Hernandez v. State

599 S.W.2d 614, 1980 Tex. Crim. App. LEXIS 1240

Opinions

OPINION

ROBERTS, Judge.

After a jury found the appellant guilty Of burglary, the matter of punishment was referred to the jury. The State offered into evidence a “pen packet,” which comprised:

1. a page of certifications;

2. a copy of a commitment;

3. a copy of a judgment of conviction for horse theft;

4. a copy of a “Motion to Revoke Order for Adult Probation,” which recited (in substance) that the appellant had been placed on probation and that he had failed to comply with the conditions of probation by unlawfully breaking and entering a house occupied by Sam 0. Widener in Potter County on or about December 3,1973, with the intent to commit theft;

5. a copy of an order revoking probation, which found that the motion was true;

6. a copy of a sentence;

7. a copy of an amended sentence; and

8. a copy of fingerprints and other identification data.

The appellant objected to the exhibit on the ground that it “contains an extraneous offense on a non-final conviction.” The objection was overruled. In its final argument, over objection, the State made several references to the fact that the appellant’s probation had been revoked because he committed burglary of a house. The jury assessed punishment at 30 years’ confinement.

The appellant’s objection should have been sustained, and the exhibit should have been excluded so long as page 4 (the motion to revoke probation) was in it. In the punishment phase, the parties may offer evidence of the defendant’s “prior criminal record[, which] means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.” V.A.C.C.P., Article 37.07, Section 3(a). The question is whether a violation of the conditions of probation is any of those things.

In Cross v. State, 586 S.W.2d 478 (Tex.Cr.App.1979), we faced a very similar question under V.A.C.C.P., Article 38.29. That statute deals with impeachment of witnesses with criminal offenses. It restricts such impeachment to final convictions and suspended sentences and probations that have not expired; in that respect, it is substantially identical to V.A.C.C.P., Article 37.07, Section 3(a). We held that a revocation of probation was not within the ambit of Article 38.29. It is not a conviction, suspended sentence, or probation, but rather the result of an administrative proceeding at which the judge, acting in his discretion, applies a preponderance of the evidence standard. Therefore it was error to permit impeachment with a violation of the conditions of probation.

We must reach the same result here in construing virtually identical terms in Article 37.07, Section 3(a). The Legislature has restricted the meaning of “prior criminal record” to three findings of guilt beyond a reasonable doubt: final convictions, suspended sentences, and judgments granting probation. A finding of a violation of conditions of probation is none of those things. It is not within the terms of the statute. It was error to admit the proof of the violation.

The State argues that “pleadings” are admissible, citing Knox v. State, 487 S.W.2d 322 (Tex.Cr.App.1972). But the holding there was that the indictment or the complaint and information may be admitted in proving “prior criminal record.” Id. at 326. As we have seen, “prior criminal record” has a limited meaning in the statute. Not every motion is a State’s pleading,¹ nor is the order granting the motion a part of the “prior criminal record.”

The State also says that the order revoking probation was necessary to prove that the conviction for horse theft was final. The argument fails for two reasons: First, the order revoking probation, which contained no details of the probation violation, could have been admitted for that purpose without the motion to revoke; it was the motion that supplied the harmful detail. Second, it was not necessary to have such proof of finality in this case. The State’s reliance on Spiers v. State, 552 S.W.2d 851 (Tex.Cr.App.1977), is misplaced. There the judgments showed on their faces that the sentences were suspended; in such cases it is necessary to prove revocation. In this case the judgment does not show that probation was granted, nor did it otherwise appear in the record; in such cases the burden is on the defendant to go forward with proof that the conviction was not final. Cyrus v. State, 500 S.W.2d 656 (Tex.Cr.App.1973); Smith v. State, 409 S.W.2d 408, 409 (Tex.Cr.App.1966), cert. denied, 389 U.S. 822, 88 S.Ct. 45, 19 L.Ed.2d 73. Proof of the fact of probation revocation was unnecessary in this case.

The jury assessed a punishment well above the minimum. We cannot say the error was harmless.

The judgment is reversed and the cause is remanded.

1 . “The primary pleading in a criminal action on the part of the State is the indictment or information.” V.A.C.C.P., Art. 27.01. See also V.A. C.C.P., Art. 27.02 (distinguishing “motions” from “pleadings”),