Beckworth v. State, 54580

• Decision Date: 01 June 1977
• Docket Number: No. 54580,54580
• Parties: Charles Elliott BECKWORTH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 414

551 S.W.2d 414

Charles Elliott BECKWORTH, Appellant, v. The STATE of Texas, Appellee.

No. 54580.

Court of Criminal Appeals of Texas.

June 1, 1977.

G. Stanley Rentz, Waco, for appellant.

Felipe Reyna, Crim. Dist. Atty., Randall Lee Rogers, Asst. Dist. Atty., Waco, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation.

On May 5, 1975, appellant pled guilty before the court to the offense of driving while intoxicated. His punishment was assessed at 30 days' confinement and a $500.00 fine, with appellant being placed on probation for 12 months. Among the conditions of probation imposed was the requirement that he "Avoid injurious or vicious habits (totally avoid the use of narcotics, barbiturates, or habit forming drugs and alcoholic beverages.)"

On January 12, 1976, the State filed its motion to revoke probation alleging among other violations appellant "failed to avoid injurious and vicious habits and totally avoid the use of alcoholic beverages." On February 11, 1976, a hearing was held on the State's motion at the conclusion of which the court revoked appellant's probation, finding that he had violated his probationary term as alleged.

In his first ground of error appellant complains that the trial court committed error in revoking his probation because there was no finding that appellant indulged in injurious and vicious habits, or that his use of alcohol was injurious and a vicious habit. In challenging the sufficiency of the evidence to sustain the trial judge's order, appellant relies on Morales v. State, Tex.Cr.App., 538 S.W.2d 629, which he interprets as holding that mere consumption of alcoholic beverages is not sufficient to show that one was indulging in an injurious or vicious habit in such a manner as to justify revocation of probation.

The probationary condition involved in Morales required that the defendant "avoid injurious or vicious habits, such as drinking intoxicating beverages, gambling, etc." In determining the sufficiency of the evidence to support a revocation of probation, this Court concluded that the testimony of an officer that in his opinion the defendant was intoxicated because he smelled of alcohol and was louder than usual did not support a finding for a violation of the condition of probation that the defendant "avoid injurious or vicious habits." The Court observed that a single act of drinking cannot be characterized as a habit. The probationary condition before us in the instant case is more specific than that involving Morales. In the instant case the probationary term which stated that appellant should not indulge in injurious or vicious habits was further defined as totally prohibiting his consumption of alcoholic beverages.

In response to the trial judge's inquiry if appellant was drinking on October 5, 1975, appellant admitted that he was. Appellant further testified that he had had four or five drinks on the night of January 8, 1976. He further admitted that he knew it was a violation of his probationary conditions to consume alcoholic beverages.

In addition to appellant's testimony, Officer Sidney Radcliffe of the Bellmead Police Department testified that he arrested appellant on January 8, 1976, for public intoxication. It was Officer Radcliffe's opinion that appellant was highly intoxicated at that time. Radcliffe testified that appellant's...