Furrh v. State , 582 S.W.2d 824 ( 1979 )

OPINION

DOUGLAS, Judge.

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

On June 24, 1971, appellant pled guilty to the offense of possession of marihuana. Punishment was assessed at ten years; the imposition of sentence was suspended and appellant was granted probation. One of the conditions of probation was that he report to the probation officer as directed.

On February 24, 1977, the State filed a second amended motion to revoke probation alleging four grounds. At the hearing on May 12, 1977, the appellant pleaded “true” to the first ground. The trial judge then asked the State for its recommendation:

“MR. MOSES: (For the State) Your Honor, we recommend that he be continued on probation; however, we do . recommend six months in jail. We recommend that if his probation be revoked that the full term be imposed and no early release from probation at this time.

“THE COURT: All of those things are continued on the Second Amended Order, along with conditions M, R, T, U and V. I want to make sure you understand what’s going on here. I did have some discussion about your case with Mr. Moses and Mr. Griffin. It’s under present-day standards, not really as serious an offense as when you were found guilty.

“DEFENDANT: Yes.

“THE COURT: You are entitled to some consideration — considering reducing this term some if the probation is revoked. Apparently, what the agreement now is rather than revoke your probation continue you on probation, but if you break the terms of probation the next time it’s for the full term. Do you understand what your options are?

’DEFENDANT: Yes.”

The record shows that the trial judge then issued a Second Amended Probation Order but noted on the court’s docket sheet that, “Revocation held in abeyance. Terms amended as per order filed this date. (Serve 6 months Co. Jail.).”

On June 10, 1977, the State filed its third amended motion to revoke alleging, among other things, that appellant had committed the offense of possession of stolen mail matter and forgery. On June 17,1977, a fourth amended motion for revocation was filed.

Another hearing was held on August 8, 1977, at which time the following exchange occurred:

“THE COURT: Would you state for the Record what you told me?

“MR. GRIFFIN: (For the Defendant) Yes, Your Honor. I advised Mr. Furrh when we were in court previously back on May twelfth of this year when Mr. Furrh at that time pled true to the counts in the Motion to Revoke Probation and my file reflects the Court at that time went ahead and revoked probation, but held the disposition in abeyance.

“THE COURT: The revocation in abeyance, but the ground was found true.

“MR. GRIFFIN: The Ground was found true, yes, sir. At that time Mr. Furrh was remanded to jail and I advised Mr. Furrh that all that is necessary for the Court to do this morning is to assess punishment on the revocation and I also advised him that the District Attorney’s Office has made an offer to reduce the ten-year probation term to an eight-year term and Mr. Furrh has advised me it’s not his desire to accept any reduced term.”

The court then stated that because of the appellant’s plea of true at the May 12, 1977 hearing, “the motion is granted and the probation order is vacated, that being the Second Amended Motion to Revoke Probation, and sentence is imposed at ten years.

Appellant contends that the trial court abused its discretion because there was no evidence that he had violated a condition of the Second Amended Order of Probation.

In Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), the defendant entered a plea of “true” at a May 11, 1976 hearing on the State’s second motion to revoke probation. The trial court accepted the plea but recessed the hearing until the court reached a decision regarding revocation. The defendant was released and continued on probation pending the court’s decision. On November 16, 1976, another motion to revoke was filed charging the defendant with unlawful possession of heroin. The defendant was before the trial court again on January 11,1977. At that hearing the court ordered revocation of probation based on the defendant’s plea of “true” taken at the May 11, 1976 hearing, not on the basis of the more recent motion filed in the interim. The record in that case indicated that the trial judge was aware of and questioned the defendant about his recent arrest. We concluded that there was no abuse of discretion shown and that it was proper for the court to take the revocation decision under advisement for eight months. Moreover, in Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974), under facts similar to the instant case, we held that there was no abuse of discretion where nothing in the record indicated that the trial court knew of the defendant’s interim arrest or acted to revoke because of it. See Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973).

Appellant, however, asserts that Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976), is controlling. In Wester, the trial court, after accepting the defendant’s plea of true, stated unequivocally that probation would be continued but that it would be automatically revoked for any other violation. This was also written on the new probation order. The defendant was later involved in another offense and the court, without a hearing, noted on the docket sheet that probation was revoked because of the new allegation. A later hearing confirmed that the new offense was the basis for the revocation. We found that the trial judge had abused his discretion by automatically revoking upon learning of the new arrest.

The facts in the case at bar are distinguishable from those in Wester. In the instant case the record shows the trial court merely held the revocation in abeyance until a decision could be reached. This is also supported by the docket sheet entries. The statements of the appellant’s attorney below demonstrate that appellant was never misled into believing probation had been continued indefinitely. Moreover, there is nothing in the record to suggest that the trial court acted to revoke on the basis of the new offenses.

Finding no abuse of discretion, the judgment is affirmed.