McKnight v. State

• Decision Date: 07 December 1966
• Docket Number: No. 39885,39885
• Parties: Clyde McKNIGHT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 858

409 S.W.2d 858

Clyde McKNIGHT, Appellant, v. The STATE of Texas, Appellee.

No. 39885.

Court of Criminal Appeals of Texas.

Dec. 7, 1966.

Rehearing Denied Jan. 18, 1967.

W. Alfred Winder, Fort Worth, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Commissioner.

This is an appeal from an order revoking probation.

On December 5, 1956, appellant was convicted, upon a plea of guilty, of the offense of felony theft and assessed punishment at confinement in the penitentiary for ten years.

Execution of sentence was ordered suspended by the court and appellant was placed on probation upon certain terms and conditions. Among the conditions imposed were that appellant:

'(6) Report to the Adult Probation Officer of Tarrant County immediately, and thereafter, as directed by him;

'(9) Make restitution of $22,238.00 and any other outstanding checks,

'Payment of $500.00 by December 5, 1956, payment of $200.00 January 1, 1957 and $200.00 first of each month thereafter until full restitution is made.'

On September 27, 1965, a motion was filed by the state to revoke the probation, which alleged that appellant had violated the terms and conditions of probation in that he:

'1. Failed to report to the Adult Probation Officer of Tarrant County immediately and thereafter on the first of each month.

'2. Failed to make restitution in the amount of $22,238.00 plus all outstanding debts, by paying $500 on December 6, 1956 and the balance at the rate of $200.00 per month beginning January 1, 1957.'

On October 22, 1965, a hearing was held by the court on the state's motion to revoke the probation. At the conclusion of the hearing the court found that appellant had violated the conditions of his probation and ordered the same revoked. On January 21, 1966, an order was entered by the court revoking the probation upon a finding that appellant had violated the terms and conditions of probation by failing 'to make restitution in the amount of $22,238.00 plus all outstanding debts, all as ordered by the Court.'

In such order, the court further directed that the sentence originally pronounced in the cause be changed and reduced to 'NOT LESS THAN 2 YEARS NOR MORE THAN 5' years' confinement in the penitentiary.

From such order appellant in open court excepted and gave notice of appeal.

In appeals of this nature this court's review is limited to a determination of whether the trial court abused his discretion in revoking probation. Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566; Wicker v. State, Tex.Cr.App., 378 S.W.2d 332.

At the hearing it was shown by the state's testimony that in addition to the $22,238 ordered to be paid by appellant, there were other outstanding debts which had been incurred by him in his business that increased the amount of restitution to be made under the court's order to the total sum of $31,381.36.

On the date appellant was placed on probation, he paid the amount of $500 fixed in the order. In the year 1957 he paid the sum of $2,400 and in 1958 he paid the sum of $1,825.94.

In January, 1959, after the death of appellant's father-in-law, who had been assisting him in making the payments, Judge McGee notified the probation officer that appellant's payments had been reduced to $100 per...