Perkins v. State

386 S.W.2d 286 (1965)

R. C. PERKINS, Appellant, v. The STATE of Texas, Appellee.

No. 37411.

Court of Criminal Appeals of Texas.

January 6, 1965.

Rehearing Denied February 17, 1965.

*287 Ted Odom, Bill Wood, John Heitler, Tyler, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on December 2, 1963, appellant was found guilty of burglary and his punishment was assessed at a term of three years. The execution of the sentence was suspended and probation was granted.

Among the conditions of probation were that appellant commit no offense against the laws of this or any other State of the United States, and that he avoid injurious or vicious habits and the use of alcohol in any form.

Following the granting of probation on December 2, 1963, the original application to revoke was filed February 13, 1964, alleging that he was under the influence of intoxicating liquor on February 9. The state's amended application to revoke was filed March 6. It alleged that on February 9 appellant was under the influence of intoxicating liquor; that he also committed burglary and theft on February 9; that he was arrested and charged with being drunk on February 22, for which on February 26, he was tried in Corporation Court, found guilty, and assessed a fine of $35, which he paid.

At the hearing on revocation, the evidence reveals that appellant was arrested and placed in jail for being drunk on February 9; that he was arrested for being drunk on February 22, and testified on his trial on February 26 that he had drunk three cans of beer about an hour before his arrest February 22, and two officers also testified that he was drunk that day. The trial on February 26 resulted in his conviction for drunkenness with a $35 fine assessed. Testimony was offered which would show that appellant committed burglary and theft on February 9, but it appears that after the missing money was found or returned the matter was not further pursued. The testimony of the appellant on the hearing shows that he had drunk beer during the period of his probation.

The order revoking probation reads in part as follows:

"* * * defendant herein, R. C. Perkins, has violated the terms of his said probation heretofore granted him by this Court by the use of alcohol, which occurred during the period for which sentence in this case was made probationary."

From the testimony of the state and the judicial admissions of the appellant, it is concluded that the trial court did not abuse his discretion in revoking the order of probation. Craig v. State, 168 Tex.Cr.R. 193, 324 S.W.2d 557.

The judgment is affirmed.

Opinion approved by the Court.