Whiteside v. State

468 S.W.2d 831 (1971)

James Steven WHITESIDE, Appellant,
v.
The STATE of Texas, Appellee.

No. 44012.

Court of Criminal Appeals of Texas.

July 14, 1971.

Ralph Taite, Dallas (on appeal by appointment), for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., Edgar A. Mason and Robert T. Baskett, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

The appellant was convicted for the possession of marihuana on April 12, 1968. His punishment was assessed at five years, probated. Some of the conditions of the probation were that the appellant commit no offense against the laws of the United States; report to the probation officer monthly; and, pay the probation officer $10.00 per month as a supervisory fee during the period of probation.

On June 4, 1969, a motion to revoke probation was filed. It alleged, among other things, that the appellant violated the terms of probation in that he failed to report, did not pay his probation fees, sold six LSD tablets in violation of the laws of the United States, and failed to remain in Dallas County.

The court revoked probation after finding that several of its conditions were violated including the failure to report as directed; failure to remain in Dallas County; failure to pay probation fees and by violating the laws of the United States by selling and delivering six LSD tablets.

The proof at the revocation hearing shows that the appellant was the person previously convicted. It shows that he sold some six LSD tablets to Sam J. Roberts, an undercover narcotics officer for the federal government. It was shown and the court took judicial notice that the sale of LSD was a violation of the laws of the United States.

D. L. Hamer, a detective of the Dallas Police Department, testified that on June 25, 1968, he saw the appellant get off an American Airlines plane immediately after it arrived in Love Field from San Francisco. William McKay, a probation officer for the court, testified that the appellant had failed to report monthly and that he had never made a report and had not paid any probation fee as required in the probation order.

The appellant contends that the proof did not show that the sale of LSD was a violation of the federal law, because the United States Code Annotated which was referred to by the witnesses was not an official publication of the United States government. The court took judicial notice and Officer Roberts and Robert E. Day, an attorney, testified that the sale of LSD was such a violation. This contention is overruled.

The proof by Officer Hamer that appellant was seen debarking a plane from a San Francisco flight was sufficient to show that the appellant did not remain in Dallas County. The testimony of the probation officer that the appellant did not report monthly is sufficient to show that this condition was violated.

To reverse an order revoking probation, there must be a showing that the court abused its discretion. No such showing has been made. The proof supports the allegations and the findings of the court that the appellant violated the terms and conditions of his probation.

The judgment is affirmed.