Russell v. State
| Decision Date | 30 January 1985 |
| Docket Number | No. 04-83-00499-CR,04-83-00499-CR |
| Citation | 685 S.W.2d 413 |
| Parties | Richard RUSSELL, appellant, v. STATE of Texas, appellee. |
| Court | Texas Court of Appeals |
Gerald H. Goldstein, San Antonio, for appellant.
Sam Millsap, Jr., Dist. Atty., E. Dickinson Ryman, Linda C. Anderson, Asst. Criminal Dist. Attys., San Antonio, for appellee.
Before ESQUIVEL, TIJERINA and DIAL, JJ.
This is a probation revocation case. Appellant was charged by indictment with aggravated promotion of prostitution and, on trial before the court, pleaded nolo contendere. The trial court deferred adjudication of guilt and placed appellant on probation for a term of six (6) years and further assessed a Five Thousand Dollar ($5,000.00) fine.
At issue is condition of probation number sixteen (16), which requires appellant to comply completely with each of the provisions of attached "Orders and Judgment of Permanent Injunction, No. 81-CI-16876," incorporated by reference in full. 1 The State filed a motion to enter adjudication of guilt and revoke probation, alleging that appellant violated Condition No. 16 as follows:
VIOLATED CONDITION NO. 16: PARAGRAPH I
That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July A.D., 1983, did then and there fail to comply completely with each of the provisions of attached "Orders and Judgment of Permanent Injunction, No. 81-CI-16876," incorporated by reference herein in full, against the peace and dignity of the State, and in violation of Condition No. 16.
VIOLATED CONDITION NO. 16: PARAGRAPH II
That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July, A.D., 1983, did then and there use the premises at 451 McCarty Road, San Antonio, Texas, for the promotion and aggravated promotion of prostitution and compelling prostitution, against the peace and dignity of the State, and in violation of Condition No. 16.
VIOLATED CONDITION NO. 16: PARAGRAPH III
That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July A.D., 1983, did then and there permit, allow, maintain, operate, supervise, manage, control, finance, rent, lease, and occupy the premises at 451 McCarty Road, San Antonio, Texas, for the purposes of promoting and aggravated promotion of prostitution, against the peace and dignity of the State, and in violation of Condition No. 16.
Appellant pleaded not true and after a full evidentiary hearing the court found that appellant had violated the terms of his probation. He was thus adjudicated guilty of aggravated promotion of prostitution. The probation was revoked and sentence was imposed.
Appellant contends that the trial court erroneously revoked his probation for violation of Condition No. 16 as follows: (1) condition of probation No. 16 is not included in the conditions of probation provided by statute; the court added this condition in violation of article II, section 1 of the Texas Constitution; (2) appellant was denied due process by the court's failure to file written findings; (3) Condition No. 16 was vague and indefinite and therefore invalid; (4) Condition No. 16 does not have a reasonable relationship to the treatment of the accused and the protection of the public; and (5) the evidence was insufficient to prove the violation by a preponderance of the evidence.
It is well settled that no appeal may be taken from the hearing in which a trial court determines to proceed with an adjudication of guilt on the original charge. Daniels v. State, 615 S.W.2d 771, 771 (Tex.Crim.App.1981); Wright v. State, 592 S.W.2d 604, 606 (Tex.Crim.App.1980); Williams v. State, 592 S.W.2d 931, 932 (Tex.Crim.App.1979). Because all of appellant's grounds of error involve the hearing from which he cannot appeal, he has presented nothing for our review. Nevertheless, appellant has raised questions of constitutional dimension. We will, therefore, address his grounds of error.
Appellant first complains that Condition No. 16 is unconstitutional because it is not one of the conditions statutorily provided by the legislature. The conditions of probation which the court may impose when probation is recommended by the jury are limited to the statutory conditions provided for in TEX.CODE CRIM.PROC.ANN. art. 42.12, § 6 (Vernon Supp.1984). Morales v. State, 541 S.W.2d 443, 445 (Tex.Crim.App.1976). In the instant case, probation was granted by the court. Therefore, the trial court is not limited to the probationary conditions set forth in § 6 of art. 42.12, supra, provided the condition is a reasonable one. Chacon v. State, 558 S.W.2d 874, 875 (Tex.Crim.App.1977). The court has wide discretion in selecting reasonable conditions of probation; however, the conditions should have a reasonable relationship to the treatment of the accused and the protection of the public. Macias v. State, 649 S.W.2d 150, 152 (Tex.App.--El Paso 1983, no pet.).
Condition No. 1 provides that appellant while on probation is not to "commit nor be convicted of any offense against the laws of the State of Texas; or any other State or of the United States." Condition No. 16 prohibits appellant from engaging directly or indirectly in the same criminal activity that resulted in his prosecution. Therefore, Condition No. 16 could be construed as an expansion of Condition No. 1, providing the desired specificity. See Tyra v. State, 644 S.W.2d 865, 869 (Tex.App.--Amarillo 1982, no pet.), citing Flores v. State, 513 S.W.2d 66, 69 (Tex.Crim.App.1974). There is nothing in this record to indicate that the trial court's imposition of the added condition of probation constituted an infringement of legislative powers. Ground of error one is overruled.
In his second ground of error, appellant complains that the trial court erred in failing to make written findings in support of its order revoking probation. Appellant cites Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656, 664 (1973), which held that minimum requirements of due process include a written statement by the fact finder as to the evidence relied on and reasons for revoking probation. Texas courts, however, require a defendant to make a request for specific findings. In the absence of such a request, the failure of the trial court to make specific findings in the order revoking probation is not reversible error. King v. State, 649 S.W.2d 42, 46 (Tex.Crim.App.1983, en banc); Bradley v. State, 608 S.W.2d 652, 655 (Tex.Crim.App.1980); Clapper v. State, 562 S.W.2d 250, 251 (Tex.Crim.App.1978). In the instant case, appellant concedes that no request was made for specific findings. Appellant was present and represented by counsel at the hearing on the motion to revoke his probation. He presented witnesses on his behalf and contested every issue. The order revoking probation is supported by a preponderance of competent evidence introduced at the evidentiary hearing. Unlike McDonald v. State, 608 S.W.2d 192 (Tex.Crim.App.1980), there was no reliance by the trial court on "judicial notice" of the testimony in the prior proceedings. Therefore, we conclude that the finding recited in the court's order that the evidence sustained the violations alleged in the motion to revoke probation satisfies due process requirements. The second ground of error is overruled.
Appellant next complains that Condition No. 16 is vague and indefinite and does not inform him with sufficient certainty as to the prohibited conduct because: (1) the number of persons who might disobey the injunction is indefinite; and (2) "using the premises ... in any ... manner for the promotion or aggravated promotion of prostitution or compelling prostitution" does tell him what he must do to avoid revocation. Generally, he argues that paragraphs II and III do not give him notice of the proscribed conduct. It is obvious that the language of the injunction tracks TEX. PENAL CODE ANN. § 43.04(a) (Vernon 1974), Aggravated Promotion of Prostitution, which provides in pertinent part as follows:
A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.
A similar challenge that the statute was void for being vague and indefinite was made in Floyd v. State, 575 S.W.2d 21, 24 (Tex.Crim.App.1978), appeal dismissed, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979), and the court held:
Both common logic and the rules of grammar dictate that a prostitution enterprise that uses prostitutes necessarily uses them for prostitution.... The terms complained of by appellant do not render Section 43.04 so ambiguous and vague that men of ordinary intelligence would guess at its meaning or differ as to its application.... Appellant had sufficient notice of the type of conduct proscribed by the statute and therefore he was not deprived of procedural due process.
See also Wood v. State, 573 S.W.2d 207, 219 (Tex.Crim.App.1978).
In Curtis v. State, 548 S.W.2d 57, 58 (Tex.Crim.App.1977), cited by appellant, the "condition" merely recited, "remain within a specified place." In this case, condition No. 16 specifically prohibits appellant from directly or indirectly using the premises at 451 McCarty Road, San Antonio, Texas, for promotion and aggravated promotion of prostitution. This, without more, is sufficient notice to appellant of the conduct proscribed. "There is always value in making all conditions explicit, primarily as an aid to the offender in increasing his understanding of what is expected of him." Flores v. State, 513 S.W.2d 66, 69 (Tex.Crim.App.1974). The third ground of error is overruled.
The fourth ground of error is that Condition No. 16 does not have a reasonable...
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