Ex Parte Brandon Thomas--Appeal from County Court at Law No 7 of Bexar County

MEMORANDUM OPINION

No. 04- 06-00111-CR
EX PARTE BRANDON THOMAS

From the County Court at Law No. 7, Bexar County, Texas

Trial Court No. 887772

Honorable Monica Guerrero , Judge Presiding

Opinion by: Sandee Bryan Marion , Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 7, 2006

AFFIRMED

Following the State's filing a motion to revoke probation, defendant, Brandon Thomas, was taken into custody. A month later, defendant's retained attorney filed a motion to quash on the grounds that the State's failure to afford defendant a preliminary hearing with counsel denied him due process. The motion to quash was denied. Because the State requested additional time to prepare for the hearing on its motion to revoke, the trial court released defendant from custody until the State's motion could be heard. After the hearing on the motion to revoke, the court extended defendant's probation. Defendant filed an application for writ of habeas corpus to vacate the order extending his probation, arguing the order violates the due process clause of the Fourteenth Amendment to the United States Constitution. The application was denied, and this appeal ensued. We affirm.

DISCUSSION

The Texas Code of Criminal Procedure provides as follows:

At any time during the period of community supervision the judge may issue a warrant for violation of any of the conditions of the community supervision and cause the defendant to be arrested. Any supervision officer, police officer or other officer with power of arrest may arrest such defendant with or without a warrant upon the order of the judge to be noted on the docket of the court. A defendant so arrested may be detained in the county jail or other appropriate place of confinement until he can be taken before the judge. . . . If the defendant has not been released on bail,on motion by the defendant the judge shall cause the defendant to be brought before the judge for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, extend, modify, or revoke the community supervision. ....
Tex. Code Crim. P. art. 42.12, 21(b) (Vernon Supp. 2005) (emphasis added). A defendant is entitled to counsel at the final hearing. Id. 21(d). According to defendant, these procedures do not satisfy due process because (1) a final hearing at twenty days does not provide the due process protections of a preliminary hearing with counsel; (2) there is no requirement or guarantee that the final hearing be held within twenty days; and (3) counsel need not be appointed until the hearing is eventually held. Defendant notes he was detained without a hearing or counsel until he was able to retain his own attorney thirty-two days after being detained, and no hearing was held until after he had been in custody for fifty days. Defendant relies on the United States Supreme Court decisions in Morrissey v. Brewer, 408 U.S. 471 (1972) (minimum due process requires preliminary hearing on probable cause) and Gagnon v. Scarpelli, 411 U.S. 778 (1973) (entitlement to counsel is determined on a case-by-case basis).

The Texas Court of Criminal Appeals addressed a similar complaint in Whisenant v. State, 557 S.W.2d 102 (Tex. Crim. App. 1977). In Whisenant, the Court reviewed the holdings inMorrissey and Gagnon, and held that in those cases, the Supreme Court "considered procedures far different from those in this state." Id. at 103. Because the procedure "in this state is far different than the procedures which prompted the Supreme Court to set the minimum requirements inMorrissey v. Brewer, supra, and Gagnon v. Scarpelli," the Whisenant Court held that the procedure for revoking probation in Texas affords a defendant "far greater safeguards" than those required byMorrissey and Gagnon. Id. at 105. Therefore, the Court concluded that the failure to receive a preliminary hearing did not deprive a defendant of the right of due process granted by the United States Constitution. Id.; see also Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. 1979) (because a probation revocation hearing is not a criminal prosecution, at such a hearing, a defendant need not be afforded the full range of constitutional and statutory protections available at a criminal trial). Defendant asserts Whisenant "was wrongly decided and should be reversed." However, this court is bound by the precedent of the Texas Court of Criminal Appeals and has no authority to disregard or overrule the precedent in Whisenant. See Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) ("As an intermediate court of appeals we are bound by the decisions of our state's highest criminal court."). We conclude that the reasoning in Whisenantsupports a holding that, because a defendant's due process rights are not violated by the failure to receive a preliminary hearing, defendant's arguments regarding his right to a preliminary hearing and his entitlement to counsel before the final hearing are without merit.
CONCLUSION

We overrule defendant's issue on appeal, and affirm the trial court's order denying habeas corpus relief.

Sandee Bryan Marion, Justice

DO NOT PUBLISH