Barnes v. State

467 S.W.2d 437, 1971 Tex. Crim. App. LEXIS 1986

Opinions

OPINION

ODOM, Judge.

This appeal is from an order revoking probation.

On September 30, 1969, appellant entered a plea of guilty, before the court, to the offense of breaking and entering a motor vehicle. Punishment was assessed at two years; imposition of sentence was suspended and appellant was placed on probation. One of the terms and conditions of probation was that he “commit no offense against the laws of this or any other state, or of the United States.”

On March 27, 1970, the state filed a motion to revoke probation alleging that the appellant had committed a felony theft on February 28, 1970. On April 3, 1970, an amended motion to revoke probation was filed alleging:

“That the defendant failed to comply with the above listed conditions of his probation, to-wit: On or about the 28th day of February, 1970, a date subsequent to the above mentioned conviction, in the County of Potter and State of Texas, the said Robert Thomas Barnes did then and there unlawfully and fraudulently take one (1) 1965 Honda Motorcycle of the value of over $50.00 from the possession of Johnny Baird, the same then and there being the corporeal personal property of and belonging to the said Johnny Baird, without the consent of the said Johnny Baird, and with the intent to deprive the said Johnny Baird of the value thereof, and to appropriate the said property to the use and benefit of him, the said defendant, Against the Peace and Dignity of the State.

“Further, on or about the 28th day of February, 1970, a date subsequent to the above mentioned conviction, in the County of Potter and State of Texas, the said Robert Thomas Barnes did then and there unlawfully and wilfully drive and operate and cause to be driven and operated upon a public road and highway, there situate, a motor vehicle over the value of $200.00, to-wit: a 1965 Honda motorcycle, owned by Johnny Baird, in the absence of and without the consent of the said Johnny Baird, Against the Peace and Dignity of the State.

“Wherefore, Premises considered the State moves the Honorable Court to issue a capias for the arrest of the defendant, call the defendant before the Court, revoke his probation and order the said defendant committed to the Texas State Penitentiary to serve his sentence.”

On April 6, 1970, a hearing was held on the amended motion; at the conclusion thereof, the court announced:

“The court is of the opinion and so finds that the testimony is sufficient to show that the defendant has violated his probation and that he is guilty as charged in the first paragraph — subparagraph of Paragraph five, except that the value is not shown to exceed $50.00, and further that he’s guilty as charged in the second subparagraph of Paragraph five, except that the testimony does not show the vehicle to be over the value of $50.00.”

The formal order revoking probation “found that the defendant failed to comply with the conditions of his probation, as set forth in said motion” to revoke.

First, appellant challenges the sufficiency of the evidence.

Jack H. Inman, an Amarillo Police Officer, testified that on March 1, 1970, he received a report of a stolen motorcycle; that he made an investigation and saw the motorcycle at a place owned by James Latham, who had “called and advised that he found a motorcycle hidden under some wood behind his storage shed at 913 North Houston.” The officer stated that “It was a ’65 Honda 160 motorcycle” and “It had ’70 Texas License X18870.” He released it to Johnny Baird.

Loren Jones, Potter County Tax As-sesor-Collector, testified that a 1970 Texas License Number X18870 had been issued to a 1965 Honda motorcycle on February 24, 1970, with the registration receipt reflecting the owner as Johnny D. Baird.

John David Pendergrass, aged 16, testified that on the night of February 28, 1970, he saw the appellant at a “Toot’n Totum” drive in grocery store and asked him if he knew who owned the 160 Honda motorcycle “parked beside the trash bin.” Then he was asked:

“Q. All right. And what did Robert say to you in return ?

“A. He said ‘Don’t tempt me,’ or something like that.

“Q. All right. How did you get the motorcycle started?

“A. Robert hot-wired it.

“Q. By ‘hot-wired,’ what do you mean?

“A. He took the switch apart, and I don’t know what he done to it.

“Q. All right. Did the motorcycle start right up ?

“A. He had to push it around and tinker with it some more.

“Q. All right. Did you know whose ■ motorcycle that was at the time ?

“A. No, sir.

“Q. Did Robert know whose motorcycle that was?

“A. Not that I know of.

“Q. All right. Did anyone give either of you permission to take that motorcycle ?

“MR. POFF: That calls for a conclusion on his part as to whether or not anyone gave Robert Barnes permission to take the motorcycle.

“THE COURT: Overruled.

Q. (By Mr. Russell) Did anyone give either you or Robert Barnes permission to take the motorcycle at that time?

:A. No, sir.

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:A. We went down a street called Dale, beside the school, then across some other streets.

“Q. All right. When you went by the school, what did you do there ?

“A. We pushed it over to the school and Robert hot-wired it, then we got it started and just took off from there.

“Q. Okay. Did you see anybody at that time?

“A. No, sir.

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“Q. All right. Did you ever tell them that you and Robert had stolen a motorcycle ?

“A. Yes, sir.

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“Q. And what did you tell them ?

“A. Well, I didn’t tell Gary, I told Ricky.

“Q. What did you say?

“A. I said — I asked him if he knew who owned it.

“Q. Owned what ?

“A. The motorcycle.

“Q. And then what did you say ?

“A. I don’t remember what all he said, but it was about the motorcycle.”

4 , . . And on cross-examination:

“Q. When you talked to Ricky, why did you tell Ricky you stole the motorcycle ?

“A. Because I was wanting to find out who belonged it — who owned it.”

On re-direct:

“Q. Prior to the time you hot-wired the motorcycle, this Honda motorcycle, got on it and rode off, did anyone named Johnny Baird come out and tell you it was all right to take that motorcycle ?

“A. No, sir.”

Ricky Blevins, age 13, testified that he had seen Pendergrass and the appellant riding a Honda motorcycle in an alley behind his home; that Pendergrass told him “they had stolen a motorcycle,” and showed him where they hid it.

Gary Floyd, age 14, testified that he recovered an ignition bolt from the top of a school building where Pendergrass had told him it had been thrown. He also testified that on one occasion he had seen what looked like the appellant and Pendergrass riding a motorcycle in an alley behind Ricky Blevins’ house and that he was sure it was them after Pendergrass confirmed it.

Johnny Baird, the alleged owner of the motorcycle, did not testify.

Appellant also contends there was no showing that the taking of the motorcycle was without consent.

Even though in a theft case, this evidence would be insufficient with no showing that the owner was not available, we conclude that the circumstances developed at this hearing were sufficient to show lack of consent to take the motorcycle. See Casarez v. State, Tex.Cr.App., 468 S.W.2d 412; Dorsey v. State, 172 Tex.Cr.R. 311, 356 S.W.2d 943; Smith v. State, 123 Tex.Cr. R. 47, 57 S.W.2d 132; Lynch v. State, 70 Tex.Cr.R. 449, 156 S.W. 1182.

As to the value of the motorcycle; true, the state, in the motion to revoke probation alleged that the appellant committed felony offenses. The proof shows only an offense against the laws of this state, i. e. the theft of a motorcycle and the value is not shown to exceed fifty dollars. It is evident that there was “poor pleading” or “poor proving”, either of which is certainly not to be commended. Nevertheless, we conclude that the said motorcycle had some value. In Morris v. State, Tex.Cr.App., 368 S.W.2d 615, at 617, this court stated:

“While we are not ready to say that the court may take judicial knowledge of the value of an automobile, we do say that proof that the automobile taken in June, 1962, was a 1957 Pontiac convertible in condition to drive from Dallas to Vernon and return, required but little supporting evidence to sustain the allegation that it was of the value of over $50.”

See also Branch v. State, Tex.Cr.App., 465 S.W.2d 160, and Foote v. State, Tex. Cr.App., 463 S.W.2d 445.

In Branch v. State, supra, this court stated:

“The only issue on appeal is whether the trial court abused its discretion in revoking the probation. The hearing on the revocation is not a criminal trial. Hood v. State, Tex.Cr.App., 458 S.W.2d 662; Tate v. State, Tex.Cr.App., 365 S.W.2d 789. * * *

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“Contrary to contention by the appellant, the State was not bound to prove that the value or replacement value of the windshield was over $50.00. The proof of the wilful injury or destruction of the property (Art. 1350 V.A.P.C.) was sufficient to show a violation of the law.”

In Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165, this court stated:

“Revocation proceedings are not trials in the constitutional sense with reference to criminal cases. Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774; Ex parte Gomez, Tex.Cr.App., 241 S.W.2d 153; Jones v. State, 159 Tex.Cr.R. 24, 261 S.W.2d 317, cert. den. 346 U.S. 836, 74 S.Ct. 53, 98 L.Ed. 358; Cooke v. State, 164 Tex.Cr.R. 320, 299 S.W.2d 143; Gorman v. State, 166 Tex.Cr.R. 633, 317 S.W.2d 744; Leija v. State, [167 Tex. Cr.R. 300,] 320 S.W.2d 3; Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135.”

See also Hilton v. State, Tex.Cr.App., 443 S.W.2d 844; Manning v. State, 412 S.W.2d 656; Ex parte Bruinsma, 164 Tex.Cr.R. 358, 298 S.W.2d 838, cert. den., Bruinsma v. Ellis, 354 U.S. 927, 77 S.Ct. 1386, 1 L.Ed.2d 1439.

We find the evidence sufficient to support the revocation of probation. Appellant’s first ground of error is overruled.

Appellant further contends that the state failed to corroborate the testimony of accomplice witness Pendergrass.

In Gonzalez v. State, Tex.Cr.App., 456 S.W.2d 53, at page 57, this court stated:

“Bearing in mind that a proceeding to revoke probation is not a criminal trial; the statute requiring that the testimony of an accomplice be corroborated does not apply and the uncorroborated testimony of an accomplice may be sufficient to revoke probation; the court may accept a part of the testimony of a witness and reject other portions of his testimony; and that proof by circumstantial evidence that the probationer was a principal or an accomplice would be sufficient to sustain the court’s finding that the probationer committed the acts. * * * ”

It is well settled that revocation of probation is not a “conviction” within the meaning of Article 38.14 Vernon’s Ann. C.C.P. See Hulsey v. State, supra; McDonald v. State, Tex.Cr.App., 393 S.W.2d ; Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566; Dunn v. State, 159 Tex.Cr. App. 520, 265 S.W.2d 589.

Appellant’s second ground of error is overruled.

We find no merit in appellant’s contention that his right to a fair hearing was violated or that it was error for the trial court to allow the state to reopen to show that he had been placed on probation in this cause.

We hold that the trial court did not abuse its discretion in revoking appellant’s probation.

The judgment is affirmed.