Tillis v. State

647 S.W.2d 268, 1983 Tex. Crim. App. LEXIS 916

• Court: Court of Criminal Appeals of Texas
• Decided: February 23, 1983
• Docket: No. 768-82
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

This case involves a revocation of probation. The Court of Appeals reversed the trial court after finding that appellant had not yet been placed on probation at the time of the alleged violations for which the trial court entered its revocation order. The State contends the Court of Appeals erred in finding appellant was not on probation at the time in question.

The docket sheet reflects appellant entered a guilty plea, was found guilty by the court, and was placed on probation on June 30. The record contains an order granting probation signed and entered on June 30. The record also contains a judgment dated June 30 but reflecting it was signed and entered on November 25. The alleged violations for which probation was revoked occurred between June 30 and November 25.

The Court of Appeals found that the November 25 judgment was not a nunc pro tunc entry and was in fact the only judgment in the case and the instrument placing appellant on probation. The record, however, shows that appellant as a matter of fact was placed on probation on June 30. The probation officer testified:

“Q. Did you attend and were present in this court on June 30th, 1980?

“A. I did.

“Q. Do you know W.L. Tillis?

“A. I do.

“Q. The W.L. Tillis that you know, was he present in court that day?

“A. Yes, sir.

“Q. And was in response to a plea on his part before the Court of guilty to a charge against him in this same cause did he—

“MR. WHITAKER: Strike that.

“Q. (By Mr. Whitaker): Was he placed on probation by the Court?

“A. He was on that day.

“Q. Were you present in the courtroom when he was placed on probation?

“A. Yes, sir.

“Q. Did the Court in your presence and in the presence of W.L. Tillis explain to him the terms of his probation?

“A. Yes, sir.

“Q. After the hearing in court did you have a conference with W.L. Tillis?

“A. In my office, yes, sir.

“Q. Did you explain again to him the terms of his probation?

“A. I went over each and every term of probation with him.

“Q. Did you provide for him a written, a written copy of the order granting probation containing each and every one of the terms of probation — terms and conditions of probation as given to him by the Court in open court?

“A. Yes, sir, he was furnished a copy.

“Q. All right. I show you from the original papers an order granting probation recorded in Volume 15 at Page 187 of the Minutes of this Court and ask you whether or not — whether a copy of that exact same order was given to the Defendant W.L. Tillis?

“A. He was given a copy of this order.

“A. All right. Now, down at the bottom it purports to bear a signature of a W.L. Tillis, Jr. Is that the person who was placed on probation?

“A. Yes, sir, I was present when he signed this and received a copy.

“Q. All right. Did you deliver a copy of this to him yourself?

“A. Yes, sir, he received a copy.”

It appears appellant accepted the benefit of release on probation and began earning time for discharge of that term.

In Brown v. State, 508 S.W.2d 366, the Court said:

“The exercise of improperly delegated authority by a probation officer cannot make the delegation effective, although on different facts, where parties over a period of time have accepted such a delegation of authority as shown by the course of conduct between them, a probationer may be estopped from objecting to being held to the duty assumed.”

See also Parsons v. State, 513 S.W.2d 554; Smith v. State, 527 S.W.2d 896.

Although in this case no history of compliance with the conditions of probation is shown (appellant failed to report and failed to make monthly payments from the beginning through November), this case likewise does not concern an improper delegation of authority. All conditions of probation were proper. The conditions were explained to appellant on June 30, he received a copy of those conditions, and he signed them. Included was the condition: “Report to the Houston County Probation Officer immediately and between the 1st and 10th days of each month hereafter.” (Emphasis added.) This is one of the grounds under which probation was revoked. Having accepted those conditions appellant is estopped from asserting that he was not on probation from June 30 forward, and we so hold. It is unnecessary to decide whether the November 25 instrument was the original judgment or a judgment nunc pro tunc.

The judgment of the Court of Appeals is reversed and the cause is remanded to that Court for consideration of the other issues raised on appeal.

TEAGUE, J., concurs in the result. ONION, P.J., not participating.