Richardson v. State

• Decision Date: 10 June 1981
• Docket Number: No. 3,No. 66347,66347,3
• Citation: 622 S.W.2d 852
• Parties: Bobby Gene RICHARDSON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 852

622 S.W.2d 852

Bobby Gene RICHARDSON, Appellant, v. The STATE of Texas, Appellee.

No. 66347.

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

June 10, 1981.

On Rehearing En Banc Oct. 21, 1981.

Cletus C. Schenk and J. Keaton Grubbs, Wichita Falls, for appellant.

Robert W. Hedrick, Graham, Robert Huttash, State's Atty., Austin, for the State.

Before DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

TEAGUE, Judge.

This is an appeal from an order revoking appellant's probation.

On July 19, 1979, appellant was indicted for the felony offense of possession of marijuana. He entered a plea of guilty, was found guilty, and on November 21, 1979, the trial court placed him on adult probation for a period of 10 years. On December 10, 1979, 19 days later, the state filed a motion to revoke appellant's probation, alleging that appellant unlawfully possessed marijuana in excess of four ounces, i. e., "... the said defendant did (on or about the 9th day of December, 1979) then and there unlawfully, knowingly and intentionally possess a usable quantity of marijuana of more than four ounces." On March 19, 1980, a hearing was conducted on the State's motion to revoke and, after the hearing, the trial court ordered appellant's probation revoked and sentenced him to not more than 10 years' confinement in the Texas Department of Corrections. The trial court informed the parties: "He is a nice old boy (referring to appellant) and all this, but he screwed up once and that's fine, but when he keeps on screwing up with drugs then I have no choice but to let him do time."

We affirm the trial court's order revoking appellant's probation.

Appellant raises several contentions challenging the validity of the trial court's order revoking his probation.

The burden of proof in a revocation of probation hearing is proof by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293 (1974). Appellate review of an order revoking probation is limited to the issue of whether the trial court abused its discretion. Battle v. State, 571 S.W.2d 20 (1978). In such a proceeding, the trial court is the sole trier of the facts, the credibility of the witnesses, and the weight to be given their testimony. Gonzalez v. State, 508 S.W.2d 388 (1974).

At the hearing, appellant testified and admitted that on December 7, 1979, he received a telephone call from a Rick Heath, a friend of an employee of his. Heath went to appellant's residence, where he told appellant he wanted some marijuana. "(Appellant) told (Heath) that (he) didn't have any." "I was on probation and I didn't have any to sell." "He (Heath) just kept staying there, staying around there." "He smoked some marijuana that we had in the house for personal use, and kept messing around, kept messing around, and I finally sold him some." As to why the marijuana was on the premises, appellant testified: "That was left from the time before when they came and raided the house." The following was also brought out on cross examination:

Q: But after telling him (Heath) this and knowing you were on probation when he gave you the money, you sold it to him, is that what you are saying?

A: Yes, sir.

Q: And this marijuana that you had for personal use I believe you testified?

A: That's right.

Q: But you don't use it?

A: No.

Q: Was this for the purpose of your wife using it?

A: That's right.

Appellant's defense to the motion to revoke was that he was entrapped into committing the offense.

Though we do not hold by this decision that entrapment may not be established as a matter of law or as a matter of fact in a revocation hearing, we do not find in this cause any evidence whatsoever that appellant was entrapped, as that term is defined in law. See V.T.C.A.Penal Code, Sec. 8.06.

No evidence was introduced or adduced to indicate that appellant possessed and delivered the marijuana to Heath because he was induced to do so by Heath, who was then acting under the auspices of the District Attorney and certain other law enforcement officials. See Gonzales v. State, 571 S.W.2d 11 (1978). It is true that if criminal design or intent originates in the mind of a law enforcement officer or his agent and a person is induced to commit a crime, which that person would not otherwise have committed except for such inducement, entrapment exists and may constitute a defense to a criminal offense. See Haywood v. State, 482 S.W.2d 855 (1972). However, where the criminal intent originates in the mind of the accused, the fact that the officer or his agent furnishes the opportunity or aids the accused in the commission of the crime affords no defense. See Holdaway v. State, 505 S.W.2d 262 (1974).

The evidence in this cause shows that as a result of receiving the proverbial "tip," law enforcement officials went to the county jail, where Heath was incarcerated, had Heath released, and then pointed Heath in the direction of appellant. Shortly thereafter, Heath went to appellant's home and purchased marijuana. Although appellant testified he told Heath he was on probation and did not have any marijuana to sell, appellant nevertheless admitted that he possessed and sold Heath marijuana. Heath actually smoked a "joint" in appellant's residence. Heath's "staying around there, staying around there," until appellant finally sold him marijuana, does not even come close to raising the defense of entrapment. See also Lopez v. State, 574 S.W.2d 563 (1978). Compare, however, Langford v. State, 571 S.W.2d 326 (1978).

We observe from (a) colloquy between counsel and the trial court that appellant's counsel was, at that time, attempting to have appellant testify at the hearing in a limited capacity to establish his purported defense of entrapment. When appellant's counsel made known he wanted to put appellant on the stand "for the limited purpose of the defense of entrapment," the trial court initially responded, "What now?" Thereafter, a discussion occurred regarding whether this should have been urged by way of a pre-trial motion or whether it could be urged at that stage of the proceedings. After further discussion, the trial court then made (the) statement, "Oh, bull, let's put him on for the limited purpose of entrapment."

Appellant's reliance on Sec. 8.06, supra, if that is what he relies upon, is misplaced, for that statute concerns entrapment as a defense to prosecution. See Bush v. State, 611 S.W.2d 428 (1981). It was noted in Bush, id., that "a promise to get appellant high on dope" is so unlikely to induce a person not already so disposed to commit the criminal offense charged as to not raise the issue of entrapment.

We also observe that in a revocation of probation hearing, if a defendant exercises his right to testify, he is subject to the same rules governing examination and cross-examination as any other witness. See Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); and Brumfield v. State, 445 S.W.2d 732 (1969).

Here, appellant exercised his right to testify at the hearing and made a judicial admission, by admitting not only that he possessed marijuana but also that he delivered marijuana to Heath, that he violated the condition of his probation that he not violate the laws of this State.

Of course, if appellant had established the defense of entrapment, another question would be presented. By the facts of this case, we hold he did not even come close to establishing that defense, either as a matter of fact or law.

Appellant's own admission that he violated the condition of probation that he violate no law of this State was sufficient, standing alone, to justify revoking his probation. See Gamble v. State, 484 S.W.2d 713, 715 (1972). Evidence which supports a finding that the appellant violated one condition of his probation is sufficient to sustain the order revoking probation. See McDonald v. State, 608 S.W.2d 192, 200 (1980). It is therefore not necessary for this Court to discuss appellant's contentions regarding a search warrant and the execution thereof.

As to appellant's claim that the trial court should have either modified or continued the probation or accorded him "shock probation," we find this contention is without merit. Houlihan v. State, 579 S.W.2d 213, 218 (1979). Once it is established that a probationer has violated his probation, it is discretionary with the trial court as to what disposition he makes and the decision he makes is non-reviewable by this Court. See Ex parte Feldman, 593 S.W.2d 720, 721 (1980).

Appellant lastly challenges the validity of his original plea of guilty. However, there is no transcription of those proceedings before us, nor did appellant challenge the validity of his original conviction at the hearing on the motion to revoke probation. This contention has no merit. See Maddox v. State, 591 S.W.2d 898 (1979). In any event, this record does not support his contention.

The order revoking appellant's probation is therefore affirmed.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation.

On November 21, 1979, appellant pled guilty to possession of marijuana of a quantity in excess of four ounces. Punishment was assessed at ten years, probated. On March 19, 1980, appellant's probation was revoked after the court found that he had on December 9, 1979 violated the conditions of his probation by "unlawfully, knowingly and intentionally possess(ing) a usable quantity of marijuana of more than four ounces."

Appellant contends the court abused its discretion in revoking his probation. Specifically, he urges that the trial court improperly rejected his defense of entrapment (V.T.C.A.Penal Code, Sec. 8.06), and further that appellant's judicial admissions to possession of marijuana cannot be used as proof of violation of the terms of probation. ¹ On original submission, a panel of the court concluded that the trial court did not abuse its discretion in revoking...