Lee v. State , 172 Tex. Crim. 240 ( 1962 )

355 S.W.2d 715 (1962)

Kenneth LEE, Appellant,
v.
The STATE of Texas, Appellee.

No. 34209.

Court of Criminal Appeals of Texas.

March 7, 1962.

Boulter, Fowler & Tunnell, by Joe Tunnell, Tyler, for appellant.

Weldon Holcomb, Crim. Dist. Atty., R. S. Burruss, Jack G. Norwood, Asst. Crim. Dist. Attys., Tyler, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Judge.

This is an appeal from an order of the 114th Judicial District Court of Smith County, revoking the probation of the appellant. Appellant was convicted in said court on March 2, 1959, of the offense of burglary and assessed five years imprisonment, probated on the usual terms and conditions. A hearing on the application of the district attorney to revoke the probation, had in the trial court on July 21, 1961, resulted in the Order of Revocation. Such order reduced the five-year sentence originally imposed to a two-year sentence, and in turn the court then revoked the two-year probationary sentence and required the appellant to serve it. Appellant then moved the court to reopen the hearing, held as a result of the district attorney's motion, and hear additional testimony. The court granted the request and, at the conclusion of this second or reopened hearing had on July 31, 1961, adhered to its previous ruling of July 21, 1961, to which action taken by the court at both hearings the appellant excepted and gave notice of appeal to this Court.

The statement of facts filed in this cause constitutes the testimony adduced upon the hearing in the trial court on July 31, 1961, and with the exception of four exhibits does not contain the testimony adduced upon the hearing of July 21.

In an appeal from an order revoking probation the review is limited to the question of whether an abuse of the trial judge's discretion is shown.

In absence of all the facts adduced at the hearing which resulted in the revocation of appellant's probation we are in no position to pass upon the question. Bills v. State, Tex.Cr.App., 258 S.W.2d 804.

The judgment is affirmed.