Hill v. State

480 S.W.2d 200, 1971 Tex. Crim. App. LEXIS 1590

Opinions

OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation.

On September 12, 1969, the appellant, after a change of venue from Stephens County, entered a plea of guilty before the court, to an indictment charging him with assault with intent to kill; punishment was assessed at five years imprisonment. The imposition of the sentence was suspended and the appellant placed on probation subject to certain conditions, among which was the provision that he “commit no offense against the laws of this state . . .”

On December 17, 1970, the State filed a motion to revoke probation which alleged that appellant “on or about the 10th day of October, 1970, . . . violated his probation by driving and operating a motor vehicle upon a public highway in Stephens County, Texas, while intoxicated and under the influence of intoxicating liquor.”

Appellant filed an affidavit of indigency on December 22, 1970, at which time counsel was appointed. Eight days later, on December 30, the hearing on the State’s motion to revoke probation was conducted.

Officers J. D. Kvapil and Thomas F. Hefner, Jr., of the Texas Department of Public Safety, testified that in addition to traveling at a speed in excess of the posted limit, appellant was driving his automobile “erratically”, and was “weaving from side to side of the road.” Results of the breathalyzer test administered by the officers revealed appellant’s blood alcohol content to be .22 percent.¹ Each officer testified that in his opinion the appellant was intoxicated.

Appellant alleges abuse of discretion in the trial court’s having conducted the hearing less than ten days after the appointment of counsel. Reliance is had upon Article 42.12, Sec. 3b, Vernon’s Ann.C.C.P., which provides in part as follows:

“If such a defendant [in a proceeding to revoke probation] has no counsel, it shall be the duty of the court to inform him of his right to show cause why his probation should not be revoked; and if such a defendant requests such right, the court shall appoint counsel in accordance with Articles 26.04 and 26.05 of this Code to prepare and present the same; and in all other respects the procedure set forth in said Sec. 8 of this Article shall be followed.”

Article 26.04, V.A.C.C.P., states:

“(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.

“(b) The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

While probation revocation hearings are criminal proceedings “where substantial rights of a criminal accused may be affected,” Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, (1967), and “cannot be isolated from the context of the criminal process,” Campbell v. State, 456 S.W.2d 918, 921 (Tex.Crim.App.1970), this court has consistently held that a hearing on a motion to revoke probation is not a trial in a constitutional sense. Campbell v. State, supra; Hulsey v. State, 447 S.W.2d 165 (Tex.Crim.App.1969); Cooper v. State, 447 S.W.2d 179 (Tex.Crim.App.1969); Tate v. State, 365 S.W.2d 789 (Tex.Crim.App.1963).

In Gist v. State, 160 Tex.Cr.R. 169, 267 S.W.2d 835 (1954), it was held that there was not an abuse of discretion when a hearing on the State’s motion to revoke probation was conducted five days after the motion was filed. More recently, in Campbell v. State, supra, this court indicated that the strict provisions of Article 26.-04 are not mandatory in revocation of probation proceedings. By footnote in Campbell it was said that where counsel has been appointed and the revocation hearing is held less than ten full days from the date of counsel’s appointment a written waiver of such preparation period signed by the probationer and his appointed counsel in accordance with Article 26.04, V.A. C.C.P., is not required if they are willing to proceed.²

Appellant’s contention is raised for the first time on appeal. Appellant and his counsel proceeded with the hearing without objection. The record reflects no motion for a postponement or a continuance. There is no claim of injury to appellant and no attempt is made to show harm. Careful consideration of the record gives no indication of prejudice to appellant’s rights. We find compliance with the requirement of the Sixth Amendment to the United States Constitution and Mempa v. Rhay, supra, that a defendant shall be afforded the aid and assistance of counsel at a probation revocation hearing. No abuse of discretion on the part of the trial court has been shown.

The order revoking appellant’s probation and imposing sentence is affirmed.

Opinion Approved by the Court.

ROBERTS, J., not participating.

1 . State’s witness Foster, a chemist for the Department of Public Safety who had received special training in the administration and analysis of breathalyzer tests, testified that in his work he employed the standard recommended by the American Medical Association and the National Safety Council whereby anyone whose blood alcohol level is .10 percent or above is considered to be “under the influence of intoxicating beverages to where his mental and physical faculties have been impaired.”

2 . Note 2 says in part:

“Although it is not required, it would appear to be a safer practice where counsel has been appointed and the revocation hearing is held less than ten full days from the date of counsel’s appointment to have written waiver of such preparation period signed by the probationer and his appointed counsel in accordance with Article 26.04, V.A.C.C.P., if they are willing to proceed at that time.” 456 S.W.2d at 920.