Lead Opinion
OPINION
Thе appeal is from an order revoking probation and sentencing appellant to serve ten years in the Texas Department, of Corrections. On June 21, 1977, appellant was convicted by a jury of the offense of burglary and his punishment fixed at confinement for ten years but the sentence wаs probated. One of the conditions of his probation was that he commit no offense against the laws of this State or of the United States.
On September 24, 1979, the terms of the order of probation were modified and appel
On December 13, 1979, Probation Officer Jose L. Gonzales saw appellant crossing a street in downtown El Paso. He went around the block in his car and arrested appellant for violation of the terms of his probаtion. The motion contained four numbered paragraphs, the first of which set out the conviction for the primary offense; the second set out the two terms of his probation mentioned earlier. The third paragraph read:
“3. Thereafter, to-wit: on or about the 13th day of December, 1979, in the County of El Paso and State of Texas, the said defendant, Jose Sanchez Reza, did then and there (unlawfully), re-enter into the United States after deportation in violation of 8 U.S.C. 1326, and
“On or gbout the 13th day of December, 1979, in the abovementioned County and State, said defendant did then and there fail to remain within the Reрublic of Mexico and did then and there fail to obtain the written consent of the Court to re-enter this Country after deportation.”
Appellant plеaded “untrue” to the allegations in the motion to revoke and upon the hearing it was established by certified copies of documents that appellant had in fact been deported to the Republic of Mexico. However, there is no evidence in our record that he did not havе the written consent of the Court to re-enter the United States after the deportation.
The federal statute cited above, 8 U.S. C.A. § 1326 (1970) reads:
Ҥ 1326. Reentry of deported alien
Any alien who-
(1) has beеn arrested and deported or excluded and deported, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unlеss (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously excluded and dеported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both.”
Appellant points to the fact that there was no evidence in the record that the Attorney General had not expressly consented to his reapplying for admission or that he was not required to obtain such advance consent. Our careful search of the record establishes the validity of thе claim.
For the purpose of this appeal, we must assume the validity of the conditions of the probation order. See Hernandez v. State,
The documentary evidence from the Immigration Service did not go beyond the date of deportation so that there was no showing that appellant did not in fact have consent from the Attorney General for his re-entry into this country. The usual method of establishing this negative fact would be by a cеrtificate of the nonexistence of such a letter of consent. See United States v. Patterson,
It is elementary that the order revoking probation must be supported by a preponderance of the evidence. See Scamardo v. State,
Opinion approved by the panel.
Concurrence Opinion
concurring.
It is clear that the trial judge found a violation of condition A, “Commit no offеnse against the laws ... of the United States.” It is also clear, as Commissioner Keith holds, that the State failed to prove the violation of this condition whiсh was alleged.
It is not clear whether the trial judge found a violation of condition G, “Remain within: (2) Republic of Mexico; upon deportation to Mexico, you will not re-enter this country without written consent of this court.” There was an allegation in the motion that this condition was violated, and the printed form of sentence recited, “[T]he Court is of the opinion and so holds that the Defendant violated the terms of such probation in the respeсt set out in said Motion to Revoke Adult Probation.” On the other hand, the trial judge’s written findings and conclusions do not mention a violation of condition G; they deаl only with a violation of condition A. Similarly, the briefs of the appellant (p. 5) and the State (p. 1) state only that condition A was found to have been violated; they do not say that condition G was found to have been violated. This omission is significant, since we would not reverse because of insufficient еvidence on one violation if there was sufficient evidence on the other violation.
Given this uncertainty in the record, it is perhaps natural that Commissioner Keith’s opinion can be read to say that a violation of condition G was found and to say, “For the purpose of this appeаl, we must assume the validity of the conditions [both A and G] of the probation order. See Hernandez v. State,
Condition G imposed three conditions: (1) It required the appellant to go to the Republic оf Mexico. (2) It required him to remain there. (3) It forbade him to re-enter the United States without the court’s written consent. In Hernandez v. State,
Notes
It has also avoided the question in Williams v. State,