*1 793 objection point. The was made at this No
error, pre properly any, has not been 50
served. Crestfield v. 471 cert, denied, 1971), 406 U.S. (Tex.Cr.App. (1972); 32 L.Ed.2d 92 S.Ct. (Tex.Cr.
Sierra
App.1972). error, judg-
Finding no reversible
ment is affirmed. Wayne FORD, Appellant, Appellee. Texas, STATE
No. 45783. Appeals
Court of Criminal of Texas.
Dec. Worth, Hight, appellant.
Grady Fort Cramp- Crouch, Atty., Roger Dist. Doug Webb, Attys., ton and E. Dist. Charles Asst. Worth, Atty., Vollers, Fort D. State’s Jim Huttash, Atty., Asst. and Robert A. State’s Austin, for the State. *2 by “converting” of the State Oklahoma
OPINION the of Buddy automobile Bates. DOUGLAS, Judge. is, question allegation does the appeal revok- from an order is.an support finding the theft? of We assume
ing probation. of that the laws the of Texas and State are the in the absence Oklahoma same of 21, 1969, appellant May On was showing contrary. to guilty burglary intent found of with punishment as- commit theft. His was 1410, Ann.P.C., Article Vernon’s defines probated. years, at a term of sessed five theft as follows: A condition of was that com- “ taking ‘Theft’ the fraudulent of mit of this the laws no corporeal personal property belonging to any appellant State or other state. possession, from another his or from the permission given by was trial court to holding person of 12, some go July Oklahoma. On to State him, consent, for his same without with proba- 1971, an amended motion to revoke deprive intent to the owner of the value alleged, among tion It other was filed. same, appropriate of the and it to to appellant things, that the had violated person taking.” use or benefit of the probation by committing the terms theft in the of Oklahoma. offense of The other statute involved is Article hearing On on the November 1429, V.A.P.C., by bailee.” “Conversion It was motion to revoke held. provides, part: determining whether the Any person having pos- “Section revoking pro court abused its discretion in vehicle, trailer, equip- session a motor bation, only the condi have considered we ment, tool, personal or or tion committed in the State that he theft of a of another virtue con- Oklahoma, because based the court hiring borrowing, tract of or other upon such a violation. bailment, the consent without who shall owner, fraudulently convert such July Buddy Bates testified that on property to his own use with intent to appellant asked to use his auto- deprive the the value of the owner of go for short time across town mobile to theft, shall and guilty same be shall (Oklahoma City). He testified punished prop- of like be as for the theft appellant be hour or to back within an was erty.” appellant so that the never returned Bates his automobile car. recovered This Court in Callahan held Minneapolis, some three weeks later 562, that in- an Minnesota. alleging ordinary theft will not dictment support theft bailee. a conviction for proba- Sharp testified Curt that he was City control officer for. supervise appellant. present have an al assigned In the case we appellant legation not re- motion to revoke He that the of theft in the testified port proof show theft July and that he does not to him after showing investigation determined that automobile. There was made an Minneapolis, convert the gone appellant had intended in- took it. Even contrary to his automobile at the time he Minnesota which proof the motion the theft bailee conver hearing structions. At the showed automobile, found sion of the it does the trial court appellant had the laws theft. violated entering Before the order offense. In that case the accused was theft, guilty the offense for the offense as mo- per court found that the tion because he was a judgment previously son who was and “I was affirmed. convicted 6th, going am to find that on This Court suggested
1971,that of you converted the automobile many years a should enter you Buddy, so, in vio doing and that his findings grounds upon on he relies you lated the law—that committed an of probation. g. State, to revoke E. McBee v. fense the laws of this State and Tex.Cr.App., 316 (1958). S.W.2d it the State of And will be Oklahoma. done, When this is a has an upon ground going that I am to revoke opportunity to show an of discretion your probated sentence.” After the court proof in the not suffi- finding, necessary made his it was not upon specified. cient to the grounds request findings additional have appeal. the matter reviewed on comply request Failure to with a to make findings in of an order State, Tex.Cr.App., Foote v. 463 S. probation may for a call reversal. Tate v. dissent, W.2d in allega cited State, Tex.Cr.App., 365 probation tion in the motion to revoke findings When trial judge makes on vi- for theft of over the value of olation a condition to revoke hearing At the $50.00. on the motion to by request motion, whether or on his own revoke, proof showed theft of the opinion we will not substitute the of this property but its value was under $50.00. appellate judgment. court for enough proof There was show misde theft, meanor a lesser included offense. We hold that trial court abused its allegation The in the motion to revoke al in discretion under facts this case leged over includ $50.00. appellant’s probation that it a revoked ed anything under value. $50.00 ground supported by not the evidence. proof The was sufficient in the Foote case to show a misdemeanor theft and was suf The order revocation is reversed and ficient as a basis to revoke cause is remanded. Branch v. Tex.Cr.App., 465 S.W.2d 160, held misdemeanor be a theft to lesser ODOM, (Dissenting). Judge included offense. A lesser of included fense major means that a well as the as hold trial court majority The lesser offense pleadings. abused its discretion herein the evidence failed show because 477 S.W. appellant committed the crime of 2d is cited authority dissent as theft. approved that this Court a revocation of probation upon a condition not in reflects that on November record the motion to revoke. The motion to re- hearing on the to revoke voke alleged possessed that Wilcox narcot- held, prior to the intro- paraphernalia. proof ics show following oc- testimony duction have paraphernalia the accused to curred : hand, person, or on his but the circum- you “THE Are COURT: stances showed him to be its a Ford? possession. THE DEFENDANT: Yes sir. 65, V.A.P.C., provides
Article that all up, THE Stand Mr. Ford. . persons principals guilty of COURT: who are styled that is acting together in I have before me motion the commission of the ulently of the value one automobile MO- AMENDED FIRST ‘STATE’S on or about PRO- over $50.00 OF TION FOR REVOCATION ’ and State you County . Did BATED SENTENCE ” Oklahoma . ? get copy this Motion foregoing as majority view the THE DEFENDANT: Yes sir. al- presenting question of whether you Did it read ? THE COURT: theft, and legation finding supports the dis- its abused trial court conclude that the sir. DEFENDANT: Yes pro- appellant’s cretion in revoked that “it you it Did understand ? by the supported bation on a Whereas, shows the record evidence.” Yes sir. pro- appellant’s that the trial court revoked *4 you THE I that COURT: Then take it unlawfully and “did bation because he Ford, Wayne are the that is same Gerald fraudulently one automobile Motion; named in this is that correct? ground is $50.00”, and this value over evidence supported by the evidence. Yes sir. DEFENDANT: the automo- appellant that took shows the Ford, Mr. COURT: State possession into his Buddy Bates bile of one, two, three, alleged grounds and four town go to across pursuant promise to a says . The First that ‘Gerald Ground that he shortly, and it and return with to Wayne by Ford was ordered the Court addition, the In never returned. against to commit no the laws of offense investiga- through his that officer testified State, this the State or appellant had the he tion determined States; Defendant, United and that the Minnesota, Minneapolis, which gone to Ford, Gerald Wayne on or the 6th about was later found. where automobile June, 1971, day County in the therefore, is Oklahoma, question presented, in the and of Okla- homa, discre- unlawfully fraudulently abused its and whether the trial court on a appellant’s probation take one over automobile the value of revoke, Dollars, Fifty being corpo- in to the same the motion personal property Buddy supported by real but the evidence. one'— owner, styled Bates—hereinafter from consistently held This court has ,of owner, the said and allegations to in a motion owner, without the consent of the said require comply with strictly need deprive and with intent to said own- See, g., e. Wilcox ments of an indictment. thereof, er of the the in- value and with 900; State, Tex.Cr.App., S.W.2d v. 477 appropriate tent to the said State, Tex.Cr.App., 456 S.W. Gonzalez v. him, De- the use and benefit the said that no And, noted 2d it should be 53. fendant, peace dignity against the sufficiency of objection made the State.’ to re allegations the state’s motion in Ford, “Now Mr. is voke, set be first may not issue such Motion, particular out in supra; State, appeal. raised on Wilcox v. paragraph, they true not true? State, Tex.Cr.App., S.W.2d Kinard v. 477 State, Tex.Cr.App., 464 896; Blackshire v. Not true.” State, Tex.Cr. Campbell 108; S.W.2d 918; revoking probation App., The order 456 shows the S.W.2d Guinn following: Tex.Cr.App., 289 583. S.W.2d
“The state’s to revoke defendant has committed another Wilcox cer- defendant had violated of another laws that, state, probation in Did fraud- of his unlawfully to-wit: tain conditions revoke, supported arrested July 3, “on or ‘was motion to about but also, possession the charged evidence. Barnes v. with unlawful See 437; paraphernalia along of heroin and Branch v. narcotic State, Tex.Cr.App., Larry with Coleman and Ronald Danford, police Dale both of whom have Additionally, the record shows prior during records.’ And that the week appellant pleas para- entered of “true” to July was seen with graphs four to re- three and of the motion brother at the same station where service proceedings appear voke. Such their arrest occurred on and that record as follows: para- this earlier occasion that narcotic phernalia was found in the rest room when para- (as “THE Untrue vacated Lar- and Coleman graph 2) right Paragraph No. all ry Following hearing, Wilcox.” says Defendant, Three ‘that the trial court found that the had defendant Ford, Court, ordered probation.” “violated the of his As terms Officer, notify the Adult Probation bar, objection the case at to these Oklahoma, County, his ad- made, pleadings was nor re- was there a employment changed, dress or within quest for further clarification. This court days change; three that the De- held that the trial did not notify fendant failed to Adult Proba- discretion in even *5 County, Officer of Oklahoma Okla- though “the was not shown to homa, employment changed, when his any have been in narcotic or days change, and within three or paraphernalia,” narcotic because the evi- change.’ at all of such Is the dence was sufficient to show that paragraph contained that true or un- which, 66, awas under Article true? V.A.P.C., penal offense, amounts to a justified upon “since is fore- DEFENDANT: True. going basis alone we need not consider All right . . is grounds urged by the state.” paragraph: Defendant, the 4th ‘The State, Tex.Cr.App., In Foote v. 463 S. Ford, by the was ordered
W.2d probation motion to revoke pay Court to a fee to and alleged that violated the through the Adult Probation Officer law in that he committed the offense Texas, County, Tarrant in the amount of theft of disc harrow of the of over value day June, the 10th $10.00 fifty dollars. The trial court found that on the day 10th of each month thereafter fifty the harrow was not shown to exceed during The Defendant dollars, nevertheless, but found $10.00, pay failed to or amount probationer had an “committed day any day, during on the or 10th laws of this state actions October, June, September, July, month of connection, granting in this and the order November, 1970, April, May Therein, will be revoked.” allegations Are 1971.’ con- June tained in that court held that no abuse of was discretion paragraph un- true or proba shown in the defendant’s true? tion. They are true. Thus, supra, both v. They THE COURT: are true . and Foote v. supra, this court held right.” All that no abuse of discretion shown where the trial court alone, based the order re- pleas, standing Such are sufficient voking probation aon revoking probation. the order State, Tex.Cr.App.,
In Mitchell App., 482 S. where held that we 221, page W.2d at no we stated: abuse of discretion shown wherein “ said, . . . We do 42.12, Ann.C.C.P., “Article Vernon’s Sec. brought have a case that the has evi 8, provides hearing’ that ‘after dence on . . . have got . We have ‘may court either continue revoke the law and order. For that under reason and probation’ but this has held court never facts, proba am going I to revoke the mandatory that it absolutely ” tion. court hear evidence where at such hear- ing the defendant states court I would affirm this case and hold that allegations the motion has discretion been shown. ‘true’, ‘guilty’ he as or that is he does desire to contest the contendere), particularly (nolo motion represented counsel,
where he copy
been with a served
and indicates to the court understands allegations.
“Undoubtedly prac- it is far the safer always regardless tice hear evidence WINKLE, Appellant, William plea. Many question may a later plea be avoided. is ‘true’ or Where
‘guilty’ stipulated, evidence is often Texas, Appellee. STATE of testimony or the state’s on direct exami- No. may nation on a former trial be offered Appeals by agreement may Texas. or the defendant Court of Criminal the witness stand and make a judicial 13, 1972. *6 Dec. confession.” Rehearing 24, 1973. Denied Jan. was, fact, In the instant case there pleas.
sufficient evidence such
And, though the even trial court stated the
probation was revoked for violation of request
paragraph there for findings trial Had
written from the court. request findings such
there been filed, judge very
and conclusions the trial may paragraphs and 4
well have included findings.
in his
So, who, probationer here a we have shows, three
record has violated majority
conditions of Still abused his discre
hold state, opinion will not substitute the
“We
appellate judgment.” court backward. I sub
law should not be read
mit that of the trial court judgment shown to have was not Compare much
been rehabilitated. State, Tex.Cr. Kelly case of
weaker