Aguilar v. State

542 S.W.2d 871, 1976 Tex. Crim. App. LEXIS 1129
CourtCourt of Criminal Appeals of Texas
DecidedNovember 3, 1976
Docket53189 and 53190
StatusPublished
Cited by15 cases

This text of 542 S.W.2d 871 (Aguilar v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aguilar v. State, 542 S.W.2d 871, 1976 Tex. Crim. App. LEXIS 1129 (Tex. 1976).

Opinions

OPINION

DAYIS, Commissioner.

Appeals are taken from orders revoking probation. A plea of guilty was entered by appellant to the offense of robbery by firearms on August 27, 1973, and punishment was assessed at five years probated. On July 25, 1975, appellant pleaded guilty to the offense of aggravated robbery and punishment was assessed at ten years probated.

Amended motions to revoke appellant’s probations in both causes were filed on December 22,1975, alleging that appellant had violated her probations in that,

“. . . on or about the 29th day of August, 1975, in the County of El Paso and State of Texas, the said defendant, LORRAINE AGUILAR did then and there requested (sic) permission to go to Los Angeles, California, from her Probation Officer Terry Lund, which was granted on the agreed to and ordered provision that the defendant, LORRAINE AGUILAR, would return to El Paso, Texas, on September 7,' 1975, and further report to her probation officer, Terry Lund, on September 8, 1975. The defendant, LORRAINE AGUILAR, then failed to return to the confines of El Paso County, Texas, on September 7, 1975, as directed by her Probation Officer, Terry Lund. Additionally, the defendant LORRAINE AGUILAR, also failed to report to her Probation Officer, Terry Lund. Each and either of these acts constitutes separate violations of the defendant’s, LORRAINE AGUILAR, conditions of probation.
“Additionally, the defendant, LORRAINE AGUILAR, neglected to obtain the Court’s permission to leave the confines of El Paso County, Texas prior to absenting herself from the confines of El Paso County, Texas, during the approximate period of September 1, 1975, through September 19,1975. Such negligence constitutes an additional and separate violation of the defendant’s LORRAINE AGUILAR, conditions of probation.
“Additionally, on the 25th day of October, 1975, in the County of El Paso and State of Texas, the said defendant, LORRAINE AGUILAR, did the (sic) and there unlawfully, knowingly and intentionally deliver to PATRICIA SOTORE, a controlled substance, namely: Heroin. Such act constitutes a violation of the defendant’s conditions of probation.”

The record reflects that after a hearing on January 20, 1976, the court entered orders in both causes revoking appellant’s probations, said orders reciting:

“. . . that said defendant violated the terms of his probation in the respect set out in said Motion to Revoke Adult Probation in that she: on the 29th day of August, 1975, in the County of El Paso and State of Texas, the said defendant, LORRAINE AGUILAR, did request permission to go to Los Angeles, California, from her probation officer which was granted on the ordered provision that she would return to El Paso, Texas, on September 7, 1975, and report to her probation officer on September 8, 1975. The defendant, LORRAINE AGUILAR, neglected to obtain the Court’s permission to leave the confines of El Paso County, Texas, thus violating one of her conditions of probation, and then absented herself from the confines of El Paso County [873]*873during the approximate period of September 1, 1975 through September 19, 1975.
“Additionally, the defendant, LORRAINE AGUILAR, violated the conditions of her probation by her failure to return to El Paso County on September 7, 1975, as directed by her probation officer, and by her failure to report to her probation officer on September 8, 1975, as directed by her probation officer. Each and either of these acts constitutes separate violations of the defendant’s, LORRAINE AGUILAR, conditions of probation.”

At the outset, appellant contends that the trial court abused its discretion in revoking appellant’s probations “on the ground that she neglected to obtain the court’s permission to leave El Paso County because the defendant did not have fair notice that her probation officer could not grant her permission to leave.”

Condition “9” of the probations provided that appellant “Remain within the confines of El Paso County or as directed by the Court.”

Terry Lund testified that appellant was placed on her “case load” in the probation department “sometime probably in July of 1975,” and she issued a travel permit to appellant to visit her sister in Los Angeles on August 29, 1975, and that such permit provided that appellant was to report to the “West Texas Regional Adult Probation Department upon return 9/7/75.” The reporting date of September 7 was changed to September 8 when Mrs. Lund discovered that the former date was Labor Day. Lund further stated that it was the policy to leave discretion in the probation department in the matter of granting permission to leave the county for thirty days or less. According to Lund, appellant had never requested permission to leave before the incident in question.

Condition “1” of appellant’s probations requires that she “Obey all orders of the Court and the Probation Officer.”

The State points to the fact that appellant was placed on two probated sentences, had received copies of same, and well knew that the court required that permission to leave was to be obtained from the court.

In Campbell v. State, Tex.Cr.App., 456 S.W.2d 918, this Court said:

“. . . while a state is not constitutionally required to provide for probation and revocation proceedings as a part of its criminal process any more than it is required to provide for appellate review, when it does, then due process and equal protection of the law is fully applicable thereto.”

We find it to be an abuse of discretion to revoke probation on the basis of appellant’s failure to obtain the court’s permission to leave town when appellant had received a permit authorizing such a trip from her probation officer and had been admonished to obey the orders of her probation officer in the judgment of probation.

Appellant contends that the court abused its discretion in revoking probation “on the ground that she failed to return to El Paso County on September 7 and report on September 8, 1975.”

We find no condition of probation which required appellant to return to El Paso County on September 7.

Condition “6” of appellant’s probation judgments required that she “Report to the Probation Officer as required.” In Parsons v. State, Tex.Cr.App., 513 S.W.2d 554, cited by appellant, this Court held:

“The condition in the probation order that he report to the probation officer ‘as directed’ was not enforceable because it did not specify when he was to report and it was an unlawful delegation of authority of the probation officer to direct him to report.”

See Smith v. State, Tex.Cr.App., 527 S.W.2d 896.

The State responds by citing Brown v. State, Tex.Cr.App., 508 S.W.2d 366, where it was stated:

“The exercise of improperly delegated authority by a probation officer cannot [874]*874make the delegation effective, although on

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Aguilar v. State
542 S.W.2d 871 (Court of Criminal Appeals of Texas, 1976)

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Bluebook (online)
542 S.W.2d 871, 1976 Tex. Crim. App. LEXIS 1129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aguilar-v-state-texcrimapp-1976.