Richardson v. State

¶1CONCURRING OPINION TO OPINION ON APPELLANT’S MOTION FOR REHEARING

¶2I authored the original unanimous per curiam panel opinion, reaching the same proper result as does the majority — that appellant’s appeal should be affirmed.1

¶3I concluded, after reviewing the record, and still conclude, that appellant’s own admission during the hearing, that he unlawfully possessed a usable quantity of marijuana, was sufficient in itself to sustain the trial court’s order revoking appellant’s probation.

¶4It is axiomatic under the law which governs revocation of probation cases that if a probationer, during the motion to revoke hearing, takes the stand and testifies and admits that he violated the alleged condition of probation, this, alone, is sufficient to sustain the trial court’s order revoking the probation and the conclusion that the trial court did not abuse its discretion in revoking the order of probation. See, for example, Greathouse v. State, 491 S.W.2d 149 (1973); Mitchell v. State, 482 S.W.2d 221 (1972).

¶5It is also axiomatic under the law which governs revocation of probation cases that if the State alleges in its motion to revoke a greater offense, but proves a lesser offense, then there is no variance between the alle*858gation and the proof. See, for example, Foote v. State, 463 S.W.2d 445 (1971); Barnes v. State, 467 S.W.2d 437 (1971).

¶6Here, it was incumbent upon the State to prove that appellant possessed a usable quantity of marijuana. The fact that the motion to revoke probation alleged a usable quantity in excess of four ounces is irrelevant and immaterial to a finding that appellant unlawfully possessed a usable quantity of marijuana. Again, all the State had to prove here was that appellant unlawfully possessed a usable quantity of marijuana. It accomplished this — through none other than appellant himself.

¶7A probationer who testifies at the hearing on the State’s motion to revoke is in no better or worse position than his trial counterpart. In Myre v. State, 545 S.W.2d 820, 825 (1977), the general rule governing a defendant testifying was stated as follows:

.. .When an accused voluntarily takes the stand before a jury he is subject to the same rules as any other witness. He may be contradicted, impeached, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of the defendant, except when some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the present case or his failure to testify on a former trial or hearing. Brumfield v. State, 445 S.W.2d 732, (1969). It has been the consistent rule for many years that an accused may not take the witness stand before a jury for a limited purpose. (Citations omitted.) (Emphasis added.)

¶8In Myre, id., this Court also explicitly held:

. . . We hold that an accused may not take the stand before the jury for the limited purpose of contesting the volun-tariness of his confession. If he testifies before the jury he is subject to cross-examination the same as all other witnesses. (at 825). (Emphasis added.)

¶9There are, of course, several well known exceptions where a defendant may testify in a limited capacity: (1) in a preliminary hearing to determine the voluntariness of a confession, (2) in a preliminary hearing to determine the admissibility of an in court identification, and (3) on a preliminary motion to suppress where the claim is made there was an illegal search and seizure. None of these exceptions are applicable to this cause.

¶10When any of the above exceptions apply, a probationer, like his counterpart, has the right to testify in a limited capacity as to preliminary motions.

¶11In Masters v. State, 545 S.W.2d 180 (1977), this Court rightfully reversed and remanded an order of revocation where the trial court refused to permit a probationer to testify solely on the issue of the volun-tariness of his confession. There, we held that the probationer could testify to that issue during the hearing, without subjecting himself to unlimited cross-examination by the prosecution on other issues.2

¶12Thus, there should be no question that a probationer, like his accused counterpart, may testify in a limited capacity concerning an evidentiary hearing on certain preliminary motions. He may take the stand and limit his waiver of his privilege against self-incrimination to the preliminary issue presented. See Franklin v. State, 606 S.W.2d 818, 852 (1979) (Onion, P. J., concurring opinion on appellant’s motion for rehearing).

¶13Did this appellant come within any known exception? I find he did not. Today I feel this Court wrongfully adds another exception to the general rule regarding a probationer testifying at a hearing on a motion to revoke probation. After today, *859by the majority’s silent holding, in a revocation of probation hearing, a defendant is now permitted to take the stand in a limited capacity to testify to the defense of entrapment, provided he makes known to the trial court the reason for so testifying.

¶14The statement of facts of the hearing below reveals that the State first presented evidence concerning the obtaining and execution of a search warrant. Prior to the hearing, the appellant’s attorney filed a motion to suppress, claiming the search warrant affidavit and search warrant were invalid, thus rendering the search illegal. After the hearing, the trial court ruled against appellant, overruling and denying the appellant’s pre-trial motion to suppress.

¶15Thereafter, the State presented evidence concerning appellant’s original conviction for which he received probation. This evidence consisted of the original indictment, order granting probation, the judgment, and ancillary papers supporting the accusation and the probation, as well as a waiver of trial by jury.

¶16The State then recalled its witness who testified at the motion to suppress hearing, as well as a chemist, and then rested its case.

¶17Thereafter, appellant put on a witness who testified to certain jail records concerning the witness Heath, see the majority opinion, as well as to what kind of prisoner appellant had been since his arrest. Appellant also put on certain “character-reputation” witnesses.

¶18The record then reflects the following:

MR. SCHENK:3 I want to put Mr. Richardson [the appellant] on for the limited purpose of the defense of entrapment.

THE COURT: What now?

MR. SCHENK: Limited purpose of defense of entrapment.

MR. RICHIE:4We object to that. If he had an entrapment defense to be brought before the Court prior to the time we went in the trial in chief that would be one thing, but if he takes the stand I think he takes it for ail purposes.

THE COURT: That’s my basic understanding of the law, Mr. Schenk.

MR. SCHENK: Well, the cases seem to indicate, Judge, that essentially you have a two-edged sword there. I mean, you can put a witness on the stand for the limited purpose—

THE COURT: Show me a case.

MR. SCHENK: Okay.

THE COURT: If you put him on on the limited purpose I have no quarrel whatsoever for that. But you have to put him on prior to the hearing in chief has been the typical procedure I have indulged in.

MR. SCHENK: Well, entrapment is part of the hearing in chief. It’s not an—

MR. RICHIE: Which has never been raised, your Honor.

THE COURT: Oh, bull, let’s put him on for the limited purpose of entrapment.5 Get it done.

MR. SCHENK: Well, it’s a question of fact being determined by the Court.

THE COURT: Put him on. I’m listening.6

*860MR. SCHENK: All right. (Emphasis added.)

¶19Thereafter, appellant testified and admitted that “I finally sold [Heath] some [marijuana].” In this instance, the delivery of the marijuana encompasses the act of possessing the marijuana. See Jones v. State, 586 S.W.2d 542 (1979).

¶20Appellant’s probation officer also testified for appellant, after which the trial court heard oral arguments of counsel and then ordered appellant’s probation revoked.

¶21The State’s motion to revoke appellant’s probation alleged that appellant unlawfully possessed in excess of four ounces of the controlled substance marijuana. It was therefore incumbent upon the State to prove that appellant unlawfully possessed a usable quantity of marijuana. Through appellant’s own admission that he delivered to Heath a quantity of marijuana, which Heath smoked, this supplied the necessary evidence, i. e., possession and usable quantity of marijuana, of the State’s burden. The amount of marijuana possessed by appellant was immaterial and irrelevant, as long as it was a usable quantity, to sustain the State’s motion.

¶22Entrapment is a rather unique defense in our law, see V.T.C.A.Penal Code, Sec. 8.06, as it is the only defense which is authorized to be tried prior to the trial on its merits. See Bush v. State, 611 S.W.2d 428, 432 (1981). We are not concerned in this cause with any pre-trial motion regarding the defense of entrapment, for none was filed.

¶23Craddock v. State, 553 S.W.2d 765 (1977), reaffirmed the rule that “The harmful effect of improperly admitted evidence is not cured by the fact that the accused sought to meet, destroy or explain it by the introduction of rebutting evidence.” See Nicholas v. State, 502 S.W.2d 169 (1973); Alvarez v. State, 511 S.W.2d 493 (1973). However, Craddockis distinguishable from this cause for there the defendant filed a pre-trial motion to suppress evidence, which evidence resulted from a warrantless search. The opinion reflects that Craddock testified at a pre-trial motion to suppress hearing. Craddock also testified during his trial and admitted that he possessed the marijuana, which of course was a necessary predicate to his defense of entrapment. On rehearing, this Court rightfully held that its original panel opinion was in error when it used appellant’s testimony at trial to reject his claim the trial court erred in overruling his motion to suppress. Unquestionably, the two issues were independent of one another.

¶24However, here, as noted, a pre-trial motion to suppress was filed and a hearing was held thereon. However, appellant did not testify at the hearing on the motion. It was only after the revocation hearing was almost completed when appellant took the witness stand and testified in his behalf.

¶25The majority of this Court, on appellant’s rehearing, has concluded, as I did on original submission, that: “Appellant offered no evidence to support a prima facie finding that his possession of marijuana was as the result of entrapment.”

¶26In an apparent moment of exasperation, the trial judge did state to appellant and his counsel: “Oh, bull, let’s put him on for the limited purpose of entrapment.”

¶27In the panel opinion, I wrote:

We also observe that in a revocation of probation hearing, if a defendant exercises his right to testify, he is subject to the same rules governing examination and cross-examination as any other witness. See Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); and Brumfield v. State, 445 S.W.2d 732 (1969).

*861Here, appellant exercised his right to testify at the hearing and made a judicial admission, by admitting not only that he possessed marijuana but also that he delivered marijuana to Heath, that he violated the condition of his probation that he not violate the laws of this State.

Of course, if appellant had established the defense of entrapment, another question would be presented. By the facts of this case, we hold he did not even come close to establishing that defense, either as a matter of fact or law.

Appellant’s own admission that he violated the condition of probation that he violate no law of this State was sufficient, standing alone, to justify revoking his probation. See Gamble v. State, 484 S.W.2d 713, 715 (1972). Evidence which supports a finding that the appellant violated one condition of his probation is sufficient to sustain the order revoking probation. See McDonald v. State, 608 S.W.2d 192, 200 (1980). It is therefore not necessary for this Court to discuss appellant’s contentions regarding a search warrant and the execution thereof. (Emphasis added.)

¶28The facts in this cause and those found in Craddockare a far cry from one another. Craddock’s record was properly perfected; this one is not.

¶29The majority, by its silence, has engraft-ed a strange new rule of law onto our trial courts when a hearing on a State’s motion to revoke probation is conducted. This appellant has not been denied or deprived of any rights under our law. By the colloquy between the prosecutor, the trial judge and defense counsel, see supra, it is apparent to me, contrary to what appellant’s counsel stated in his motion for rehearing, to wit:

The State has tempted Appellant with a statutory defense, and the trial Judge assured him of a shield when Appellant exercised that right. Then, when he took the bait the State snapped shut the prose-cutorial jaws.

¶30that there was no tempting by the prosecution, nor did the trial judge assure him of a shield, nor was there any offering of any “bait.” However, there most certainly is, and successfully I might add, an attainment in law that is not warranted by these facts.

¶31Where do we draw the line? If, under similar circumstances, a defendant “baits” a trial judge into letting him testify in a limited capacity to the defense of alibi, insanity, mistake of fact, mistake of law, intoxication, entrapment, or whatever,7 and the trial judge rejects that defense, then, as that did not succeed, do we now allow that same defendant to come back and say, in so many words, “Well, that didn’t work, so how about this?” And then present some other ground of error, hoping, I suppose, that it will be so unique in the annals of our criminal jurisprudence, that a majority of this Court will “take the bait,” and rule favorably on the contention.

¶32But, at a minimum, under the facts of this case, was the appellant not allowed to present his defense of entrapment? He did and it was rejected by the trial court. His attorney said: “Well, it’s a question of fact being determined by this Court.” Once the trial court rejected the appellant’s “entrapment defense,” was the trial judge then required to blot out of his mind what he heard from the lips of appellant. I think not. When appellant testified to his defense of entrapment, the admissions he made were sufficient to sustain the allegations of the State’s motion to revoke appellant’s probation. Although no one disagrees that appellant did not even make out a prima facie finding of entrapment, a majority of this Court is apparently now holding, silently I must add, that any testimony given by appellant in his “defense,” is no longer usable by either the trial court or this Court. To this holding I respectfully dissent.8

¶33*862Ordinarily, a probationer who appeals to this Court does not fare too well. By the past decisions of this Court it takes little to affirm a trial court’s order of revocation. See, my dissenting opinion in Hardman v. State, 614 S.W.2d 123, 128 (1981). Perhaps, however, by today’s holding, the Court makes up for this by its silent holding in this cause. Probationers can now rejoice that they, but not their accused counterpart, can testify at the hearing in a limited capacity to whatever defense their attorney thinks appropriate.

¶34To the result reached, I concur.

¶35McCORMICK, J., joins.