Allen v. State

841 S.W.2d 7, 1992 WL 278702, 1992 Tex. Crim. App. LEXIS 189

• Court: Court of Criminal Appeals of Texas
• Decided: October 14, 1992
• Docket: No. 560-90
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant waived his right to a jury trial and, on April 22, 1988, pled guilty to burglary of a habitation. TEX.PENAL CODE ANN. § 30.02(a)(1). The trial court, pursuant to a plea bargain agreement assessed appellant’s punishment at seven years’ confinement in the Texas Department of Corrections¹ probated for seven years. Three months later, the State filed a motion to revoke appellant’s probation.

In the motion, the State alleged appellant violated the first condition of his probation by committing the felony offense of possession of a controlled substance, to wit, amphetamine. TEX.HEALTH & SAFETY CODE ANN. § 481.103(a)(3), and § 481.-116(b). Five months later, the State filed its first amended motion to revoke appellant’s probation. It contained the allegation set out in the original motion to revoke and added an allegation that appellant committed an aggravated assault while on probation. TEX.PENAL CODE ANN. § 22.-02(a)(4).

Appellant pled not true to the allegations in the State’s motion to revoke his probation. After a hearing on the motion in February, 1989, the trial court found appellant violated his probation by possessing amphetamines. The trial court made no finding on the aggravated assault allegation. The trial court revoked appellant’s probation on the ground that appellant committed an offense while on probation, as alleged in the first amended motion to revoke probation. The trial court assessed appellant’s punishment at five years’ confinement.

On direct appeal, the Court of Appeals decided the evidence was insufficient to establish that appellant possessed amphetamine. The Court of Appeals reversed the conviction and ordered appellant’s probation to be reinstated. Allen v. State, 786 S.W.2d 738, at 739-740 (Tex.App. — Fort Worth 1989). On rehearing, the Court of Appeals reiterated that the evidence was insufficient to support the trial court’s judgment. However, they reversed themselves and remanded the instant cause to the trial court for further proceedings. Allen v. State, 786 S.W.2d, at 740-741.

In its petition for review, the State requested this Court to reverse the Court of Appeals’ decision that there was insufficient evidence to revoke appellant’s probation. Although review was granted on five of the grounds for review presented by the State in its petition, this Court now finds that its decision to grant review was improvident. TEX.R.APP.P. 202(k). See, also, Arcila v. State, 834 S.W.2d 357 (Tex. Cr.App.1992). This decision does not constitute an endorsement or adoption of the reasoning employed by the Court of Appeals. Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983).

The State’s petition for discretionary review is dismissed.

OVERSTREET, J., dissents.

1 . Now, the Texas Department of Criminal Justice, Institutional Division.