Gorman v. State

• Decision Date: 12 November 1958
• Docket Number: No. 30051,30051
• Parties: Elizabeth GORMAN, alias Bettie Gorman, alias Mrs. A. J. Gorman, Appellant, v. The STATE of Texes, Appellee.
• Court: Texas Court of Criminal Appeals

Page 744

317 S.W.2d 744

166 Tex.Crim. 633

Elizabeth GORMAN, alias Bettie Gorman, alias Mrs. A. J Gorman, Appellant, v. The STATE of Texes, Appellee.

No. 30051.

Court of Criminal Appeals of Texas.

Nov. 12, 1958.

Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellant.

James S. Bates, Dist. Atty., Oscar B. McInnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State's Atty., Austin, for the State.

DAVIDSON, Judge.

Sec. 4 of art. 567b, Vernon's Ann.P.C., which is commonly called the hot check law, provides--among other things--the following:

'If it be shown upon a trial of a case involving a violation of this Act where the amount of the check, draft, or order is less than Fifty Dollars ($50), that the defendant has two (2) or more times before been convicted of the same offense, regardless of the amount of the check, draft or order involved in the first two (2) convictions, upon the third or any subsequent conviction, the punishment shall be by confinement in the penitentiary for not less than two (2) nor more than ten (10) years, and by a fine of not exceeding Five Thousand Dollars ($5,000).'

Under an indictment charging, in effect, that appellant on September 25, 1957, gave a worthless check for the sum of $5 to Henry L. Porsche and that prior thereto and on the 3rd day of July, 1957, and also on the 12th day of March, 1953, she had been convicted of like offenses, appellant was convicted in the district court on December 10, 1957, upon her plea of guilty. Punishment was assessed at four years' confinement in the penitentiary.

Sentence was duly passed upon appellant, fixing the period of confinement in the penitentiary at not less than two nor more than four years.

Execution of sentence was suspended, however, by the trial court, and appellant was placed upon probation.

Among the conditions of probation were that appellant would not violate the law of this or any other state or of the United States and that she would make restitution or reparation by paying to the district clerk the sum of $5 per week until the total sum of $126.20 had been paid.

It is interesting to note that the amount of the check as set out in the primary offense charged in the indictment and upon which this conviction necessarily rested was only $5. The restitution required could hot have had reference to that check. There is nothing showing the amount of the checks upon which the two prior convictions were predicated. In the absence of any showing as to whom appellant owed the $126.20, it must be assumed that such amount represented a debt.

Approximately four months thereafter, the district attorney filed a motion to revoke the probation. As stated in the motion, the grounds for revocation were that appellant had failed to make the payments ordered and had also stolen an automobile.

After notice and hearing, the probation was revoked and sentence put into effect, the trial court finding that appellant had 'violated the terms and conditions of the judgment by which she was placed on probation as stated in the State's application to revoke such probation.'

From that order appellant has here appealed.

The evidence adduced upon the hearing is before us. No necessity exists to detail the evidence, it being deemed sufficient to say that the facts warranted the trial court's conclusion that appellant violated the terms of probation and that no abuse by the trial court of his discretion is shown.

Probation may be revoked upon a finding by the court, as a...