Bennett v. State

Court of Appeals of Texas

Bennett v. State

705 S.W.2d 806, 1986 Tex. App. LEXIS 12430

CourtCourt of Appeals of Texas

DecidedFebruary 12, 1986

DocketNo. 04-85-00036-CR

StatusPublished

Cited by5 cases

This text of 705 S.W.2d 806 (Bennett v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bennett v. State, 705 S.W.2d 806, 1986 Tex. App. LEXIS 12430 (Tex. Ct. App. 1986).

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OPINION

REEVES, Justice.

Appellant raises two grounds of error, contending: first, that he was denied a “neutral and detached” hearing body, and second, that he was denied the effective assistance of counsel.

A probationer is entitled to certain due process protections in a revocation proceeding. They include:

[Wjritten notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, the opportunity to be heard in person and present witnesses, a ‘neutral and detached’ hearing body, and a written statement by the fact finders as to the evidence relied upon and the reasons for revoking probation.

Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App.1979).

We have read the statement of facts. The hearing was held in an informal manner, with the judge asking all of the questions. However, the judge gave the appellant and his attorney full opportunity to call witnesses and develop appellant’s defenses, if any. The appellant readily admitted he had violated 3 conditions of his probation and explained his reasons for not complying with the conditions.

[807]*807Appellant has failed to call to our attention any specific acts of the trial court that constituted a denial of appellant’s right to a neutral and impartial hearing body. Although we might not approve the manner in which the hearing was conducted, we are of the opinion that appellant’s due process rights were not violated.

The appellant has failed to establish his contention that his counsel at the revocation hearing was ineffective. Under the test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) appellant must establish that the performance of his attorney was deficient and that the deficient performance prejudiced the defense so as to deprive appellant of a fair trial. In evaluating whether the performance deprived appellant of a fair trial the proper standard requires the appellant to show that there is a reasonable possibility that, but for the attorney’s unprofessional errors, the result of the revocation hearing would have been different. The appellant admitted that he violated the terms of his probation. In the light of appellant’s admission, it is difficult to see how his attorney’s conduct could effect a different result.

The judgment of the trial court is affirmed.

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OPINION

REEVES, Justice.

Appellant raises two grounds of error, contending: first, that he was denied a “neutral and detached” hearing body, and second, that he was denied the effective assistance of counsel.

A probationer is entitled to certain due process protections in a revocation proceeding. They include:

[Wjritten notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, the opportunity to be heard in person and present witnesses, a ‘neutral and detached’ hearing body, and a written statement by the fact finders as to the evidence relied upon and the reasons for revoking probation.

Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App.1979).

We have read the statement of facts. The hearing was held in an informal manner, with the judge asking all of the questions. However, the judge gave the appellant and his attorney full opportunity to call witnesses and develop appellant’s defenses, if any. The appellant readily admitted he had violated 3 conditions of his probation and explained his reasons for not complying with the conditions.

[807]*807Appellant has failed to call to our attention any specific acts of the trial court that constituted a denial of appellant’s right to a neutral and impartial hearing body. Although we might not approve the manner in which the hearing was conducted, we are of the opinion that appellant’s due process rights were not violated.

The appellant has failed to establish his contention that his counsel at the revocation hearing was ineffective. Under the test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) appellant must establish that the performance of his attorney was deficient and that the deficient performance prejudiced the defense so as to deprive appellant of a fair trial. In evaluating whether the performance deprived appellant of a fair trial the proper standard requires the appellant to show that there is a reasonable possibility that, but for the attorney’s unprofessional errors, the result of the revocation hearing would have been different. The appellant admitted that he violated the terms of his probation. In the light of appellant’s admission, it is difficult to see how his attorney’s conduct could effect a different result.

The judgment of the trial court is affirmed.

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705 S.W.2d 806, 1986 Tex. App. LEXIS 12430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-state-texapp-1986.

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