Espinoza v. State

• Decision Date: 25 October 1972
• Docket Number: No. 45932,45932
• Citation: Espinoza v. State, 486 S.W.2d 315 (Tex. Crim. App. 1972)
• Parties: Mike ESPINOZA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 315

486 S.W.2d 315

Mike ESPINOZA, Appellant, v. The STATE of Texas, Appellee.

No. 45932.

Court of Criminal Appeals of Texas.

Oct. 25, 1972.

Kerry P. FitzGerald, Dallas, for appellant.

Henry Wade, Dist. Atty., and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from an order revoking probation.

Appellant entered a plea of guilty before the court to the offense of felony theft on September 17, 1971. Punishment was assessed at five years, but the imposition of sentence was suspended and appellant was placed on probation.

Among the conditions of probation was the requirement that appellant '(d) Report to the probation officer as directed; to-wit: Monthly.' ¹

Motion for revocation of probation was filed on January 14, 1972, and while numerous violations of probation were alleged, the allegation we deem pertinent to this opinion concerned appellant's alleged failure to report to his probation officer monthly.

On April 14, 1972, after a hearing, the court entered judgment revoking appellant's probation which recited numerous violations, among which was the violation of the condition '(d) Report to the probation officer as directed; to-wit: Monthly.'

Appellant contends that the court abused its discretion in that the evidence was insufficient to support a finding that he had violated the terms and conditions of his probation.

Probation Officer Pierce testified that appellant had only reported one month since he was placed on probation and had missed three months reporting. Pierce said numerous calls were placed to appellant and he talked to members of appellant's family leaving messages with them for appellant to report.

Appellant testified that he knew he was supposed to report to his probation officer but didn't report because he did not want to go without the money he was supposed to pay him. ² While appellant testified that he was afraid the probation officer would 'lock me up' if he didn't report with the money, appellant further testified that he knew that he could report without the money if he had a good reason for not having same. Probation Officer Pierce testified that it had been explained to appellant that he was to report even though he could not pay his probation and restitution payments and that something could be worked out as long as he was in good faith.

Appellant urges that it would be grossly unfair, a violation of due process and an abuse of judicial discretion to...