Sirabella v. State, 46707
| Decision Date | 11 April 1973 |
| Docket Number | No. 46707,46707 |
| Citation | 492 S.W.2d 571 |
| Parties | Frank Lesley SIRABELLA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Dewey F. Meadows, Bennett Stokes, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell, Ned Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
GREEN, Commissioner.
This is an appeal from an order revoking probation.
On November 26, 1971, the appellant waived trial by jury, entered a plea of guilty before the court to an indictment charging him with theft of property of the value of over $50.00, and was adjudged guilty of said offense. His punishment was assessed at five years; the sentence was suspended, and appellant was placed on probation. Among the conditions of probation was the requirement that appellant commit no offense against the laws of this or any other State or the United States.
On March 28, 1972, the State filed a motion to revoke probation alleging that appellant had violated the foregoing condition by committing the offense of felony theft in Harris County on or about December 20, 1971. At the conclusion of the hearing on this motion on May 5, 1972, the court announced its finding that appellant had committed the offense of felony theft as alleged in the State's motion and, on the basis of such finding, revoked probation and sentenced appellant to a term of not less than two nor more than five years.
It is the contention of appellant that 'the trial court abused its discretion in revoking probation for the reason that the admissible evidence presented was not sufficient to show that the defendant had committed an offense.'
Appellant, in his brief, agrees that
The record reflects that a blue and white Dodge Charger automobile valued at over $50,00 was stolen from Jack Castlen, in Houston, on December 20, 1971. He received it back from the Weslaco Police Department about a month later. The car, when recovered, was badly damaged, and the license plates had been removed.
Officer Caceres, of the Weslaco police force, testified that on the morning of December 28, 1971, he received information from a narcotics informer with reference to 'three subjects' who had come from Houston to commit some drug store burglaries in a blue and white Dodge Charger. The officer was told where the car would be located. The information included the fact that appellant was the driver of the car. Caceres found the car parked on a city street in Weslaco and made a check on the license plates. He learned that the plates belonged to a 1962 Ford.
Caceres kept the Dodge under surveillance and saw appellant approach the car with some tools in his hand. Appellant opened the hood and started working on the motor. The officer then crossed over to the car and asked appellant if the car was his. Appellant answered, 'Yes, this is mine.' Upon being asked about the damage to the car, appellant answered, 'Well, I had an accident yesterday.' Caceres got the identification number of the Dodge, and had the dispatcher run a stolen car check. Within a very short while, he received the report that the car belonged to Jack Castlen of Houston, and that it had been stolen in Houston. Caceres then placed appellant under arrest. There was no objection made to any of this testimony.
Appellant took the stand and explained his presence near the car by saying that he had started hitchhiking from Houston to go to Brownsville and was picked up just outside of Houston by one Ray Harris in the Dodge Charger. They rode together to...
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