Billy Earl PITTS, Appellant, v. The STATE of Texas, Appellee.
No. 41858.
Court of Criminal Appeals of Texas.
April 30, 1969.
442 S.W.2d 389
He further found that it was impossible to determine whether the Mississippi conviction was one of the two prior convictions found by the jury to have been established and upon which the sentence of life imprisonment was based.
Since the submission to the jury of the constitutionally infirm Mississippi conviction renders such conviction void under the holding of the Supreme Court of the U. S. in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, petitioner is entitled to relief.
It is accordingly ordered that he be released from custody and remanded to the Sheriff of Shelby County there to answer the indictment in Cause No. 9267 absent the enhancement which charged the prior Mississippi conviction.
It is so ordered.
Donald L. Denbow, Wichita Falls, Court appointed on appeal, for appellant.
Jim Phagan, Dist. Atty., Wichita Falls, and Jim D. Vollers, State‘s Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
On November 11, 1966, appellant pleaded guilty before the court to an indictment charging him and four others with the offense of robbery, and the court assessed his punishment at 10 years in the Texas Department of Corrections and granted probation. No notice of appeal was given at the time probation was granted.
On August 10, 1967, the trial court, Hon. Floyd Jones presiding, after hearing on the application of the district attorney to revoke, found that appellant had violated the terms of said probation “by committing the offense of robbery by assault on the 22nd day of July, 1967; by committing the
Sentence was not pronounced until November 22, 1967, on which date Judge Floyd Jones sentenced appellant to a term of not less than 5 years nor more than 10 years, sentence to begin August 10, 1967.
On November 29, 1967, appellant gave written notice of appeal “from both his conviction of a criminal offense and sentencing thereof and also the revocation of the probation and sentencing thereof.”
The record includes a transcript of the evidence adduced at the revocation hearing on August 10, 1967, at which appellant was represented by counsel, which fully supports the court‘s order revoking probation.
The right of appellant to appeal for a review of his trial and conviction was at the time he was placed on probation on November 11, 1966.
The appeal that is before us is that authorized by the same statute, namely an appeal from the revocation of probation. Gossett v. State, 162 Tex. Cr.R. 52, 282 S.W.2d 59.
The sole issue presented on such appeal is whether the judge abused his discretion in revoking probation that had been granted. Torres v. State, Tex. Cr.App., 403 S.W.2d 135; McKnight v. State, Tex.Cr. App., 409 S.W.2d 858; Manning v. State, Tex.Cr.App., 412 S.W.2d 656; Dunn v. State, 159 Tex. Cr.R. 520, 265 S.W.2d 589; and other cases listed under
Appellant‘s every request regarding court appointed counsel appears to have been granted by the trial court. Appointed counsel represented him at his trial; at the revocation of probation hearing; at his sentencing and on this appeal. His present counsel on appeal, like prior court appointed counsel who have been permitted to withdraw, have found the appeal without merit and have so advised Judge Floyd Jones. His present counsel states in his brief that he, in compliance with his promise to appellant, has set out in his brief the one point of error appellant insisted upon, which is the contention that the trial court committed reversible error in entering sentence upon the appellant some three and a half months after his probation was revoked.
The trial judge did not abuse his discretion in revoking probation.
The judgment is affirmed.
ONION, Judge (concurring).
I concur in the result here reached, but feel compelled to state my reasons for so doing. It is true that the only appeal before this Court is the appeal from the revocation of probation. It is also true that the only issue on such appeals is whether the trial court abused its discretion in revoking probation. The reported cases, however, revealed there are many ways in which the trial court might abuse its discretion in such matters.
Appellant‘s present appointed counsel on appeal has concluded the appeal is frivolous and without merit. His duty under such circumstances is prescribed by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493.1
It is observed that appellant‘s counsel filed no brief in the trial court at the first
While counsel did not follow the careful procedure utilized in Gainous v. State, Tex. Cr.App., 436 S.W.2d 137, I believe the instant case is controlled by this Court‘s decision in Garcia v. State, Tex.Cr.App., 436 S.W.2d 139.
The record before us supports the fact that appellant‘s counsel‘s brief filed in this Court was served upon the appellant and he was advised to raise any further “complaint” with this Court. This he has not done. To abate this appeal for further proceedings in the trial court, as was done in Garza v. State, Tex.Cr. App., 433 S.W. 2d 428, where appointed counsel filed no appellate brief in either the trial court or this Court, would be a useless thing under the circumstances presented.
My examination of the record convinces me that counsel is correct in concluding that the appeal is frivolous, there being no legal points arguable on their merits. Appellant‘s only complaint stems from the delay in sentence which resulted in part by his premature delivery to the Department of Corrections prior to sentence and in part by his own insistence that he personally be sentenced by the trial judge who revoked his probation and who was serving in Wichita County at the time by administrative assignment.
For the reasons stated, I concur. Garcia v. State, supra.
MORRISON, J., joins in this concurrence.