Ex Parte Feldman

593 S.W.2d 720, 1980 Tex. Crim. App. LEXIS 1084

• Court: Court of Criminal Appeals of Texas
• Decided: February 6, 1980
• Docket: 62952
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

This cause involves an application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

Feldman pled guilty on October 15, 1976, to burglary of a building. The court assessed punishment at three years, probated.

On December 8, 1977, he pled “true” to violations of two conditions of probation: that he “commit no offense against the laws of . the State of Texas;” and “that he report monthly to his probation officer.” He also testified that he violated these provisions.

The court, after finding that Feldman had violated the terms of his probation, passed the hearing generally. The hearing was re-convened on July 25, 1978, and probation was revoked.

Feldman now contends that the court erred in passing the hearing and revoking at a later date.

Upon a finding of “true” to any allegation of violation of probation, the court has three choices. It can, in its sole discretion, immediately revoke probation. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972). It can choose instead to continue probation, but if it does, then no further action may be taken based upon the violations already before the court. Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976). Or, it can continue the hearing, Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), keeping before it the violations already proven and permitting the careful consideration of mitigating or exacerbating circumstances, including the subsequent conduct of the probationer, before making a final decision whether to revoke.

The dissent considers use of the third course a violation of petitioner’s due process rights, because the court retains the power to revoke solely in its discretion, rather than requiring a formal evidentiary hearing upon new violations of conditions of probation.

A probation violator, if faced with a choice between immediate revocation and imprisonment and the postponement of final action, would in practically all cases choose the delay. He would consider himself to be “getting a break.”

The instant case bears this out. The record is devoid of any indication that Feld-man objected to the passing of the hearing. Nor is any motion on record seeking a speedy re-convening of the proceedings. It appears that Feldman, like the court, believed a continuance before the exercise of the court’s discretion in deciding whether to revoke probation to be in his own best interests. We agree.

The relief sought is denied.