Walker, Michael Joe, Jr. v. State

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MICHAEL JOE WALKER, JR.,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

' ' ' ' '

No. 08-01-00257-CR Appeal from 282nd District Court of Dallas County, Texas (TC# F-0039856-SMS)

O P I N I O N

Appellant Michael Joe Walker, Jr. appeals from the trial court=s decision to revoke his probation.  We affirm.

Summary of the Evidence

On October 5, 2000, Walker pleaded guilty to two counts of burglary of a habitation.  The first burglary took place on May 2, 2000, the second on May 17, 2000.  At his plea hearing, Walker testified that his role in both burglaries was to act as lookout for his friends who actually entered the homes.  Walker was 17 years old at the time of the hearing.

The trial court found Walker guilty and sentenced him to ten years= deferred adjudication probation and a $500 fine on the May 2 burglary charge.  At the same time, the trial court sentenced Walker to ten years= confinement and a $500 fine for the May 17 burglary.  Sentence was suspended pursuant to an open plea and Walker was ordered to participate in a boot camp program.  Upon completion of boot camp, Walker was placed on probation for ten years. He was also required to make restitution in the amount of $4,385, payable in monthly installments of $50 on or before the first day of each month upon his return from boot camp, and pay court costs.  Other relevant probation terms imposed on Walker included a requirement that he report to his probation officer Amonthly, twice monthly, or weekly@ with the frequency of those reports to be set by the probation officer.

On April 3, 2001, a capias issued for Walker alleging he violated the terms of both his straight and deferred probation.  The State also filed its motion to revoke (Athe Motion@) Walker=s probation alleging he failed to report to his probation officer on a Aweekly, monthly or twice monthly@ basis in March 2001 and failed to make restitution on a monthly basis.

On May 25, 2001, the trial court held a hearing on the State=s Motion.  Walker pleaded Anot true@ to the Motion=s allegations.  The only witness presented at the hearing was Walker=s probation officer, Tracy Jennings.

At the close of the adjudication phase of the hearing, the trial court asked Walker=s counsel if there was any additional evidence to be heard on punishment. Counsel indicated there was not. The trial court then moved to the punishment phase of the hearing, addressed Walker directly and asked if there was anything he wanted to tell the court.  Walker said:  AI just want another chance to get this all over with.@

The trial court found Walker guilty on the deferred adjudication case and revoked his probation on the straight probation case.  Walker was ordered to serve ten years in prison.  This appeal concerning the revocation of the deferred probation for the May 2 burglary timely followed.

Standards of Review

 Probation may be revoked upon a finding that the probationer has violated a term of his or her probation.  Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Wilson v. State, 645 S.W.2d 932, 934 (Tex. App.‑‑Dallas 1983, no pet.).  Our review of a probation revocation proceeding is limited to a determination of whether the trial court abused its discretion.  Bennett v. State, 476 S.W.2d 281, 282 (Tex. Crim. App. 1972);  Wilson, 645 S.W.2d at 934.

To determine whether the trial court has abused its discretion, we look to whether the State has met its burden of proof.  See Cardona v. State, 665 S.W.2d 492, 493‑94 (Tex. Crim. App. 1984).  That burden is met when the greater weight of the evidence before the court creates a reasonable belief that the probationer violated a condition of probation.  Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983), disapproved on other grounds by Saxton v. State, 804 S.W.2d 910, 912 n.3 (Tex. Crim. App. 1991); Williams v. State, 910 S.W.2d 83, 85 (Tex. App.--El Paso 1995, no pet.).  In other words, the State=s burden of proof in a probation revocation hearing is by a preponderance of the evidence.  Cobb, 851 S.W.2d at 874; Williams, 910 S.W.2d at 85.

In revocation proceedings, the trial judge is the sole trier of the facts, the credibility of the witnesses, and the weight to be given the testimony.  Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. [Panel Op.] 1980); Ross v. State, 523 S.W.2d 402, 403 (Tex. Crim. App. 1975).  It is the trial court=s duty to judge the credibility of the witnesses and to determine whether the allegations in the motion to revoke are true or not.  Langford v. State, 578 S.W.2d 737, 739 (Tex. Crim. App. 1979). This Court must therefore view the evidence presented at the revocation proceeding in a light most favorable to the trial court=s ruling.  Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.--Dallas 1997, no pet.).

The Issues for Review

Walker brings two issues for review.  First, that the trial court failed to give Walker a separate punishment hearing.  Second, that the trial court prejudged Walker=s case and therefore denied him due process of law.  Neither point has any merit when the record of this case is taken into consideration.

1.         The Punishment Phase Issue.

Walker maintains the trial court afforded him no opportunity to present evidence on the issue of punishment.  The record reflects a different story.  The following exchange took place at the revocation hearing after the close of the State=s case:

THE COURT:  All right.  The court finds the evidence substantiates a finding of true to the allegations in the state=s motion.  And on your deferred adjudication case I find you guilty.

Is there any additional evidence on punishment, Mr. Grett?

MR. GRETT:  No, Your Honor.

THE COURT:  Any legal reason why your client should not be sentenced at this time?

MR. GRETT:  No, Your Honor.

THE COURT:  Anything you would like to say to the court, Mr. Walker?

THE DEFENDANT:  I just want another chance to get this all over with.

THE COURT:  It=s the order, judgment, and decree of this court that you be taken by the Sheriff of Dallas County and by him safely held and transported to an authorized receiving agent of the penitentiary wherein--well, in each case I=ll order you to serve ten years.  And on your deferred adjudication case I will reassess the $500 fine.

Good luck to you, sir.

Both Walker and his counsel were given fair opportunity to present evidence on punishment.  Contrary to Walker=s assertion on appeal, there is simply no way to interpret his statement that he just wanted another chance to get Athis all over with@ as a request to the court that he be given a separate punishment hearing.

On one point, Walker is correct.  The Court of Criminal Appeals has held that the defendant is entitled to present evidence in mitigation of punishment if not afforded an opportunity to do so at the adjudication hearing.  Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex. Crim. App. 1999).  The facts of this case, however, do not indicate that Walker was denied that right.  Walker=s Issue One is therefore overruled.

2.         The Due Process Issue.

In his second issue, Walker contends the trial court prejudged his case based on comments made by the trial court at the plea and boot camp hearings.  Walker cites the following comments as indicators of the trial court=s determination to prejudge his case.

At the plea hearing:

That means if you do anything wrong once you get out of boot camp, if you break any of those rules of probation, then you=re looking at 20 years in the penitentiary. And if you don=t think I=ll send you there for 20 years, you ask your lawyer and you ask some people out back in the holdover cell or any place else in Lew Sterrett, because I won=t blink an eye; do you understand? 

At the boot camp hearing:

Let me tell you, if you don=t keep your share of paying back that money, the Court=s going to send you to the penitentiary.

.   .   .

You must get and obtain a job within 30 days. If you don=t, I=m going to send you back to prison.  There is plenty of work out there.  I drive up and down these streets, I see signs all over that say they need people to work.

.   .   .

Pay back the people you=ve taken this property from, because if somebody took your $4800, you=d be up here asking me to sentence them to the penitentiary for life.

In the first instance, the defendant is required to voice an objection when he becomes aware of the court=s arbitrary attitude towards his probation.  Cole v. State, 757 S.W.2d 864, 866 (Tex. App.--Texarkana 1988, pet. ref=d).  The failure to do so constitutes a waiver of such complaints on appeal.  Id. at 866; Rogers v. State, 640 S.W.2d 248, 263-64 (Tex. Crim. App. [Panel Op.] 1982).  The record reflects that Walker made no objection either in writing or orally before the trial court at any of the contested hearings.  As such, he is precluded from raising this issue on appeal for the first time, and his second issue is overruled.  Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1.

Secondly, the boot camp hearing was presided over by another judge acting in Judge Greene=s stead.  Therefore, we need not consider what effect, if any, those comments had on the revocation process because the revocation phase of Walker=s case was presided over by Judge Greene.

Lastly, Walker would have to demonstrate that the comments made by Judge Greene at the plea hearing represented an arbitrary refusal to consider the entire range of punishment before we could find a denial of his due process rights.  McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983).  However, the fact that Judge Greene sentenced Walker to ten years in the penitentiary indicates she did consider the entire range of punishment and did not arbitrarily act on the statement made at the plea hearing that she would sentence Walker to twenty years if he violated the terms of his parole.

Conclusion

The trial court=s judgment revoking Walker=s probation on the May 2 burglary of a habitation count is affirmed.

SUSAN LARSEN, Justice

July 25, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)