Newcomb v. State

547 S.W.2d 37, 1977 Tex. Crim. App. LEXIS 984

• Court: Court of Criminal Appeals of Texas
• Decided: February 23, 1977
• Docket: 53664
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of felony theft; punishment was assessed at five years, and appellant was placed on probation. One condition of his probation was that he commit no offense against the laws of Texas. Probation was revoked for a violation of this condition upon the State’s motion alleging commission of the offenses of burglary of a habitation and theft.

Appellant first contends the revocation is invalid because he was denied a speedy hearing on the State’s motion. The motion was filed on October 30, 1975; the hearing was conducted and probation was revoked on May 28, 1976. Appellant was not free on bail. Under this circumstance the Legislature has set a time limit within which the motion must be heard in Article 42.12, Sec. 8(a), V.A.C.C.P., which provides in part:

“If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation.” (Emphasis added.)

This statute provided appellant with the means to secure a prompt hearing on the motion to revoke. See Ex parte Trillo, Tex.Cr.App., 540 S.W.2d 728. The record re-fleets no such motion filed by appellant. We therefore overrule appellant’s contention that the length of delay denied him a speedy hearing as a matter of law. We also decline to set a time limit within which a motion to revoke probation must be heard.

In reaching this disposition we restrict ourselves to the contentions urged in appellant’s brief. Appellant asserts that the length of delay in his case constituted a denial of a speedy hearing as a matter of law, and urges this Court to set a time limit within which a motion to revoke probation must be heard. He does not contend that the particular facts of his case show a denial of a speedy hearing under the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). His failure to rely on Barker v. Wingo is understandable in light of the fact that the matter was not made an issue in the trial court and accordingly the record was not developed on this point.

We decline to address the issue sua sponte and thereby also decline to establish precedent for considering unassigned Barker v. Wingo error in every case where there has been a delay of the duration shown in this case. If we were to consider this issue, which by nature of the applicable balancing test requires a full development of the facts, on our own motion, it would be necessary to abate the case for a full hearing on the matter. We could not render a considered judgment on the matter without a fully developed record, and this is particularly so where, as here, the parties never made it an issue, did not present evidence on the matter, and would have been utterly without notice, prior to judgment in this Court, that a binding judgment between the parties would be entered on the matter. We are not saying that we would order a hearing if the issue' were asserted without prior development in the record, but only that no judgment on the merits of the issue sua sponte should be entered without an evidentiary hearing first.

For these reasons we restrict consideration of the speedy trial issue to the matters asserted by appellant.

Appellant next contends the trial court erred in admitting his confession into evidence. Reliance is placed on Sherman v. State, Tex.Cr.App., 532 S.W.2d 634. Appellant testified on the issue of voluntariness that he confessed because he was told by Lee Glasscock, the interrogating officer, that if he did not confess he would be charged with a first degree felony punishable by five to ninety-nine years or life, and that if he did confess he would only be charged with a third degree felony punishable by two to ten years’ confinement. The State called Glasscock who specifically denied appellant’s assertions. This satisfied the burden that was not met in Sherman v. State, supra, and Farr v. State, Tex.Cr.App., 519 S.W.2d 876.

The second contention is overruled.

Finding no abuse of discretion, we affirm.