Rutledge v. State, 44003

• Decision Date: 29 June 1971
• Docket Number: No. 44003,44003
• Citation: 468 S.W.2d 802
• Parties: Leonard RUTLEDGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 802

468 S.W.2d 802

Leonard RUTLEDGE, Appellant, v. The STATE of Texas, Appellee.

No. 44003.

Court of Criminal Appeals of Texas.

June 29, 1971.

Melvin D. Whitaker, B. R. Reeves, Palestine, for appellant.

Jim. D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

The record reflects that on December 9, 1968, after waiving trial by jury the appellant entered a plea of guilty before the court to an indictment charging him with murder. ¹ His punishment was assessed at 3 years, but the imposition of the sentence was suspended and he was placed on probation. Among the conditions of probation was the requirement that the appellant '(a) Commit no offense against the laws of this State or any other State or the United States.'

On June 30, 1970, the State filed its motion to revoke probation alleging the appellant had violated probationary condition (a) 'to wit: Was arrested for being intoxicated and then the said Leonard Rutledge threatened the Life of Kenneth Buckhanan and Charles Hudson on or about June 27, 1970 in Anderson County, Texas.'

After the hearing on said motion on August 28, 1970, the court revoked probation and entered a formal order in which it was stated that the appellant had 'violated the terms of his probation in that he was arrested for being intoxicated and then the said leonard Rutledge threatened the Life of Kenneth Buckhanan and Charles Hudson on or about June 27, 1970, in Anderson County, Texas.'

Sentence was then imposed.

Appellant contends the trial court abused its discretion since the evidence offered was insufficient to justify revocation.

Kenneth Buckhanan, a Texas Highway Patrolman, testified that on June 27, 1970, about 10:30 p.m. he responded to a disturbance call at the home of the appellant's father in Elkhart, Anderson County; that he saw the appellant 'laying (sic) beside the road in a bar ditch or close to a bar ditch in some grass.' He later clarified such testimony to show that the location 'was across the fence into a pasture.' Buckhanan related that in his opinion the appellant was intoxicated and he and his son Harry were placed under arrest and carried to jail by him and Deputy Sheriff Hodson. Buckhanan revealed that on the trip to jail appellant's son Harry stated 'he had a 30-30 which he would get us with'; that appellant agreed with 'Yes, son' and 'Yes, we'll get the son-of-a-bitches or something to this effect.'

Hudson testified he accompanied Buckhanan to the scene of the disturbance call where appellant was arrested for being intoxicated; that on the trip to jail Harry Rutledge, also under arrest, stated he had a 30-30 rifle and would take care of 'these son-of-a-bitches'; that the appellant would agree saying 'I'll help you' or 'Yes, that's right, we'll take care of them.'

Hudson also testified the appellant on one occasion during the trip said 'You goddamn Buckhanan, I'll take a pistol and I'll get you.' And then the appellant looked at Hudson and said, 'You, too, you son-of-a-bitch.'

Appellant testified he was visiting at his father's home on the occasion in question and had had 'a couple of beers' when a fight commenced between his son and his nephew; that he and his father tried to stop the fight; that someone threatened to call the police and when he saw the headlights of a car coming he hid in the weeds near a junk pile because he was on probation and did not want to get into any trouble. He denied making any threats. His testimony as to the occurrences at the house was corroborated by that of his father. His son, Harry, also supported his testimony and denied making any threats or hearing his father make any.

It is well established that the fact of an arrest, standing alone, is not sufficient to support a revocation of probation based upon a claim that the probationer has violated a penal statute contrary to the conditions of his probation. Ex parte Gomez, Tex.Cr.App., 241 S.W.2d 153. And the mere fact that a formal complaint has also been filed does not change the rule. Flores v. State, 169 Tex.Cr.R. 2, 331 S.W.2d 217; Wicker v. State, Tex.Cr.App., 378 S.W.2d 332.

It would thus appear that 'arrested for being intoxicated' does not show or reflect a violation of the probationary condition not to violate a penal law, although there was no objection to the allegation in the motion to revoke or the finding of the trial court on this ground.

If it be the State's contention that despite these defects the evidence showed the completed penal offense of 'drunk in a public place,' we cannot agree. There were no probationary restrictions placed upon the appellant concerning the consumption of alcoholic beverages, and the evidence does not show that if he was intoxicated that he was in public place. The officers found him lying in the grass over a fence. Such evidence is insufficient to justify revocation upon this ground. See Padillo v. State, Tex.Cr.App., 420 S.W.2d 712.

There was developed on cross-examination of the appellant the following testimony:

'Q. Have you been locked up several times for being drunk before this?

'A. No, sir.

'Q. Not before this night and after you were placed on probation?

'A. Several times, no.

'Q. How many times?

'A. One time.

'Q. One time? All right. Did you pay a fine?

'A. I paid a fine; I paid one for nothing.'

Nothing in the record shows that the Offense for which appellant paid his fine Occurred after he was placed on probation. See Mason v. State, Tex.Cr.App., 438 S.W.2d 556. Further, it is clear that the trial...