Erwin v. State

MORRISON, Judge.

This is an appeal from an order revoking probation.

On December 12, 1960, appellant plead guilty to the offense of burglary in the District Court of Wise County; his punishment was adjudged at six years’ confinement in the penitentiary, and execution of the sentence was probated.

On October 9, 1961, after notice and hearing in said court, where appellant was represented by counsel, the trial judge entered his order revoking the probation and imposed sentence upon appellant on a finding that he had violated the terms and conditions of probation as follows:

“A. Said defendant has failed to pay into the registry of this Court monthly payments in the sum of $20.00 per month on or before the tenth day of each month as ordered by the last paragraph of his terms of probation, as same are recorded in Volume 10, Page 184-A, of the Criminal Minutes of this Court.

“B. That said defendant on or about the 26th day of March 1961, committed an offense against the laws of this State in violation of numbered paragraph 1 of said terms of probation, in that the said defendant on said aforementioned date in the County of Tarrant, State of Texas, committed the crime of theft of one 1948 Chevrolet truck, of the value of over $50.00, same being the personal and corporeal property of F. G. Erwin.

“C. That said defendant in violation of numbered paragraph 1 on or about the 4th day of January 1961, in the County of Taylor, Texas, did drive and operate a motor vehicle without a valid driving license, and driving and operating a motor vehicle to which the said motor vehicle had attached fictitious registration plates.

“D. That said defendant did on or about the 4th day of January 1961, violated the terms of numbered paragraph 10 of said terms of probation in that he failed to notify the Sheriff of Wise County, of a charge of violation of any law of the State of Texas, against him, to-wit: The charge of driving a motor vehicle in Taylor County without driving license and driving a motor vehicle with fictitious registration plates.”

The district clerk of Wise County testified that appellant had made only two of the required $20.00 monthly restitution payments which were a condition of his probation.

F. G. Erwin (no relation to appellant), who is in the wholesale gas business, testified that one of his gasoline transport trucks was taken from his place of business on a Saturday night without his consent.

James Hardin, who lives on a farm-to-market road, testified that he was in his yard on the Sunday morning in question and saw a gasoline transport truck, which was later identified as the one that had been stolen from F. G. Erwin, skid and overturn on the road in front of his home. He further testified that he saw appellant walk away from the truck immediately after the accident, that he saw no one else in or near the truck, that appellant came to his home in an injured and bleeding condition and stated the accident was due to the fact he had gone a couple of days and nights without sleep, that appellant went back to the truck and turned the ignition off, and that appellant was very nervous and asked him not to call an ambulance.

Appellant, testifying in his own behalf, denied stealing the truck and stated that he had caught a ride in it and was asleep at the time the driver had the accident.

On cross-examination, appellant admitted being convicted and spending sixteen days in jail in Taylor County for driving without a license and operating a vehicle with fictitious registration plates. He also admitted that he did not notify the sheriff of Wise County of this violation of the law, which was required as a condition of his probation.

Appellant’s contention that the evidence is insufficient to support the action of the court in revoking probation is overruled, and, no abuse of discretion being shown, the judgment is affirmed.