Barrientez v. State

500 S.W.2d 474, 1973 Tex. Crim. App. LEXIS 1909

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 1973
• Docket: 45934
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation. Appellant pled guilty on September 18, 1970, to the offense of assault with intent to commit murder. Punishment was assessed at five years, probated.

Subsequently, in June, 1971, appellant was tried before a jury on a charge of murder and found guilty, receiving life imprisonment. That trial was before the Honorable George L. Walker, Judge of the 185th District Court of Harris County, Texas.

On December 17, 1971, a hearing was held on a motion to revoke appellant’s probation, again in the court of the Honorable George L. Walker. At the conclusion of the hearing, appellant’s probation was revoked.

Appellant alleges an abuse of discretion in that the evidence is insufficient to support the order of revocation. The State called appellant’s probation officer as a witness. He testified to the fact that one of the terms and conditions of appellant’s probation was that he “commit no offense against the laws of this or any State or of the United States.”

The State then reoffered:

“. . . the testimony heard by this Court, the Honorable George Walker, in that courtroom, concerning this Defendant, Francisco Barrientez, in Cause No. 158,623, in which this Defendant was tried for the offense of murder, in which the Honorable Court heard these facts as this case was being tried on those dates in this courtroom, and the State would reoffer this evidence and testimony in its entirety to the Court at this time in this hearing on this Motion to Revoke the Probation of this Defendant.

“The State would further offer into evidence, by reference, the record as prepared in the trial of this Defendant for the offense of murder in Cause No. 158,623, and offer that record in its entirety; that being the testimony that has been heard by this Court on those dates of June 21 through June 23 of 1971, and with that, the State would rest.”

Appellant contends that the verdict of guilty in the murder case is on appeal and therefore, cannot support the revocation. We agree. However, such is not the case before us. The State here did not rely upon the previous conviction as the basis for its application to revoke the probation. Both the motion to revoke probation and the order to revoke were worded to the effect that appellant committed the offense of murder. Thus, the State sought to allege and prove the commission, not the conviction, of the murder offense.¹ The case of Hilton v. State, 443 S.W.2d 844, n. 1 (Tex.Cr.App.1969) is in point. As in Hilton, the present appellant was before the same judge in the same court in both the case where the probation was granted as well as the trial of the offense which was made the basis of revoking his probation.

Certainly, Judge Walker could take judicial notice of the evidence introduced in that prior proceeding. Are we to pretend that this judge was not present at the murder trial, and force the State to reproduce the same witnesses? We think not. Such a requirement would place an unreasonable burden upon the State.

We find no abuse of discretion.

The judgment is affirmed.

1 . On this point, appellant’s cases of Harris v. State, 169 Tex.Cr.R. 71, 331 S.W.2d 941 (3960) and Jansson v. State, 473 S.W.2d 40 (Tex.Cr.App.1971) are distinguishable.