*1 months; paid Appellant that he half further contends that the his gave and he never a on rent to the landlord court should have continuance gave one He motion pellant a check for rent. own the trial so he could check, and signature permission personal to take his have shown the was on check not signature on the not his. written Here check was forged
was convicted for a instru passing forgery. ment and not for evidence This Appellant contends that the evi likely would not cause a different result knew show that he dence is insufficient presented an another trial. forged. evi The State’s check was ready he nounced for trial. The witness from stolen dence shows that the check was proposed mo use at the on the hearing roommate, appel Campbell, appellant’s subpoenaed for for new trial from his falsely a lant stated was check the trial on merits but was not roommate for rent. These ready. when he announced forged plus possession of the that he knew show is sufficient Appellant further he contends that forged. The evidence the check was developed could have more show facts to Casta support the conviction. sufficient if a granted. error had been hearing State, Tex.Civ.App., S.W.2d nuela v. Court held in Abshire v. 146; Morgan v. appointed did counsel 438 S.W.2d 654. S.W. hearing help not a to a him right find error when none was reflected in that he er was contends record. motion hearing denied roneously for The indictment was for new trial. refusing No reversible error is shown instrument on the to hear the late motion for trial. new entered judgment was 1967. coun Appellant’s 1968. retained affirmed. judgment is right expressly sel at the trial reserved for trial. No to file a motion new filed; was
for new was trial on appeal given
nounced and stayed in Retained counsel 1968. (when the January
the case until approved). Counsel
record was new trial appointed. A motion for HILTON, Appellant, James Thomas January 6, until 1969. should filed days after ten filed within have been Texas, Appellee. STATE Ann.C.C.P. Article verdict. refusing did not err in trial Wat this late motion. grant
kins allegation discovered newly trial based on
new must of alibi. Since prior to the date
have known was, doing and what he was
where he with, alibi evidence
he State, 167 newly discovered. Wall Adame v.
Tex.Cr.R. *2 of offense an
pellant committed
Ap-
7, 1967.
July
forged instrument
of
guilty
and found
tried
pellant was
instrument on
passing a
of
offense
judge who
the same
cause.1
this
and revoked
for revocation
used
The evidence
the of-
of
commission
sufficient to show
forged instrument
passing a
fense of
in Hilton
is set
out
day 42,222),
(No.
ing a determination Court’s review is limited dis abused his of the trial whether Campbell v. probation. revoking cretion Hudspeth, Katz, DeLange, M. Marvin Wil Tex.Cr.App., 427 S.W.2d Katz, Houston, ap- appointed on Pitman & kerson v. peal only, shown; No abuse of discretion Stilley, Brough C. and Allen L. judgment is affirmed. Attys., Houston, Asst. Dist. D. Vol- Jim lers, Atty., Austin, State’s for the State. ONION, Judge (dissenting). OPINION transcription There is no the court reporter’s notes for the on the mo DOUGLAS, Judge. probation. revoke the case at bar arewe referred to the record This is an from an order produced before the court at the stage proceedings following guilty verdict of July in Hilton v. Tex.Cr. App., plea guilty for the offense burglary. decided. His was assessed at The execution of sentence was Such record reflects the following: suspended, according the law then in effect, granted probation. provides “THE COURT: The law you may conditions of offer on either side commit offense evidence concerning prior criminal rec- any ord, laws or state of the United States. reputation. character or The Court prepared On December filed a evidence either probation alleging motion to revoke side wishes offer.
1. Harris v. verdict. The showed no final con- appeal. because the was reversed viction because the case was on distinguished con commission of an offense ease is because commission, conviction, viction were not the of an proved. the court relied offense bation and object is not to it. proceed? ODOM: authenticated, Judge. properly “MR. PECORINO: Your offer, Is there no further au- “THE COURT: at this time has thentication of this than the other revocation pending against in this this defendant No, Your Honor. *3 time, grounds as court at this and the all the That is State has. 115,- alleged probation, Cause No. my if 741—I file the Court objection. here “THE I sustain the COURT: they would— the defense have anything offer? “THE defendant on COURT: Is this probation in this court ? “MR. ODOM: Call the defendant’s mother, Mrs. Escalante.” Yes, “MR. Your Honor. PECORINO: objec- appellant, Thereafter the without “THE case ? COURT: On another procedure, tion to the offered brief that witnesses who related while on Yes, “MR. Your Honor. PECORINO: appellant complied pro- with his bationary terms as far they The knew. “THE the COURT: nature of What is probation court then revoked on his “own that offense? motion” and in also assessed day “MR. PECORINO: On the 9th 42,222. Cause No. No effort was made July, 1965, adjudged this defendant was between the the stage of guilty of a burglary, was accorded adult proceedings 42,222 in said and Cause No. probation years. period for a probation the in filed, report the agreement at bar. There was —this report instant was filed at proceedings the same time. There both stipulation pro- was no that the evidence 42,222 in duced the before Cause No. right. any- “THE Is COURT: All there by judge and heard be same would thing further from the State if the mo- offered on there PECORINO: Your tion to revoke filed December is some is other matters but by be considered court. not—at would this time the offer request not even a There was the State Caudell, this instrument from C. W. that the court consider Supervisor Record Control the United same evidence before revoke the offered Records, Prison States Bureau guilt stage proceed- at Justice defendant, that setting 42,222. out facts ings in said Cause No. Hilton, Jr., Thomas ex- penalty hearing offered at correspondence in obstructing 1965 of a “revoca- cept that there was the statement the U. S. forging altering against this probation pending tion of and was sentenced to two Of time.” fendant in this court course, judicial can take court it, Mr. Pe- May I see “MR. ODOM: it, “prior the term pleadings before corino ? pro- prior does include criminal record” 3(a), Certainly. (Article bated Sec. motion, Judge charged Millard’s court. December revoke filed 1. The .in alleged merely alleges otherwise identi- “on violation it was the same offense com fied. Whether or about Passing Forged said in Cause the offense of mitted Instrument, this record. the laws shown an offense he was for which offense of this violate the that he not heard tion conditioned and the court Ann.C.C.P.) in law. before the the evidence offered think but I would pre- question “A different would be its placing hesitate court would heard the evi- sented had the trial procedure approval on such stamp of committed dence found adequate under
here Even utilized. instru- the offense of objection, and the lack probation, or ment the term her recommended. certainly is not the conviction for such offense final.” The court’s order found shows court conviction the instant case the terms as the basis of the revocation had not be- conclusions which findings come final and the heard no more acted were not set out the trial court *4 probative than in Harris (except Tex. McBee v. such order. See proba- violated Wozencraft Cr.R. tion as known). far as If Harris was cor- 426. Cf. rectly decided then it authority for re- Tate 365 S.W.2d versing this case. If it was wrongly way tell condi 789. There is no what cided, then this court should not hesitate to the court found violated or tions or terms overrule the same. exclusively whether the relied For stated, the reasons I respectfully Tex. verdict as in Harris v. dissent.
Cr.R. or what evidence
it considered. agree find with the ma- difficult to
jority’s effort to Harris v.
supra. There, bar, case at probation allegedly
condition of probationer
was that the not violate
laws of this or other state. In Harris ground GARCIA, Raoul Pierce Appellant, that the defendant had of- committed the fense a forged instrument on or Texas, Appellee. STATE of about December and that she was 7,May convicted of said offense on In thfe instant case the motion for revoca- alleges the commission of an Harris, offense. after trial under the former Code of Criminal Procedure
while the case was on Relying was held. verdict and no other
evidence the judge presided at the
jury trial revoked
There, court, speaking through Judge
Woodley, said:
“ * * * The return of a verdict which
has not become the basis final con-
viction is not conclusive
probationer violated the terms of