Washington v. McSpadden , 1984 Tex. Crim. App. LEXIS 731 ( 1984 )

OPINION

CAMPBELL, Judge.

This is a petition for writ of mandamus.

On March 29, 1983, the applicant appeared in the 209th District Court of Harris County; the respondent, Michael T. McSpadden, Judge, presided. The record reflects the purpose of this appearance was for the entry of a guilty plea in trial court Cause No. 368, 781, for the felony offense of burglary of a building. The applicant was represented by counsel.

During the course of the hearing to accept the guilty plea the respondent trial judge gave the applicant the following admonishment:

“[RESPONDENT]: Let’s have a ‘yes, sir,’ every time you say ‘yes,’ I want a ‘sir’ behind it. Do you understand that? Or you are not going to get probation, if you want probation, you are going to get 30 days. You understand that?

“[APPLICANT]: Yes, sir.”

Subsequent to the admonishment the respondent again alluded to the possibility of sentencing applicant to 30 days in jail if he failed to respond to questions with “sir”:

“[RESPONDENT]: Your are to permit your probation officer to visit you in your home or elsewhere.

“You are to work faithfully at suitable employment.

“Are you working now?

“[APPLICANT]: Yes, part-time.

“[RESPONDENT]: Where do you work?

“Let’s have a ‘yes, sir,’ I swear to God — how long does it take you to listen? Every time a ‘yes’ comes out of your mouth, you better say ‘yes, sir.’ Do you understand that?

“[APPLICANT]: Yes, sir.

“[RESPONDENT]: Do you think 30 days would help him? Seriously. I don’t like giving anyone probation that isn’t deserving, at least, the consideration.

“Do you think this is a joke, Mr. Washington?

“[APPLICANT]: No, sir.

“[RESPONDENT]: Watch what you say. The next ‘yes’ that comes out of your mouth without a ‘sir’ behind it, you are going to get 30 days. I can do that to you. Do you understand that?

“[APPLICANT]: Yes, sir.

“[RESPONDENT]: You are starting off real well. I’ll probably see you in about a month.

“Anytime you leave the county limits, you are supposed to get permission from the probation officer.

“If your work takes you outside the county limits or you want to go visit people, you must have permission before you leave the county limits.

“Again, let’s go back to where you are working. Where are you working, Mr. Washington?

“[APPLICANT]: I’m working with my uncle in South Park Denny’s Cleaners (sic).

“[RESPONDENT]: Can you get steady work?

“[APPLICANT]: Yes.

“[RESPONDENT]: Thirty days.

That’s another condition. You are going to do 30 days.

“You can go in today.

“[DEFENSE COUNSEL]: Can he have one more chance?

“[RESPONDENT]: No.

“As a special condition, you are going to do 30 days. So, for 30 days just thank me every single day you spend there because there will be no good time at all. It will be 30 straight days.

“Please think of me, Mr. Washington, every single day you spend in jail. Start saying ‘sir’ to people. You understand that?

“[APPLICANT]: Yes, sir.

“[RESPONDENT]: Thirty is all I can do to you. I’d have done 60 if I could; but you are going to do 30 days and learn how to be responsible; and this is the first step.”

This Court has jurisdiction to issue writs of mandamus pursuant to Tex. Const. Art. V, Sec. 5. In order for mandamus to issue, the party seeking mandamus must show that there is no other adequate remedy available and that the act sought to be mandated is a ministerial act. Tex. Bd. of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex.Cr.App.1979). Mandamus is not available to compel a discretionary act as distinguished from a ministerial act. Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979).

Applicant contends¹ that the respondent lacked either the authority or power to require him to serve 30 days in jail as a condition of his probation. Whether a defendant is entitled to probation is for the trial court, in its discretion, to decide. Burns v. State, 561 S.W.2d 516, 517 (Tex.Cr.App.1978).

Article 42.12, Sec. 6b(a) and (b), V.A.C. C.P., expressly provided:

“(a) When the court having jurisdiction of the case grants probation to the defendant, in addition to the conditions imposed under Section 6 of this article, the court may require as a condition of probation that the defendant submit to a period of detention in a penal institution to serve a term of imprisonment not to exceed 30 days or one-third of the sentence whichever is lesser.

“(b) The imprisonment imposed shall be treated as a condition of probation, and in the event of a sentence of imprisonment upon the revocation of probation, the term of imprisonment served hereunder shall be credited toward service of such subsequent imprisonment.”

In the instant situation the respondent acted under the express authority of the statute. Likewise, the trial judge is given a wide variety of terms and conditions which may be imposed when granting probation. Article 42.12, Sec. 6, Y.A.C.C.P. Since the granting of probation is clearly within the judge’s power, the decision to require applicant to serve 30 days as a condition is clearly a discretionary act. Mandamus is not available. The record reflects that the trial judge imposed the thirty day jail term after twice admonishing applicant of the consequences of his failing to respond to questioning as requested. We find no abuse of discretion in the trial court’s action.²

Accordingly, the relief requested is denied.

1 . We note that applicant additionally filed an amended writ of prohibition and/or writ of mandamus alleging that respondent had no legal right to require probationers generally to contribute to Crime Stoppers and to C.R.I.M.E. as a condition of probation. We have reviewed this pleading and we find that it is not germane to our disposition of this cause.

2 . We pause to note parenthetically, however, that the actions of the respondent in this cause are hardly models for judicial behavior. By count in this record, the applicant answered “Yes, sir,” or "No, sir” approximately twenty times before respondent saw fit to attach a 30 day jail term to applicant's conditions of probation. The consequences of respondent's action might well be reflected in the ultimate disposition of this case in an appeal on its merits or in a collateral attack. See generally, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).