Hernandez v. State

613 S.W.2d 287, 1981 Tex. Crim. App. LEXIS 947

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1981
• Docket: 66297
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. On July 6, 1979, the appellant entered a guilty plea to an indictment charging felony theft, and his punishment was assessed by the court at five (5) years’ imprisonment. The imposition of the sentence, however, was suspended and the appellant was placed on probation subject to certain conditions including

“Commit no offense against the laws of this State or any other State or the United States.” and “Upon exiting the U.S.A. you will remain within the Republic of Mexico.” and “You will not re-enter the U.S.A. legally or illegally without the pri- or written permission of this court.”

On August 29, 1979, the State filed a motion to revoke probation alleging that the appellant had committed the offense of burglary of a motor vehicle on or about August 8, 1979, and failed to remain in the Republic of Mexico and had re-entered the United States without written permission of the trial court.

On September 21, 1979, the court conducted a hearing on said motion at the conclusion of which the court revoked probation. Sentence was imposed and notice of appeal was given.

On October 5,1979, the court vacated the order revoking probation and sentence and released the appellant upon the same conditions of probation. On November 8, 1979, the State filed a second motion to revoke probation alleging that on or about August 8,1979, the appellant committed the offense of burglary of a motor vehicle and “Further, on or about the 18th day of October, 1979, the said defendant failed to remain within the Republic of Mexico and did then and there enter into the United States without the prior written permission of the court.”

On November 21, 1979, a hearing was conducted upon such motion at the conclusion of which the court revoked probation. Sentence was imposed and notice of appeal given.

On appeal appellant contends the requirement to remain in the Republic of Mexico and the requirement that he obtain written permission of the trial court to re-enter the United States were invalid conditions of probation since the first requirement constitutes banishment and deportation outside the jurisdiction of the trial court, and the second condition constitutes regulation of immigration law and policy outside the jurisdiction of the trial court.¹

Jose L. Gonzales, probation officer, was with Vincent Brown, another probation officer, when they saw the appellant in El Paso in the 300 block of South El Paso Street on October 18, 1979. Appellant was arrested as the officer believed the appellant to be in violation of his probationary conditions.

Robert E. Lally, a supervisory deportation officer for the Immigration Service, testified the records of such agency reflect that “Adolfo Hernandez Ochoa” was picked up from the county jail on October 10,1979, and that on October 12, 1979 he was granted a voluntary return to Mexico and according to the records Ochoa was returned to Mexico. He did not relate any personal knowledge, but testified from the records.

Even though the burden of proof in revocation cases is by a preponderance of the evidence, we cannot conclude that the State sustained its burden. The evidence is insufficient to justify revocation. Cf. Aldana v. State, 523 S.W.2d 951 (Tex.Cr.App.1975).

The judgment is reversed and the cause remanded.

Before the court en banc.

1 . Although the order revoking probation states that “the Defendant violated the terms of such probation in the respect set out in Motion to Revoke Adult Probation,” we observe that no evidence was offered by the State as to the alleged penal offense. Revocation could not have been based thereupon.