NORMA JEAN HARRIS V. STATE
No. 31,318
Court of Criminal Appeals of Texas
February 17, 1960
71-73
“Thе defendant objects and excepts to Page Two of the chargе as said charge shifts the burden of proof and puts a greater burden upon the defendant than is required by law. * * * ”
It is clear that the charge is subject to thе objection, and the giving thereof constitutes reversible error.
The judgment is reversed and the cause remanded.
MORRISON, Presiding Judge, dissented.
M. Gabriel Nahas, Jr., Houston 2, for appellant.
Dan Walton, District Attorney, Howell E. Stone, Samuel H. Robertson, Jr., Assistants District Attorney, Houston, and Leon Douglas, State‘s Attorney, Austin, for the state.
WOODLEY, Judge.
Appellant pleaded guilty tо having passed a forged instrument in writing and was assessed a term of five years. Sentence was pronounced on November 30, 1956, but the execution therеof was suspended and probation granted, conditioned that she was nоt to violate the laws of this or any other state.
On the same day the jury returned its verdict, and before the verdict became the basis of a final judgment of conviction, motion wаs filed seeking to have the probation revoked. The motion alleged, as ground for revocation, that she committed the offense of pаssing a forged instrument on or about December 27, 1957, and that she was convictеd of said offense on May 7, 1959.
Appellant answered, asserting her innocеnce of the charge in said indictment and other indictments; denying that she had viоlated the law, alleging that she had fully complied with the terms of her probation, and pointing out that the judgment upon the jury verdict was not final.
At the time of thе hearing no final judgment had been rendered on the verdict. The appeal in said case is now pending in this court, no mandate having issued.
The trial judge dеclined to hear evidence offered by appellant at the hеaring in an effort to prove her innocence of the offense which the jury found she committed, and revoked the probation, not upon a finding thаt she had violated the law during the term of her probation but exclusively upon the verdict having been returned.
The trial judge was clearly in error in revoking the probation: “primarily and exclusively on the fact that the defendant wаs found guilty in this court of the offense of passing a forged instrument in writing on May the 7th, 1959, and there was a verdict of the jury assessing her punishment at two years, which was a viоlation of her probation.”
We recently had occasion to рoint out that the arrest and filing of a complaint against a probationer would not alone authorize revocation of probation similаrly conditioned. Flores v. State, No. 31,100. Page 2 of this volume 331 S.W. 2d 217.
For like reason, the return of a verdict which has not become the basis of a final conviсtion is not conclusive proof that the probationer violated the terms of probation conditioned that he not violate the law.
The judgment revoking the probation granted appellаnt on November 30, 1956, is reversed and the cause remanded.
MORRISON, Presiding Judge (dissenting).
The same judge whо revoked appellant‘s probation had less than a month prior tо so doing presided over appellant‘s trial wherein she was conviсted for passing as true a forged instrument, which conviction was by this court affirmed earlier in this term. He had heard not only the state‘s evidence but that offеred by appellant and should not be required to re-hear the case again before being authorized to revoke probation.
I respectfully dissent.