Hardman v. State

614 S.W.2d 123, 1981 Tex. Crim. App. LEXIS 938

• Court: Court of Criminal Appeals of Texas
• Decided: March 18, 1981
• Docket: 66474
• Status: Published

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation.

On February 2,1978, in a trial before the court, appellant was convicted upon his plea of guilty of burglary of a vehicle. Punishment was assessed at 2 years, probated. On October 5, 1978, the State filed a motion to revoke appellant’s probation. On the same day the motion to revoke was filed, a warrant was issued for appellant’s arrest. The court held a hearing on the motion to revoke on April 16, 1980. Appellant’s probation was revoked at the conclusion of the hearing.

Initially, appellant contends his original conviction is invalid. He maintains the court erred in accepting his plea of guilty without having the indictment read or securing a waiver of such reading.

The judgment in this case recites in part: “... and the Defendant ... pleaded guilty to the offense charged in the indictment. ...” There was no objection to the approval of the record. This matter is raised for the first time in this appeal.

Art. 26.11, V.A.C.C.P., provides as follows:

“The name of the accused having been called, if no suggestion, such as is spoken of in the four preceding Articles, be made, or being made is disposed of as before directed, the indictment shall be read, and the defendant asked whether he is guilty or not, as therein charged.”

In Clardy v. State, Tex.Cr.App., 436 S.W.2d 535, the defendant presented a contention similar to that now presented and it was stated:

“Next, appellant urges that the trial court erred in accepting his plea of guilty without having the indictment read to him and without securing a waiver of such reading. He cites and relies upon Article 26.11, V.A.C.C.P., and Johnson v. State, 118 Tex.Cr.R. 291, 42 S.W.2d 782.

“The judgment in the case at bar clearly reflects that after waiver of trial by jury the appellant ‘was arraigned and in open court pleaded guilty to the charge contained in the indictment.’ Such instrument further reflects ‘The Court, having heard the indictment read, the defendant’s plea thereto, the evidence submitted, and the argument of counsel thereon * * *’

“If the recitations in the judgment and other parts of the record were not correct, then we observe no objection to the approval of the record was offered by the appellant. We further call attention to the provisions of Article 44.24, V.A.C.C.P. (Presumptions on Appeals) which require this Court to presume, among other things, that the defendant was arraigned and that he pleaded to the indictment unless such matter was made an issue in the court below, or unless it affirmatively appears to contrary from the record. See Boening v. State [Tex.Cr.App., 422 S.W.2d 469], supra.

“We find from what has been said that there has been a compliance with Article 26.11, supra, contrary to appellant’s contention.” Id. at 536 and 537.

We conclude that the record in the instant case does not support appellant’s contention concerning an alleged violation of Art. 26.11, supra. Moreover, in Reed v. State, Tex.Cr.App., 500 S.W.2d 497, it was held that a contention such as that now presented may not be raised for the first time on appeal.

Appellant next contends his original plea of guilty is invalid. He maintains the court failed to properly admonish him on the range of punishment in compliance with Art. 26.13, V.A.C.C.P.

The record from the plea of guilty proceeding reflects as follows:

“THE COURT: All right. In view of the — your plea of guilty and the evidence showing you’re guilty, the Court will find you guilty. And, uh, — First, let me say this. You’re familiar with the range of punishment, I don’t believe I’ve told you this, are you familiar with the range of punishment? In the case of Burglary of a Vehicle it is time of not less than two nor more than ten years and by a fine of $5,000.00 or both such fine and imprisonment. If you didn’t understand that you now would want to withdraw your plea of guilty you may do so. I didn’t explain that to you. You understand it and you still want to plead guilty?

“THE DEFENDANT: Yes.”

Prior to accepting a plea of guilty, the court is to admonish the defendant of the range of punishment attached to the offense. Art. 26.13(a)(1), supra. If the record does not affirmatively show an admonishment as to the range of punishment, the guilty plea is invalid. McDade v. State, Tex.Cr.App., 562 S.W.2d 487.

Although the court gave appellant the admonishment after accepting his plea, the record further reflects that appellant was given the option of withdrawing the plea following the belated admonishment on the range of punishment. Appellant persisted in entering a plea of guilty. Under such circumstances, we find the court substantially complied with giving the required admonishment. See Whitten v. State, Tex.Cr.App., 587 S.W.2d 156; Art. 26.13(c).

Finally, appellant contends the court abused its discretion in revoking his probation. He maintains that the revocation hearing held after the expiration of the probationary term was unauthorized because of a lack of a diligent effort to apprehend him following the filing of the motion to revoke.

In Cotton v. State, Tex.Cr.App., 523 S.W.2d 673, the Court stated:

“Although we do not condone arbitrary delays in revocation proceedings, we do reiterate that to preserve such contention it is incumbent upon the probationer to raise and develop the issue at such hearing to secure appellate review.”

Appellant did not raise his contention concerning a lack of diligence before or during the revocation hearing. Therefore, he has failed to preserve this alleged error in that it may not be raised for the first time on appeal. We find this contention to be without merit.

Appellant does not challenge the sufficiency of the evidence to support the court’s order revoking probation. Nevertheless, the dissent would reverse the revocation order on the basis of unassigned error by employing an estoppel theory under contract law.

The record reflects that appellant’s probation was revoked for failing to:

“Report to the Probation Department monthly in writing between the 1st and 10th day of each month, and in person within ten days of notice to do so; inasmuch as he, Steven Lyle Hardman, did fail to report in person and in writing for the months of March, 1978; April, 1978; May, 1978; June, 1978; July, 1978; August, 1978; and September, 1978;

“Pay the cost of Court in this cause in the sum of $65.20 within 60 days from the date of this judgment; inasmuch as he, Steven Lyle Hardman, paid a total of $0 over a period of eight months;

“Pay probation fee in the sum of $15.00 per month as provided by law in Article 42.12, Section 6A, of the Code of Criminal Procedures, commencing on the first day of the next month from the date of this judgment, and on the first day of each month thereafter during the term of this probation; inasmuch as he, Steven Lyle Hardman, paid $0 over a period of eight months;

“Pay restitution in the total sum of $25.00 at the rate of $25.00 per month commencing on the first day of the coming month, inasmuch as he, Steven Lyle Hardman, paid $0 over a period of eight months;

“Pay a Court appointed attorney’s fees, assessed as cost, as provided by law, in the sum of $250.00 at the rate of $50.00 per month commencing on the first day of the next month of the date of this judgment and a like sum on the first day of each month thereafter until all of said fee, assessed as cost, is paid in full; inasmuch as he, Steven Lyle Hartman, paid $0 over a period of eight months.”

Anthony Chaviers testified that he was a probation officer in Nacogdoches County. After appellant received probation, Chavi-ers discussed the terms and conditions of the probation with him. Chaviers did not supervise appellant’s probation because the reporting requirement was transferred to Harris County. Appellant was informed that he would be contacted with regard to when and with whom he was to report at the Harris County Probation Department.

Richard Brice testified that he was the chief probation officer for the 145th Judicial District Court. The State introduced a copy of an intrastate placement request sent by Brice to the Harris County Probation Department on April 24, 1978. The request was for appellant’s probation to be supervised in Houston, but all restitution, fees and court costs to be mailed by appellant to the Nacogdoches County Probation Department. Finally, a copy of a letter Brice sent to appellant in Houston was introduced into evidence. The letter is dated April 24, 1978, and instructed appellant to contact the Harris County Probation Department between May 8 and 12, 1978.

Peter Zama testified that he was an adult probation officer in Houston. Zama stated that he received the request from Nacogdo-ches County that appellant’s probation be supervised by the Harris County Probation Department. Zama wrote to appellant informing him of a date and time to report but, appellant never reported to the probation department in Houston. In July of 1978, the attempted supervision of appellant in Houston was terminated.

Brett Walker testified that he had been a probation officer in Nacogdoches County. Walker wrote to appellant in Houston on August 7, 1978, and informed him that he may be considered in violation of his probation by failing to report to the Harris County Probation Department. Appellant was instructed to contact a probation officer in Houston within 10 days of the letter.

The evidence thus reveals that appellant was instructed on at least four occasions to report to a probation officer in Houston and that he never did so. The dissent would excuse appellant’s failure to report in Houston because there is no evidence to show that appellant ever received the letters from Brice, Zama and Walker.

When a letter or other mail matter is properly addressed and mailed with postage prepaid, there is a rebuttable presumption of fact that it was received by the addressee as soon as it could have been transmitted to him in the ordinary course of the mails. National Aid Life Ass’n v. Driskill, 138 S.W.2d 238 (Tex.Civ.App.—Eastland 1940, no writ). In the instant case, there was no evidence to indicate that appellant never received the letters. It is therefore presumed that the letters were in fact received by appellant in Houston. Moreovér, to focus solely on the letters ignores the fact that Chaviers verbally instructed appellant concerning the reporting requirement in Houston.

Although not raised in this appeal, we find the evidence supports the court’s order revoking appellant’s probation for failing to report. Moreover, the rule in this State is that when a unit of government is exercising its governmental powers, it is not subject to estoppel. City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970).

The dissent further maintains that the evidence is insufficient to support the court’s order revoking appellant’s probation for four violations other than the failure to report. As noted above, appellant does not challenge the sufficiency of the evidence to support the revocation order.

The conditions of appellant’s probation required him to pay court costs of $65.20 within 60 days of the judgment $15.00 a month probation fee, restitution in the amount of $25.00 and $250.00 in attorney’s fees at the rate of $50.00 a month. The court admitted, without objection, a copy of a document styled “Probation Record” maintained for appellant’s probation by the Nacogdoches County Probation Department. The record contains spaces for written entries to be recorded when required probationary payments were made. The record introduced does not contain any entries indicating a payment by appellant of the required fees, costs or restitution.

The dissent maintains the pay record constitutes “zero evidence” because there was no testimony as to what the document represented or purported to represent. The dissent contends that the record was not self-proving and that there must be proof as to its contents. It is patently apparent that the dissent has confused the issues of admissibility of the record and the probative value of the record once admitted.

The record in question constitutes an official record admissible under the terms of Art. 3731a, V.A.C.S. With regard to the admissibility of that record, it was not self-proving in terms of the predicate which should be established for its introduction into evidence. However, there was no objection by appellant to the State’s failure to lay the proper predicate. The pay record as admitted therefore had probative value in this probation revocation proceeding. See Frazier v. State, Tex.Cr.App., 600 S.W.2d 271. The record itself constitutes evidence of the facts or non-facts recited therein. 1A R. Ray, Texas Practice, Sec. 1271 (3rd ed. 1980). We conclude the pay record supports the finding that appellant failed to pay the required fees, costs and restitution. No abuse of discretion is shown in the revocation of appellant’s probation.

The judgment is affirmed.