Zillender v. State

DOUGLAS, Judge,

concurring in part and dissenting in part.

The appellant’s motion for rehearing should be overruled, but not for the reasons given by the majority. The objection that the State did not show a final conviction is not pertinent. No one contends that one who has been placed on probation has been finally convicted. If appellant had wanted to call to the court’s attention that probation had expired he should have made that objection.

His ground of error on appeal is different from the objection urged during the trial. His ground of error is:

“The trial court erred in permitting the State to impeach the defendant with evidence that he had been previously convicted of a crime for which he was placed on probation and the period of probation had expired, in violation of Tex.Code Crim.P.Ann.Art. 38.29 (1965).”

This is quite different from the objection:

“. . .on the ground that the question, as stated, is in violation of the Code of Criminal Procedure in that any prior conviction, which is not a final conviction cannot be used against a defendant at the guilt or innocence stage of the trial, and that there is no showing by the District Attorney’s office that it is a final conviction and can be used against the defendant in this cause.”

Different contentions on appeal from those at the trial will not be considered. Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr. App.1976); Reece v. State, 521 S.W.2d 633 (Tex.Cr.App.1975), and Moore v. State, 480 S.W.2d 728 (Tex.Cr.App.1972).

Article 38.29, V.A.C.C.P., provides that a witness in a criminal case may be impeached if such person has been placed on probation and the period of probation has not expired.

In this case a motion to revoke probation was filed prior to the expiration of the probationary period. Even in view of this, the majority holds that the probationary period had expired and that the motion to revoke probation meant nothing. The court could still have revoked probation and therefore it must have been pending. It has not been shown that appellant had lived up to the terms of probation. The report of the probation officer reflects that he committed other crimes during the probationary period. It is the apparent intent of the Legislature that where one lives up to the condition of probation, he may have the disabilities connected with it set aside. See Article 42.12, Section 7, V.A.C.C.P. Probation had not been set aside.

The effect of the majority’s holding is that if a motion to revoke probation is filed during its term and a probationer cannot be found, he gains by leaving the jurisdiction or hiding out and he can testify during a trial and cannot be cross-examined as to the prior pending conviction for which he may go to the penitentiary. This is not sound in law or in logic.

In this case, the State had filed a motion to revoke probation before it had expired. This Court in many cases has held that even if the term of probation has expired, it can be revoked if the State (1) files a motion to revoke; (2) has a warrant or capias issued within the probationary period; and (3) holds a revocation hearing without undue delay. See Smith v. State, 513 S.W.2d 81 (Tex.Cr.App.1974); Coffey v. State, 500 S.W.2d 515 (Tex.Cr.App.1973).

In the present case the motion to revoke probation alleged that appellant had failed to report for three months immediately pri- or to the filing of the motion to revoke *521 probation. Appellant’s testimony at the trial showed that he was living at one address and was claiming another address as his residence. Like presenting a ground of error differing from the objection, appellant, upon appeal only, claims lack of diligence in revoking probation.

The situation is analogous to the tolling of a limitation period in which one may be charged with an offense. Absence from the State or the pendency of a prior charge will toll the running of statute of limitations.

The majority reaches the right result for the wrong reasons.