Felan v. State

276 S.W.2d 825, 161 Tex. Crim. 295, 1955 Tex. Crim. App. LEXIS 1393

Opinions

BELCHER, Judge.

On February 21, 1952, judgment was rendered against appellant, Fred L. Felan, upon his plea of guilty to the offense of assault with intent to rob in the criminal district court of Bexar County, and his punishment was assessed at three years in the penitentiary.

Imposition of sentence was suspended and appellant was placed on probation, one condition of his probation being that he not violate the penal laws of the State of Texas.

On August 3, 1954, the district attorney filed a motion to revoke the probation of appellant, alleging that appellant, on August 1, 1954, by force, attempted to break and enter a filling station with the intent to commit the offense of theft.

After a hearing on said motion, the court found that the conditions of such probation had been violated by appellant in an attempt to enter a filling station as alleged, and thereupon, the court revoked the order of probation.

On August 20, 1954, sentence was pronounced in accordance with the judgment of February 21, 1952, at which time appellant gave notice of appeal.

A statement of facts only on the hearing to revoke the probation accompanies the record.

The state’s testimony reveals that a filling station showed evidence of an attempted entry and that appellant was seen going rapidly away from the filling station about 2 a.m. on the date in question; that his automobile was found at the back of the station and there was a crow-bar at the back door of said station; and that a short time later appellant, breathing heavily, was discovered near the station. The arresting officer testified that he tested the automobile and found no mechanical defects.

Appellant denied attempting to burglarize the station and testified that because of mechanical trouble with his automobile he had left it at the station while on his way home from a dance.

Any fact may be established by circumstances, as well as by direct testimony.

We conclude that the trial court did not abuse his discretion in revoking the order granting appellant probation.

The judgment of the trial court is affirmed.

Opinion approved by the Court.