Rogers v. State

640 S.W.2d 248, 1982 Tex. Crim. App. LEXIS 1110

• Court: Court of Criminal Appeals of Texas
• Decided: October 20, 1982
• Docket: 67334
• Status: Published

Opinions

OPINION

CLINTON, Judge.

This appeal is taken from an order revoking probation that resulted' from a conviction for theft of property over the value of $200.00. Appellant pleaded guilty to the offense of theft on September 17, 1979 and punishment was assessed at two years confinement and a fine of $500.00. Imposition of the sentence was suspended and probation was granted.

The record reflects that on May 14, 1980 the State filed a motion to revoke probation alleging six different violations of the conditions of his probation, namely: (1) that appellant failed to report to his probation officer during the month of February; (2) that appellant failed to work faithfully at suitable employment insofar as possible; (3) that he failed to advise his probation officer within 48 hours of any change in his address or place of employment; (4) that appellant failed to pay his fine of $500.00 at the rate of $50 per month for the months of October, 1979 through April 1980; (5) that he failed to pay his monthly probation fee of $15 for the months of November, 1979 through April, 1980; and (6) that appellant failed to pay $43.00 court costs on or before October 17, 1979. Immediately preceding the hearing held on June 26,1980, appellant signed a stipulation of evidence and confessed to all six of the violations contained in the State’s motion to revoke probation. Appellant also entered an oral plea of “true” to these allegations before the trial judge. At the conclusion of this hearing the trial judge ruled as follows:

“THE COURT: And when you tell me that you can’t get a job — It’s not the fact that the jobs aren’t there; they are there. Now, there are all kinds of excuses for not obeying this order.

I am going to reinstate you on probation; that is, for the time being. I am going to continue this hearing to a specific date, on September 26. That’s sixty days away.¹

THE DEFENDANT: Yes, sir.

THE COURT: And then I am going to determine whether or not you are serious about this thing.

THE DEFENDANT: Yes, sir.

THE COURT: And I am telling you right now that if you are not serious about it, this probation is going to be revoked and you are going to the penitentiary.

THE DEFENDANT: Yes, sir.

THE COURT: Now, you have got some help here in getting a job. You better get out there and get to work. It may be backbreaking, but it won’t hurt you. And I expect you to obey all of the other requirements of this order. And when sixty days is up, I want at least half of this five hundred sixty something dollars to be paid.

THE DEFENDANT: Yes, sir.

THE COURT: You make a note of that, Ms. Faulkner.

MS. FAULKNER: Yes, sir.

THE COURT: Now, then, when you were placed on probation back last September, I asked you if you understood the requirements, and you said you did.

THE DEFENDANT: Yes, sir.

THE COURT: I asked you if you would comply with them and you said you would.

THE DEFENDANT: Yes, sir.

THE COURT: And you haven’t. Now, I am going to give you sixty days just to straighten up, and if you don’t, you’re finished.

THE DEFENDANT: Yes, sir. That’s fair enough, sir.

THE COURT: And you comply— Whether you are working or what you are doing, the least you can do is report like it says to report.

THE DEFENDANT: Yes, sir.”

On September 26, 1980 the trial court announced that “this is a continuation of a hearing that was had on June 26, 1980;” and summarily revoked appellant’s probation on the basis of the six violations appellant previously stipulated to as being “true.” The trial judge refused to permit any additional evidence or testimony. There is no allegation of any subsequent violations contained in the record before us; indeed, the record is wholly silent as to what, if anything, occurred during the ninety day interim between June 26, 1980 and September 26, 1980. There is simply no hint whether or not appellant obeyed the oral instructions of the trial judge and upheld the conditions of his probation.

By his first ground of error appellant contends that the trial judge denied him his right to due process and fundamental fairness in that having once exercised his discretion to continue appellant on probation at the conclusion of the hearing on June 26, 1980, he was without authority to revoke appellant’s probation on September 26, 1980 in the absence of allegations or proof of any subsequent violations. Appellant primarily relies on this Court’s decisions in Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979) and Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1978). The State responds by asserting that the trial judge merely continued the hearing, therefore he did not exercise his authority to continue, modify, or revoke appellant’s probation until September 26, 1980. Thus, under the holdings of this Court in Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), Stanfield v. State, 588 S.W.2d 945 (Tex.Cr.App.1979) and Ex parte Feldman, 593 S.W.2d 720 (Tex.Cr.App.1980), no proof of any subsequent violations was necessary.²

Accordingly, the issue is refined so that it devolves into the question of whether the trial judge continued appellant’s probation, or continued the hearing itself on June 26, 1980. Both types of continuances are statutorily authorized in Article 42.12, § 8, V.A. C.C.P. as follows:

“. . . after a hearing without a jury [the trial court] may either continue, modify, or revoke the probation. . . The court may continue the hearing for good cause shown by either the defendant or the state.”

In Wallace v. State, supra, at 514, the Court wrote:

“What did the trial judge do here? Did he continue the appellant on probation or did he revoke probation on June 10, 1977? He orally stated he was revoking probation, but he entered no written revocation at the time and did not impose sentence. In fact, he stated to the appellant that he hoped he didn’t have to take that action. . . Under any circumstances, on August 17, 1977, the appellant’s conditions of probation were modified and he was released subject to such conditions. He was not sentenced, and appellant’s case was not disposed of as if there had been no probation. In effect what the court did was to continue the appellant on probation.”

In Furrh v. State, 582 S.W.2d 824, 827 (Tex.Cr.App.1979) the Court opined that:

“The record in this case, as in Wallace v. State, supra, clearly shows that the trial court continued appellant on modified probation and did not revoke the probation after a violation of the conditions of probation was shown at the earlier hearing. Cf. Wester v. State, supra.”

The decisions in Furrh and Wallace, both supra, stand for the proposition that the trial court having once exercised its authority and modified the conditions of probation, may not change that disposition at a subsequent hearing where no further violation was shown.

On the other hand, as the State correctly notes, in Stanfield v. State, supra, at 946, the Court held that by continuing the hearing, the trial court “took its decision under advisement.” In Ex parte Feldman, supra, at 721, the Court held that the trial court may continue the hearing:

“... keeping before it the violations already proven, and permitting the careful consideration of mitigating or exacerbating circumstances, including the subsequent conduct of the probationer, before making a final decision whether to revoke.”³

Herein lies the crux of the dilemma: On June 26, 1980 did the trial judge continue appellant’s probation and modify it accordingly, or did he take his decision under advisement pending the outcome of subsequent conduct by appellant? It is far from clear, particularly when, as here, we have no idea what appellant’s subsequent conduct was nor whether the trial judge was even apprised of it. The critical issue must finally be answered by what is contained in the record before us. The transcription of the court reporter’s notes clearly reflect that the trial judge told appellant that he was “going to reinstate the probation; that is, for the time being,” and then modified the terms of appellant’s probation by requiring that he pay at least half of the $563.00 within the next sixty days. There was no written revocation order entered after the hearing on June 26,1980, nor was appellant sentenced. As of June 26, 1980 appellant’s case was certainly not disposed of as if there had been no probation.⁴ Wallace v. State, supra. On balance therefore, we hold that the facts of the case presented here most nearly resemble the situation and the decision in Furrh v. State, supra. Accordingly, we hold that by his actions and oral instructions modifying the conditions of probation, the trial judge exercised his discretion and determined to continue appellant’s probation on June 26, 1980; having done so, he was without authority to revoke appellant’s probation on September 26, 1980 in the absence of allegations and proof of a subsequent violation. Appellant was therefore denied his right to due process of law. The order revoking his probation is set aside and the cause is remanded. TOM G. DAVIS, J., dissents.

Before the Court en bane.

1 . All emphasis is supplied by the writer of this opinion unless otherwise indicated.

2 . We note that both parties submitted superior briefs researching this issue. We take this opportunity to commend appellant and the State for their efforts.

3 . Feldman was decided by a closely divided Court, and the phrase “including the subsequent conduct of the probationer” may well have provoked some of the difficulty. It is not fitting that a Court Panel negate any germane language in an opinion by the Court En Banc, but we do feel obliged to remark that if “the subsequent conduct of the probationer” is given “careful consideration” before making a final decision whether to revoke, the record made should reveal just what that “subsequent conduct” is.

4 . We would urge trial judges to clarify their actions so this type of situation is eliminated in the future. The trial court here, on the one hand told appellant that his probation was reinstated, and on the other hand clearly stated that he was continuing the hearing. What did the trial judge really mean? This question should not be left unanswered in the record. Certainly if we are forced to surmise the answer, there can be little doubt as to the confusion that remains on the part of the probationer. Since it is the probationer who needs to understand the implications of the trial judge’s rulings, we would expect that the trial court would explain the effect to him, also thereby preserving it in the record.