Broyles v. State , 143 Tex. Crim. 556 ( 1942 )

Appellant was convicted upon his plea of guilty before the court without a jury on June 11, 1937, in the district court of Gray County and given a five-year suspended sentence. On the 18th day of May, 1939, he was again convicted in the United States District Court for the Northern District of Texas, Amarillo Division, and sentenced to two years in the federal penitentiary. On July 14, 1941, the district attorney instituted proceedings in the district court of Gray County to have the suspended sentence theretofore given revoked, setting out as ground therefor his subsequent conviction in the federal court. This was contested by appellant and the hearing resulted in a judgment being entered on July 22, 1941, revoking the suspended sentence and ordering that appellant be confined in the penitentiary for a period of not less than two years nor more than five years. From this judgment an appeal comes for our consideration.

The fact of the first conviction is without dispute, as also is the fact of the subsequent conviction in the federal court. The judgment in the first case was introduced in evidence and is before us. The attack is predicated principally on the proposition that there is not found in the record a statement of facts showing that evidence was introduced as required by Article 12, C. C. P. relating to pleas of guilty before the court without a jury. It has been frequently held by this court that it is necessary for the court to hear evidence, but we know of no holding and we find no basis in the statute for the contention that this evidence must be perpetuated. From the judgment we quote the following recitation relative to the matter:

"The State proceeded to introduce evidence into the record of this cause showing the guilt of the defendant; and the said evidence being accepted by the court as a basis for its verdict, and the court considering the same sufficient to support the defendant's plea of guilty and the charge of the indictment to which the defendant entered such plea, the court finds the defendant to be guilty of the charge in the indictment filed herein, to which the defendant entered his plea of guilty, and finds the defendant to be guilty of the offense of assault with intent to murder."

While the trial court, upon the hearing from which this appeal comes, seems to have had no independent recollection of the evidence that had been introduced or the fact of its introduction, yet, he recites that he knows that it was heard. The recorded judgment sustains him on this point and we are of the opinion that it is sufficient basis to sustain the judgment.

It is also contended that if the judgment of revocation should stand that the sentence should begin from June 11, 1937, instead of July 14, 1941. While this question has not been before the court for an exhaustive consideration, we think it has been definitely decided that the party cannot complain that he was required to serve the full term of the suspended sentence from the date of its revocation. (Clare v. State, 122 Cr. Rep. 211; 54 S.W.2d 127.)

The only questions presented to us do not in any way depend on the facts of the trial at which appellant received the suspended sentence. One of the complaints that appellant was not served with a certified copy of the indictment two whole days prior to the trial of such cause was waived by the appellant upon his plea of guilty before the trial judge. The further proposition relative to the introduction of testimony in the original trial is refuted by the above copied portion of the judgment, as well as the affidavit of the trial judge present in this cause. Neither one of these propositions depend upon the statement of facts, and nowhere in this cause is it claimed that the facts in the original cause would fail to show appellant's guilt therein. We, therefore, think that upon the record herein presented, it is shown that appellant's rights have been properly protected.

There are other questions in the case which in our view are eliminated by this holding and by the fact of his plea of guilty and are not herein discussed.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.