation in the bribery case on May 3, 1991, and granted "shock probation." ¹ Appellant filed a motion for new trial and a brief pointing out that bribery was not an offense for which appellant could be accorded "shock probation," Tex.Code Crim.Proc.Ann. art. 42.12, § 6(3) (West Supp.1993), and that appellant could raise the question of a void sentence at any time. See Heath v. State, 817 S.W.2d 335 (Tex.Crim.App.1991). The trial court set aside the order of revocation and granted appellant a new hearing.

On May 31, 1991, appellant entered a plea of "not true" to the amended motion to revoke probation. At the conclusion of the hearing, the trial court revoked probation. In its formal judgment, the trial court found that appellant had violated his probationary conditions as follows:

Has not paid probation supervision fees and is delinquent $386.25; Has not paid fine and court costs and is delinquent $106.25; Failure to submit urine specimen on April 20, 1990; Failure to obtain G.E.D.; Failure to attend Alcoholics Anonymous Meetings; Failure to complete 300 hours of community service restitution.

It is these findings that appellant challenges in his various points of error.

A proceeding to revoke probation portends a possible deprivation of liberty, and as such, the application of appropriate due process of law is constitutionally required. Caddell v. State, 605 S.W.2d 275, 277 (Tex.Crim.App.1980); see also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The burden of proof is upon the State to show by a preponderance of the evidence that a probationer has violated the conditions of probation as alleged in the motion to revoke probation. Jenkins v. State, 740 S.W.2d 435, 437 (Tex.Crim.App.1983). That evidence must create a reasonable belief that the probationer has violated a condition of probation as alleged by the State. Id. When the State has sustained its burden, the decision whether to revoke probation is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Crim.App.1979); Galvan v. State, 846 S.W.2d 161, 162 (Tex.App.--Houston [1st Dist.] 1993, no pet.). When the State does not meet its burden of proof, the trial court abuses its discretion by revoking probation and deprives the probationer of due process. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984). In a revocation proceeding, the trial court is the trier of fact and the judge of the credibility of the witnesses and the weight of the testimony. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981). The appellate court reviews the evidence in the light most favorable to the trial court's judgment. Galvan, 846 S.W.2d at 162.

With this background, we turn to the record in the instant case. At the outset, the State concedes that the record of the revocation hearing does not show that the trial court made findings on the alleged failure to obtain a GED or the alleged failure to attend Alcoholics Anonymous (A.A.) meetings. The State urges that the formal judgment be reformed to delete any finding as to the failure to obtain a GED or the failure to attend A.A. meetings. We agree with the State. Moreover, the probation officer recanted his earlier testimony and admitted that the probation office's records did show that appellant had attended A.A. meetings as required. Further, the amended conditions of probation reflect: "(24) Obtain GED within ____ year(s)." Thus, no time limit within the probation period was placed on appellant in which to obtain his GED.

Next, we shall consider the court's finding that appellant failed to complete 300 hours of community service restitution. In both the original and amended conditions of probation, appellant was required to "Complete 300 hours of Community Service Restitution at a place designated by your probation officer. No less than 5 (five) hours a week" (emphasis added).

Courts of the State of Texas having original jurisdiction of criminal actions have the power, after conviction, to suspend the imposition or execution of sentence and to place a defendant on probation and to reimpose such sentence under such conditions as the Legislature may prescribe. See Tex. Const. art. IV, § 11A. This authority represents a limited grant of clemency to the courts by the people. McNew v. State, 608 S.W.2d 166, 170 (Tex.Crim.App.1978). Article IV, section 11A of the state constitution is not self-enacting and article 42.12 of the Texas Code of Criminal Procedure is one of the enabling acts. Tex.Code Crim.Proc.Ann. art. 42.12 (West Supp.1993); Burson v. State, 511 S.W.2d 948, 950 (Tex.Crim.App.1974). Section 11(a) of article 42.12 provides that the "court having jurisdiction of the case shall determine the terms and conditions of probation and may, at any time, during the period of probation alter or modify the conditions." Tex.Code Crim.Proc.Ann. art. 42.12, § 11(a) (West Supp.1993) (emphasis added). Section 11(a)(10) of the statute provides that one of the probationary conditions that may be imposed is "Participate, for a time specified by the court in any community-based program, including a community-service work program designated by the court." Id. (emphasis added). Further, sections 17(a) and (b)(1) of the Adult Probation Law provide in part:

(a) If the court places a defendant on probation, the court may require, as a condition of the probation, that the defendant work a specified number of hours at a community service project or projects for an organization or organizations named in the court's order....

(b) The amount of community service work ordered by the court:

(1) may not exceed 1,000 hours and may not be less than 320 hours for an offense classified as a first degree felony.

Tex.Code Crim.Proc.Ann. art. 42.12, § 17(a), (b)(1) (West Supp.1993) (emphasis added).

The probationary condition in question requires the appellant to perform 300 hours of community service restitution "at a place designated by your probation officer." In addition to the obvious question of the validity of the trial court's delegation of authority to the probation officer, ² we observe that the probationary condition does not designate a community-service program nor does it name the organization or organizations for which appellant may have to perform 300 hours of work on a community service project.

We conclude that neither the original nor amended condition of probation as to community service restitution was a valid condition of probation upon which the revocation of probation may be based. Cf. Tovar v. State, 777 S.W.2d 481, 496 (Tex.App.--Corpus Christi 1989, pet. ref'd).

Next, we turn to the trial court's finding that appellant failed to submit a urine sample on April 20, 1990, some eleven months prior to revocation. The condition of probation in question was "submit a urine specimen at the direction of the Probation Officer, daily if ordered."

The duty and responsibility for determining conditions of probation rest...