Avalos v. State

480 S.W.2d 382, 1972 Tex. Crim. App. LEXIS 2008

• Court: Court of Criminal Appeals of Texas
• Decided: April 5, 1972
• Docket: 44972
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

The appellant was convicted on April 1, 1970, for the offense of burglary with intent to commit theft. The punishment was assessed at three years, probated.

On August 11, 1971, a motion to revoke probation was filed. It alleged that a condition of the probation was violated on the 20th day of June, 1971, in that Avalos violated a law of this State by breaking and entering a coin-operated machine which was under the care, custody and control of D. C. Hubbard without his consent with intent to commit theft.

At the hearing on the motion to revoke, a confession of the appellant was offered. After a Jackson v. Denno¹ type hearing was held, the court found the confession was voluntarily given after he had been properly warned of his rights which in substance complied with the requirements of Miranda v. Arizona² and Article 38.22, Vernon’s Ann.C.C.P. Omitting the warning and the formal parts, it is as follows:

“I broke into the paper machine at the post office here in Tahoka about a month ago. I got about a dollar out of it. I took the papers out and threw them away and then shook the money out of the machine. Yesterday I broke into the newspaper machine again, I didn’t get any money because there was none in it. I threw the papers in the trash can there at the post office. My little brother was with me yesterday. He wasn’t the first time. He is ten or eleven years old.”

An agreement to stipulate the testimony of D. C. Hubbard was signed by the appellant, his counsel, the district attorney and the judge. In substance it recites that he, Hubbard, did not give the appellant permission to break into his coin-operated machine and that the appellant was never employed by him.

Jerry Davis of the Tahoka Police Department testified that on the day in question he saw the appellant and his younger brother, Rudy, enter the post office in Tahoka, look at the newspaper stand and leave when a car pulled into the parking lot. Later the two entered the post office again and the appellant went to the newspaper stand again while Rudy went to the door and was looking around. The appellant then began hitting the top of the newspaper stand and laid it over on its face and the door came open. He stood the stand up. Rudy then got eighteen or nineteen papers from the stand and put them in a trash barrel. The appellant took a paper and shut the door and the two left. They were followed a short distance by the officer and were placed under arrest.

The court revoked the probation and reduced the punishment to two years before sentencing the appellant.³

The sufficiency of the evidence is not challenged. The sole contention of appellant is that the court abused its discretion in ordering the revocation because there was no proof that appellant had ever received or had notice of the conditions of his probation.

The appellant did not testify. There is no claim or assertion that he did not receive or have notice of the conditions of probation, but only that the record does not show that he was made aware of the conditions of probation.

Article 42.12, Section 6, V.A.C.C.P., provides: “ . . . that the clerk of the court shall furnish a copy of such terms and conditions to the probationer, and shall note the date of delivery of such copy on the docket.”

This provision of the statute should be followed.⁴ See Cox v. State, Tex.Cr.App., 445 S.W.2d 200, and the suggestions of the writer of the concurring opinion, and Campbell v. State, Tex.Cr.App., 420 S.W.2d 715, 716.

If the other statutory conditions of probation such as a failure to avoid vicious habits, or persons of disreputable character or a failure to report to the probation officer had been utilized for revocation a different question would be presented. But here the allegation to revoke probation was that the appellant committed a felony offense. It is presumed that he knew it was a violation of a penal statute to break and enter a coin-operated machine and for such an offense he could be sentenced to the Texas Department of Corrections.

We hold that under the circumstances of the case where clear proof of a violation of a felony statute has been shown, the failure to show that the appellant received a copy of the conditions of probation does not by itself show an abuse of discretion.⁵

The judgment is affirmed.

1 . Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

2 . Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694.

3 . Since the appellant had successfully served more than one third of the term this was proper. See Smith v. State, Tex.Cr.App., 399 S.W.2d 557.

4 . The evidence by the former county attorney shows that a letter was mailed from his office to appellant on April 8, 1970, and it was not returned. The contents of the letter were not proved.

5 .After this opinion was originally prepared, there has been forwarded to this Court a transcription of the court reporter’s notes showing that the trial court at the time probation was granted advised the appellant of the conditions of probation which included the provision that he was not to violate the laws of this State. This was prepared after the case was submitted and has not been approved by the trial judge, and it is not a part of the record. It has not been considered by the writer.