De Leon v. State
466 S.W.2d 573
Tex. Crim. App.
1971
Check Treatment

*1 Appellant, LEON, Bernardo DE

Court Criminal Texas.

April 7, 1971. May 12, *2 the Tinker, as set forth in Douglas The condition & Lyman, Sudduth shown by the which was Christi, judgment court Tinker, Corpus upon appellant the to have been served Atty., and Mobley, Jr., Dist. B. William frequently or how not indicate when does Westergren, Asst. Phillip M. probation report the appellant the was to Vollers, State’s Christi, Corpus and to revoke officer.2 While the State. had appellant probation alleged that the as “probation office report failed to month,” directed, per at and least the offered that there was no ONION, Presiding Judge. re or made such court had so directed the quirement part a of appeal from an order This is an having jur only the court And ditions. probation. and shall determine the case isdiction of July that on probation. The record reflects of and conditions fix the terms by jury and en- appellant trial the waived & Secs. 5 guilty the plea a of not before to a delegated tered authority may not be fire- charge robbery by the anyone court to Mc else. probation officer or guilt the court Upon finding a arms.1 Donald v. years, but the of the sentence imposition the suspended merely probation The officer testified- probation. on appellant the placed and “three appellant report failed imposed probation Among the conditions showing dates or giving times” without found are judgment forth in the and set the in failure was violation how such requirements that the

the upon appel- the actual conditions against the laws “(a) no Commit lant. state, state other

of this us, light the of the record before States; or the United to revoke not authorized trial court was [*] [*] [*] [*] [*] [*] upon finding a that condition (d) had Report as to the Probation Officer “(d) violated. ** directed question the of whether we turn to Next IS, 1970, April On mo- upon State can be sustained the revocation order probation alleging a violation tion to revoke showing that violated set forth (d) of conditions and above. penal (a) of and hence condition law probationary conditions. 23, 1970, following a April pro- the court revoked such motion stipulated Sgt. Bell evidence was grounds sentence was upon bation Corpus of the Christi Police imposed. testify 1970,he ar- April that on appellant at the Port Recreation rested the abused the court contends to arrest the search incident Club that in its discretion discovered produced heroin which trousers; attention to that he had acted turn our shall first We (d). upon from an informant of condition the information alleged violation grant judgments appears seek orders did in the that State forth It probationer ing penalty. Art. Ver- so that the death was therefore The case non’s Ann.C.C.P. authorities know cer non-capital case. as a tried before tainty Mc are. what those conditions 442 S.W. Donald urged repeatedly 2. This court clearly 386, 387, and there cited. set 2d cases be conditions selling had heroin and was it and it was held that the uncorroboated con question his arrival at the club fession probationer constituted suf saw the dressed the in- just as ficient evidence for the court to revoke formant described him. Hulsey See also Tex. *3 165; State, Cr.App., 447 Tollett S.W.2d v. stipulated It was further 909; Tex.Cr.App., Campbell 456 S.W.2d duly had been warned accordance with State, v. Tex.Cr.App., 456 S.W.2d 918. 38.22, Article V.A.C.C.P. Miranda v. Further, we note that of- Arizona, 436, 1602, 384 U.S. 86 16 S.Ct. ficer testified that prior on an occasion 694, voluntarily L.Ed.2d and had then in question arrest given extrajudicial a written confession. informed him that he (the appellant) had Such statement was offered into evidence. using been heroin. stipulations were entered into We deem the evidence sufficient to show the understanding that the a violation of condition and to sustain contending the officers probable lacked order No abuse arrest, cause to and that the fruits of the of discretion is shown. search incident to arrest were inadmissible. Following the revocation illegal anWhile arrest may under certain the court in addition to confession, particu- circumstances vitiate a punishment reduced the years’ assessed to 8 larly an incriminating verbal statement confinement Texas made contemporaneous with the unlawful Corrections and then sentence arrest where the surrounding circumstances “not less than 2 years.” nor more than 8 show the statement not to be an act of Since had neither two served wholly will, free it does not follow that years nor one-third his every illegal following confession an arrest period procedure was not authorized. ipso is facto inadmissible. See Pearson 42.12, 7, Article Sec. V.A.C.C.P. v. Smith State, v. Tex.Cr.App., 414 S.W.2d 675. If 399 S.W.2d 557. he had period served such of time on State, And in Lacefield Tex.Cr.App., v. probation the court’s action have 906, 412 it S.W.2d was held that a State, valid. Beshear v. 169 Tex.Cr. fession otherwise shown to have been 131, 724; R. Capuchino 332 v. S.W.2d voluntary is not rendered inadmissible State, 296; Tre the fact that the accused was under arrest State, vino v. Tex.Cr.App., 464 S.W.2d or in custody time, though even State, 859. Tex.Cr.App., See also Potter v. the arrest have been invalid under 948; State, 420 Washington S.W.2d v. process or any process without or legal Tex.Cr.App., 361 S.W.2d 395. right. State, See also Gonzales v. Tex.Cr. App., 882, 429 S.W.2d 885. further, Still we note that the minimum robbery years (see is five 1408, Article V.A.P.C.) and the court did stipulation meager offers us properly apply not the indeterminate sen- which to determine the va tence law. See Article lidity arrest. It is not clear ly shown whether the arrest was with therefore, will, be re The sentence without pass warrant.3 We need not not provide formed to confinement “for upon that, however, apparent since it is ten years.” less than five than nor more voluntarily written confession was given properly attempted taken. Smith v. also Since State, “jail 160 give days Tex.Cr.R. credit S.W.2d informant’s, lapse receipt tip The time between an arrest the arrest would indicate without a warrant. sentence, is attention

time” at the time of Tex.Cr.App.,

called Creamer pro holding that since

430 S.W.2d probation until moment

bationer is on revocation, credit is entitled to time served

on his sentence Sec.

V.A.C.C.P.; Tex.Cr. Wilkerson

App., 395 S.W.2d reformed, judgment is affirmed.

As *4 MO- ON APPELLANT’S

OPINION FOR REHEARING

TION

ROBERTS, Judge. motion for

Appellant herein has urges that the evi-

rehearing in which vio- show a

dence was not sufficient

lation of condition reforming the sentence

this Court erred

herein. day that the same Court, appel- in this

rehearing filed was to dismiss filed a motion

lant further appeal in said

withdraw the cause.

Ordinarily, this Court case, a motion to and decided

written not be entertained.

dismiss will to dismiss withdraw

Both the motion rehearing are and the

appeal motion things overruled and denied.

in all Houston, O’Dowd, W.

John FREY, Appellant, Robert Vance, C. S. Carol James Houston, Doucette, Jr., Brough and W. J. Vollers, State’s for the State. Court of Criminal of Texas. April 7, May ODOM, Judge. a conviction appeal is from burglary; years. at 12 jury