Campbell v. State

• Decision Date: 01 November 1967
• Docket Number: No. 40682,40682
• Citation: 420 S.W.2d 715
• Court: Texas Court of Criminal Appeals
• Parties: Edwin McAdoo CAMPBELL, Appellant, v. The STATE of Texas, Appellee.

Page 715

420 S.W.2d 715

Edwin McAdoo CAMPBELL, Appellant, v. The STATE of Texas, Appellee.

No. 40682.

Court of Criminal Appeals of Texas.

Nov. 1, 1967.

Rehearing Denied Dec. 6, 1967.

Benjemin Kucera, Lubbock, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty, appellant was convicted of the offense of theft by bailee of property over the value of $50,00 on October 25, 1965. His punishment was assessed by the court at three (3) years confinement in the penitentiary. Thereafter execution of the sentence was suspended and appellant was placed on probation subject to certain terms and conditions.

We reject at the outset appellant's contention that we are now called upon to review errors alleged to have occurred at the time of his conviction from which he failed to appeal. Chavez v. State, Tex.Cr.App., 375 S.W.2d 729; McMillan v. State, 166 Tex.Cr.R. 15, 310 S.W.2d 116; Lee v. State, 172 Tex.Cr.R. 240, 355 S.W.2d 715; Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59.

The sole question presented is whether the trial judge abused his discretion in revoking probation.

From the order entered on October 26, 1966, following a hearing on the State's Motion to Revoke, it appears that the trial court revoked probation for the failure of the appellant to report as directed to the probation officer, failure to pay court costs and restitution and to report a change of address within twenty-four hours, all in violation of his conditions of probation.

The probationary condition imposed upon appellant relating to reporting reads as follows:

'(d) Report to the Probation Officer as directed; Defendant is Paroled to P. L. Crossley, Adult Probation Officer, or his successors in office; Defendant shall report this day in person, and thereafter as directed by the said P. L. Crossley.' (Emphasis Supplied.)

By such condition the court delegated to the probation officer the responsibility for establishing reporting dates and periods and imparting the same to the appellant. No evidence was offered to show when the appellant was directed to report. Mr. Crossley, the Adult Probation Officer, did testify that he received a written report from appellant on November 8, 1965 (13 days after probation was granted) and none thereafter. While there was testimony to the effect that appellant had failed to report for a number of months, Mr. Crossley did not testify that he had directed appellant to report monthly or otherwise, and that appellant was in violation of such instructions. This situation points up the practicality of including specific reporting dates in the written conditions, a copy of which must be delivered to the probationer.

The conditions of probation relating to restitution and courts costs were as follows:

'(h) Make restitution in the amount of $836.26 to the said Probation Officer, or his successors in office, said amount to be paid On or before the 25th day of November, 1967.

'(j) Pay to the District Clerk of Lubbock County, Texas, or his successors in office, the sum of $39.00 representing Court costs in this cause, said amount to be paid On or before the 25th of November, 1967.' (Emphasis...