Padillo v. State
| Decision Date | 01 November 1967 |
| Docket Number | No. 40633,40633 |
| Citation | 420 S.W.2d 712 |
| Parties | Edwardo PADILLO, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Billy Hall, Littlefield, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is an appeal from an order revoking probation.
The conviction was for burglary and judgment was rendered, sentence pronounced and probation granted on November 1, 1965 (which was prior to the effective date of the 1965 Code of Criminal Procedure).
One of the conditions of probation was that appellant 'commit no offense against the laws of this or any other state.'
On February 8, 1967, the district attorney filed application alleging that appellant had violated said term and condition of his probation in that:
Hearing was had on March 4, 1967, at the conclusion of which the court found that appellant had violated the terms of his probation 'in that, to-wit:'
The sole question for our determination is whether or not the trial court abused his discretion in revoking probation upon his findings.
While the form or sufficiency of the allegations of the application for revocation has not been attacked, and a mere allegation that appellant had violated the law in that he was drunk in a public place (a misdemeanor offense under Art. 477, Vernon's Ann.P.C.) would have been sufficient, we point out that a city is not a 'public place' as that term is used in said statute, and one being drunk anywhere in the City of Littlefield other than a public place, or a private house other than his own, would not violate the statute defining 'Drunk in a public place.' See Murrey v. State, 48 Tex.Cr.R. 219, 87 S.W. 349.
We agree with appellant's contention that the evidence adduced at the hearing on revocation is insufficient to sustain a finding that appellant was drunk on either of the dates mentioned. See Snodgrass v. State, Tex.Cr.App., 18 S.W.2d 1084; Clinton v. State, 64 Tex.Cr.R. 446, 142 S.W. 591.
On this issue, City Patrolman Don Savage testified that on April 27, 1966, he stopped the vehicle appellant was driving and asked him to step out.
He further testified that he 'lodged a complaint against' appellant in the corporation court.
This was all of the evidence admitted at the revocation hearing to support the allegation that appellant was drunk on April 27, 1966.
City Patrolman Gary Lightfoot testified that he had occasion ...
To continue reading
Request your trial
-
Hopkins v. State
...regarding opinion evidence would have excluded the testimony anyway. In fact, this Court has held in the case of Padillo v. State, 420 S.W.2d 712 (Tex.Crim.App. 1967), that opinion testimony in regard to the ultimate fact issue is Required to prove intoxication. Thus, we conclude that, for ......
-
Casarez v. State
...2, 331 S.W.2d 217. Wicker v. State, Tex.Cr.App., 378 S.W.2d 332 is to the same effect. The fairly recent opinion in Padillo v. State, Tex.Cr.App., 420 S.W.2d 712, written by then Presiding Judge Woodley, is a good example that heretofore this court has required the State to sustain its burd......
-
Gilder v. State
...compare Thompson v. State, Tex.Cr.App., 365 S.W.2d 792; and Warren v. State, 131 Tex.Cr.R. 303, 98 S.W.2d 197. This court in Padillo v. State, 420 S.W.2d 712, reversed an order revoking probation where there was no opinion testimony that the defendant was drunk. In Padillo v. State, supra, ......
-
Mays v. State, 54200
...of fingerprints. Opinion testimony is required to prove intoxication. Kelley v. State, Tex.Cr.App., 529 S.W.2d 554; Padillo v. State, Tex.Cr.App., 420 S.W.2d 712. It is no more an invasion of the province of the jury for an expert pathologist to express his professional opinion on the posit......