Balli v. State

460 S.W.2d 424, 1970 Tex. Crim. App. LEXIS 1262

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 1970
• Docket: 43204
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

The appeal is from an order revoking adult probation, the sole question being whether there is a clear showing that the trial judge abused his discretion. Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566; Torres v. State, Tex.Cr.App., 403 S.W.2d 135; McKnight v. State, Tex.Cr.App., 409 S.W.2d 858; Manning v. State, Tex.Cr.App., 412 S.W.2d 656; Gonzalez v. State, Tex.Cr.App., 456 S.W.2d 53.

On January 16, 1968, appellant was found guilty of murder without malice (Art. 802c, Vernon's Ann.P.C.) and the jury assessed his punishment at five years and recommended probation.

Judgment was entered on the jury’s verdict, one of the conditions of probation being that the defendant “commit no offense against the laws of this state or of any other state or of the United States.”

The state’s motion to revoke probation alleged that during the period of probation appellant violated the conditions of his probation in that he, said probationer, on or about the 9th day of August, 1969, in Cameron County, Texas, did then and there unlawfully, while intoxicated and while under the influence of intoxicating liquor, drive and operate a motor vehicle upon a public road and highway in Harlingen, Cameron County, Texas.

At the hearing on the motion to revoke, held September 30, 1969, evidence was offered including the testimony of two police officers of the City of Harlingen, both of whom expressed the opinion that appellant was intoxicated when he was arrested while driving an automobile on a public highway in the City of Harlingen, in Cameron County, Texas, in the early morning hours of August 9, 1969. Both officers described the manner in which the automobile was being driven by appellant, his conduct and actions and their experience in observing people who were intoxicated. One of the officers testified: “The man was unbalanced on his feet. He was staggering and his clothes was sloppy and his shirt was half out and had a strong odor of alcohol on his breath and his eyes were dilated.”

Following the revocation hearing the court reduced the period of probation from five years to three years, appellant having satisfactorily completed one-third of the original probation period. The appeal is from the further order of the court revoking probation and pronouncing sentence. (Art. 42.12(8), Vernon’s Ann.C.C.P.)

Appellant’s contention that the court abused its discretion in revoking probation is bottomed on the fact that the motion to revoke erroneously alleged that the conviction was on a plea of guilty, (2) the fact that appellant was not allowed to have his trial on the complaint filed in Cameron County alleging the offense of driving while intoxicated, and (3) the jury’s verdict on punishment contains the statement “ * * * we, the Jury, having assessed the punishment of the defendant at not more than ten years * * whereas the verdict set out in the judgment reads, in this regard: “ * * * we, the jury, having assessed the punishment of the defendant at not more than five years * *

The facts referred to, neither separately nor collectively, present a clear showing that the court abused its discretion in revoking appellant’s probation in the absence of which its order will not be disturbed.

The judgment is affirmed.