Pickens v. State

466 S.W.2d 563, 1971 Tex. Crim. App. LEXIS 1960

• Court: Court of Criminal Appeals of Texas
• Decided: May 5, 1971
• Docket: No. 43676
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

The record reflects that appellant pleaded guilty to the offense of Robbery by Assault on July 22, 1965, and his punishment was assessed at 10 years. An order was entered suspending the imposition of sentence and the appellant was placed on probation. One of the terms and conditions of probation was that he: “(1) Commit no offense against the laws of this or any other state or of the United States; * *

On February 2, 1970, a motion to revoke appellant’s probation was filed, alleging that he violated the aforementioned term. On March 25, 1970, an amended motion to revoke was filed, alleging:

“ * * * That the said defendant, Lester Morris Pickens, on or about the 11th day of January, 1970, a date subsequent to the above mentioned conviction, in the County of Potter and State of Texas, did then and there unlawfully and wilfully interfere with a nurse, to-wit: Grace M. Garrett, while the said Grace M. Garrett was in the exercise of functions intended to contain injury to persons during a civil disturbance, Against the Peace and Dignity of the State.

******

“Further, the said Lester Morris Pickens, on or about the 11th day of January 1970, a date subsequent to the above mentioned conviction, in the County of Potter, State of Texas, did then and there in a public place, to-wit: Northwest Texas Hospital, 2200 West 7th, Amarillo, Texas, engage in an unreasonable disorderly conduct in such manner to cause or provoke a disturbance, Against the Peace and Dignity of the State.”

A hearing was held on the amended motion and the court found :

“ * * * certainly his actions at the hospital were intentional, and in that sense, willful. His actions did interfere with the nurse in her treatment of the deceased’s mother. * * * and he did engage in unreasonable and disorderly conduct in a manner calculated to provoke disturbance by making the comment * * * with reference to overpowering the resistance and getting back into the room, despite the fact that he had been ejected from it at least twice and probably three times, * * *

“I think his action in — -in effect, inciting mob violence in this case by advocating that they storm the door of the room in which the nurses and the body and mother of the deceased were, clearly disorderly conduct in a manner to cause or provoke a disturbance.

“Therefore, the opinion and judgment of the Court that the defendant has violated the term of his probation, and that his probation should be, and is hereby revoked.” (Emphasis supplied.)

Appellant contends that the court abused its discretion by revoking his probation “and there was no evidence that at the time and place of said incident that a riot, civil disturbance or public disaster had occurred, or was in progress, or that appellant acted wilfully.”

The record reflects that on the date in question a shooting occurred in front of the Club De Lisa in Amarillo. Shortly after the shooting a crowd estimated at from 100 to 200 people gathered around, creating a disturbance and making it very difficult for the law enforcement officers to control the crowd. Deputy Sheriff Garrett testified: “ * * * and then, that is when I went to try to get the ambulance to come in more closer so we could get the body right away, and that is when I had problems to get the people back, so the men could drive in. He almost 'had to push people out of the way with the ambulance.” The witnesses identified appellant as one of the persons creating the disturbance.

A witness was then asked:

“Q. How long did it take to disperse the crowd after the ambulance left?

“A. When the ambulance left, why, the crowd left about, I guess about 10 or 15 minutes, all of them rushed out to the hospital.”

Witness McAdams, describing appellant’s action at the hospital, testified:

“I was standing with my back to the doorway, and Deputy Sheriff John P. Allen was standing there by the doors with me, and I heard Mr. Pickens make the statement in a loud voice that — I don’t recall the exact wording of it; it was to the effect that there aren’t very many in there, and that if we all rushed them, we can get in; they can’t stop us, I believe that was the ending of it.

“Q. Did you see him make that statment?

“A. No, sir, as — I didn’t, as I turned he was talking and finishing the statement up just as I turned, but I didn’t see just who he was addressing. He was facing primarily with his back towards the emergency room, and speaking out towards the crowd gathered in the hallway.”

Witness Allen, testifying in regard to appellant’s actions at the hospital, testified as follows:

“A. Several times, two or three times, maybe four, I put him out myself, I just, you know, you can’t stay in here, come on.

“Q. Did you ever hear him say anything about coming into the emergency room area?

“A. I did.

“Q. What was that?

“A. Welly he was outside of the double doors, and I was up to the door trying to keep people out.

“Q. Yes.

“A. And he said there is only three or four of them, and if we storm in the door, there is nothing they can do about it.”

We hold that there was sufficient evidence to support the trial court’s finding that appellant committed an offense against the laws of this state. See Arts. 472a and 474 Vernon’s Ann.P.C. The court did not abuse its discretion by revoking his probation. See Blackshire v. State, Tex.Cr.App., 464 S.W.2d 108; Foote v. State, Tex.Cr.App., 463 S.W.2d 445.

Finding no reversible error, the judgment is affirmed.