Melvin v. State, No. 44626

No. 44626 | Tex. Crim. App. | Oct 20, 1971

OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

The record reflects that on May 5, 1970, the appellant entered a plea of nolo con-tendere before the court after waiving trial by jury to an indictment charging her with burglary with intent to commit theft. The punishment was assessed at three years, but the imposition of the sentence was suspended and the appellant placed on probation. Among the conditions of probation was the requirement that she “commit no offense against the laws of this or any other state or the United States.”

On July 24, 1970, the State filed a motion to revoke probation alleging that the appellant had committed the offense of attempting to pass as true a forged instrument on June 30, 1970.

On January 19, 1971, a hearing on such motion was conducted and the appellant made a judicial confession that she had violated the probation as alleged.

The court revoked probation and reduced the punishment assessed to 2 years and then imposed sentence.

The appellate record is before us without a brief assigning error and we find no unassigned error which should be considered “in the interest of justice.” See Article 40.09, Sec. 13, Vernon’s Ann.C.C.P. No question of indigency appears.

Nothing is presented for review.

We do note that since the appellant had neither served two years nor one-third of her probationary period the court was not authorized to reduce the punishment. Article 42.12, Sec. 7, V.A.C.C.P.; De Leon v. State, Tex.Cr.App., 466 S.W.2d 573" court="Tex. Crim. App." date_filed="1971-04-07" href="https://app.midpage.ai/document/de-leon-v-state-1782925?utm_source=webapp" opinion_id="1782925">466 S.W.2d 573; Smith v. State, Tex.Cr.App., 399 S.W.2d 557" court="Tex. Crim. App." date_filed="1966-03-02" href="https://app.midpage.ai/document/smith-v-state-2442479?utm_source=webapp" opinion_id="2442479">399 S.W.2d 557.

The judgment is reformed to reflect a punishment of 3 years and the sentence is reformed to show that the appellant is to be confined in the Texas Department of Corrections “for not less than 2 nor more than 3 years.”

As reformed, the judgment is affirmed.