Fleming v. State
| Decision Date | 19 December 1973 |
| Docket Number | No. 47921,47921 |
| Citation | 502 S.W.2d 822 |
| Parties | James Melvin FLEMING, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Ben Grant, Marshall, for appellant.
Bill Warren, Dist. Atty., Center, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
The offense is arson; the punishment, eight (8) years, probated.
This is an appeal from an order revoking probation.
Ground of error number one alleges that the trial court abused its discretion because there was no evidence introduced at the hearing as to the terms of probation. While concededly it is better practice to introduce both the judgment granting probation and the motion to revoke, this Court has held that where the hearing is before the same court and judge who granted probation originally and set the terms thereof, that the court under such circumstances might take judicial knowledge of the conditions of probation which have been imposed. Horman v. State, Tex.Cr.App., 423 S.W.2d 317.
Reliance is had upon Smith v. State, Tex.Cr.App., 422 S.W.2d 440, and Wicker v. State, Tex.Cr.App., 378 S.W.2d 332. Smith was affirmed on the grounds that probationer while testifying admitted that the court had explained to him the conditions of his probation at the time he was granted probation.
In this case, the State introduced without objection appellant's monthly probation report signed by him which followed his arrest for speeding and driving while intoxicated. In this report, the following typewritten question appears: 'If you have violated any of the conditions of your probation, indicate same here.' Appellant gave a handwritten answer as follows: 'Yes speeding and DWI'.
Wicker was reversed because one of the terms of probation was that probationer not commit a violation of the law while the court, which revoked probation, only found that probationer had 'been charged' with such a violation. In this case, the first condition of probation, which though not introduced in evidence at the hearing is made a part of this record on appeal, was that probationer 'commit no offense--'. The judgment revoking probation found that probationer 'unlawfully drove and operated a motor vehicle over and upon a public road while under the influence of intoxicating liquor'.
Appellant next contends that 'the burden of proof was improperly placed upon appellant'. This contention is predicated...
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Zillender v. State
...probated conviction in question). This was permissible since the prior conviction and objection had been before him. Fleming v. State, 502 S.W.2d 822 (Tex.Cr.App.1974); Horman v. State, 423 S.W.2d 317 (Tex.Cr.App.1968); Armstrong v. State, 120 Tex.Cr.R. 526, 46 S.W.2d 987 (1932). The trial ......
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