Pickens v. State, 43676

• Decision Date: 05 May 1971
• Docket Number: No. 43676,43676
• Citation: 466 S.W.2d 563
• Parties: Lester Morris PICKENS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 563

466 S.W.2d 563

Lester Morris PICKENS, Appellant, v. The STATE of Texas, Appellee.

No. 43676.

Court of Criminal Appeals of Texas.

May 5, 1971.

V. G. Kolius, Amarillo, for appellant.

Tom Curtis, Dist, Atty., and Robin Green, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

The record reflects that appellant pleaded guilty to the offense of Robbery by Assault on July 22, 1965, and his punishment was assessed at 10 years. An order was entered suspending the imposition of sentence and the appellant was placed on probation. One of the terms and conditions of probation was that he: '(1) Commit no offense against the laws of this or any other state or of the United States; * * *.'

On February 2, 1970, a motion to revoke appellant's probation was filed, alleging that he violated the aforementioned term. On March 25, 1970, an amended motion to revoke was filed, alleging:

'* * * That the said defendant, Lester Morris Pickens, on or about the 11th day of January, 1970, a date subsequent to the above mentioned conviction, in the County of Potter and State of Texas, did then and there unlawfully and wilfully interfere with a nurse, to-wit: Grace M. Garrett, while the said Grace M. Garrett was in the exercise of functions intended to contain injury to persons during a civil disturbance, Against the Peace and Dignity of the State.

'Further, the said Lester Morris Pickens, on or about the 11th day of January 1970, a date subsequent to the above mentioned conviction, in the County of Potter, State of Texas, did then and there in a public place, to-wit: Northwest Texas Hospital, 2200 West 7th, Amarillo, Texas, engage in an unreasonable disorderly conduct in such manner to cause or provoke a disturbance, Against the Peace and Dignity of the State.'

A hearing was held on the amended motion and the court found:

'* * * certainly his actions at the hospital were intentional, and in that sense, willful. His actions did interfere with the Nurse in her treatment of the deceased's mother. * * * and he did engage in unreasonable and Disorderly conduct in a manner calculated to provoke disturbance by making the comment * * * with reference to overpowering the resistance and getting back into the room, despite the fact that he had been ejected from it at least twice and probably three times, * * *

'I think his action in--in effect, inciting mob violence in this case by advocating that they storm the door of the room in which the Nurses and the body and mother of the deceased were, clearly Disorderly conduct in a manner to cause or provoke a disturbance.

'Therefore, the opinion and judgment of the Court that the defendant has violated the term of his probation, and that his probation should be, and is hereby revoked.' (Emphasis supplied.)

Appellant contends that the court abused its discretion by revoking his probation 'and there was no evidence that at the time and place of said incident that a riot, civil disturbance or public disaster had occurred, or was in progress, or that appellant acted wilfully.'

The record reflects that on the date in question a shooting occurred in front of the Club De Lisa in Amarillo. Shortly after the shooting a crowd estimated at from 100 to 200 people gathered around, creating a disturbance and making it very difficult for the law enforcement officers to control the crowd. Deputy Sheriff Garrett testified: '* * * and then, that is when I went to try to get the ambulance to come in more closer so we could get the body right away, and that is when I had problems to get the people back, so the men could drive in. He almost had to push people out of the way with the ambulance.' The witnesses identified appellant as one of the persons creating the disturbance.

A witness was then asked:

'Q. How long did it take to disperse the crowd after the ambulance left?

'A. When the ambulance left, why, the crowd left about, I guess about 10 or 15 minutes, all of them rushed out to the hospital.'

Witness McAdams, describing appellant's action at the hospital, testified:

'I was standing with my back to the doorway, and Deputy Sheriff John P. Allen was standing there by the doors with me, and I heard Mr. Pickens make the statement in a loud voice that--I don't recall the exact wording of it; it was to the effect that there aren't very many in there, and that if we all rushed them, we can get in; they can't stop us, I believe that was the ending of it.

'Q. Did you see him make that statement?

'A. No, sir, as--I didn't, as I turned he was talking and finishing the statement up just as I turned, but I didn't see just who he was addressing. He was facing primarily with his back towards the emergency room, and speaking out towards the crowd gathered in the hallway.'

Witness Allen, testifying in regard to appellant's actions at the hospital, testified as follows:

'A. Several times, two or three times, maybe four, I put him out myself, I just, you know, you can't stay in here, come on.

'Q. Did you ever hear him say anything about coming into the emergency room area?

'A. I did.

'Q. What was that?

'A. Well, he was outside of the double doors, and I was up to the door trying to keep people out.

'Q. Yes.

'A. And he said there is only three or four of them, and if we storm in the door, there is nothing they can do about it.'

We hold that there was sufficient evidence to support the trial court's finding that appellant committed an offense against the laws of this state. See Arts. 472a and 474 Vernon's Ann.P.C. The court did not abuse its discretion by revoking his probation. See Blackshire v. State, Tex.Cr.App.,464 S.W.2d 108; Foote v. State, Tex.Cr.App., 463 S.W.2d 445.

Finding no reversible error, the judgment is affirmed.

DOUGLAS, Judge (concurring).

I concur in the opinion affirming this cause. It is only where there has been an abuse of discretion that this Court reverses a revocation of probation. The trial judge hears the witnesses, observes their demeanor and passes upon their credibility. We should not take the place of hearing judge or pick out isolated portions of the record instead of the entire record in making our decisions. Considering the evidence in light most favorable to the finding of the trial court, as we must do, there was sufficient evidence for him to revoke probation. No abuse of discretion has been shown.

MORRISON, Judge (dissenting).

I do not find it necessary to join Judge Onion's dissent as I find that this revocation of probation must be reversed because of a violation of the First Amendment of the Constitution of the United States. It is inescapable that the judge did not revoke probation in this case because of the disturbance at Van Buren Street. Additionally, the trial court found that the defendant did not deliberately interfere with the nurse in her attempts to treat the deceased or the deceased's mother. From this writer's reading of the record, I must conclude that the trial court revoked probation solely on the basis of the third allegation in the motion.

As I view this record it reveals the following: Appellant's friend of many years was shot and killed, and there was considerable delay in the arrival of the ambulance. Appellant followed the body of the deceased to the hospital, where the basis of this revocation of probation occurred. Appellant was anxious to see the body and to assist the deceased's mother and sisters in gaining entrance to the emergency room. He three times attempted to enter the treatment room where the mother and sisters were located; upon being asked to leave by the police officer and the nurse he did so in an orderly manner. ¹ The testimony consistently shows that the approximately thirty people gathered in the waiting room, many of whom were friends or relatives of the deceased, behaved in an orderly fashion. When the appellant made the statement quoted in the majority opinion, one of the persons present replied, 'Get out of the way and stop this foolishness.' Nothing further occurred.

It appears to this writer that this revocation of probation is bottomed upon the statement made by appellant. It is important that we closely examine just exactly what the appellant said (emphasis added). One version states that appellant said: 'There aren't many in there, * * * If we all rushed them, we can get in; they can't stop us.' The other version was: 'There is only three or four of them, and If we storm in the door, there is nothing they can do about it.' It is to be noted that appellant nowhere made the outright assertion that the persons gathered in the lobby should join together and storm the door, he simply stated what appeared to be a fact; i.e., if they all stormed the door they could get in. Furthermore, the record reflects that appellant was not hollering or shouting, that he was at most speaking in a tone of voice which was 'loud enough to be heard by apparently several of the people in the vicinity.'

Speaking for the United States Supreme Court in Schenck v. United States, 249 U.S. 47 at 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, Mr. Justice Holmes stated: 'The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.' Compare Cantwell v. Connecticut, 310 U.S. 296 at 309--311, 60 S.Ct. 900, 84 L.Ed. 1213. See also Niemotko v. Maryland, 340 U.S. 268 at 273, 71 S.Ct. 325, 95 L.Ed. 267. The 'substantive evil' to be prevented in this case is a breach of the peace, a storming of the emergency room, or some type of willful Action which amounted to 'disorderly conduct.'

As this writer views the record, the situation presented is that of an accused who, having lost his friend in a sudden death, follows the body to the hospital and...