501 S.W.2d 104 | Tex. Crim. App. | 1973
OPINION
This is an appeal from an order revoking probation.
On July 26, 1971, appellant entered a plea of guilty to the offense of breaking and entering a house; punishment was assessed at eight years. The imposition of the sentence was suspended and probation granted. One of the terms and conditions of his probation was that he commit no offense against the laws of this state.
On October 4, 1972, a motion to revoke probation was filed. The allegations set out that appellant: (1) on or about the 17th day of July, 1972, did then and there unlawfully break and enter a motor vehicle owned by Andrew G. Gaddy and (2) on or about the 15th day of May, 1972, did then and there fraudulently take one welder from the possession of Oscar Baker. Appellant filed a motion to dismiss on October 10, 1972, when the motion to revoke in question came up for a hearing. The state at this hearing asked for a continuance, which was granted. On October 19, 1972, the state filed an amended motion, alleging in addition to the two previously stated grounds, that appellant on or about the 14th day of August, 1971, did then and there unlawfully break and enter a house and fraudulently take therefrom corporeal personal property belonging to Charles Gil-len. A complaint against appellant charging him with this third offense was filed on October 12, 1972. This complaint, which was admitted into evidence as Defendant’s Exhibit No. 2, alleged that appellant on or about the 14th day of August, 1971, did then and there unlawfully break and enter Gillen’s Army Surplus and did then and there fraudulently take one knife, twenty-four Indian head pennies, and five old nickels, of a value less than $50.00. A hearing was held on October 24, 1972, on the state’s amended motion, after which the trial judge revoked appellant’s probation for the “Gillen Burglary.”
Appellant contends that the trial court abused its discretion in revoking his probation because there was insufficient evidence to support its finding that he violated the condition relied upon. We agree and the judgment will be reversed.
We conclude that under the facts in this cause the trial judge abused his discretion in revoking appellant’s probation. The record simply does not reflect that there was sufficient evidence to show that appellant violated the term and condition of his probation that he commit no offense against the laws of this state. Even relying solely upon the testimony of the state’s witness, the only evidence that appellant committed the offense relied upon for revocation is the alleged oral confession which did not produce any additional evidence or corroborative circumstances indicative of his guilt.
The judgment is reversed and the cause remanded.
. The written statement in question was admitted into evidence as State’s Exhibit No. 1. The contents of this statement relate to some of the activities of appellant and his friends, which activities are in no way related to the offense here in question. For example, appellant stated in the statement: “This Cook character tried to sell a friend of mine some marijuana. I don’t know his name or where he lives. . . . He is a young man about in his 20’s.”