Stanfield v. State , 1979 Tex. Crim. App. LEXIS 1705 ( 1979 )

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

This is an appeal from an order revoking appellant’s probation.

The opinion on original submission is withdrawn.

On November 23, 1976, appellant pled guilty to the offense of burglary of a building. Punishment was assessed at three years; the imposition of sentence was suspended and probation was granted.

On January 5, 1978, the State filed a motion to revoke probation alleging appellant had failed to report to his probation officer as directed. At a hearing on January 11, 1978, appellant pled true to this ground. The court, however, delayed its decision to revoke until a hearing on March 17, 1978, at which time probation was revoked.

The State, on rehearing, seeks to show that the court did not abuse its discretion in delaying its decision to revoke until the March hearing.

The opinion on original submission relies on 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). These cases are distinguishable.

In Wester, Wallace and Furrh v. State, 582 S.W.2d 824 (Tex.Cr.App.1979), the court conducted a hearing on the motion to revoke and found an allegation true. The conditions of probation were modified and later revoked because of another violation; the revocation being grounded upon the finding of “true” at the initial hearing. This was held to be an abuse of discretion.

The instant case is similar to Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978). There, the defendant pled true to violating his probationary terms at a May 11, 1976 hearing. The court accepted the plea and found that the allegation was in fact true. The hearing was then recessed pending the court’s decision on the motion. On November 16, 1976, another motion to revoke was filed alleging a violation on November 11, 1976. At a hearing on January 11, 1977, the trial court called the defendant’s attention to his previous plea of true and revoked probation based on its prior findings.

This Court held in Traylor that there was no abuse of discretion because it was clear that the trial court took its decision to revoke under advisement and nothing in the record indicated that the court used the subsequent violation as a basis for the revocation. See Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974); Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973). Likewise, in Furrh v. State, supra, after finding an abuse of discretion because the court modified the terms of probation and later revoked without a further violation being shown, the Court stated:

“While the court could have continued the hearing and delayed exercise of its discretion to continue, modify or revoke the probation, as was done in Traylor v. State, Tex.Cr.App., 561 S.W.2d 492, and apparently in Sappington v. State, Tex.Cr.App., 508 S.W.2d 840, that option is not what occurred in this case.”

The court in this case chose not to revoke probation even though he found that it had been violated. There was no new motion to revoke. The transcript from the March 17, 1978 hearing recites that the following exchange occurred:

“THE COURT: On November 23rd, 1976; you were granted three years probation in that cause, and then on January 11th, 1978, upon a hearing on motion to revoke your probation, hearing was held on that date, arraignment was waived and a plea of — you made a plea of true to that motion in writing and orally to me.

The evidence was presented, both sides closed all of the evidence, concluded the entire motion to revoke probation hearing at that time, and I found as a fact, on that date, that you had violated Condition D of the probation terms. Do you recall all of that?

“THE DEFENDANT: Yes.

“THE COURT: I passed the case at that point in time, for a later time, and I’m now taking up the remainder of that hearing, the conclusion being: The order heretofore entered this cause, suspending imposition of sentence and granting probation in this case is hereby revoked.”

The docket entry for January 11, 1978 also stated: “Hearing passed generally — capias withdrawn.”

The trial judge, from what he said, revoked probation upon the evidence adduced at the January hearing, not upon the subsequent violation. There were no modifications of the probationary terms. Nothing in our previous decisions construes the withdrawal of a capias as a continuation of probation, and we decline to so hold here. The court merely continued the hearing and took its decision to revoke under advisement; an option specifically approved of in Furrh.

The hearing was properly continued and nothing in the record suggests that the trial court acted to revoke on the basis of new offenses.¹

Finding no abuse of discretion, the motion for rehearing is granted and the judgment is affirmed.

1 . It is difficult to understand the dissenting opinion that the trial court violated appellant’s due process. The trial court gave appellant a break by not revoking probation at the time of the first hearing. Appellant was given more time before serving his term. Apparently the dissent would require a judge to revoke probation at the time of the first hearing, and there could be no delay, otherwise, due process would be violated. It goes without saying that most probationers would rather not go to the Department of Corrections when the trial judge first finds that there was a violation of probation.

To follow the dissent would take away the discretion of the trial courts and cause sentences to be pronounced after the first hearing. The dissenting opinion would overrule that Traylor case to reverse this case. If it is not in point, why should it be overruled?