McDonald v. State

MORRISON, Judge

(dissenting).

As I view this record, the testimony introduced by the State at the hearing to revoke appellant’s probation is so conflicting and inconclusive as to make it mandatory that we hold that the trial court abused his discretion in revoking probation on such evidence.

In order to justify such a conclusion, I point out the following. The owner of the Lotta-Burger Drive-In testified that $249.00 was taken, yet the State’s witness Ivery testified that he got only $7.00 from the burglary and that appellant got nothing. Ivery first testified that he saw appellant inside the Lotta-Burger Drive-In, but later said that he did not see him, but thought he heard him inside the burglarized premises. The Cooks, who readily admitted that they could not identify the appellant as the man who committed the theft, set the day of the theft from them as June 20, while the State’s witness Black set the date of the theft variously at September 27, and August 15, and stated that this appellant gave him a portion of the proceeds on August 17.. Black’s testimony reflects that he did not see the appellant commit the theft.

To affirm this order of revocation would be abdicating the jurisdiction of this Court and nullifying the Act of the Legislature which gives the probationer the right of appeal from revocation as provided by Section 8, Article 781d Vernon’s Ann.C.C.P.

I respectfully dissent.