Stephenson v. State

• Decision Date: 31 October 1973
• Docket Number: No. 46046,46046
• Citation: 500 S.W.2d 855
• Parties: Willie Clarence STEPHENSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 855

500 S.W.2d 855

Willie Clarence STEPHENSON, Appellant, v. The STATE of Texas, Appellee.

No. 46046.

Court of Criminal Appeals of Texas.

Oct. 31, 1973.

Don Stokes of Stokes & Stokes, Marshall, for appellant.

Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of burglary on February 3, 1971, assessed a three-year sentence and placed on probation. One of the terms of his probation was that he commit no offense.

On July 17, 1971, appellant was convicted of rape and sentenced to death.

On December 27, 1971, the State filed a motion to revoke probation alleging appellant violated the terms of his probation by committing an offense. Probation was revoked following a hearing on January 13, 1972. His appeal in the rape case was pending when the revocation hearing took place. ¹

Appellant contends that none of the evidence supporting the order revoking probation was admissible or properly before the trial court.

The same trial judge who presided at the rape trial heard the motion to revoke probation. Further, the same attorney who had by appointment represented the appellant during the trial of the rape case represented him at the revocation of probation proceeding. The proof offered at the probation hearing consisted of excerpts from the testimony of the prosecutrix in the rape case, which was introduced and read into the record by the prosecutor.

Appellant argues that the prosecutrix should have been required to again testify before the trial judge during the revocation proceedings. We contends that he would have cross-examined the prosecutrix with greater vigor before the court than he did in the trial before the jury.

The record does not reflect that the appellant subpoenaed or attempted to bring the prosecutrix before the court for testimony in the revocation proceedings.

We do not find an abuse of discretion by the trial judge in the revocation proceeding in admitting, hearing and reconsidering the testimony that he had heard during the rape trial. Barrientez v. State, Tex.Cr.App.,500 S.W.2d 474.

We find the evidence sufficient to support the order of the trial court in revoking probation.

See also Hilton v. State, Tex.Cr.App., 443 S.W.2d 844.

Appellant also urges that the court did not have jurisdiction to hear and revoke probation.

Appellant had been granted probation in the 124th District Court of Gregg County. A motion to revoke probation was filed in that court, but the record does not show that it was acted upon. Thereafter, in the 188th District Court of Gregg County, an order was entered transferring the case from that court to the 71st District Court of Harrison County, under the provision of Section 5, Article 42.12, Vernon's Ann.C.C.P. A motion to revoke probation was then filed and heard in the 71st District Court where the order revoking probation was entered.

Appellant argues that there is no order in the record transferring the case from the 124th District Court of Gregg County to the 188th District Court of Gregg County, consequently the 188th District Court did not have jurisdiction to transfer the case to the 71st District Court and any action taken in the 71st District Court was a nullity.

Appellant seemingly bases his contention on the order transferring jurisdiction to the 71st District Court. There order is headed, 'In the 188th Judicial District Court of Gregg County, Texas' and states in the body of the order that on February 3, 1971, in the 188th District Court appellant 'in Cause No. 8598--B' had been found guilty and placed on probation. The latter reference is clearly in error according to all other entries in the record including the order in the 71st District Court revoking probation. The heading on the order in question was an error of the drafter in a county where both the 124th and 188th District Courts have concurrent jurisdiction.

Further, at no time during the proceedings in the 71st District Court did appellant attempt to raise any questions concerning the propriety of the transfer order. He raises such matter for the first time on appeal. His contention was, therefore, not timely raised. See Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853; and Richard v. State, 97 Tex.Cr.R. 448, 261 S.W. 587. See also Flores v. State, Tex.Cr.App., 487 S.W.2d 122.

Finding no reversible error, the judgment is affirmed.

ONION, Presiding Judge (dissenting).

Appellant presents two contentions for reversing the order which revoked his probation. First, he contends that the 71st District Court of Harrison County was without jurisdiction to enter such an order; and, second, he contends that said court erred in admitting testimony from a separate and distinct trial since no predicate was laid. I entirely disagree with and dissent from its disposition of the second contention by the majority.

For appellant's probation to be revoked, the State was obligation to prove that he violated a condition of that probation by committing the alleged offense against the laws of this State. I believe that the State utterly failed to satisfy this obligation and that the revocation of probation should be reversed.

A. Due Process and Confrontation.

Appellant contends that the court erred in allowing the district attorney to read into evidence, over objection, excerpts from a transcription of a court reporter's notes of a prosecutrix's testimony at a separate and distinct trial without any predicate having been laid. At the revocation hearing a former assistant district attorney for Harrison County testified that he had prosecuted the appellant for rape in Cause No. 806, and he identified appellant as the person he prosecuted. Thereafter, over repeated objection, the district attorney read from a transcription which he Asserted was from the court reporter's notes in Cause No. 806 and certified by her, approved as 'true and correct' by the prosecutor and appellant's counsel (who also represented him at the revocation hearing) and by Judge John Furrh, who presided at that hearing. The prosecutor read only excerpts from the transcription of the prosecutrix's testimony. No reason at all was given for the witness' absence, and no predicate was laid in accordance with Art. 39.01, Vernon's Ann.C.C.P. Although the appellant objected repeatedly, citing Art. 39.01, Vernon's Ann.C.C.P., the certification and approval of such transcription were not introduced into evidence but only asserted by the prosecutor. Appellant called no witnesses and the probation was revoked.

The testimony of the former assistant district attorney did show that this appellant was tried for rape, thereby avoiding the problem of independent proof that the probationer was the same person tried for the rape offense. Cf. Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971). Nevertheless, this witness did not testify with regard to the result of that trial. Therefore, the State still had not met the burden of proving the alleged violations of probation conditions as required by Zane v. State, 420 S.W.2d 953 (Tex.Cr.App.1967). To meet that burden the prosecutor read the excerpts of the complained of testimony. The failure of the prosecutor to lay a predicate as required by Art. 39.01, Vernon's Ann.C.C.P., before reading that testimony denied due process of law.

While it has been said on a number of occasions that proceedings to revoke probation are not criminal trials in the constitutional sense, Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774 (Tex.Cr.App.1951); Leija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3 (Tex.Cr.App.1958); Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969), and cases there cited, this statement is not support for the proposition that 'anything goes' in a revocation hearing.

Since the earlier decisions of this court concerning the nature of revocation proceedings, it is now clear that while a state is not constitutionally required to provide for probation and revocation proceedings as a part of its criminal process anymore than it is required to provide for appellate review, but when it does, then due process and equal protection of the law are fully applicable thereto. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See Hoffman v. State, 404 P.2d 644 (Alaska 1965); People v. Price, 24 Ill.App.2d 364, 164 N.E.2d 528 (1960); Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779 (1966); Blea v. Cox, 75 N.M. 265, 403 P.2d 701 (1965). See also this writer's original dissent in Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968). Cf. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).

Moreover, certainly now it is well established that revocation of probation hearings are a part of the criminal law process 'where substantial rights of a criminal accused may be affected' and to which federal constitutional standards are applicable. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); McConnell v. Rhay; Stiltner v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Crawford v. State, supra; Eiland v. State, 437 S.W.2d 551 (Tex.Cr.App.1969).

Refusing to belabor the right versus privilege dichotomy as determinative of the applicability of due process in parole revocation hearings, the Supreme Court has emphasized the possibility of 'grievous loss' to the individual as the better criteria. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This writer has previously noted the grievous loss which results from the revocation of probation. ¹

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court Generally held that the due process mandates accorded a parolee during revocation proceedings by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), were also to be...