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488 S.W.2d 448

Garcia v. State

Court of Criminal Appeals of Texas

Decided December 20, 1972

Court of Criminal Appeals of Texas · decided 1972-12-20

Cited by 6 later decisions — most recently August 1984

6 state decisions

Key passage — most relied on by later courts

““THE STATE OF TEXAS VS. JANIE GONZALES GARCIA “IN THE DISTRICT COURT 175TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS “ORDER REVOKING PROBATION “On this the 3rd day of September, A.D., 1971, came on to be heard the Second Amended Motion To Revoke Probation heretofore filed in the above-entitled and numbered cause, the defendant appearing in person and represented by attorney; “And it appearing to the Court that the defendant was served with a copy of said Motion in the time required by law, and that the evidence established that the defendant is the identical defendant in the above-styled and numbered cause who was heretofore granted probation by this Court, and that the conditions of said probation, among other, were those provisions required by the Statutes; “And it further appearing that the evidence adduced sustained the allegation in said Motion that the defendant, JANIE GONZALES GARCIA, violated condition number 3 of her probation, in the above-styled and numbered cause, said condition having heretofore been set by the Court on the 21st day of April, 1971, and having been heretofore filed with the papers in the case and is now before the Court, and which condition specifically ordered that the defendant, JANIE GONZALES GARCIA, ‘Avoid places and persons of harmful or disreputable character, including places where narcotic drugs are possessed, sold, or used in that, she, JANIE GONZALES GARCIA, was in Bexar County, Texas, on the 17th day of February, 1971, at a place where narc”

quoted by 1 later decision, including Garcia v. State

““The orders revoking probation, and the sentences imposed, are hereby set aside until such time as the probations granted to this appellant have been revoked by the trial court in orders clearly setting out the findings and conclusions upon which they are made. From the entry of such orders, the appellant would have the right of appeal to this court. See Wozencraft v. State [ 388 S.W.2d 426 ]. The judgments are reversed and remanded.””

quoted by 1 later decision, including Garcia v. State

Relies on Morrissey v. Brewer · Hulsey v. State · Bradley v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1972-12-20

View the full empirical analysis of this case →

¶1OPINION

ONION, Presiding Judge.

¶2These appeals arise out of orders revoking probation.

¶3On April 9, 1970, the appellant entered pleas of guilty before the court to the offenses of unlawful possession of heroin and unlawful possession of narcotic paraphernalia. The punishment was assessed at five years in each case; but the imposition of the sentences was suspended and the appellant placed on probation in each case. Among the conditions of probation imposed were the following requirements:

3. Avoid places and persons of harmful or disreputable character, including places where narcotic drugs are pos*449sessed, sold or used and not associate with persons who possess, sell or use narcotic drugs, and not associate with persons of criminal record;
5. Report, in person, to the Adult Probation Officer of Bexar County, Texas, on the 21st day of each month, and when said day of the month falls on a Saturday, Sunday or a legal holiday, they (sic) you will report on the next working day; . . . ”

¶4And, the unnumbered condition

“[t]hat defendant apply for treatment of her narcotic addiction under Title III of the United States Narcotic Addict Rehabilitation Act of 1966 and comply with any order issued by the United States District Courts in and for the Western District of Texas to report and accept treatment by any hospital.”

¶5On December 21, 1970, motions to revoke the probations granted were filed. The record contained first amended motions to revoke without file marks on any of them. On July 15, 1971, the court, after a hearing, revoked the probations granted.

¶6We shall consider at the outset appellant’s contention that the court abused its discretion in failing to state the findings upon which it revoked her probations after proper request was made therefor.

¶7When the revocations were ordered, appellant’s counsel requested the court to specify the grounds upon which the revocations were based. The court replied, “Any grounds that the Court of Criminal Appeals deems sufficient.” Counsel noted his exception.

¶8Subsequently, on September 8, 1971, the court signed written orders revoking pro-bations, each of which contained the following paragraph:

“And it further appearing that the evidence sustained the violations alleged of conditions of Paragraphs Nos. 3, 5 and 14, in the Motion to Revoke Probation, the same being violations of the conditions of probation:”

¶9Sentences were not imposed until October 28, 1971.

¶10A probationer is entitled to know why his probation is being revoked as a matter of due process. Even in parole revocation proceedings which are “not a part of a criminal prosecution,” due process requires no less. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L. Ed.2d 484 (1972).

¶11In Wozencraft v. State, 388 S.W. 2d 426 (Tex. Cr.App. 1965), this court held that the trial court was without authority to revoke probation without having found that the probationer had violated the conditions thereof. And, the findings and conclusions upon which the trial court acts should be clearly set forth in the order of revocation. McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958); Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969) ; Wozencraft v. State, supra.

¶12In Gamble v. State, 484 S.W.2d 713 (Tex.Cr.App.1972), it was made clear that better practice requires findings should be. made in every case.

¶13This court has, on occasion, held that an order revoking probation is not rendered defective, however, for the lack of recitation of findings on which it is based absent any timely request to the trial court for such findings. Tate v. State, 365 S.W.2d 789 (Tex.Cr.App.1963); Hulsey v. State, supra; Johnson v. State, 476 S.W.2d 324 (Tex.Cr.App.1972); Wilcox v. State, 477 S.W.2d 900 (Tex.Cr.App.1972).

¶14In the instant cases, the court initially refused to make the findings requested upon revoking probations and only subsequently entered the orders set out above. Are such findings sufficient? The orders refer only to “[paragraphs Nos. 3, 5 and 14, in the Motion to Revoke Probation.” The record reflects there was a motion to revoke filed on December 21, 1970; a first *450amended motion to revoke filed without a file mark, and, subsequently, a second amended motion to revoke probation was filed without a file mark. Until the entry of the order correcting the record was entered on February 10, 1972, it would have been impossible to determine upon which motion the hearing was conducted. Such corrective order reflects the hearing was had upon the “Second Amended Motion to Revoke” in each case. Upon examining the findings in the orders of revocation in light of the relevant motions to revoke probation, it is discovered that there is no paragraph 5 or paragraph 14 in such motions. Further, paragraph 3 thereof does not allege any violation of probation, but is merely the conclusory prayer of the motion. It is only by taking paragraph 2 and considering the four alleged violations contained therein as separate paragraphs that any meaning would be given to the order in reference to “[paragraphs Nos. 3, S

¶15

¶16These findings are not sufficient to inform a probationer or this court as to which violations of probation were found by the trial court. The other alleged abuses of discretion need not be considered.

¶17The orders revoking probation, and the sentences imposed, are hereby set aside until such time as the probations granted to this appellant have been revoked by the trial court in orders clearly setting out the findings and conclusions upon which they are made. From the entry of such orders, the appellant would have the right of appeal to this court. See Wozencraft v. State, supra.

¶18The judgments are reversed and remanded.

ROBERTS, J., concurs in the result.
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