Washington v. McSpadden

• Decision Date: 19 September 1984
• Docket Number: No. 69129,69129
• Citation: 676 S.W.2d 420
• Parties: Michael A. WASHINGTON, Applicant, v. Michael T. McSPADDEN, Judge, Respondent.
• Court: Texas Court of Criminal Appeals

Page 420

676 S.W.2d 420

Michael A. WASHINGTON, Applicant, v. Michael T. McSPADDEN, Judge, Respondent.

No. 69129.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 19, 1984.

Walter O. Gill, Jr., Marcia Johnson, James Stafford, Houston, for applicant.

Stanley G. Schneider, Houston, for respondent.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

This is a petition for writ of mandamus.

On March 29, 1983, the applicant appeared in the 209th District Court of Harris County; the respondent, Michael T. McSpadden, Judge, presided. The record reflects the purpose of this appearance was for the entry of a guilty plea in trial court Cause No. 368, 781, for the felony offense of burglary of a building. The applicant was represented by counsel.

During the course of the hearing to accept the guilty plea the respondent trial judge gave the applicant the following admonishment:

"[RESPONDENT]: Let's have a 'yes, sir,' every time you say 'yes,' I want a 'sir' behind it. Do you understand that? Or you are not going to get probation, if you want probation, you are going to get 30 days. You understand that?

"[APPLICANT]: Yes, sir."

Subsequent to the admonishment the respondent again alluded to the possibility of sentencing applicant to 30 days in jail if he failed to respond to questions with "sir":

"[RESPONDENT]: Your are to permit your probation officer to visit you in your home or elsewhere.

"You are to work faithfully at suitable employment.

"Are you working now?

"[APPLICANT]: Yes, part-time.

"[RESPONDENT]: Where do you work?

"Let's have a 'yes, sir,' I swear to God--how long does it take you to listen? Every time a 'yes' comes out of your mouth, you better say 'yes, sir.' Do you understand that?

"[APPLICANT]: Yes, sir.

"[RESPONDENT]: Do you think 30 days would help him? Seriously. I don't like giving anyone probation that isn't deserving, at least, the consideration.

"Do you think this is a joke, Mr. Washington?

"[APPLICANT]: No, sir.

"[RESPONDENT]: Watch what you say. The next 'yes' that comes out of your mouth without a 'sir' behind it, you are going to get 30 days. I can do that to you. Do you understand that?

"[APPLICANT]: Yes, sir.

"[RESPONDENT]: You are starting off real well. I'll probably see you in about a month.

"Anytime you leave the county limits, you are supposed to get permission from the probation officer.

"If your work takes you outside the county limits or you want to go visit people, you must have permission before you leave the county limits.

"Again, let's go back to where you are working. Where are you working, Mr. Washington?

"[APPLICANT]: I'm working with my uncle in South Park Denny's Cleaners (sic).

"[RESPONDENT]: Can you get steady work?

"[APPLICANT]: Yes.

"[RESPONDENT]: Thirty days. That's another condition. You are going to do 30 days.

"You can go in today.

"[DEFENSE COUNSEL]: Can he have one more chance?

"[RESPONDENT]: No.

"As a special condition, you are going to do 30 days. So, for 30 days just thank me every single day you spend there because there will be no good time at all. It will be 30 straight days.

"Please think of me, Mr. Washington, every single day you spend in jail. Start saying 'sir' to people. You understand that?

"[APPLICANT]: Yes, sir.

"[RESPONDENT]: Thirty is all I can do to you. I'd have done 60 if I could; but you are going to do 30 days and learn how to be responsible; and this is the first step."

This Court has jurisdiction to issue writs of mandamus pursuant to Tex.Const. Art. V, Sec. 5. In order for mandamus to issue, the party seeking mandamus must show that there is no other adequate remedy available and that the act sought to be mandated is a ministerial act. Tex. Bd. of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex.Cr.App.1979). Mandamus is not available to compel a discretionary act as distinguished from a ministerial act. Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979).

Applicant contends ¹ that the respondent lacked either the authority or power to require him to serve 30 days in jail as a condition of his probation. Whether a defendant is entitled to probation is for the trial court, in its discretion, to decide. Burns v. State, 561 S.W.2d 516, 517 (Tex.Cr.App.1978).

Article 42.12, Sec. 6b(a) and (b), V.A.C.C.P., expressly provided:

"(a) When the court having jurisdiction of the case grants probation to the defendant, in addition to the conditions imposed under Section 6 of this article, the court may require as a condition of probation that the defendant submit to a period of detention in a penal institution to serve a term of imprisonment not to exceed 30 days or one-third of the sentence whichever is lesser.

"(b) The imprisonment imposed shall be treated as a condition of probation, and in the event of a sentence of imprisonment upon the revocation of probation, the term of imprisonment served hereunder shall be credited toward service of such subsequent imprisonment."

In the instant situation the respondent acted under the express authority of the statute. Likewise, the trial judge is given a wide variety of terms and conditions which may be imposed when granting probation. Article 42.12, Sec. 6, V.A.C.C.P. Since the granting of probation is clearly within the judge's power, the decision to require applicant to serve 30 days as a condition is clearly a discretionary act. Mandamus is not available. The record reflects that the trial judge imposed the thirty day jail term after twice admonishing applicant of the consequences of his failing to respond to questioning as requested. We find no abuse of discretion in the trial court's action. ² Accordingly, the relief requested is denied.

MILLER, Judge, concurring.

While the majority opinion is sound as far as it goes, some further elaboration of the legislative changes recently promulgated in the areas of plea bargaining is in order lest the trial judge in this case believe that he may repeat this sort of chicanery with our judicial blessing.

It is initially important to clarify just what a judge has discretion to do in certain guilty plea situations. Specifically, once a judge exercises his discretion and decides to accept a plea bargain, does he then also have discretion to add conditions of probation not referred to in the plea bargain? Put another way, may the parties bind a judge as to what conditions of probation he may initially impose?

Trial judges are given broad discretion in the area of sentencing. The sentencing sub-areas of probation and plea bargaining are germane to the case at bar.

In the area of probation: Trial judges have the discretion to grant or deny an application for probation. See generally Art. 42.12, Notes 103-105, V.A.C.C.P. If they decide to grant probation, they have wide discretion to impose reasonable terms and conditions of probation. Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976). They have discretion to modify conditions of probation at any time during the period of probation. Art. 42.12, Sec. 6(a), V.A.C.C.P., provides:

"The court having jurisdiction of the case shall determine the terms and conditions of probation and may, at any time, during the period of probation alter or modify the conditions; ..."

In the area of plea bargaining: Prior to 1977 the law was clear that the trial judge was not in any way bound by the plea bargain and regardless of any plea bargain he could assess punishment anywhere within the punishment range. Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975). The defendant, by freely and voluntarily pleading guilty, legally took his chances on what the punishment might be and was simply stuck with the unforseen decision of the trial judge. Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975). In order to correct the perceived inadequacy in such a system the legislature took up the suggestion of Judge Roberts' dissent in Gibson, supra:

"... when the trial judge rejects a plea bargain, the defendant, upon timely request, should have the right to withdraw his guilty plea." Id. at 77.

Art. 26.13, V.A.C.C.P., was amended by the Acts 1977, 65th Leg., p. 748, ch. 280, Sec. 1, eff. Aug. 29, 1977, so that the trial judge who is not going to follow a plea bargain, as is clearly in his discretion, must inform the defendant of this fact and allow him to withdraw his plea. ¹ Realizing that plea bargaining is indispensible to the criminal justice system the legislature simply codified the teachings of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (cited by the majority).

In view of this codification, we are today faced with the question of whether a trial judge, who in his discretion has decided to follow a plea bargain where probation is recommended, must impose only those terms and conditions of probation that are a part of the plea bargain. Does he retain the same discretion to set whatever terms and conditions he sees fit where there is a plea bargain as where there is no plea bargain? ²

Art. 26.13 should be interpreted to mean that terms and conditions of probation, as well as the granting of probation itself, may be plea bargained for as surely as any other aspect of punishment. In fact probation conditions often are, and are in this case, the most severe consequences of the punishment hearing. As stated by Justice Whitham in his concurring opinion in Fogle v. State, 667 S.W.2d 296, 299 (Tex.App.--Dallas, 1984):

"As dissatisfaction with various aspects of the criminal justice system grows, there will be a tendency on the part of judicially activist trial judges to devise 'innovative' terms and conditions of probation. [footnote ommitted] These 'innovative' terms and conditions may well become the punishment imposed for the crime; subject to the requirement that it be reasonable."

Actually, "interpreted" used above is a bit of a misnomer. We need only "take note" of the plain meaning of the words of the amendments to ...