Barber v. State, 45680
| Decision Date | 25 September 1972 |
| Docket Number | No. 45680,45680 |
| Citation | 486 S.W.2d 352 |
| Parties | Jesse Leon BARBER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Harold Warford, San Angelo, for appellant.
Ted Butler, Dist. Atty., John L. Quinlan, III, and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
This is an appeal from an order revoking probation.
On September 16, 1969, appellant entered a plea of guilty to an indictment charging him with the offense of robbery by assault with firearms. Punishment was assessed at six years, but the imposition of the sentence was suspended and appellant was placed on probation subject to certain conditions of probation. Among such conditions were the requirements that the appellant,
'1. Neither commit nor be convicted of any offense against the Laws of the State of Texas; any other State or of the United States of America;
'5. Report, in person, to the Adult Probation Officer of Bexar County, Texas on the 16th day of each month '11. Pay the court costs within Sixty (60) days from and after September 16, 1969. . . .;
'13. Pay a supervisory fee to the 175th District Court . . . in the amount of $10 per month. . . .;
On December 30, 1970, the State filed a motion to revoke probation alleging a violation of each of the above described conditions of probation.
On June 10, 1971, the court, after a hearing, revoked probation finding that appellant had violated conditions 1, 5, 11 and 13 as alleged. On August 24, 1971, sentence was imposed and notice of appeal was given.
The only question presented by an appeal such as this is whether the trial court abused its discretion in revoking probation. Vance v. State, Tex.Cr.App., 478 S.W.2d 535; Barnes v. State, Tex.Cr.App., 467 S.W.2d 437; Hardison v. State, Tex.Cr.App., 450 S.W.2d 638; Pitts v. State, Tex.Cr.App., 442 S.W.2d 389; Manning v. State, Tex.Cr.App., 412 S.W.2d 656.
Appellant contends that the court abused its discretion in permitting the State to amend its motion to revoke after announcement of ready and the calling of a witness. The State was allowed to amend the alleged violation of condition No. one (1) from 'was arrested on December 3, 1970 for possession and sale of heroin' to 'defendant was convicted on the 5th day of March A.D., 1971, for the felony offense of sale of narcotic drug, to-wit: heroin. . . .' Upon appellant objecting, the court continued the hearing on its own motion. At the subsequent hearing, appellant pled former jeopardy and on appeal urges that the court was in error in overruling his plea. A hearing upon a motion to revoke probation is addressed to the trial court's discretion in determining whether the probation shall be revoked or continued. The result of such hearing is neither conviction nor acquittal. See McDonald v. State, Tex.Cr.App., 393 S.W.2d 914; Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566, 567. Thus, appellant's contention of jeopardy is without merit. Further, the court stated he would not consider allegation No. one (1) in determining whether to revoke.
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