Stephenson v. State

500 S.W.2d 855, 1973 Tex. Crim. App. LEXIS 2773

Opinions

OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of burglary on February 3, 1971, assessed a three-year sentence and placed on probation. One of the terms of his probation was that he commit no offense.

On July 17, 1971, appellant was convicted of rape and sentenced to death.

On December 27, 1971, the State filed a motion to revoke probation alleging appellant violated the terms of his probation by committing an offense. Probation was revoked following a hearing on January 13, 1972. His appeal in the rape case was pending when the revocation hearing took place.¹

Appellant contends that none of the evidence supporting the order revoking probation was admissible or properly before the trial court.

The same trial judge who presided at the rape trial heard the motion to revoke probation. Further, the same attorney who had by appointment represented the appellant during the trial of the rape case represented him at the revocation of probation proceeding. The proof offered at the probation hearing consisted of excerpts from the testimony of the prosecutrix in the rape case, which was introduced and read into the record by the prosecutor.

Appellant argues that the prosecutrix should have been required to again testify before the trial judge during the revocation proceedings. He contends that he would have cross-examined the prosecutrix with greater vigor before the court than he did in the trial before the jury.

The record does not reflect that the appellant subpoenaed or attempted to bring the prosecutrix before the court for testimony in the revocation proceedings.

We do not find an abuse of discretion by the trial judge in the revocation proceeding in admitting, hearing and reconsidering the testimony that he had heard during the rape trial. Barrientez v. State, Tex.Cr.App., 500 S.W.2d 474.

We find the evidence sufficient to support the order of the trial court in revoking probation.

See also Hilton v. State, Tex.Cr.App., 443 S.W.2d 844.

Appellant also urges that the court did not have jurisdiction to hear and revoke probation.

Appellant had been granted probation in the 124th District Court of Gregg County. A motion to revoke probation was filed in that court, but the record does not show that it was acted upon. Thereafter, in the 188th District Court of Gregg County, an order was entered transferring the case from that court to the 71st District Court of Harrison County, under the provision of Section 5, Article 42.12, Vernon’s Ann.C. C.P. A motion to revoke probation was then filed and heard in the 7lst District Court where the order revoking probation was entered.

Appellant argues that there is no order in the record transferring the case from the 124th District Court of Gregg County to the 188th District Court of Gregg County, consequently the 188th District Court did not have jurisdiction to transfer the case to the 71st District Court and any action taken in the 71st District Court was a nullity.

Appellant seemingly bases his contention on the order transferring jurisdiction to the 71st District Court. The order is headed, “In the 188th Judicial District Court of Gregg County, Texas” and states in the body of the order that on February 3, 1971, in the 188th District Court appellant “in Cause No. 8598-B” had been found guilty and placed on probation. The latter reference is clearly in error according to all other entries in the record including the order in the 71st District Court revoking probation. The heading on the order in question was an error of the drafter in a county where both the 124th and 188th District Courts have concurrent jurisdiction.

Further, at no time during the proceedings in the 71st District Court did appellant attempt to raise any questions concerning the propriety of the transfer order. He raises such matter for the first time on appeal. His contention was, therefore, not timely raised. See Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853; and Richard v. State, 97 Tex.Cr.R. 448, 261 S.W. 587. See also Flores v. State, Tex.Cr.App., 487 S.W.2d 122.

Finding no reversible error, the judgment is affirmed.

1 . Appellant’s conviction was affirmed. Stephenson v. State, Tex.Cr.App., 494 S.W.2d 900.