Hartley v. State, 31818

• Decision Date: 13 April 1960
• Docket Number: No. 31818,31818
• Citation: Hartley v. State, 334 S.W.2d 287, 169 Tex.Crim. 341 (Tex. Crim. App. 1960)
• Parties: Sharron HARTLEY, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 287

334 S.W.2d 287

169 Tex.Crim. 341

Sharron HARTLEY, Appellant, v. STATE of Texas, Appellee.

No. 31818.

Court of Criminal Appeals of Texas.

April 13, 1960.

[169 TEXCRIM 341] C. C. Divine, Houston, for appellant.

Dan Walton, Dist. Atty., Carl E. F. Dally, David Ball, Asst. Dist. Attys., Houston, and Leon Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

On October 2, 1959, appellant was convicted upon her plea of guilty in Criminal Distric Court No. 3 of Harris County for the unlawful possession of a Narcotic drug in violation of Art. 725b, Vernon's Ann.P.C. and her punishment assessed at confinement in the penitentiary for 3 years.

Execution of sentence was deferred and appellant was placed upon probation upon certain terms and conditions.

On October 22, 1959, the State through her assistant district attorney filed a motion to revoke the probation which alleged that contrary to the appellant's sworn testimony that she was eligible for probation she had been convicted in the Criminal District Court No. 3 of Dallas County, on January 26, 1959, upon a plea of guilty to the offense of altering a narcotics prescription and had received a two year probated sentence.

On November 10, 1959, after notice and hearing, in which it was shown that appellant had been previously convicted in Criminal District Court No. 3 of Dallas County as alleged in the State's motion, the court entered his order finding the original order granting probation void and imposing sentence upon appellant.

[169 TEXCRIM 342] From such order appellant prosecutes this appeal.

The question thus presented is whether the court was authorized to revoke the probation and impose sentence upon the appellant upon a finding that she had been previously convicted of a felony.

It should be first noted that we are not here dealing with the question of the court's authority to grant and revoke a suspended sentence under the provisions of Articles 776-779, Vernon's Ann.C.C.P., but with the granting and revoking of a probation under the provisions of the Adult Probation and Parole Law. Art. 781d, V.A.C.C.P. Nor are we dealing with a conviction under Art. 725c, V.A.P.C., for being a narcotic addict which provides that upon such a conviction probation may be granted notwithstanding that the defendant may have been previously convicted of a felony.

The court's power to grant probation in this State is found in Sec. 3 of the Adult Probation and Parole Law, Art. 781d, V.A.C.C.P., which provides in part as follows:

'Sec. 3. The courts of the State of Texas having original jurisdiction of felony criminal actions, when it shall appear to the satisfaction of the court that the ends of justice...