Faron Russell Lockhart v. State

• Court: Court of Appeals of Texas
• Decided: September 13, 2012
• Docket: 07-12-00077-CR
• Status: Published

Opinion

NO. 07-12-0077-CR NO. 07-12-0083-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 13, 2012

FARON RUSSELL LOCKHART, Appellant V.

THE STATE OF TEXAS, Appellee _____________________________

FROM THE 100TH DISTRICT COURT OF COLLINGSWORTH COUNTY;

NOS. 2740 & 2741; HONORABLE STUART MESSER, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Faron Russell Lockhart, was convicted of aggravated assault with

a deadly weapon and deadly conduct in 2009. However, he was placed on

probation for ten years for each offense. On September 22, 2011, the State

m o ve d t o r e vo ke t h a t p r o b a t i o n b e ca u se h e vi o l a t e d i t s c o n d i t io n s by

using methamphetamine. The court found the allegation to be true, revoked

appellant's probation, and sentenced him to ten years confinement in each cause.

He now seeks to overturn those judgments by contending that 1) the trial court erred in admitting his confession because it failed to comport with art. 38.22 § 3 of the Code of

Criminal Procedure, and 2) the evidence was insufficient to show that he received

notice of the conditions of his probation. We affirm the judgments.

Issue 1 – Confession

Regarding the confession issue, he contends that it was inadmissible because it

failed to comply with art. 38.22 § 3 of the Code of Criminal Procedure. The latter

mandates that both written and oral statements made as a result of custodial

interrogation must satisfy various requirements to be admissible. None of those

requirements were allegedly met here. We overrule the issue.

The purported statements involved appellant’s admission that he ingested

methamphetamine after being placed on probation. The admissions were made to his

probation officer who had directed him to provide a urine sample. Appellant had been

directed to appear at the local jail to undergo testing. Upon arriving at same, his initial

effort to urinate was unsuccessful, so he remained there until he could comply with the

request. He never did, however. Instead, after supposedly trying to urinate for two

hours, appellant met his probation officer in a hallway and admitted to taking

methamphetamine. Thereafter, the probation officer asked about its frequency of use.

Eventually, appellant executed a written document reiterating what he had told the

probation officer.

As previously stated, art. 38.22 regulates the use of statements garnered during

custodial interrogations. Statements made to a probation officer during required

reporting are not generally subject to that article. Bustamante v. State, 493 S.W.2d

921, 922 (Tex. Crim. App. 1973); Holmes v. State, 752 S.W.2d 700, 700-01 (Tex.

2 App.–Waco 1988, no pet.) (holding that statements made by the defendant to his

probation officer that he had been drinking did not occur during custodial

interrogation); Waxler v. State, No. 06-08-00015-CR, 2008 Tex. App. L EXIS 3552, at

*3 (Tex. App.–Texarkana May 15, 2008, no pet.) (not designated for publication)

(holding that statements made by probationers to community supervision officers

while not under arrest are not subject to art. 38.22). The statements at bar could

reasonably be construed as of that ilk.

Additionally, there is no evidence that the probation officer was acting on behalf

of or in conjunction with law enforcement in investigating a crime. This is of import

because authority indicates that it is only when a probation officer is investigating a

crime that he must comply with art. 38.22. See Huff v. State, No. 12-10-00477-CR,

2011 Tex. App. LEXIS 5460, at *12 (Tex. App.–Fort Worth July 14, 2011, no pet.) (not

designated for publication) (stating that the only time a probation officer is required to

give art. 38.22 warnings is when police and the probation officer are investigating a

criminal offense in tandem). The evidence at bar allowed the factfinder to conclude

that the probation officer here was not investigating a crime but rather simply having

appellant comply with the conditions of his probation.

Finally, the record fails to disclose that any questions of any kind were

propounded to appellant while at the jail and before he admitted to his drug use. All

that can be said from the record is that he had simply been directed to provide a urine

sample for testing, which testing never actually occurred due to appellant’s initial oral

admission. No one has cited us to any authority holding that a demand for a urine

3 sample as part of one’s probation constitutes the kind of interrogation contemplated by

art. 38.22. Nor are we in a position to so hold given the record before us.

Sufficiency of the Evidence

In his next and final issue, appellant contends that due process required that

he be notified about the conditions of his probation before the latter could be

revoked for their violation. And, because allegedly no evidence illustrates that he

was so notified, the trial court’s decisions are wrong. We overrule the issue

because a probation officer testified that she read them to appellant immediately

after his initial convictions. That is some evidence upon which a factfinder could

reasonably deduce, by a preponderance of the evidence, that appellant received

the requisite notice.

Accordingly, the judgments are affirmed.

Brian Quinn Chief Justice Do not publish.