Wester v. State
| Decision Date | 20 October 1976 |
| Docket Number | No. 52542,52542 |
| Citation | 542 S.W.2d 403 |
| Parties | Darrell Craig WESTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This appeal is from an order revoking probation.
On original submission the appeal was dismissed for lack of notice of appeal. A supplemental transcript reflects that notice of appeal was timely given. The appeal is reinstated.
The question presented is 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.
The record reflects that on January 22, 1975, the appellant entered a plea of guilty to forgery of a credit card sales slip and punishment was assessed at seven (7) years. Imposition of sentence was suspended and the appellant placed on probation subject to certain probationary conditions, including
On July 10, 1975, a motion to revoke probation was filed. On August 21, 1975, a first amended (a three count) motion to revoke was filed. The first count alleged appellant had violated his probation
'1) By committing the offense of unlawfully carrying weapons, in that on or about June 25, 1975, in Jefferson County, Texas, Darrell Craig Wester did then and there knowingly and intentionally carry on and about his person an illegal knife, namely: a knife with a blade over 5 1/2 inches long, against the peace and dignity of the State.'
On August 27, 1975, a hearing was conducted on such motion. The record reflects that the court informed the appellant of the first count or ground of the motion and inquired, 'is that true or untrue.'
The State then abandoned the other two counts in the revocation motion and without hearing evidence the court found 'as a fact that the allegation contained in Ground One is true.' 1 The State recommended the appellant be continued on probation. The court then stated: 'The probation granted Will not be revoked and defendant will be continued on probation. . . .' The terms of probation were amended. 2 On the order amending the probationary conditions are found the words 'No Reduction if Revoked' and 'Automatic Revocation if any other Violation.'
The docket sheet entry on September 5, 1975, reflects, Such entry was signed by the trial judge.
On September 22, 1975, the appellant was brought to court, where the trial judge noted that appellant had been 'continued' on probation on August 27, 1975. The record then reflects:
'The Court has just received information from the Probation Department, indicating Mr. Wester was involved in an attempted burglary on September first, nineteen-seventy-five.
'Has Mr. Hawthorn explained this to you, Mr. Wester?
The docket sheet entry on the same date reflects, 'Probation having been revoked Sept. 5, 1975, defendant duly sentenced to 7 years pen. credit for jail time of 1 month and 10 days.' It was signed by the trial judge.
The written order revoking probation filed September 25, 1975, reflects that the basis of the revocation was the unlawfully carrying a knife, at which time appellant had been continued on probation.
It is clear that after appellant was continued on probation there was no further motion to revoke filed nor was there an additional evidentiary hearing.
It is well established that the fact of an arrest, standing alone, is not sufficient to support a revocation of probation based on a claim that probationer has violated a penal statute contrary to the conditions of his probation, and the mere fact that a formal complaint has also been filed does not change the rule. Rutledge v. State, 468 S.W.2d 802 (Tex.Cr.App.1971); Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974).
Clearly the court could not have properly revoked upon report of the commission of a new offense and probationer's arrest.
Article 42.12, § 8, Vernon's Ann.C.C.P., provides for the issuance of warrant and for the arrest of a probationer for violation of probationary conditions. After arrest, it provides in part:
'Thereupon, the court shall cause the defendant to be brought before it and after a hearing without a jury, May either continue or revoke the probation and, if probation is revoked, shall proceed to dispose of the case as if there had been no probation.' (Emphasis Supplied.)
It is clear from the statute that upon a revocation hearing the discretion to either continue or revoke rests in the discretion of the trial judge. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972); Soliz v. State,171 Tex.Cr.R. 376, 350 S.W.2d 566 (1961); Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59 (1955).
This discretion is not unlike the discretion granted the trial court in deciding whether to grant probation (when that issue is presented to the court rather than a jury). See Article 42.12, § 3, Vernon's Ann.C.C.P. The granting or refusing of probation in such cases lies within the discretion of the trial judge. See, E.g., Watson v. State, 418 S.W.2d 822 (Tex.Cr.App.1967); Redd v. State, 438 S.W.2d 565 (Tex.Cr.App.1969); Kerry v. State, 452 S.W.2d 480 (Tex.Cr.App.1970); Trautschold v. State, 466 S.W.2d 586 (Tex.Cr.App.1971); McNeese v. State, 468 S.W.2d 800 (Tex.Cr.App.1971); Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972); Kirven v. State, 492 S.W.2d 468 (Tex.Cr.App.1973); Lee v. State, 516 S.W.2d 151 (Tex.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975).
However, when probation has once been granted by the trial court, this court has repeatedly held probation should not be arbitrarily withdrawn by the trial court and the trial court is not authorized to revoke without having found that the probationer has violated a condition of his probation after a hearing in accordance with Article 42.12, § 8, Vernon's Ann.C.C.P. See Wozencraft v. State, 388 S.W.2d 426 (Tex.Cr.App.1965); Campbell v. State, 456 S.W.2d 918, 922 (Tex.Cr.App.1970); Jackson v. State, 464 S.W.2d 153 (Tex.Cr.App.1971). See also United States v. Taylor, 449 F.2d 117 (9th Cir. 1971). And the burden of proof in revocation proceedings to show a violation of a probationary condition is upon the State. See, e.g., Zane v. State, 420 S.W.2d 953 (Tex.Cr.App.1967); Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969); Perry v. State, 459 S.W.2d 865 (Tex.Cr.App.1970); Campbell v. State, supra, footnote #1, although that proof is only by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974). Cf. Kelly v. State, 483 S.W.2d 467 (Tex.Cr.App.1972).
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 3 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.
The State relies upon Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974), and Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973). Both of these cases are somewhat similar to the instant case, but are distinguishable.
In Sappington the court heard evidence at a revocation hearing on March 1, 1973, that the defendant had committed a burglary in December, 1972, in violation of his probationary conditions. At the conclusion of the hearing the court made no immediate ruling. An examination of the record in Sappington reflects the statement of facts is silent as to any ruling, and there was no docket entry or written order entered concerning the court's ruling. The defendant had requested the opportunity to undergo treatment with the United States Public Health Service under the Narcotic Addict Rehabilitation Act, 42 U.S.C. § 3413. Apparently because of this request no ruling was made. On June 4, 1973, the court entered a written order revoking probation for the violation (burglary) shown at the March 1st hearing. Sappington asserted the court entered such order because of his arrest on June 2, 1973, on a narcotics charge. There is, however, nothing in the Sappington record to show that the court had knowledge of the June 2nd arrest or if it had, had acted to revoke on the basis of that arrest. In the instant case, the court made a ruling and actually continued the appellant on probation, modifying conditions, and subsequently revoked upon learning of the latter arrest.
In Bass v. State, supra, the defendant was placed on probation in 1966 for seven years for theft of filed papers. On February 9, 1970, the...
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Rogers v. State
...Appellant primarily relies on this Court's decisions in 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). The State responds by asserting that the trial judge merely continued the hearing, therefore he did not exercise his authority to......
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...in nature. We therefore hold that the doctrine of res judicata does not apply. See and cf. Bass v. State, supra; Wester v. State, Tex.Cr.App., 542 S.W.2d 403; Sappington v. State, Tex.Cr.App., 508 S.W.2d 840; Traylor v. State, Tex.Cr.App., 561 S.W.2d 492. The contention is In his last conte......
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