Stanfield v. State
| Decision Date | 31 October 1979 |
| Docket Number | No. 59945,59945 |
| Citation | 588 S.W.2d 945 |
| Parties | Thomas Earl STANFIELD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Peter A. Lesser, Dallas, for appellant.
Henry M. Wade, Dist. Atty., Ronald D. Hinds and Hugh Lucas, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
OPINION ON STATE'S MOTION FOR REHEARING
This is an appeal from an order revoking appellant's probation.
The opinion on original submission is withdrawn.
On November 23, 1976, appellant pled guilty to the offense of burglary of a building. Punishment was assessed at three years; the imposition of sentence was suspended and probation was granted.
On January 5, 1978, the State filed a motion to revoke probation alleging appellant had failed to report to his probation officer as directed. At a hearing on January 11, 1978, appellant pled true to this ground. The court, however, delayed its decision to revoke until a hearing on March 17, 1978, at which time probation was revoked.
The State, on rehearing, seeks to show that the court did not abuse its discretion in delaying its decision to revoke until the March hearing.
The opinion on original submission relies on Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979), and Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1978). These cases are distinguishable.
In Wester, Wallace and Furrh v. State, 582 S.W.2d 824 (Tex.Cr.App.1979), the court conducted a hearing on the motion to revoke and found an allegation true. The conditions of probation were modified and later revoked because of another violation; the revocation being grounded upon the finding of "true" at the initial hearing. This was held to be an abuse of discretion.
The instant case is similar to Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978). There, the defendant pled true to violating his probationary terms at a May 11, 1976 hearing. The court accepted the plea and found that the allegation was in fact true. The hearing was then recessed pending the court's decision on the motion. On November 16, 1976, another motion to revoke was filed alleging a violation on November 11, 1976. At a hearing on January 11, 1977, the trial court called the defendant's attention to his previous plea of true and revoked probation based on its prior findings.
This Court held in Traylor that there was no abuse of discretion because it was clear that the trial court took its decision to revoke under advisement and nothing in the record indicated that the court used the subsequent violation as a basis for the revocation. See Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974); Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973). Likewise, in Furrh v. State, supra, after finding an abuse of discretion because the court modified the terms of probation and later revoked without a further violation being shown, the Court stated:
"While the court could have continued the Hearing and delayed exercise of its discretion to continue, modify or revoke the probation, as was done in Traylor v. State, Tex.Cr.App., 561 S.W.2d 492, and apparently in Sappington v. State, Tex.Cr.App., 508 S.W.2d 840, that option is not what occurred in this case."
The court in this case chose not to revoke probation even though he found that it had been violated. There was no new motion to revoke. The transcript from the March 17, 1978 hearing recites that the following exchange occurred:
"THE COURT: On November 23rd, 1976; you were granted three years probation in that cause, and then on January 11th, 1978, upon a hearing on motion to revoke your probation, hearing was held on that date, arraignment was waived and a plea of you made a plea of true to that motion in writing and orally to me.
The evidence was presented, both sides closed all of the evidence, concluded the entire motion to revoke probation hearing at that time, and I found as a fact, on that date, that you had violated Condition D of the probation terms.
Do you recall all of that?
The docket entry for January 11, 1978 also stated: "Hearing passed generally capias withdrawn."
The trial judge, from what he said, revoked probation upon the evidence adduced at the January hearing, not upon the subsequent violation. There were no modifications of the probationary terms. Nothing in our previous decisions construes the withdrawal of a capias as a continuation of probation, and we decline to so hold here. The court merely continued the hearing and took its decision to revoke under advisement; an option specifically approved of in Furrh.
The hearing was properly continued and nothing in the record suggests that the trial court acted to revoke on the basis of new offenses. 1
Finding no abuse of discretion, the motion for rehearing is granted and the judgment is affirmed.
This cause was correctly decided on original submission. There is absolutely no need to stretch the facts as the majority now does to affirm the order revoking probation.
On November 23, 1976 the appellant entered a guilty plea before the court to the offense of burglary of a building, V.T.C.A., Penal Code, § 30.02. Punishment was assessed at three (3) years' imprisonment. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain probationary conditions, including:
"(d) Report to the probation officer as directed; to wit: Monthly."
On January 5, 1978, the State filed a motion to revoke alleging that the appellant had failed to report to his probation officer as directed during the months of June, October and November, 1977. On January 12, 1978 the court conducted a hearing on said motion. Appellant entered a plea of "true." The appellant took the witness stand and admitted he did not report during June, October and November, 1977 to the probation officer. He related on direct examination he couldn't get out of bed for six weeks because he had a rupture and "the other time" he was just scared to report because he did not have a job as he was supposed to have. He testified he needed surgery for his condition, and if continued on probation, would have the surgery at Parkland Hospital as he could not hire a private doctor, that he would get a job and report to the probation officer faithfully.
At the conclusion of the hearing, the record reflects:
A docket sheet entry dated January 11, 1978 (a date at variance with the other evidence in record as to the date of the revocation hearing) reflects: "Hearing passed generally capias withdrawn" following by the trial court's signature.
A capias for appellant's arrest was shown to have been issued on the same day bearing the trial judge's signature. The following date an entry on the docket sheet recited "3-2-78 Reset to Mar 17 '78." No new motion to revoke probation is shown to have been filed.
On March 17, 1978, the appellant appeared in open court apparently as a result of his arrest on the capias issued March 1, 1978. The record reflects no hearing, but the following:
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Rogers v. State
...September 26, 1980. Thus, under the holdings of this Court in Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), Stanfield v. State, 588 S.W.2d 945 (Tex.Cr.App.1979) and Ex parte Feldman, 593 S.W.2d 720 (Tex.Cr.App.1980), no proof of any subsequent violations was necessary. "... after a he......
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Wright v. State, s. 68534
...the probationer "would consider himself to be 'getting a break,' " Feldman, at 722, and that trial court "gave appellant a break," Stanfield, at 947, note 1. As to this notion appellant now says that "the 'break' given Appellant cost him the due process of law." For reasons stated in Rogers......
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Ex parte Feldman, 62952
...a report of a new probationary violation is made and accomplish what Wester, Wallace and Furrh condemn. See Stanfield v. State, 588 S.W.2d 945 (Tex.Cr.App.1979) (Dissenting Opinion). I believe the principle of Wester, Wallace and Furrh was violated. For the reasons stated, I ROBERTS, PHILLI......