Labelle v. State, 08-82-00344-CR

• Decision Date: 09 May 1984
• Docket Number: No. 08-82-00344-CR,08-82-00344-CR
• Citation: Labelle v. State, 670 S.W.2d 755 (Tex. App. 1984)
• Parties: David Wayne LABELLE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 755

670 S.W.2d 755

David Wayne LABELLE, Appellant, v.The STATE of Texas, Appellee.

No. 08-82-00344-CR.

Court of Appeals of Texas El Paso.

May 9, 1984.

Michael Aaronson, El Paso, for appellant.

Steve W. Simmons, El Paso, for appellee.

Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.

OPINION

OSBORN, Justice.

This is an appeal from a revocation of probation proceeding.The court assessed punishment at five years imprisonment.We reverse and remand.

In Ground of Error No. Two, Appellant contends that the State's motion to revoke adult probation was insufficient for failure to state an offense.

The State's motion to revoke adult probation read in pertinent part:

[O]n or about the 18th day of February, 1981, in the County of El Paso and State of Texas, the said defendant, DAVID WAYNE LABELLE, did then and there (unlawfully), intentionally remove a governmental record from the El Paso County Court Residential Treatment Center in violation of the above mentioned condition of probation.

Furthermore, on or about the 18th day of February in the County of El Paso and State of Texas, the said defendant, DAVID WAYNE LABELLE, did then and there unlawfully, intentionally destroy a governmental record belonging to the El Paso County Adult Probation Department in violation of the abovementioned condition of probation.

The offense relied upon by the State in its motion to revoke adult probation is found in Tex.Penal Code Ann. sec. 37.10(a)(3)(Vernon 1974) and reads, in part:

(a) A person commits an offense if he:

* * *

(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.

Section (b) provides that:

It is an exception to the application of Subsection (a)(3) of this section that the governmental record is destroyed pursuant to legal authorization.

Tex.Penal Code Ann. sec. 2.02(b) provides that, with regard to exceptions:

The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.

The Appellant asserts that the State's failure to negate the applicable exception in its motion to revoke adult probation causes the charging instrument to be fundamentally defective in that it fails to state an offense.We agree.

The State contends that its allegation that the Appellant"did then and there (unlawfully)" commit the two alleged acts which violated the probation condition that he"[c]ommit no offense against the laws of this State" served to negate the statutory exception.We...