*1 following In the denial was cases such held to Viley error: Texas Cr. Hatton (supra). Moore v. me, yet To this state is until Constitution of funda- protect- Every mental law land. citizen is entitled to its of this ing guarantees. guarantees are those indeed When day a sad in this state. tried was entitled to be in accordance with not That she did receive.
law.
I dissent.
Henry Leija January Rehearing Motion for Overruled Henley, Lemons, Antonio, D. and Jewell Theo. Pat San appellant. Jr., Green, Attorney Criminal District
Hubert W. James Barlow, Attorney, Antonio, San E. Assistant Austin, Attorney, Douglas, for the state. Leon State’s MORRISON, Judge. Presiding *2 appeal is an an from order of the Criminal District revoking County probation. of Bexar
Court us, appellant appears the From record the before County was convicted in Bexar the of Court 4, 1954, punishment burglary, on June of the offense of and his years, imposition assessed at four suspended such sentence was appellant placed probation. and on was appellant appears April 20, It further 1958, that on the was vicinity filling in arrested glarized the a had station which been bur- possession in property some of the which had been therefrom, May 2, 1958, stolen filed a motion that an state the probation, capias appel- to revoke the court and ordered a hearing lant’s arrest May 9, to be issued and set the on said motion for appellant presented postpone a the hear- motion to ing, given except appellant which was refused the was witnesses, until present June 6 in which and on said to date granted the court the state’s motion. shall appellant’s We discuss the contentions in advanced He sup- brief. port first contends that the evidence is insufficient to the order only of revocation. We need observe that the appellant apprehended vicinity was in the immediate of the burglarized premises, part property seen with was of the stolen glass possession, pieces in his had of broken in the cuffs of his trousers, burglarized premises and that the window of the had hold the evidence been broken. We sufficient. revoking next probation
He contends that the court erred in expired probation days the term of the five before order Fennell, parte 286, Rep. In Ex was entered. 162 Texas Cr. 727, that, where 2d we held the motion to revoke was filed S.W. capias during term, probationary the issued the an order Fennell, expiration the of the In entered term valid. was after bar, at as in the case the relies Ex Fer- 155, nandez, 2d Cr. where the S.W. occurred, filed, the motion revoke was violation to arrest issued term of the order of was the after application bar, the expired. Fernandez has no in case at had controlling. and Fennell jury
Appellant’s that a should have been contention im- in paneled hear the motion to revoke is direct conflict with 781b, V.A.C.C.P., provides that such Section 5 of Article hearing- holdings shall and with the be without State, 228, Rep. in 2d court v. 156 Texas Cr. S.W. Wilson 158; 774; State, Rep. Lynch 2d v. 159 Texas Cr. Rep. Gist Dunn v. 159 Texas Cr. 265 S.W. 2d v. 160 Texas Gossett Finding error, judgment of trial court no is affirmed.
DAVIDSON, Judge, (dissenting).
Here, again, views is demonstrated correctness of expressed my dissenting opinion as in the case of Gossett *3 to the effect 282 S.W. probationer has in order to revoke a vio- necessary, provisions lated the of his it is in the trial case, determined in accord- criminal such violation be ance with law. convicted of the crime of is and here stands hearing,
burglary indictment and in an ex without hearsay jury, by a trial the rankest sort benefit my hold sufficient circumstantial evidence which brethren guilt. show say be the is—then If that law—and brethren longer right by and our trial state no exists Constitution, says by jury can not trial longer abolished, and no exists. respectfully I dissent.
Ben McLaren January 28,
theOn Merits