Reza v. State , 1980 Tex. Crim. App. LEXIS 1495 ( 1980 )

OPINION

QUENTIN KEITH, Commissioner.

The appeal is from an order revoking probation and sentencing appellant to serve ten years in the Texas Department, of Corrections. On June 21, 1977, appellant was convicted by a jury of the offense of burglary and his punishment fixed at confinement for ten years but the sentence was probated. One of the conditions of his probation was that he commit no offense against the laws of this State or of the United States.

On September 24, 1979, the terms of the order of probation were modified and appellant was ordered to remain within the “Republic of Mexico; upon deportation to Mexico, you will not re-enter this country without written consent of this Court.”

On December 13, 1979, Probation Officer Jose L. Gonzales saw appellant crossing a street in downtown El Paso. He went around the block in his car and arrested appellant for violation of the terms of his probation. The motion contained four numbered paragraphs, the first of which set out the conviction for the primary offense; the second set out the two terms of his probation mentioned earlier. The third paragraph read:

“3. Thereafter, to-wit: on or about the 13th day of December, 1979, in the County of El Paso and State of Texas, the said defendant, Jose Sanchez Reza, did then and there (unlawfully), re-enter into the United States after deportation in violation of 8 U.S.C. 1326, and

“On or gbout the 13th day of December, 1979, in the abovementioned County and State, said defendant did then and there fail to remain within the Republic of Mexico and did then and there fail to obtain the written consent of the Court to re-enter this Country after deportation.”

Appellant pleaded “untrue” to the allegations in the motion to revoke and upon the hearing it was established by certified copies of documents that appellant had in fact been deported to the Republic of Mexico. However, there is no evidence in our record that he did not have the written consent of the Court to re-enter the United States after the deportation.

The federal statute cited above, 8 U.S. C.A. § 1326 (1970) reads:

Ҥ 1326. Reentry of deported alien

Any alien who-

(1) has been arrested and deported or excluded and deported, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,

shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both.”

Appellant points to the fact that there was no evidence in the record that the Attorney General had not expressly consented to his reapplying for admission or that he was not required to obtain such advance consent. Our careful search of the record establishes the validity of the claim.

For the purpose of this appeal, we must assume the validity of the conditions of the probation order. See Hernandez v. State, 556 S.W.2d 337, 342 (Tex.Cr.App.1977). Although the State alleged two grounds in paragraph 3 of the motion to revoke, it made no effort to prove that re-entry was not with the consent of the Court.

The documentary evidence from the Immigration Service did not go beyond the date of deportation so that there was no showing that appellant did not in fact have consent from the Attorney General for his re-entry into this country. The usual method of establishing this negative fact would be by a certificate of the nonexistence of such a letter of consent. See United States v. Patterson, 446 F.2d 1358 (5th Cir. 1971). See also, United States v. Oris, 598 F.2d 428, 430 (5th Cir. 1979). No such certificate appears in our record.

It is elementary that the order revoking probation must be supported by a preponderance of the evidence. See Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974), and its progeny. It is also well established that in a probation revocation the State is required to prove every element of the offense by a preponderance of the evidence. Williams v. State, 591 S.W.2d 873, 875 (Tex.Cr.App.1979), and authorities therein cited.

There being no evidence to support the alleged violations of the conditions of probation, the judgment of the trial court must be reversed and the motion to revoke dismissed. Garcia v. State, 571 S.W.2d 896, 900 (Tex.Cr.App.1978). It is so ordered.

Opinion approved by the panel.