*1 GARCIA, Appellant, Janie Gonzales Appellee. STATE 45786. Appeals
Court Criminal Texas. Dec. Burke, Schwartz, Rigely, D.
Patrick Burke, Inc., Fagan Antonio & San appellant. (Court-appointed), Butler, Atty., Arthur Estefan Ted Dist. Woods, Attys., Asst. Dist. and Richard D. Atty., Vollers, Antonio, San State’s D. Jim Huttash, Atty., Asst. State’s and Robert A. Austin, for the State.
OPINION
ONION, Presiding Judge.
appeals arise out
orders revok-
probation.
ing
appellant entered
April
of-
the court
pleas
guilty before
heroin
possession
of unlawful
fenses
para-
narcotic
possession
and unlawful
assessed
punishment was
phernalia. The
imposi-
case;
but
years
at
in each
five
suspended and
of the sentences
in each
appellant placed
Among requirements:
following
imposed were
of harm-
places
Avoid
character,
including
disreputable
ful
pos-
drugs
places where
*2
449
sessed,
being
associate
violations of
condi-
or used
not
sold
probation:”
persons
possess, sell
use
tions of
who
with
with
drugs,
not associate
imposed
until
Sentences
Octo-
record;
criminal
28,
ber
the Adult
Report,
to
probationer is
to
A
entitled
know
of Bexar
Probation Officer
why
his
revoked
aas
month,
day
the 21st
of each
on
parole
process.
matter
due
Even
falls on
day of the month
and when said
proceedings
a
revocation
“not
holiday,
legal
Saturday, Sunday
a
or a
part
prosecution,”
proc
due
of a criminal
next
you will
on
they (sic)
requires
Morrissey
ess
v.
less. See
”
working day;
.
2593,
471,
Brewer,
92
L.
408 U.S.
S.Ct.
33
Ed.2d
(1972).
484
And,
the unnumbered
apply for treatment of
defendant
State,
“[t]hat
v.
388
In Wozencraft
S.W.
under Title
addiction
III
her narcotic
held
Cr.App.1965),
court
(Tex.
2d
426
Reha-
Addict
the United
Narcotic
States
authority
trial court was without
that the
comply
Act
1966
bilitation
having
probation without
to revoke
any
by the United States
order issued
probationer had violated
condi
that the
in and for the Western
District Courts
And,
and con
tions thereof.
accept
report and
of Texas to
District
court
the trial
acts
clusions
any hospital.”
treatment
clearly
forth
the order of
set
should be
State, 166
McBee v.
Tex.Cr.R.
revocation.
to
On December
motions
Hulsey v.
562,
(1958);
748
316 S.W.2d
probations granted
were filed.
;
State,
(Tex.Cr.App.1969)
165
447 S.W.2d
contained first amended mo-
v.
Wozencraft
any
to
without file marks on
tions
revoke
July 15, 1971,
court,
after
of them.
State,
713
484 S.W.2d
In
v.
Gamble
probations granted.
hearing,
a
revoked the
clear that
it was made
(Tex.Cr.App.1972),
be.
findings should
requires
practice
better
at the
We shall consider
outset
every
made
lant’s
contention that
court abused its
discretion in failing
to state the
occasion,
has,
held that an
court
on
This
probations
revoked her
after
revoking probation is not rendered
order
request
proper
was made therefor.
defective, however,
for the lack
recita
it is based absent
tion of
on which
ordered, ap-
When the revocations were
request to the trial
any timely
court
pellant’s
requested
counsel
court
to
State,
findings. Tate v.
365
such
S.W.2d
specify
grounds upon
which the revo-
State,
Hulsey
1963);
v.
(Tex.Cr.App.
789
replied,
cations were based. The court
State,
supra;
amended motion mark, and, subsequently, a second bation were found the trial court.” file to revoke was amended motion The record reflects that the trial court file filed without a mark. Until conducted a on the second amend- correcting the the order *3 probation ed motion to in- February 10, it would entered on following: cluded the upon impossible to determine been have hearing the was conducted. which motion “Violation De- number 5: hearing corrective order reflects the Such report person, by fendant failed to in Mo- had the Amended “Second mail, by telephone, Pro- to the Adult Upon in each case. exam- to Revoke” tion July bation for the months of Office in of revoca- the the orders ining November, October, August, September, motions to light of the relevant December, 1970, and and January, 1971.” is probation, it that discovered paragraph paragraph 14 in such is Whitehill, testimony The an Harry Further, paragraph 3 thereof motions. adult probation officer for Bexar probation, allege any does not violation of appellant shows the did not that conclusory of the prayer but is merely by by telephone during mail or by taking paragraph 2 motion. It is October, “August, November, September, considering alleged and four January 1971,” December of and and separate paragraphs contained therein July “for the most of (1970).” any meaning given or- would be that der in reference to S appellant testify The did not nor offer in her behalf. is
witnesses undisputed clear is that and evidence are not sufficient to the aforesaid condition was violated. probationer as to or this court inform which violations ap- At the conclusion alleged trial court. The other abus specify upon pellant requested es of discretion need be considered. grounds was revoked. probation, orally judge The trial declined announce imposed, hereby un- sentences set aside conclusions; however, he the probations granted til such time as Revoking entered a written “Order Proba- appellant have been revoked stated, part, tion” wherein “ clearly setting court in trial orders out appearing that the ev- .it further they findings and conclusions idence sustained the violations orders, are made. From the of such conditions appellant ap- right would have the in the Motion to Revoke peal to this court. Wozencraft v. See violations of the that, light probation.” I submit judgments The are reversed and remand- herein, Revoking Pro- such “Order ed. compliance bation” is sufficient ROBERTS, J., concurs the result. request. lant's of discretion no abuse hold that I would ODOM, Judge (dissenting). shown, this case. affirm has been majority “findings holds that are not sufficient probationer inform a I dissent.