Frazier v. State

600 S.W.2d 271, 11 A.L.R. 4th 990, 1980 Tex. Crim. App. LEXIS 1243

• Court: Court of Criminal Appeals of Texas
• Decided: June 11, 1980
• Docket: 61365
• Status: Published

Opinions

OPINION

PHILLIPS, Judge.

This is an appeal from a revocation of probation. Although appellant does not challenge the sufficiency of the evidence, we note in the interest of justice that there is no evidence to support the revocation.

On December 19, 1977, appellant pleaded guilty to the offense of aggravated assault on a police officer. Punishment was assessed at 6 years’ imprisonment but the sentence was suspended and appellant was placed on probation. On September 18, 1978, the State filed a motion to revoke probation alleging that Frazier had violated the conditions of his probation by failing to report to his probation officer since March 21, 1978, by failing to pay a $250 fine, and by failing to pay his probation service fee.

Craig Valashek, Assistant Probation Officer for Wichita County, was the sole witness at the revocation hearing. He testified that appellant’s probation officer was unavailable to testify that day, and that the district attorney had asked him to familiarize himself with appellant’s probation file in order to present evidence at the hearing. He then testified to his recollection of the notations in the file showing that appellant had failed to adhere to the above conditions of probation. The probation office records themselves were not offered in evidence.

Valashek testified to facts of which he had no personal knowledge but which were supposedly evidenced by notations in appellant’s file. His testimony was hearsay, and was not subject to any exception to the hearsay rule. Although the documents in the file may have been admissible as business records pursuant to Article 3737e, V.A. C.S., they were not offered in evidence, nor did Valashek read them into evidence. Compare Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975).

Appellant did not object to the admission of Valashek’s testimony at the hearing. Hearsay is without probative value, however, and will not be considered in determining the sufficiency of the evidence. Lumpkin v. State, supra; Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975). This well-established rule of evidence has been applied to probation revocation hearings. Maden v. State, 542 S.W.2d 189 (Tex.Cr.App.1976). Compare Johnson v. State, 498 S.W.2d 198 (Tex.Cr.App.1973).

Valashek’s testimony was the only evidence that the State introduced to show that appellant violated the conditions of his probation. There being no evidence to support the State’s motion to revoke probation, the court abused its discretion in ordering appellant’s probation revoked.

Over the dissent of this author the majority of this Court recently held in Davenport v. State, 574 S.W.2d 73 (Tex.Cr.App.1978), that the double jeopardy protections of the Constitution of the United States and the Texas Constitution do not apply to persons who are subjected to probation revocation proceedings. Therefore, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), do not apply to this case. Although the evidence is insufficient to support the revocation of probation, the State is not prohibited from reprosecuting this cause.

The judgment is reversed and the cause remanded.