Coffey v. State, 47028

• Decision Date: 24 October 1973
• Docket Number: No. 47028,47028
• Citation: 500 S.W.2d 515
• Parties: John Wesley COFFEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 515

500 S.W.2d 515

John Wesley COFFEY, Appellant, v. The STATE of Texas, Appellee.

No. 47028.

Court of Criminal Appeals of Texas.

Oct. 24, 1973.

Ralph Taite, Dallas, for appellant.

Henry Wade, Dist. Atty., John E. Rapier, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for robbery; the punishment, ehhanced under the provisions of Art. 62 Vernon's Ann.P.C., life.

The appellant contends that the judgment of conviction alleged for enhancement of punishment is void and that it therefore could not be used for the purpose of enhancement. We agree.

The appellant's conviction in that case was based upon a plea of guilty entered on January 29, 1965. The punishment was assessed at two years' confinement and the appellant was placed on probation. The record shows that a report of probation violation was filed on March 10, 1965, and that a capias which was issued on the same day and returned on the next day noted 'Hold placed with Wisdom at City Jail.' On October 20, 1965, another report of the probation officer was filed stating that the appellant had breached the conditions of probation. On August 16, 1968, a motion to revoke probation was filed and an order revoking probation was entered. Sentence was then imposed some eighteen months after the probationary period expired.

This Court has recently held that where the motion to revoke probation has been filed subsequent to the period of probation the Court does not have jurisdiction to entertain the motion and therefore probation may not then be revoked. Howard v. State, 495 S.W.2d 252 (Tex.Cr.App.1973) and see McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958). Since the trial court did not have jurisdiction to revoke the appellant's probation on August 16, 1968, the sentence imposed was void and that conviction cannot be used for enhancement of punishment.

The State argues that the issuing of the capias for the appellant's arrest tolled the term of probation and therefore the trial court retained its jurisdiction to revoke appellant's probation even though the motion to revoke was filed after the appellant's probation would have expired if the Court had not issued the capias. The State relies upon Ortega v. State, 414 S.W.2d 465 (Tex.Cr.App.1967); Stover v. State, 365 S.W.2d 808 (Tex.Cr.App.1963) and Pollard v. State, 172 Tex.Cr.R. 39, 353 S.W.2d 449 (1962).

None of the three cases cited supports the State's position. In Ortega v. State, supra, the motion to revoke probation and the capias for the probationer's arrest were both issued over one month prior to the time the probationary period was to expire. The revocation was held proper.

In Stover v. State, supra, the Court stated:

'The mere fact that a motion has been filed during the probation term alleging a violation of the conditions of probation will not authorize revocation after such term has expired. Only the court's action authorizing the arrest of the probationer, followed by diligent effort to...