Traylor v. State

• Decision Date: 15 February 1978
• Docket Number: No. 56919,No. 2,56919,2
• Citation: 561 S.W.2d 492
• Parties: Robert Lee TRAYLOR, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 492

561 S.W.2d 492

Robert Lee TRAYLOR, Appellant,

v. The STATE of Texas, Appellee.

No. 56919.

Court of Criminal Appeals of Texas, Panel No. 2.

Feb. 15, 1978.

Melvyn Carson Bruder, Dallas, for appellant.

Henry Wade, Dist. Atty., Steve Wilensky and Jan E. Potts, Asst. Dist. Attys., Dallas, for the State.

OPINION

Before ONION, P. J., and DOUGLAS and ODOM, JJ.

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On January 16, 1975 the appellant entered a plea of guilty in a bench trial to the offense of burglary of a building and was assessed a punishment of three (3) years' imprisonment. Imposition of sentence was suspended, and the appellant was placed on probation subject to certain conditions, including "(a) Commit no offense against the laws of this or any other State or the United States."

On July 30, 1975 a motion to revoke probation was filed. No action seems to have been taken on such motion.

On April 5, 1976 another motion to revoke probation was filed alleging that "On or about the 28th day of March, 1976, in Dallas County, Texas, Robert Lee Traylor did then and there intentionally and knowingly cause bodily injury to Mike Martinez by striking him with his fist."

On May 11, 1976 ¹ the court conducted a hearing on such motion, at which time the appellant entered a plea of "true." In the record is a written instrument entitled, "Plea of True and Stipulation of Evidence in Probation Revocation Hearing," dated May 11, 1976. The instrument, which was signed and sworn to by the appellant on that date, contained the following handwritten statement: "On March 28, 1976 I intentionally and knowingly cause (sic) bodily injury to Mike Martinez by hitting him with my fist." At the conclusion of the hearing, the court stated, "The Court accepts your plea of 'true', finds the allegations to in fact be true and recesses this hearing pending the Court's making a decision on the motion. The defendant is ordered released and is to continue to report to the Probation Officer pending the Court's decision."

On November 16, 1976 another motion to revoke probation was filed alleging, among other things, that on November 11, 1976 the appellant was unlawfully in possession of heroin. On January 11, 1977 the appellant was again before the trial court where the judge called to the appellant's attention the fact that he had previously entered a plea of "true" and that the allegations had been found to be true and that the hearing had been recessed. ² The record then reflects:

"THE COURT: And, at the time we did that, I believe I told you that I was not denying the Motion to Revoke your Probation, and I wasn't granting it. In other words, I didn't want to revoke your probation back then, did I?

"THE DEFENDANT: No, you did not. But, I must have misunderstood you. I know it was not revoked, I understand that.

"THE COURT: It wasn't reinstated, either, but it was left exactly the way it was, with the understanding that you would be released, and I would take my time about deciding whether I wanted to revoke you.

"Now, we are here today because I have made my mind up.

"THE DEFENDANT: Okay."

The court then ordered the revocation of probation. Sentence was imposed and notice of appeal was given.

Relying upon Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976), the appellant contends the court abused its discretion. In Wester the question presented was whether a trial judge following a revocation hearing may continue a defendant on probation (although there is an adequate basis for revocation) and then subsequently upon report of another probationary violation revoke probation without motion by the State or a hearing basing the revocation upon the ground shown at the earlier hearing.

In Wester the defendant entered a plea of "true" to the first count of the revocation motion, at which time the State abandoned the other two counts and recommended that Wester be continued on probation. The court stated that probation would not be revoked and that Wester would be continued on probation. Probationary conditions were then amended and a notation was added, "Automatic Revocation if any other Violation." Later the court, without a hearing, noted on the docket sheet that probation was to be revoked upon allegation of "New Theft." Still later the defendant was brought to court and informed that this probation had been "continued," but upon information as to an attempted burglary since that time probation was to be revoked.

There this court wrote:

"Likewise, it follows that when a revocation proceeding has been had and the defendant continued on probation in the discretion of the court (although there was an adequate basis for revocation demonstrated at the hearing), the continuation cannot subsequently be arbitrarily withdrawn at the whim of the trial court or upon mere fact of an arrest. To hold otherwise would violate due process, due course of the law of the land and fundamental fairness. The record here clearly supports the fact that the trial judge automatically revoked upon learning of a new arrest and erred in so doing.

"We cannot conclude that the attempt in the formal revocation order to base the revocation on appellant's plea of 'true' at the hearing where he was continued on probation calls for a different result."

We conclude that the instant case is distinguishable on its facts from Wester, and more closely akin to Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974). In Sappington the court heard evidence at a revocation hearing that Sappington had committed a burglary in violation of probationary conditions. No oral ruling was made at the conclusion of the hearing, and no...