Lynch v. State

502 S.W.2d 740, 1973 Tex. Crim. App. LEXIS 2142

• Court: Court of Criminal Appeals of Texas
• Decided: November 21, 1973
• Docket: 47578
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

On August 28, 1970, appellant was convicted for the offense of embezzlement. His punishment was assessed by the court at two years, probated.

Among the conditions of probation was that appellant commit no offense against the laws of this or any other State or the United States.

On July 27, 1972, which was some 32 days before the term of probation expired, the assistant district attorney filed a motion to revoke probation. It alleged that on June 14, 1972, the appellant committed the offense of receiving and concealing stolen property.

The record is silent as to any order of the court for the arrest of appellant or the setting of a hearing.

Hearing was held on November 3, 1972, after the term of probation had ended.

The State relies upon Bobo v. State, Tex.Cr.App., 479 S.W.2d 947, wherein this Court, citing Ex parte Fennell, 162 Tex.Cr.R. 286, 284 S.W.2d 727, held that where the violation occurs and a warrant issues within the probationary period and the hearing is not, thereafter, unduly delayed, the court has authority to revoke probation though the term has expired before the order is entered. See Bryant v. State, Tex.Cr.App., 496 S.W.2d 565.

The fact that no warrant or capias is shown to have issued during the term of probation distinguishes the case before us from Ex parte Fennell, supra. See Coffey v. State, Tex.Cr.App., 500 S.W.2d 515 (1973).

Pollard v. State, 172 Tex.Cr.R. 39, 353 S.W.2d 449, sustains appellant’s contention and requires reversal.

The order revoking probation is reversed and the cause is remanded.