Younger v. State

685 S.W.2d 657, 1985 Tex. Crim. App. LEXIS 1236

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 1985
• Docket: No. 550-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The Dallas Court of Appeals held that appellant was denied due process in a probation revocation hearing because “the record does not reflect that appellant ever received written notice of the claimed violations.” ¹ Given the straightforward nature of the only question presented, we granted review to examine the matter and decide whether the court of appeals correctly reversed the judgment of conviction on the basis stated by it.

The problem here is simply that one cannot find in the record any paper showing that appellant received or was served with the motion to revoke probation. To be technical about it, a failure of that kind of showing in an appellate record is not a denial of due process. It is no more than a negative suggestion that the motion was not served or received.

We have recently dealt with that same problem in Herndon v. State 679 S.W.2d 520 (Tex.Cr.App.1984). In Herndon the complaint was twofold: he had no notice that a motion to revoke had been filed and that it was being heard along with the trial for the same offense giving rise to a ground to revoke. Herndon, supra, at 522-523.²

Unlike Herndon, all material proceedings occurred after September 1, 1981. However, like Herndon, there were several procedural opportunities available to appellant to correct the deficiency he now claims denied him due process, “yet appellant made no effort whatsoever to demonstrate any denial of due process ... [and] we do not find such a denial on our own.” Herndon, 679 S.W.2d at 523.

Following Herndon’s lead, we emphasize that a claim such as this one is not likely to be considered on appeal when available post trial procedures have not been utilized to “make the record speak the truth” about that which is merely suggested.

The judgment of the Dallas Court of Appeals is reversed and that of the trial court is affirmed.

1 . Emphasis is in original opinion of the court in Younger v. State, (Tex.App.—Dallas, No. 05-83-00374-CR, delivered March 19, 1984). All other emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

2 . In the instant cause, however, appellant was provided notice of the latter procedure when at the outset of trial for possessing a prohibited weapon the prosecuting attorney, indicating to the court the file before it, requested the trial judge "to consider the State’s Motion to Revoke filed in his previous case number ... [and] to consider the evidence during this trial in considering the State’s Motion to Revoke in that case.” The judge responded, “In Cause F-81-2911-GH, State versus Aubrey Eugene Younger, the Court will do that." Whereupon further proceedings were recessed over the noon hour.

Moreover, thereafter when the motion to revoke was read to appellant, although the £rial court ordered pleas of not true to be entered with respect to two grounds, counsel for appellant entered a plea of true to violation of the remaining condition.