Smothermon v. State

• Decision Date: 18 November 1964
• Docket Number: No. 37231,37231
• Citation: Smothermon v. State, 383 S.W.2d 929 (Tex. Crim. App. 1964)
• Parties: Nathan SMOTHERMON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 929

383 S.W.2d 929

Nathan SMOTHERMON, Appellant, v. The STATE of Texas, Appellee.

No. 37231.

Court of Criminal Appeals of Texas.

Nov. 18, 1964.

Brown & Shuman, by Dean Shuman, Lubbock, for appellant.

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

BELCHER, Commissioner.

This is an appeal from an order revoking probation. Upon a plea of guilty before the Court, appellant was, on September 19, 1962, convicted for a felony in the District Court of Hale County.

Execution of sentence was suspended and appellant was placed on probation upon certain terms and conditions; among which were that he commit no offense against the laws of this State.

Thereafter, on February 13, 1964, the Probation Officer filed a motion seeking to have probation revoked alleging that appellant on January 27, 1964, in Hale County, Texas, was convicted of the offense of obtaining things of value with a worthless check, committed on January 23, 1964, and that such conviction was final.

On the hearing, evidence was introduced which supported the allegations of the motion to revoke probation. At the conclusion of the hearing, on February 18, 1964, the court entered its order revoking probation upon a finding that appellant had been convicted of the offense of defrauding with a worthless check in violation of the terms of his probation.

From such order appellant gave notice of appeal.

Appellant contends that the trial court erred in revoking his probation on the ground that the order granting probation was contained in a sentence based upon a void judgment, that is, that the judgment found him guilty of the offense of 'forgery and passing', and that the sentence was also void as it adjudged him to be guilty of 'forgery and passing' which is an offense unknown to the law of this state.

It is noted on the judgment that the appellant was charged with the offense of forgery and passing. These offenses may be charged in separate counts and prosecuted together to final judgment, without election. Art. 1005, Vernon's Ann.P.C. The judgment and sentence both recite that the conviction is for the offense of 'forgery and passing.'

In Lovejoy v. State, 40 Tex.Cr.R. 89, 48 S.W. 520, it was held that although forgery and passing a forged instrument are separate offenses, under a general verdict of guilty upon an indictment for the two offenses the court may apply the verdict to the count for forgery, alone.

The judgment introduced shows that the appellant entered a plea of guilty to the charge in the indictment, which was for both making and passing a forged instrument, and his punishment was assessed at four years. The punishment assessed by the jury was a punishment authorized to be applied...