Jurisdictional Statement — Danny Vincent v. State of Texas

IN THE

SUPREME COURT of the UNITED STATES

October Term, 1979

RECEIVED

JAN8 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S.

"79-5962

DANNY VINCENT,

Appellant,

STATE OF TEXAS,

Appellee.

On Appeal From the Texas Court of Criminal Appeals

JURISDICTIONAL STATEMENT

Of Counsel: Robert D. Lemon

Robert D. McCutcheon

Dana Ehrlich

P.O. Box 1066

Perryton, Texas 79070

LEMON, CLOSE, ATKINSON,

SHEARER & McCUTCHEON ATTORNEYS FOR APPELLANT

January, 1980

TABLE OF CONTENTS

Page

oo 0. ee ee eee ee ee er ee ee ee ee, ee 1

Jurisdiction . 2

Statutory Provision Involved . 3

Geeecione TEROURNEE. «ok 6 woe se Bo eee ie eee 4

Statement of Facts . 4

The Federal Question Presented is Substantial 7

CORGEDEOUN 6) kes SRS 8 8 oe eee 11

Appendix A - Opinion Below . . . «s+ 6 66 8 & ©» & es la

Appendix. 3B. - Statute Inmveived §. os 6s 6 8 eee ee 2a

Appendix © ~- Rehearing Detiial «29s. 666s 3 eo es 3a

Appendix BD - Betice of Gpgeel . 6 kk eS ee Oo ewe Oe 4a

INDEX TO CITATIONS

CASES:

Douglas v. California, 372 U.S. 353 (1963) 8

Dowdy v. State, 534 S.W.2d 336 (Tex.Crim.App.--1976) .. 8

Duncan v. Loutsiana, 391 U.S. 145 Ci96@) . . « « See Pe

Escoe v. Zerbst, 295 U.S. (1935) 9

Ex Parte Shivers, 501 S.W.2d 898 (Tex.Crim.App.--1973) . 7,8,10

Ferguson v. Georgia, 365 U.S. 570 (1961) ........ 3

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ........ 2,3 5-10

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ...... 3

Hicks v. Miranda, 422 9.8. 332 (A973) se ee eee ll

Hoyt v. Florida, 368 U.S. 57 (1961)

Milheim v. Moffat Tunnell Improvement Dist.,

362 U.S. 710 (1923)

Morrissey v. Brewer, 408 U.S. 471 (1972)

Tamez v. State, 534 S.W.2d 686 (Tex.Crim.App.--1976)

Whisenant v. State, 557 S.W.2d 102

(Tex. Crim. App.--1977) ¢

STATUTES AND CONSTITUTIONAL PROVISIONS:

United States Constitution

Fourteenth Amendment .

28 U.S.C. § 1257(2)

Tex. Code Crim. Proc. Ann.

art. 42.12(8) (Vernon, 1979)

OTHER AUTHORITIES:

Hippard, Annual Survey of Texas Law,

33 Southwestern Law Journal 505 (1979)

Wright, Miller, Cooper & Gressman,

16 Federal Practice and Procedure,

§4014 Jurisdiction, (1977)

10

ll

IN THE

SUPREME COURT of the UNITED STATES

October Term, 1979

NO.

DANNY VINCENT,

Appellant,

STATE OF TEXAS,

Appellee.

On Appeal From the Texas Court of Criminal Appeals

JURISDICTIONAL STATEMENT

THE OPINION BELOW

The per curiam decision of the Texas Court of Criminal

Appeals is unpublished, 586 S.W.2d 880, (Tex. Crim. App. 1979),

and appears herein as Appendix A. No other written opinions have

been delivered.

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

(i) Appellant Danny Vincent ("Vincent") appeals from a

revocation of probation. Vincent was convicted of burglary in

the 84th District Court of Ochiltree County, Texas. The court

fined Vincent $2,000.00 and placed him on probation for six

years. Vincent was later arrested on a complaint of driving

while intoxicated, driving without a driver's license, driving

with no tail lights and making excessive noise. After spending

over a month and a half in jail and without a preliminary hear-

ing, on April 10, 1978, the court revoked appellant's probation.

Article 42.12(8) of the Texas Code of Criminal Procedure

("The Statute") (please see Appendix B) does not require the

State to conduct some minimal inquiry after Vincent's alleged

probation violation or arrest in the nature of a preliminary

hearing to determine whether there was probable cause to believe

that Vincent had committed acts that violated probation con-

ditions. It is undisputed that no such preliminary hearing was

held. Appellant objected to the revocation on two grounds:

(a) The Statute is unconstitutional on its face

for failure to provide for the preliminary hearing

and attendant safeguards required by the due pro-

cess clause of the Fourteenth Amendment to the

United States Constitution as enunciated in

Morrissey v. Brewer, 408 U.S. 471 (1972) and

Gagnon v. Scarpelli, 411 U.S. 778 (1973); and,

(b) Vincent, in this case, was denied due pro-

cess of law mandated by Morrissey and Scarpelli,

where Vincent's probation was revoked without a

preliminary hearing and attendant safeguards re-

quired by the due process clause of the Fourteenth

Amendment to the United States Constitution as

enunciated in Morrissey v. Brewer, 403 U.S. 471

(1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973).

wits

The decision of the Texas Court of Criminal Appeals upheld the

revocation and The Statute. Vincent appeals pursuant to 28

U.S.C. § 1257(2).

(ii) Vincent seeks review of the September 19, 1979 de-

cision of the Texas Court of Criminal Appeals affirming the

judgment of revocation of probation. Vincent timely filed a

Motion for Rehearing en banc on September 26, 1979. Vincent's

Motion for Rehearing was denied October 10, 1979. See Appendix

C. The Notice of Appeal was filed in the court possessed of the

original record, the 84th District Court of Ochiltree County,

and in the Texas Court of Criminal Appeals. See Appendix D.

(iii) 28 U.S.C. § 1257(2) (1966) confers jurisdiction of the

appeal on this Court.

(iv) Cases sustaining the jurisdiction of this Court are:

Duncan v. Louisiana, 391 U.S. 145 (1968);

Giaccio v. Pennsylvania, 382 U.S. 399 (1966);

Hoyt v. Florida, 368 U.S. 57 (1961);

Ferguson v. Georgia, 365 U.S. 570 (1961);

Gagnon v. Scarpelli, 411 U.S. 778 (1973);

Morrissey v. Brewer, 408 U.S. 471 (1972).

(v) This appeal questions the validity of Article 42.12(8),

Texas Code of Criminal Procedure. Since the statutory provision

42.12(8) is lengthy, the citation is Tex. Code Crim. Proc. Ann.

Art. 42.12(8) (Vernon 1979). The pertinent text of Article

42.12(8) is recited at Appendix B.

QUESTIONS PRESENTED BY THE APPEAL

(i) Whether The Statute, which does not require the State

to hold any preliminary hearing to determine probable cause to

believe the probationer has violated probation conditions, is

unconstitutional on its face as violative of the due process

clause of the Fourteenth Amendment to the United States Consti-

tution.

(ii) Whether The Statute, which does not require the State

to hold any preliminary hearing to determine probable cause to

believe the probationer has violated probation conditions is

constitutional as applied to in case as violative of the due

process clause of the Fourteenth Amendment to the United States

Constitution.

STATEMENT OF THE FACTS OF THE CASE

On May 23, 1977, Vincent pled guilty to burglary. The

trial court fined Vincent $2,000.00 and sentenced him to six

years in the Texas Department of Corrections. The court sus-

pended the imposition of the prison sentence and attached as

conditions of his probation that he conmit no offense against

the laws of Texas and refrain from drinking intoxicants.

On February 6, 1978, Vincent was arrested upon the State's

Supplementary Motion for Warrant to Revoke Probation, alleging,

among others, that Vincent was driving while intoxicated, and

had not refrained absolutely from drinking intoxicants.

On February 6, 1978, the court set the date for the show cause

hearing on the State's supplementary motion for March 27, 1978.

Vincent did not receive notice of the hearing until March 2,

1978. On March 24, 1978, Robert McCutcheon was appointed counsel

for Appellant upon Appellant's "Affidavit of Inability to Employ

Counsel ."'

The Statute allows a defendant who has been arrested in

respect of a probation revocation and who has not been released

on bail to make a motion for a hearing on the merits to be held

within twenty days of the filing of the motion to revoke. After

the hearing on the merits, the court may decline to revoke,

modify or revoke probation. The State undisputedly did not hold

a hearing to determine probable cause. The Statute does not

require it. Vincent was in jail for over a month and a half

without knowing he had the statutory right to a hearing on the

merits.

On March 27, 1978, three days after counsel was appointed

for Vincent, Vincent filed his Motion to Quash and Special

Exceptions directed to appellee's Original and Supplementary

Motions to Revoke the Probation. At this time appellant chal-

lenged The Statute on the following grounds:

(a) Citing Gagnon v. Scarpelli, 411 U.S. 778, (1973), and

Vincent claimed the right to a preliminary hearing, as promptly

as convenient after arrest, and notice thereof, to determine

probable cause of the alleged violations of probation.

(b) Vincent asserted the revocation of probation under The

Statute without a preliminary hearing was expressly prohibited

by the due process clause of the Fourteenth Amendment to the

United States Constitution.

(c) Vincent objected that The Statute was unconstitutional

on its face, and as applied to him, for failure to provide for

the preliminary hearing and attendant safeguards mandated by

Morrissey v. Brewer, 408 U.S. 471 (1972), ("Morrissey") and

Gagnon v. Scarpelli, 411 U.S. 778 (1973), ("Scarpelli") under

the Fourteenth Amendment to the United States Constitution.

The trial court overruled Vincent's constitutional objections.

On April 10, 1978, the Court found that Vincent violated his

probation conditions by driving while intoxicated and drinking

alcoholic beverages and revoked his probation. Vincent timely

appealed to the Texas Court of Criminal Appeals to review the

judgment below and specifically the court's ruling on 42.12(8) (a).

On such appeal, Vincent raised the identical objections as set

forth above.

On September 19, 1979, the Texas Court of Criminal Appeals

affirmed the judgment of the lower court. The per curiam de-

cision stated: "Both grounds complained of the failure of the

Texas system of probation to provide a preliminary hearing of the

kind discussed in Scarpelli. . .. This argument was rejected

in Whisenant v. State, 557 S.W.2d 102, and it does not require

further discussion today.'' The opinion, 586 S.W.2d 880, is

unpublished and is attached to this statement as Appendix A.

Vincent's Motion for Rehearing en banc was denied. See Appendix

C.

THE FEDERAL QUESTION PRESENTED IS SUBSTANTIAL

The Texas Court of Criminal Appeals is of the opinion that

the logic and holdings of the U.S. Supreme Court in Scarpelli

and Morrissey do not apply to Texas probation revocation pro-

ceedings. Ex Parte Shivers, 501 S.W.2d 898, (Tex. Crim. App.

1973). Whisenant, supra. Thus, this appeal squarely raises

the question of whether the State may revoke an arrested

accused's probation without an informal preliminary hearing to

determine probable cause, as required by this Court's interpre-

tation of the due process clause in Scarpelli.

In analogous situations on claims of the denial of an

opportunity to be heard, this Court has entertained such sub-

stantial federal questions. Gagnon v. Scarpelli, 411 U.S. 778

(1973); Morrissey v. Brewer, 408 U.S. 471 (1972). State statutes

which violate express prohibitions of the constitution and

which deny due process present substantial federal questions.

Duncan v. Louisiana, 391 U.S. 145 (1968), rehearing denied, 392

U.S. 947.

The constitutional precedents established by this Court

directly clash with the thrice-refusal of the Texas Court of

Criminal Appeals to recognize the settled constitutional doc-

trine as announced in Scarpelli. Although a state is not con-

stitutionally required to provide for probation and revocation

proceedings as part of its criminal procedure, if a state

chooses to implement such procedures, then the due process

clause is fully applicable to the state's decision. Douglas

v. California, 372 U.S. 353. (1963).

Even though the revocation of probation is not a part of

the criminal prosecution, the court has held that the loss of

liberty entailed is a serious deprivation requiring that the

parolee be accorded due process. Gagnon v. Scarpelli, 411 U.S.

at 781. Using this logic, Texas courts have granted pro-

bationers Fourth Amendment protections, Tamez v. State, 534

S.W.2d 686 (Tex. Crim. App.--1976) and Fifth Amendment pro-

tections, Dowdy v. State, 534 S.W.2d 336 (Tex. Crim. App.--

1976). Despite the recognition that the Fourth and Fifth

Amendments apply to the Texas probation revocation process, the

Texas Court of Criminal Appeals has consistently refused to

listen to and apply Scarpelli logic to the Texas probation

system. Shivers and Whisenant, supra.

This Court has not perceived a difference between the

revocation of probation and the revocation of parole. In its

unanimous decision, this Court affirmed the importance of the

applicability of due process to probation revocation:

"Both the probationer or parolee and the state

have an interest in the accurate finding of fact

and the informed use of discretion--the pro-

bationer or parolee to insure that his liberty

is not unjustifiably taken away; and, the state

to make certain that it is neither unnecessarily

interrupting a successful effort at rehabilitation,

nor imprudently prejudicing the safety of the

community." Gagnon v. Scarpelli, 411 U.S. 778 at

785.

This Court in Morrissey and Scarpelli established minimum

due process safeguards whenever the state attempts to revoke

parole or probation. Minimum due process includes: notice to

the probationer of alleged violations of probation; opportunity

for the probationer to present evidence in its own behalf; a

conditional right of the probationer to confront adverse wit-

nesses; an independent decision maker, and a written report of

the hearing. Such requirements serve as a substantial pro-

tection against ill-considered revocation. None of these minimal

safeguards were granted Vincent in this case.

The Statute ignores one of the two important stages in the

typical process of probation revocation; i.e., the informal

preliminary hearing to determine probable cause. Yet pro-

bationers, like parolees, are entitled to a preliminary and a

final revocation hearing under the conditions specified in

Morrissey. Gagnon v. Scarpelli, 411 U.S. 778 at 783.

Probation revocation, like parole revocation, is not a

stage of the criminal prosecution, but does result in a loss of

liberty. Gagnon v. Scarpelli, 411 U.S. 778 at 782. This Court

in Scarpelli said at footnote 4: "it is clear at least after

Morrissey v. Brewer, 408 U.S. 471 (1972), that a probationer

can no longer be denied due process, in reliance on the dictum

in Escoe vs. Zerbst, 295 U.S. 490 (1935), that probation is an

"act of grace'".

Nevertheless, Texas courts have consistently sought to

avoid the unequivocal requirement of a preliminary hearing by

arguing that the Texas statute allows an accused probationer

even more protection than the court in Scarpelli. See, Ex

Parte Shivers, 501 S.W.2d 898 (Tex. Crim. App.--1973), and

Whisenant v State, 557 S.W.2d 102, (Tex. Crim. App.--1977).

The requirement of an informal preliminary hearing which

Scarpelli held that "probationers are entitled to" would im-

pose no serious practical problems in probation revocation

cases. This Court certainly did not intend to foreclose the

states from holding both the preliminary and the finai hearings

at the place of violation, or from developing other creative

solutions to the practical difficulties of the Morrissey

requirements. Gagnon v. Scarpelli, 411 U.S. 778 at 783.

Nevertheless, Texas has not even attempted to follow Scarpelli's

mandate and to create a solution to the practical difficulties,

if any, of the Morrissey requirements. Texas has thrice-ignored

the mandate of Scarpelli. Ome Texas Procedure scholar has

criticized Whisenant as "clearly erroneous." Hippard, Annual

Survey of Texas Law, 33 Southwestern Law Journal 1, at 558

(1979).

One problem with The Statute is that, as in the present

case, counsel may not be appointed for weeks after the detention

of the accused. It is a rare probationer indeed who is aware of

and is competent enough to handle his constitutional rights un-

der the Texas probation statute. In the meantime, such accused

probationer languishes in jail with no preliminary hearing to

-10-

determine whether probable cause exists to detain him for the

alleged violation of his probation conditions.

This is a case of far-reaching effect and importance, as

the Court will be able to, in the words of Mr. Chief Justice

Burger in Morrissey, decide precisely "what process is due."

Not only will resolution of these issues have an important ef-

fect on the administration of the probation System, but a de-

cision will also allow the states more freedom in experimenting

with appropriate probation procedures. These are issues, not

frivolous, which require analysis and exposition for their

resolution. Wright, Miller, Cooper and Gressman, Federal Prac-

tice and Procedure: Jurisdiction §4014, citing Milheim v.

Moffat Tunnell Improvement Dist., 262 U.S. 710 (1923). A

dismissal of this mandatory appeal will operate as a binding

precedent on Texas and federal courts that no preliminary hear-

ing to determine probable cause is necessary. Dismissals on the

merits for lack of a substantial federal question are binding on

the lower federal courts. Wright and Miller, Federal Practice

and Procedure; Jurisdiction § 4014 at 638, citing Hicks v.

Miranda, 442 U.S. 332 (1975).

CONCLUSION

This appeal raises issues of fundamental importance to

American and Texas criminal procedure in light of the settled

doctrines this Court applying due process protections to parole

and probation revocation proceedings and of the increasing

importance of probation in American and Texas criminai justice.

wi te

The questions presented are so substantial as to require plenary

consideration with briefs on the merits and oral argument for

their resolution.

Respectfully submitted,

LEMON, CLOSE, ATKINSON,

SHEARER & McCUTCHEON

Robert D. Lemon

Robert D. McCutcheon

Dana Ehrlich

Interstate Savings & Loan Bldg.

P.O. Box 1066

Perryton, Texas 79070

Telephone: 806-435-6544

iD one ATTORNEYS FOR APPELLANT

OF Counsel

CERTIFICATE OF SERVICE

A copy of the foregoing Jurisdictional Statement was hand delivered

to William L. Rivers, Ochiltree County Attorney, and placed in the

U.S. Mail, Certified, Return Receipt Requested, to the Honorable

Mark White, Attorney General of the State of Texas, Supreme Court

Building, Austin, Texas 78711.

Rbati) yn tthe) ie

Robert D. McCutcheon

Dated: January 7th, 1980.

ais

APPENDIX A

OPINION OF THE

TEXAS COURT OF CRIMINAL APPEALS

OPINION

On May 23, 1977, the appellant pleaded guilty to burglary

and was granted six years' »>robation. On April 10, 1978, his

probation was revoked.

On appeal from the revocation of probation, the appellant

sets forth two grounds of error. Both grounds complain of the

"failure" of the Texas system of probation to provide a pre-

liminary hearing of the kind discussed in Gagnon v. Scarpelli,

411 U.S. 778 (1973). This argument was rejected in Whisenant

v. State, 557 S.W.2d 102 (Tex.Cr.App. 1977), and it does not

require further discussion today.

The judgment is affirmed.

PER CURIAM OPINION

586 S.W.2d 880

DELIVERED: September 19, 1979

By: Panel No. 2, lst Quarter, 1979

COMPOSED OF: Leon Douglas, Judge

Truman Roberts, Judge

Wendell Odom, Judge

la

APPENDIX B

PERTINENT PROVISION

OF THE

TEXAS CODE OF CRIMINAL PROCEDURE

Sec. 8. (a) At any time eer the period of probation the

court may issue a warrant for violation of any of the conditions

of the probation and cause the defendant to be arrested. Any

probation officer, police officer or other officer with power of

arrest may arrest such defendant without a warrant upon the order

of the judge of such court to be noted on the docket of the court.

A ot so arrested may be detained in the county jail or

other appropriate place of detention until he can be taken before

the court. Such officer shall forthwith report such arrest and

detention to such court. If the defendant has not been released

on bail, on motion by the defendant the court shall cause the de-

fendant to be brought before it for a hearing within 20 days of

filing of said motion, and after a hearing without a jury, may

either continue, modify, or revoke the probation. The court may

continue the hearing for good cause shown by either the defendant

or the state. If probation is revoked, the court may proceed to

dispose of the case as if there had been no probation, or if it

determines that the best interests of society and the probationer

would be served by a shorter term of imprisonment, reduce the

term of imprisonment originally assessed to any term of imprison-

ment not less than the minimum prescribed for the offense of

which the probationer was convicted.

2a

APPENDIX C

NOTICE OF

REHEARING DENIAL

COURT OF CRIMINAL APPEALS OF TEXAS

CLERK'S OFFICE (

QCT 10 9/9

Austin, ‘Texas

Dear Sir:

| have been instructed to advise that the Court has this day

denied the Appellant's Motion for Rehearing En Bane

in Cause No, 60,564 Danny Vincent

VS.

THE STATE OF TEXAS Appellee.

Sincerely yours,

Thomas Lowe, Clerk

COURT OF CRIMAL APPEALS OF TEXAS

F. O. bex 12508, Capitol Station ; pratt res

AUSTIN, TEXAS 78711 f° oath

( OFT hy,

“EY / y

MR. ROBERT D. McCUTCHEON

ATTORNEY AT LAW

P. 0. BOX 1066

PERRYTON, TEXAS 79070

3a

APPENDIX D

IN THE DISTRICT COURT FOR THE 84TH JUDICIAL DISTRICT

OCHILTREE COUNTY, TEXAS

DANNY VINCENT, §

Appellant,

Vs. NO. 1494

STATE OF TEXAS,

Appellee. ;

NOTICE OF APPEAL

Appellant DANNY VINCENT gives notice of his intent to ap-

peal from the affirmation of his probation revocation in No.

60,564 of the Texas Court of Criminal Appeals and shall take ap-

peal to the United States Supreme Court pursuant to 28 U.S.C.

§ 1257(2). Appellant appeals from final judgment entered and

delivered on September 19, 1979 in No. 60,564 and from denial

of Appellant's Motion for Rehearing En Banc entered on October

10, 1979. Although the original record is maintained in the

above-designated court, the Appellant has also filed this

Notice of Appeal with the Clerk of the Texas Court of Criminal

Appeals, since a certified copy of the record was forwarded to

said court in connection with the appeal from the trial court.

LEMON, CLOSE, ATKINSON,

SHEARER & McCUTCHEON

Robert D. Lemon

Robert D. McCutcheon

Dana Ehrlich

Interstate Savings & Loan Building.

P.O. Box 1066

Perryton, Texas 79070

Telephone: 806-435-6544

ATTORNEYS FOR APPELLANT

/s/ R.D. Lemon

Of Counsel

CERTIFICATE OF SERVICE

A copy of the foregoing appeal was hand delivered to William L.

Rivers, Ochiltree County Attorney, and placed in the U.S. Mail,

Certified, Return Receipt Requested, to the Honorable Mark

White, Attorney General of the State of Texas, Supreme Court

Building, Austin, Texas 78711.

DATE: January 4, 1980. /s/ Robert D. McCutcheon

Robert D. McCutcheon

4a