Ronald Kyle Price v. The State of Texas--Appeal from 18th District Court of Johnson County

AFFIRMED 23 AUGUST 1990

NO. 10-90-034-CR

Trial Court

# 26748

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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RONALD KYLE PRICE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 18th Judicial District Court

Johnson County, Texas

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O P I N I O N

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This is an appeal by defendant Price from conviction for murder for which he was sentenced to life in the Texas Department of Corrections.

This appeal arises from an adjudication proceeding under Article 41.12(5)(b) of the Code of Criminal Procedure. On September 11, 1989, defendant plead "nolo contendere" to a murder charge. The judge accepted his plea, found that the evidence substantiated a finding of guilt, deferred adjudication on the plea, and placed defendant on probation for 10 years.

On January 10, 1990, the State filed a motion to proceed with an adjudication of guilt as defendant on January 8, 1990, had committed the offense of burglary of a motor vehicle.

On February 8, 1990, adjudication hearing was held and the court found he had committed burglary of a motor vehicle in violation of the terms of his probation, revoked his probation, found him guilty of the original offense of murder, and sentenced him to life in the Texas Department of Corrections.

Defendant appeals on 1 point: "The trial court erred by failing to afford [defendant] a `meaningful hearing' in his deferred adjudication proceeding".

Defendant contends that his probation revocation hearing did not comply with the "minimum requirements of due process" as mandated by the U.S. Supreme Court in Gagnon v. Scarpelli, 93 S. Ct. 1756, 1761-1762. Specifically, defendant claims that he was denied a "neutral and detached" hearing body. Defendant complains of three aspects of the hearing in support of his contention he was denied a "neutral and detached" hearing.

Defendant first complains of the trial court's admonitions to him during the original plea bargain hearing when he was given deferred adjudication and ten years probation. The trial court discussed with defendant the consequences of a deferred adjudication and told him, "This is a two-edge sword, deferred is. It gives me absolute authority over you and your life as long as you are on probation. And if you violate probation, I can put you in the pen for the rest of your life." Defendant stated that he understood. Thereafter the court stated that a drug and alcohol screen would be a condition of defendant's probation, and asked defendant if he had used any drugs in the last 30 days. Defendant admitted to using marihuana the previous week. The court responded, "Do you understand that's the kind of thing that's going to put you in the pen for the rest of your life? There is no question in my mind I'm not going to give ya'll any more slack on this thing. You do anything at all, I'm not going to give you 10 or 20, I'm going to put you in the pen for life."

In the foregoing, the court was explaining to defendant the consequences of his plea. To insure that the plea was being voluntarily made, the court wanted no misunderstanding with respect to what could occur if defendant violated his probation.

Defendant secondly complains that the evidence failed to connect defendant with the burglary of the motor vehicle alleged by the State in its motion to adjudicate. Robert Barlow testified on January 8, 1990, he was riding with defendant and others when his alternator went out; that Barlow, Sean Savage and defendant walked down the street a couple of blocks where Barlow sat on a curb and watched while defendant and Savage went over to "the other car they got the alternator from; that defendant and Savage were under the hood of the car for about 10 minutes and then they "got it off" and the three of them ran to Barlow's car where defendant put it on. Georgina Knox who lived next door to the Ownsbys testified she saw a young man sitting on the curb in front of her house and then saw two others run from Ownsby's driveway.

Ken Ownsby testified that Mrs. Knox called him as to what she saw and that he went outside and discovered that the alternator was missing from his car. Officer Miller testified he saw defendant working under the hood of Barlow's car two blocks from where the alternator was stolen from Mr. Ownsby. The evidence is overwhelming that defendant committed burglary of a motor vehicle and the court did not abuse its discretion in determining defendant had violated the terms of his probation.

Finally, defendant complains about the court's statements which were made at the conclusion of the adjudication proceeding when defendant was being sentenced.

After finding defendant had violated the terms and conditions of his probation by committing an offense against the laws of the State, to-wit, burglary of a motor vehicle, the court stated:

"As for as the punishment, this is one of those times when it's very hard to be a judge. In the first place, Mr. Price, is that I know your family well. Your grandmother took care of me when I was a child, was like a mother to me. I watched your father and your mother and your uncles grow up, watched your dad go to Baylor, watched him be a good athlete and a good citizen. I was not in agreement to give you probation to start off with. I'll make no bones about it. All of the evidence presented to this court and the testimony that was taken on the murder case, whether your parents know it or not, indicated that you were the principal actor in that murder. Only because of your family did you get that break. I don't know of anybody else that got that kind of break on a murder case, deferred.

And to come back in four months, I'm sorry for you. Sorry because you're young and sorry because you had the advantage that nobody else had. You had a good family; so many people come here don't; come from families that are no good and don't care. If I ever wanted to give a break to anybody I wish I could give it to you. But I won't because I've got to do what's right for everybody else out here. Those kids that are 17 and 18 that are watching you and watching what we do."

The evidence in the murder case was that defendant and some other young men took Kenneth Reid out, beat him up, kicked him and hit him in the head with a bumper jack, from which injury he died. There was evidence that defendant was the person who got the bumper jack from his pickup truck and hit the deceased in the head with same.

We think the court lenient when he placed defendant on deferred adjudication for murder. At that time the court warned defendant about the consequences should he violate any terms of his probation. Four months later defendant committed burglary of a motor vehicle. At the adjudication hearing, the court found defendant guilty of murder and sentenced him to life. From the totality of the record before us we find that defendant received a meaningful hearing in front of a neutral and detached body as required by the Supreme Court of the United States.

Defendant's point is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice McDonald (Retired)]