Dunn v. State, 26800
| Decision Date | 02 February 1954 |
| Docket Number | No. 26800,26800 |
| Citation | 159 Tex.Crim. 520,265 S.W.2d 589 |
| Parties | DUNN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Joel W. Westbrook, John A. Daniels, San Antonio, for appellant.
Austin F. Anderson, Crim. Dist. Atty., Richard J. Woods, Asst. Crim. Dist. Atty., San Antonio, Wesley Dice, State's Atty., Austin, for the State.
On January 27, 1950, judgment was rendered in Cause No. 51294 in the Criminal District Court of Bexar County upon the plea of guilty by appellant, Jimmy W. Dunn, to the offense of assault with intent to rob, and the punishment of 4 years in the penitentiary was assessed.
Imposition of the sentence was suspended and appellant Dunn was placed on probation, one condition being that he not violate the penal laws of the State of Texas.
Thereafter a motion to revoke the probation was filed by the District Attorney, alleging that appellant on or about March 28, 1953, made an assault upon one Richard Hodnett and took from him a set of golf clubs and a check, each of the value of $50. This motion was thereafter amended so as to charge the offense of robbery by assault. Hearing upon the motion was set for August 22, 1953, and a bench warrant was issued for appellant.
At the conclusion of the hearing an order was entered revoking the probation and on September 3, 1953, sentence was pronounced in accordance with the judgment of January 27, 1950. Appellant then gave notice of appeal.
The record contains a statement of facts on the revocation of probation hearing only.
Bill of Exception No. 1 certifies that appellant was indicted for the robbery of Richard Hodnett and that the case was, on or about August 4, 1953, set for trial for August 24, 1953, and when the revocation of probation matter was called on August 22, 1953, appellant filed a motion and plea seeking to abate the hearing until the robbery case was tried or disposed of.
This bill and the qualification thereto show that on September 1, 1953, the state filed a motion to dismiss the robbery charge and that on September 3, 1953, an order of dismissal was entered.
Art. 781b, § 5, Vernon's Ann.C.C.P. specifically provides that the hearing on the question of the revocation shall be without a jury. We held in Ex parte Gomez, Tex.Cr.App., 241 S.W.2d 153, and in Jones v. State, Tex.Cr.App., 261 S.W.2d 317, that the probationer was not entitled to a jury trial though the condition of the probation alleged to have been violated be that he would not violate a penal law.
Also we held in Wilson v. State, Tex.Cr.App., 240 S.W.2d 774, that a proceeding to revoke probation is not a criminal trial.
And it is well settled by the decisions of this court that the proceedings in a revocation of probation hearing need not be formal; may be held in vacation, and that on appeal the review will be limited to a determination of whether or not the trial judge abused his discretion in revoking the probation. Jones v. State, Tex.Cr.App., 261 S.W.2d 317; Bills v. State, Tex.Cr.App., 258 S.W.2d 804.
We find no abuse of discretion by the trial judge in refusing to continue the revocation of probation matter until the indictment for robbery was disposed of.
In Bills Nos. 2 and 3 it is contended that the state's evidence as to the commission of the criminal offense alleged in their motion for revocation of probation consisted entirely of the uncorroborated testimony of an accomplice, and was therefore insufficient as a matter of law to support revocation of probation based upon the violation of a penal law.
In the light of the holding above referred to, we express the conclusion that the Statute, ...
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Kelly v. State
...the probationary terms, the trial judge is vested with the discretion to allow the probationer to continue on probation. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589. A probation revocation being administrative in nature, procedural and evidentiary requirements are not enforced as stric......
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Frazier v. State
...the offense which forms the basis of the revocation where the burden of proof would be beyond a reasonable doubt. 1 Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589 (1954); Gorman v. State, 166 Tex.Cr.R. 633, 317 S.W.2d 744 (1958); Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969). And such......
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Davis v. Estelle
...781(b) (Adult Probation and Parole Law) (now repealed); Articles 776--781 (Suspended Sentence Law) (now Art. 42.12); Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589 (1954).14 See Brown v. Estelle, 526 F.2d 1391 (5th Cir. 1976).15 F.R.A.P. 35; Puckett v. Commissioner, 522 F.2d 1358 (5th Cir......
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Crawford v. State
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