*1 HISE, Wayne Appellant, The STATE of Appeals No. 2. 1982. 1982. Rehearing Oct. Austin, Cangelosi, appointed, court
Linda appellant. Earle, Ralph Atty. Ronald Dist. Gra- Huttash, ham, Atty., Dist. Robert Asst. Walker, Asst. and Alfred Atty., State’s Austin, Atty., for the State. DALLY, and CLIN- W. C. DAVIS TON, JJ.
OPINION DAVIS, Judge. W. C. from an order is an
probation. On charge plea guilty lant entered a building. Pun- attempted burglary of a ishment, at 10 by assessed the court confinement, suspended and the term probated years. for 10 error,
In his first summarily contends the trial court erred probation fourteen revoking appellant’s hearing on a motion months after a probation. revoke that seven motions The record reveals were filed after revoke Motion Sixth Probation, technical alleging five to Revoke was filed on of true Appellant entered motion on March *2 272 Wright State, hearing, the v.
At the
trial court stated the
“THE All I’ll tell you COURT: Rogers This Court made clear in you what I’ll do: If want to enter a this, and proceed- Wright probationer I’ll defer further that once a is re ings put you and back out under the turned to after a on a supervision probation department, of the motion to revoke whether the court’s action simply having which you’ve pled means to “continuing probation” be termed or “con violated your probation, and if I didn’t tinuing hearing”, probation may the not acted, well, way you just like the I could subsequently any be revoked without deter you send to penitentiary. on the Rogers mination of a new v. violation.1 See ing to defer further action at this time. find that you have violated the terms and conditions of All right, ahead and sentence I’m [*] not going I’ll % accept your plea your probation, to sentence [*] you sfc now for you. but I’m sfc of true and I could any [*] term go- go marily we sustain this be be held at which evidence of a new violation Because the make State, presented. such supra; Wright revoked a determination, See ground one Wright year v. of error. after his State, v. a State, supra. was sum hearing, supra. must To going from 2 to 10 I’m years, but not to two, ground We will discuss of error do back to going you that. I’m to release although disposition the of this case rests the while I determine officer upon ground of error one. The you. what to do with That will take me attempted contends his conviction of bur time, trouble, stay some if you and out of glary cannot stand as it is based on a void may long making I take a time that de- fundamentally indictment. A defective in termination. may collaterally dictment be attacked in an trouble, you get just If in more I’ll from a revocation of See up you peniten- call it and sentence to the State, (Tex.Cr.App. Reed v. 586 870 S.W.2d tiary already has your probation because 1979). been found to have been violated. Do you understand that? indictment argues that the Yes, THE DEFENDANT: sir. fundamentally is as it does not defective Okay. you. THE Good luck to COURT: sufficiently allege acts which “amount[ed] time, Stay out of trouble this because preparation to more than mere that anything except there’s no or but the commis effect tend[ed] fail[ed]
determine that are the you same [burglary] sion the intended.” Mor See probation.” Hise that is on State, (Tex.Cr.App. 729 rison v. 625 S.W.2d 1981). later, Approximately eight months on ease The indictment in the instant
November another motion to re- charged pertinent part in the 15,1980, voke probation was filed. On lant: revoking the trial court entered an order appellant’s probation, assessing punish- his attempt “did then and there to enter ment based on the violation building by removing owned Al Beloff on May Appellant’s punish-
found therein, the time the having a window at ment was reduced to 5 confinement. specific intent to commit the offense added) burglary, (Emphasis ...” decisions recent
Pursuant to this Court’s State, (Opinion removing 248 We find the act of a win Rogers in and intend- Rehearing), building Motion for dow from judges disagree dissenting opinion 1. At least four follow their view. See on this Court majority supra. that this should not be the law but the obligated have decided and we are otherwise the trial court an act which burglarize clearly ed to affirmed. “entry” to effect an “intrusion” or tended State, 542 Cf. Pickett v. ROBERTS, ONION, J., CLINTON (Tex.Cr.App.1976). P. and
S.W.2d 868 TEAGUE, JJ., dissent. of error is overruled.
Based on determination *3 error, we reverse and re- first revoking probation. mand the order the court en banc. MOTION OPINION ON STATE’S MORALES, Appellant, Pryour Maurico FOR REHEARING McCORMICK, Judge. The STATE on the This case comes before us No. 62015. rehear- motion for leave to file motion for ing. The record shows that on Appeals of guilty of appellant was found Punish- attempted burglary of 22, Sept. years’ probation. ment was assessed at ten appellant After was Nov. Denied Rehearing were seven motions to revoke proba- filed. The sixth motion to revoke
tion, five technical was alleging 29, 8,
filed on March 1979. On 1979, hearing at the on this motion to re- voke, appellant entered a allegations.
these The trial court deter- mined that had violated the con- alleged. ditions of his How- as ever, while the was deferred
court considered whether or not to send penitential y. on the motion to revoke
was reconvened and the trial court ordered Appellant’s revoked.
punishment years’ was reduced to five con- given.
finement. Notice of panel In a decision handed down 1982, appellant’s revocation of panel was reversed. The held that when continued, the March pro- process due mandated that a de- bation could not be revoked without of a new violation. termination note, however, never We the trial process objection due raised set forth in For the reasons court. motion the State’s the order of rehearing granted