*1 Doyle Wayne SIZEMORE, Appellant, Appellee. Texas,
Court of Criminal of Texas. Glasscock, appel-
Kip Port lant. Hanna, Stephen M. Atty.,
Tom Dist. Beaumont, Rienstra, Atty., Asst. Dist. Jim Vollers, Robert A. Atty., and D. State’s Huttash, Austin, Atty., Asst. State’s the State.
OPINION MORRISON, Judge. appeal
This is an from an order revok- 27, 1971, appellant entered On December plea guilty court to the of- before the punishment was fense of and his probated. years, assessed at six probation was Among other conditions of against that he “commit no offense any other State or laws of this State or the United States”. to revoke a motion March alleging, filed probation] terms of
he “violated [the . . . with fraudulently take . property . corporeal personal gj *2 case, longing tifies in a theft and fails to ... Cecil Renshaw state property was taken consent.” without his [his] sent, in may that want of not consent conducted the court ferred from other evidence. Mitchell a on the motion to revoke and at 291, 313 166 Tex.Cr.R. S.W.2d probation. thereof revoked conclusion 286. evidence cannot be Circumstantial used of consent unless direct to show want that Officer Briefly, the evidence shows is shown be unavailable. Cas Arthur Police Mike Adams of the Port State, Tex.Cr.App., 468 arez S.W.2d Department at side two men observed 311, 412; Dorsey v. 172 Tex.Cr.R. by Ce- of the Baskin-Robbins Store owned hand, in other 943. On the Gulfway in Port Ar- cil Renshaw on Drive probation 26, revocation of January a. m. on thur 4:00 want consent owner does men hold of a crowbar which Both proven by circumstantial evidence. apparently inserted in the door of the was State, Tex.Cr.App., 467 S.W.2d away building. when the Both men walked 437; Casarez v. approached and ran when police vehicle Appellant hollered at them. the officer this are suffi The facts of case by later arrested two or three minutes was appellant cient the court to conclude they and after Davis Hawkins Officers violated the condition and police had received a radio call after and sufficient to authorize are further they pickup saw enter a truck about him that the want of consent Court to conclude from the Baskin-Robbins Store. block by established adequately The other man named was Parello also circumstantial evidence. apprehended. Prymarks were found on building the aluminum door frame of the discretion, abuse of Finding no appellant and Officer Adams identified as ment is affirmed. the shorter of the two men he had ob-
served. ONION, (dissenting). Presiding Judge
Testifying behalf, in his appellant own he seeking related his ride to home stamp ap- puts its this court When in Sour Lake and that offered Parello him probation rev- proving” in proval “poor on a ride home he would first ride into breeds more ocation Port Arthur with appellant did. predicted as this writer the same He testified that Parello sitting left him opinion in Barnes v. dissenting pickup got and that when he tired of waiting he walked around the block look- here Parello and came abreast of the and question just police as the filed on March volved was up, drove and that he ran he because was as follows: alleged, in receiving after Defendant said “That Appellant contends the court abused its (sic) it? terms violated said revoking probation. discretion in He claims state prove failed to “[t]he January on or about permission there was to enter build- locat- (sic) Store of the Baskin-Rob&ini ing at the time.” Dr., Port Gulfway ed at fraud, and force, threats Texas, did Renshaw was not called as wit- there a house enter and break attempt to ness. Ren- by Cecil occupied and (sic) situated and there then It is a correct statement of the shaw corporeal take therefrom fraudulently law this state that where the owner tes-
personal property narily then therein be shown by circumstantial evi- belonging said Cecil Renshaw dence. The best evidence of want of possession from the of the said Cecil consent is Renshaw without the consent of the said and circumstantial evidence is inadmissi- Cecil Renshaw and with the intent to de- ble to show ap- want of consent unless it prive the pears said Cecil Renshaw of the val- inaccessible by *3 ue of the appropriate same and to it to the ordinary diligence use of isor the use and of yond benefit the said legal process. the reach of Thus Doyle Wayne Sizemore and the said present where the is and has Doyle Wayne Sizemore did then and give failed positive to direct and testimo- there in carrying design out said to ny as to his want of consent to the tak- break and enter said with the house ing, such want of consent will not be in- attempt pry open tent aforesaid to the ferred from other circumstances in the house, lock on the door of said with the evidence. But want of consent be enter, then and there to so proved by circumstantial evidence when
the incompetent owner is dead isor to or without fault the the court conducted part of the state testimony direct cannot proba- on the motion revoke to produced, or alleged where it is tion and at the conclusion thereof revoked unknown, the owner is or where no objection is made when the evidence is majority’s opinion While the sets out the offered.” evidence, alleged the to the why There is no reason such a rule is attempted burglary commission an and I applicable attempted not also find no evidence as to lack of consent of cases. Renshaw, alleged the Cecil who witness, support was not called as a the In the instant case the State offered allegation made. that the owner was inaccessible use ordinary diligence beyond or was ownership The evidence as to fact, the legal reach of In came, objection, over from Offi- appears. contrary cer one Adams Renshaw. majority recognizes The the rule in effect holds revocation evidence, upon At the close of the proceedings the State is to be relieved of appellant’s motion for an instructed having to show that the owner was inac acquittal, obviously ment of concerned cessible or legal proc the reach of trial inquired prosecutor court ess because of the nature of the concerning the lack proceedings. is upon Reliance prose- lack of consent of the owner. that, responded cutor the court was App.1971), and Casarez v. 468 S.W. satisfied, produced; could be 2d 412 in which this that the owner had testified at an examin- writer dissented. ing trial not intro- (evidence of duced), State relied “the Today’s holding example is another total circumstances in the The trial case.” “anything goes” approach by the subsequently agreed. court majority dealing proba- to all matters proceedings. tion revocation
In p. Theft § Tex.Jur.2d is written: that, It is proba- well established when a positive is
“Where and direct tioner is having accused of violated his available, want of ordi- committing consent cannot conditions I offense, dissent and shall penal he is trial continue to dissent not entitled to continuing competent efforts of the and a in a court of conviction applicable lower the standards jurisdiction to revoca- for the offense which hearings tion of basis when trend of the revocation. 1969), opposite in the direction in (Tex.Cr.App. day continuing improvement Further, age cases there cited. procedure and trial determine criminal fairness all jury not entitled to a proceedings. criminal if his be revoked. Article Ann.C.C.P.; Hulsey v. 42.12 Vernon’s § facts the has re
In of these view that, said, granted,
peatedly once *4 arbitrarily with not be court,
drawn having found without
authorized
has violated conditions
CLARK, Appellant,
Elza Woodard
State,
v.
of his
Wozencraft
v.
And
S.W.2d 426
Texas, Appellee.
proceeding
proof
burden
in revocation
show violation of
Zane
dition rests
v.
State. See
Texas.
Criminal
Court of
State,
(Tex.Cr.App.1967);
supra. however,
Now, recently has appointed a probationer’s
decided that
counsel days is not entitled ten
prepare despite clear statute,
wording of the Hill v.
S.W.2d 200 something
the burden of less than desig a reasonable doubt without
nating what burden of be.
Kelly opinion
App.1972). today's And holds that not, in an alleged the need
although State
attempted burglary case used as the basis revocation, prove the lack of consent direct evidence
rely upon circumstantial evidence even
though una has not State shown is true in
vailability and this one, the own like the instant “where actually
er is normal rules available.” The
of evidence are and turned twisted
because the nature of the play regard to fair or due