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State v. Harris
Citations: 621 So. 2d 851; 1993 La. App. LEXIS 2496; 1993 WL 254919Docket: Nos. 93-KA-37, 93-KA-38
Court: Louisiana Court of Appeal; June 29, 1993; Louisiana; State Appellate Court
Defendant Joseph Harris appeals the revocation of his probation, which is generally not appealable under LA-C.Cr. P. Article 912. However, the court chooses to treat the appeal as an application for supervisory writs, granting the review but denying the requested relief. Harris was originally charged with possession with intent to distribute cocaine and entered a guilty plea to a reduced charge, receiving three years of suspended prison sentences followed by three years of active probation. Conditions of his probation included refraining from criminal conduct and possessing firearms. On September 2, 1992, his probation officer filed a Rule to Revoke Probation, citing criminal conduct and firearm possession. After a hearing, the trial judge revoked Harris's probation. Harris challenges the revocation on two grounds: the absence of an arrest warrant supported by an affidavit and insufficient evidence of criminal activity during probation. Probation revocation can be initiated by either an arrest warrant or a summons, both requiring an accompanying affidavit (LA-C.Cr. P. Article 899 A). The court finds that the revocation was validly instituted, as the probation officer's Rule to Revoke, executed under oath, included an affidavit, effectively serving as a summons as established in State v. Broussard. Therefore, the lack of a separate arrest warrant does not invalidate the proceedings. The court concludes that Harris’s first argument against the revocation is without merit. Defendant argues for the revocation of his probation to be overturned, claiming insufficient evidence of a probation violation through criminal activity. At a revocation hearing, violations can be proven by either a conviction or evidence of actual criminal conduct (State v. Dabney, 594 So.2d 581). The state’s evidence included testimony from the defendant's probation officer and another officer, detailing that the defendant admitted to selling cocaine while on probation. On June 30, 1992, during a probation office visit, the defendant was seen with a beeper that displayed a number, which led officers to a conversation about 'Idaho potatoes' when they called it. Shortly after, he was arrested for traffic violations. While en route to central lock-up, Officer Rome noticed a marijuana seed and a toy gun in the defendant's parked car. A subsequent search of the vehicle, with the defendant’s consent, revealed $1500 in cash, which tested positive for cocaine residue. The defendant admitted to smoking marijuana and selling cocaine, claiming the cash was for a drug debt. Further evidence included the discovery of a combat-style shotgun in the defendant's residence during a consent search on July 29, 1992, despite the girlfriend's denial of ever seeing it before. The defendant and his family testified in his defense, denying the admissions of drug sales and explaining the cash found as proceeds from a bank loan and sales of sound equipment, asserting it was intended to cover traffic fines. Defense witnesses testified that the shotgun found at the defendant's residence on July 29, 1992, did not belong to him. After reviewing the evidence at the revocation hearing, the trial judge concluded that the defendant had engaged in criminal activity by selling narcotics while on probation, particularly referencing events from June 30, 1992, where a beeper incident at the probation office led to the discovery of a large sum of cash in the defendant's car. The judge found no credible evidence supporting the defendant's claim that the cash was obtained from selling sound equipment. While rejecting the state's claim of firearm possession as a violation of probation, the judge ultimately revoked the defendant's probation due to his criminal activities. The judge chose to credit the testimonies of Officers Rome and Wiedenhaft over the defense witnesses, emphasizing that assessing witness credibility is the role of the trial judge. The court found no grounds to challenge the trial judge's credibility determinations or to assert that he abused his discretion in revoking probation. The writ of review was granted, but relief was denied, confirming the decision.