*1 Plank, Rhett M. Canyon, HOOD, Appellant, Horace Lee Curtis, Tom Atty., Hugh Dist. Rus- sell, Amarillo, Atty., Asst. Dist. and Jim Appellee. for the Texas, STATE State. Texas.
DOUGLAS, Judge. 1, 1968, February appellant was con-
On pass attempting victed of the offense forged punishment a instrument and the years, probated. assessed was two On a mo- December the State filed granting to revoke the order A re- hearing was had on said motion sulting in the revocation of probation. Appellant prosecuted this appeal of the revocation order. Among conditions of the probation was that he commit no offense against the laws of this or or of the In its motion to United States. revoke, the alleged that or about State October, 1969, appellant the Sth day of unlawfully carry person, his and about pistol. ap- a The evidence showed that pellant nightclub a was seen outside police officer and witness. It another appeared appellant pistol from took a pocket his and handed it to his brother. The court concluded from the evidence appellant pistol in his did have possession. since he
Appellant contends that alleged in the not convicted of not be revoked. motion his could may It is his contention that the trial not, summarily find without a his violated the terms of probationer proceed settled that a It well “trial” ing probation to revoke term is used the Constitution cases, ap and hence reference to criminal therein. pellant is not entitled to a *2 663 State, 774; penal the v. 159 Tex.Cr. conditioned that he not violate S.W.2d Jones 317, following appeal denied 346 U.S. laws of this 24, state. On R. 261 cert. S.W.2d 358; the 53, Manning challenged v. revocation 836, L.Ed. the defendant 98 74 S.Ct. hear State, judge Fur the trial hold the Tex.Cr.App., 412 656. of to S.W.2d thermore, robbery proba ing to until after the case a motion to revoke revoke where alleged was alleging that deferdant the basis of the revocation tion is filed the offense, appellate is entitled to tried. The court found no abuse committed an not of in re the of whether he discretion the trial issue fusing to of alleged pro continue of the offense for revocation. guilty State, Shelby Tex.Cr.App., hearing until the indictment v. 434 S.W.2d 871, State, supra. robbery though v. had reached even Jones robbery the indictment for was dismissed presented From the evidence at the hear- the day same the order of revocation was revoking ing, the court was authorized in State, Tex. entered. See Gorman v. 166 State, appellant’s probation. See Gossett v. 633, 744; Seymore Cr.R. 317 v. S.W.2d 59. 162 Tex.Cr.R. S.W.2d Beto, Cir., 5 383 F.2d Cf. 384. Smother State, Tex.Cr.App., mon v. 383 S.W.2d being showing
There discretion, court abused its judgment the State, 438, In Smith v. 160 Tex.Cr.R. is affirmed. 104, expressly it held that 272 S.W.2d was hearing proba- the on a motion to revoke ONION, Judge (concurring). prior to the of the criminal time charge, of question which involved the contention, As I understand it whether the defendant violated the had is that the trial court abused discretion law, regularly state criminal heard in revoking probation since the offense proper tribunal did not constitute error. used as the revocation one basis the previously for which he been Bruinsma, parte In 164 Tex.Cr.R. Ex competent jurisdiction. victed in a court of 358, 838, 298 Crimi- S.W.2d He insists that was a alleged such offense nal be re- probation may held that “properly misdemeanor triable in the Coun- upon finding by voked the trial court ty County, Court of Potter Texas” under probation as a fact that the terms have Ann.P.C., Article where he Vernon’s necessary been it violated and is not would be entitled to a trial. there first be a trial and conviction offense is the basis for which probation the motion to Where revoke revocation, case, supra. citing the Dunn predicated upon alleged violation holdings These are- based on the fact that of the condition of that defend peniten- go the defendant does not any ant against not commit offense tiary probation, for violation of but be- penal laws of this or original of his conviction and be- cause States, question United often arises himself, cause he failed to rehabilitate hearing to the of the on the mo propriety proba- the conditions of accordance with penal tion to revoke until after the Gomez, Tex.Cr.App., parte tion. See Ex made the of the motion is tried and basis disposed juris of in a of competent contention, however, If it be requirement diction. This was a of the jury trial at that he entitled to a Suspended (former Article Sentence Law itself, the same is ex- V.A.C.C.P., hearing 776-781, not of the 1925) but precluded by provisions pressly Dunn Adult Probation and Parole Law. In V.A.C.C.P.; State, Wilson Article v. Sec. 159 Tex.Cr.R. 265 S.W.2d State, 228, 240 S.W.2d robbery v. 156 Tex.Cr.R. the defendant was indicted for Gomez, 774; parte supra; committed alleged assault to have been State, 159 Tex.Cr.R. 261 S.W.2d after he had been 664 L.Ed.
cert. 98
358; State, State, Dunn v. Cooke 143;
164 Tex.Cr.R. 299 S.W.2d Gor State,
man v. 166 317 S.W. 744;
2d Leija v. 3;
320 S.W.2d
Stratmon v.
*3
I do not
construe Duncan 391 U.S. reh. 20 L.Ed.2d 20 L.Ed.2d S.Ct. calling for result a different appellant.
contended by clemency
When under the extended court, (Article supra) by
statute in relationship way contractual— is, agrees with the defend-
ant that if will be extended he keep perform requirements
will and certain conditions,
and will violation which
authorize The
accused privilege surrenders no or clemency consideration for the extended. State, supra; Glenn v. I find therefore would merit to further contention Dallas, Speck, for Adrian D. disqualified be- for cause he was the judge granted who Jim the State. stated, For reasons I concur pro-
result reached that involve an abuse of discre-
tion. ONION, Judge. application is an for writ habeas
This corpus seeking bail. petitioner alleges that he con- Court No. 5
victed Criminal District County exposure and of Dallas of indecent a term of three placed on parte Royce probationary years subject to certain Glen COKER. ditions; he August that on period during probationary arrested Court of Criminal of Texas. driving while intoxicated city that Dallas city jail; in the Dallas because of him police refused release of Dal- Department “Hold For Probation Texas,” “did las, despite' the fact at County from the obtain Ellis, Law, Writ Ben Honorable