Rhodes v. State
491 S.W.2d 895
Tex. Crim. App.
1973
Check Treatment

*1 June Appellant, RHODES, STATE Appellee. Appeals of Texas. Criminal April 11, 1973. for Vollers, Atty., D. State’s Robert A. Jim

Hdttash, Austin, Atty., Asst. State’s the State.

OPINION DALLY, Commissioner. appeal

This is from order revok- ing probation. plea guilty felony driving a motor vehi- offense of upon public highway intoxicat-

cle punishment two ed. The assessed was years imprisonment. imposition suspended sentence placed on 1, 1972, the heard On March motion to State’s had violated found that the probation that he of his condition against laws of offense commit no day state in he did on 29th Jan- *2 896 1972, gations in- not made the

uary, under the influence of need be with same operate particularity required a mo- as those of indict toxicating liquor, drive and State, public An order ment. upon a road. v. S.W.2d 40 tor 473 vehicle Jansson ap- State, the probation was and Kinard 477 (Tex.Cr.App.1971); v. Camp 896 and pellant (Tex.Cr.App.1972) S.W.2d was sentenced. State, (Tex.Cr. bell v. 456 S.W.2d 918 urges the trial appellant that The App. 1970). revoking the abused its discretion the probation because motion lant’s hearing The on the motion to re fundamentally “is probation of probation voke is such pros not a criminal concluding not and defective for void a ecution as would entitle defendant ato ‘against peace dignity the and State’ jury 42.12, 8, Article trial. Sec. Vernon’s by as law.” Ann.C.C.P.; State, Hood v. 458 S.W.2d State, (Tex.Cr.App.1970); 662 v. Wilson argues provisions the 228, 156 Tex.Cr.R. (1951); 240 S.W.2d 774 V, the of 12 of Constitu- Article Section State, 24, v. 159 261 Tex.Cr.R. S.W. Jones 2d 317 apply tion, Ann.St., this State of Vernon’s ; State, (1953) Manning 412 v. S. in which revoke a motion to to W.2d 656 (Tex.Cr.App.1967); Hulsey v. is a criminal act the commission of State, (Tex.Cr.App. 1969); 165 447 S.W.2d proba- a of the violation State, Malveaux 482 (Tex. v. 872 S.W.2d tion. Cr.App.1972), Tipps, and see Fariss v. su V, pertinent part of Article Section pra. upon of this State 12 of the Constitution State, Hulsey In it v. was said: relies, reads: which proceedings not “Revocation are trials be prosecutions shall . All “. . in the constitutional sense reference with authority and on in the name carried State, to criminal cases. Wilson v. 156 con- and shall of the State of 228, 774; Tex.Cr.R. 240 Ex S.W.2d of peace dignity' and ‘Against the clude : Gomez, parte Tex.Cr.App., 241 ”1 S.W.2d the State.’ 153; State, 24, v. 159 Tex.Cr.R. Jones of this in Far- Supreme State 317, 836, 261 S.W.2d cert. den. 346 U.S. (Tex.Sup.Ct. Tipps, 176 iss 463 S.W.2d v. 53, 358; 74 S.Ct. 98 L.Ed. Cooke v. a requirement of 1971) has held that the State, 320, 164 299 Tex.Cr.R. S.W.2d prosecutions” speedy trial in all “criminal 143; State, v. Gorman 166 Tex.Cr.R. I, 10 of the Con provided by Article Sec. 633, 744; Leija 317 S.W.2d v. State [167 applies to of stitution this State 3; 300], Tex.Cr.R. 320 Stratmon S.W.2d proceedings.2 of State, 188, v. 169 333 Tex.Cr.R. S.W.2d has 135. And it been held that the result hearing of a a holding such to revoke the It consistent finding upon but ‘conviction’ which the in motions allegations court that the trial court exercise its discretion specific be to revoke need by revoking continuing or the give enough to the defendant notice State, 520, Dunn v. 265 contrary to the 159 Tex.Cr.R. violation of State, 589; McDonald Tex. alle S.W.2d that such conditions but parte 21.21, 8, Jackson, 21.02, Ex 50 Tex. 8 and subd. State.” See Articles subcl. (1906). 324, provide 96 924 Cr.Jt. indict S.W. also V.A.C.C.P. and information must conclude ment holding grounded dignity “Against 2. This the also and ap- provisions State,” of the 6th Amendment as has been held -where it plied through prosecuted the 14th to the Amendment are on com misdemeanors complaint plaint, of the United States. must conclude Constitution “Against

897 State, Cr.App., State, 914; 393 S.W.2d 486 (Tex.Cr.App.1972). Soliz S.W.2d 317 Likewise, 350 Tex.Cr.R. 566.” S.W.2d apply

raised allegations proba- of motion appears precise question It tion. presented here has been considered be *3 alleged fore. The violation of in alleged motion to revoke was ODOM, opinion. J., joins in order that the trial court deter

mine discretion in whether exercise its

revoking probation granted which had been after he had been convicted

for an earlier offense. The being prosecuted for the offense al leged as the basis for cer tainly the finding court’s should be did revoked not constitute con viction for that therefore offense. We Sammy BROWN, Appellant, hold relied require the motion Texas, Appellee. The STATE probation allege that the violation “against law and dig nity of the State.” Appeals of Texas. Court of Criminal

If the or should be 1973. charged indictment or information with April 4, pur- the offense which was for the pose such in-

dictment or information must conclude

“against the constitutional and State” statutory provisions of this state. discretion, being

There no abuse of judgment order are affirmed.

Opinion approved by the Court.

ONION, J., concurs in the result. P. ROBERTS, Judge (concurring). by my

I the results reached concur with brothers, do not the exten- but I feel that necessary. I

sive discussion of the issue is for rev- simply hold the motion “prosecution” for the of- ocation fense show a violation probationer is A Harris by jury. a trial not entitled to