Garcia v. State, s. 47124

• Decision Date: 19 September 1973
• Docket Number: Nos. 47124,47125,s. 47124
• Citation: 499 S.W.2d 126
• Parties: Janie Gonzales GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 126

499 S.W.2d 126

Janie Gonzales GARCIA, Appellant, v. The STATE of Texas, Appellee.

Nos. 47124, 47125.

Court of Criminal Appeals of Texas.

Sept. 19, 1973.

Rehearing Denied Oct. 10, 1973.

Patrick D. Burke, San Antonio (Court appointed), for appellant.

Ted Butler, Dist. Atty., Arthur Estefan, Richard D. Woods and David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

JACKSON, Commissioner.

These are appeals from orders revoking probation, the sentences being for five (5) years for possession of heroin and for possession of narcotic paraphernalia.

The former appeals are reported in Garcia v. State, Tex.Cr.App., 488 S.W.2d 448. As disclosed by that opinion, reversal was ordered because in revoking probation the trial court failed to state the findings upon which the probations were revoked. In our opinion we said:

'The orders revoking probation, and the sentences imposed, are hereby set aside until such time as the probations granted to this appellant have been revoked by the trial court in orders clearly setting out the findings and conclusions upon which they are made. From the entry of such orders, the appellant would have the right of appeal to this court. See Wozencraft v. State (388 S.W.2d 426). The judgments are reversed and remanded.'

The mandates recite:

'It is ordered, adjudged and decreed by the Court that the judgment be reversed and the cause be remanded for further proceedings in accordance with the opinion of this Court . . .'

The trial court, upon receipt of the mandates, did not conduct further hearings, but construed the opinion to require only that new orders be entered, setting out the findings upon which the probations were revoked. Such orders were entered on January 22, 1973, being identical in each case, and reading as follows:

'THE STATE OF TEXAS

VS.

JANIE GONZALES GARCIA

'IN THE DISTRICT COURT

175TH JUDICIAL DISTRICT

BEXAR COUNTY, TEXAS

'ORDER REVOKING PROBATION

'On this the 3rd day of September, A.D., 1971, came on to be heard the Second Amended Motion To Revoke Probation heretofore filed in the above-entitled and numbered cause, the defendant appearing in person and represented by attorney;

'And it appearing to the Court that the defendant was served with a copy of said Motion in the time required by law, and that the evidence established that the defendant is the identical defendant in the above-styled and numbered cause who was heretofore granted probation by this Court, and that the conditions of said probation, among other, were those provisions required by the Statutes;

'And it further appearing that the evidence adduced sustained the allegation in said Motion that the defendant, JANIE GONZALES GARCIA, violated condition number 3 of her probation, in the above-styled and numbered cause, said condition having heretofore been set by the Court on the 21st day of April, 1971, and having been heretofore filed with the papers in the case and is now before the Court, and which condition specifically ordered that the defendant, JANIE GONZALES GARCIA, 'Avoid places and persons of harmful or disreputable character, including places where narcotic drugs are possessed, sold, or used;' in that, she, JANIE GONZALES GARCIA, was in Bexar County, Texas, on the 17th day of February, 1971, at a place where narcotic drugs, to wit; heroin, were possessed, to wit: I.H. 35 and Randolph Field Exit, and the Court so finds.

'And it further appearing to the Court that the evidence adduced sustained the allegation that the defendant, JANIE GONZALES GARCIA, violated condition number 3 of her probation in the above-entitled and numbered cause, said condition having heretofore been set by the Court on the 21st day of April, 1971, and being filed with papers in the case, and is now before the Court, and which condition specifically ordered that the defendant, JANIE GONZALES GARCIA, 'Not associate with persons who possess, sell, or use narcotic drugs,' in that she, JANIE GONZALES GARCIA, did in Bexar County, Texas, on the 17th day of February, 1971, associate with Pablo Jiminez, a person who possessed a narcotic drug, to wit: heroin, and the Court so finds.

'And it further appearing to the Court that the evidence adduced sustained the allegation that the defendant, JANIE GONZALES GARCIA, violated condition number 5 of her probation, in the above-entitled and numbered cause, said condition having heretofore been set by the...