Scott v. StateScott v. State
- Reporters:
- ,
- Before:
- Onion
OPINION
ONION, Presiding Judge.These are appeals from orders revoking probation. Appellant was convicted оn December 28,1974, of theft of property of the value of $200 or more but less than $10,000, and theft of servicе of the value of $200 or more but less than $10,000. In both convictions punishment was assessed at two (2) years’ cоnfinement, but the imposition of sentence in each ease was suspended and the appеllant was placed on probation, subject to certain conditions, including that the appellant:
“(a) Commit no offense against the laws of this or any other State or the United States.”
On February 27, 1975, the Stаte filed a motion to revoke the probation granted in both cases, alleging that the probationer had committed burglary with intent to commit theft on February 25, 1975, violating this condition. Appellant was found tо be indigent and counsel was appointed. As the motions to revoke probation alleged аn identical violation in both cases, a consolidated hearing on the revocation motiоns was held on April 16,1975, following which appellant’s probation was revoked in each case.
When the appeals were first considered by this court, the appeals were dismissed becausе notices of appeal were not timely given within ten days as required by Article 44.08(c), Vernon’s Ann.C.C.P., and good cause was not reflected so as to permit the giving of a belated notice of apрeal. A supplemental transcription has now been filed which reflects good cause for the belated giving of notice of appeal in each case and the appeals are reinstated. Abron v. State, 531 S.W.2d 643 (Tex.Cr.App.1976); Chappell v. State, 519 S.W.2d 452 (Tex.Cr.App.1974).
The basis for the revocation in both eases was for the commission of a burglary оn February 25, 1975, in Garland. Appellant was convicted for that offense, but on appeal in Scott v. State (Tex.Cr.Apр. No. 52,137, Oct. 20, 1976), the conviction wás set aside because of the admission of evidence obtained аs a result of an improper search and seizure.
It is observed that at toe hearing on the motions to revoke the trial judge stated that he would take judicial notice of the evidence heаrd on the burglary trial before him, wherein the appellant was represented by the same counsеl as at the revocation hearing. When the trial judge inquired if there was any objection to toe rеceipt of such evidence, appellant’s counsel stated, ‘‘No, your Honor.” There was no objection to toe receipt of such evidence on the basis that it was obtained as а result of an improper search and seizure. Thus appellant waived any question that the evidеnce should not he considered at the revocation hearing because of Fourth Amendment viоlations. Cf. Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976).
In Cause # 52,181 appellant’s appointed counsel on appeal has filed an appellate brief in which be contends toe appeal is frivolous and without merit. While he did not advance any arguable grounds to support toe appeal, he did make a careful еvaluation of the record to demonstrate why he was unable to do so. Such is a sufficient comрliance with Anders v. California, 386 U.S. 788, 87 S.Ct 1896, 18 L.Ed.2d 493 (1967). See Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). It appears that a copy of the brief has been delivered to the appellant, who was advised of his right to examine the appellate record and to file a pro se brief.
We have examined toe record and conclude that the appеal is frivolous and *130 without merit. We do observe that appellant raised the search and seizure question in his pro se brief filed in the trial court, but since the evidence was admitted without objection no еrror is presented.
•In Cause # 52,130 appellant’s counsel urges that the indictment for theft of services upon which appellant was originally convicted is fundamentally defective and that even if this is an appeal from an order revoking probation he has the right to raise the. issue of a fundamentally defective indictment. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).
He complains that the indictment merely described the service аllegedly stolen as “auto alterations” and does not adequately describe the service tаken.
Omitting the formal parts, the indictment alleged the appellant on or about August 8, 1974, in Dallas County “did then аnd there unlawfully with intent to avoid payment for auto alterations, service that he knew was providеd by Jerry Hutchins, only for compensation, intentionally and knowingly secure performance of said service of the value of $200.00 or more but less than $10,-000.00, by deception, threat and false token and absсonded without paying for the service.”
There was no motion to quash the indictment.
While the indictment is certainly no model, it is clear that where nо motion to quash is filed only such defects as would render the indictment insufficient to support the conviсtion could be considered after judgment. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).
We do not conclude that the indictment was fundamentally defective.
The judgments are affirmed.