Paul Nathanial Strey v. State ( 2000 )

Nos. 04-99-00776-CR & 04-99-00777-CR

Paul Nathaniel STREY, Appellant

v.

The STATE of Texas, Appellee

From the 216th Judicial District Court, Kerr County, Texas Trial Court Nos. A-93-231& A-93-232 Honorable V. Murray Jordan, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. López, Justice

Paul W. Green, Justice

Delivered and Filed: July 19, 2000

AFFIRMED

Paul Strey appeals the judgments revoking his probation and sentencing him to two years imprisonment. In two points of error, Strey contends that the trial court erred in denying his motion to dismiss and motion to disqualify and that his agreement to modify the conditions of his probation was involuntary. We overrule Strey's contentions and affirm the trial court's judgments.

Background

Strey was convicted in both of the underlying causes of delivery of marihuana and was sentenced to ten years imprisonment, probated for ten years. On April 28, 1999, the trial court entered an agreed order amending the terms of Strey's probation. The order required Strey to serve a sentence of not less than three months and not more than twenty-four months in an intermediate sanction facility.

After the order was entered, Strey's mother retained counsel to represent him. Strey's counsel objected to the entry of an order amending the terms of Strey's probation without representation and a hearing. The State then filed a motion to revoke probation. In response, Strey's counsel filed a motion requesting the issuance of a summons instead of an arrest warrant.

On June 21, 1999, a hearing was held on Strey's motion. At the hearing, Strey's counsel objected to the procedure used to obtain Strey's signature on the order amending his probation. The trial court ruled that Strey could either withdraw his consent to the order and proceed with the motion to revoke or agree to abide by the terms of the amended conditions. Strey elected to withdraw his consent to the order and proceed with the motion to revoke. Strey's counsel asserted, however, that the State should not be permitted to proceed with the motion to revoke but should only be permitted to file a motion to modify with the same recommended change in probation conditions as contained in the withdrawn order. The trial court denied Strey's request for the issuance of a summons rather than an arrest warrant and set the motion to revoke for hearing on July 22, 1999.

On July 8, 1999, Strey filed a motion to disqualify the 216th district attorney's office and a motion to dismiss the motion to revoke. Strey's motions contend that the district attorney's office should be disqualified and the motion to revoke should be dismissed due to prosecutorial vindictiveness and prosecutorial misconduct. Strey alleged that the district attorney's office engaged in prosecutorial vindictiveness and misconduct by pursuing a motion to revoke seeking greater punishment than contained in the withdrawn order after Strey invoked his right to retain counsel.

On July 15, 1999, the motion to disqualify the district attorney's office, motion to dismiss, and motion to revoke probation were heard. The motion to disqualify and motion to dismiss were denied. The motion to revoke probation was granted, and Strey was sentenced to two years imprisonment in each cause, with the sentences to run concurrent.

Discussion

In his first point of error, Strey contends that the trial court erred in denying his motion to disqualify the district attorney's office and his motion to dismiss. Both motions were based on Strey's allegation that the district attorney's office was precluded from proceeding with a motion to revoke after Strey had initially been permitted to agree to a modification of his probation conditions. Strey believes that because he had initially been offered a modification through an allegedly impermissible ex parte procedure, the State was precluded from proceeding with a motion to revoke after Strey invoked his right to counsel and withdrew his consent to the modified probation terms.

The flaw in Strey's argument is that it assumes that the district attorney's office was involved in the process used by the probation department to obtain the order amending the probation conditions. The district attorney's office does not employ a probation officer nor does it have any authority over probation officers. See Nunez v. State, 565 S.W.2d 536, 537 (Tex. Crim. App.1978); Lanum v. State, 952 S.W.2d 36, 40 (Tex. App.--San Antonio 1997, no writ). Punishment recommendations made by probation officers are not binding on the State. See Lanum, 952 S.W.2d at 40; Mendoza v. State, 649 S.W.2d 126, 127 (Tex. App.--El Paso 1983, no pet.). The assistant district attorney testified that the district attorney's office is not involved in the probation department's actions in obtaining agreed orders to amend probation conditions. The assistant district attorney also testified that the district attorney's office independently evaluates a report of a probation violation to determine whether to seek a revocation. Based on the probation violations reported, the assistant district attorney stated that the policy of the district attorney's office would be to seek revocation and recommend imprisonment, particularly given that Strey's probation conditions previously had been amended. Because the State is not bound by the recommendations made by probation officers, the State is not precluded from filing a motion to revoke based on reported probation violations even if the probation officer would recommend or initially sought a modification of the probation conditions. The trial court did not err in denying the motion to disqualify and motion to dismiss.

In his second point of error, Strey asserts that his agreement to the order amending the terms of his probation was involuntary. After consulting with counsel, Strey was permitted to withdraw his agreement, and the order amending the terms of his probation was withdrawn. Therefore, Strey's argument is moot. As to the trial court's failure to properly admonish Strey, the Texas Court of Criminal Appeals has expressly held that article 26.13 does not apply in the probation revocation context. See Harris v. State, State, 505 S.W.2d 576, 578 (Tex. Crim. App.1974); Lanum, 952 S.W.2d at 39. Article 26.13 similarly would not apply in the probation modification context.

Conclusion

The trial court's judgments are affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH