Leo Seymore, Appellant, v. Dr. George J. Beto, Director, Texas Department of Corrections, Appellee, 383 F.2d 384 (5th Cir. 1967)

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US Court of Appeals for the Fifth Circuit - 383 F.2d 384 (5th Cir. 1967) October 6, 1967

Leo Seymore, pro se.

Lonny F. Zwiener, Asst. Atty. Gen., Crawford C. Martin, Atty. Gen., of Texas, George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R. L. Lattimore, Howard M. Fender, Robert E. Owen, Asst. Attys. Gen., for appellee.

Before TUTTLE, GEWIN and AINSWORTH, Circuit Judges.


Appellant sought a writ of habeas corpus in the district court based on allegations that revocation of his probation by the Twelfth Judicial District Court of Walker County, Texas, for a five-year sentence imposed for burglary on October 4, 1965, violated due process of law. Appellant alleged more specifically that the evidence adduced at the revocation hearing held in the trial court on December 10, 1965, was insufficient to support an order revoking his probation. The record reveals that a hearing was held on December 10, 1965, with appellant and his appointed counsel present; that testimony was heard and that the trial court then found that appellant had violated the terms of his probation as set forth in the state's petition. On September 28, 1966, the charge upon which the revocation was based was dismissed for insufficient evidence on motion of the state. This court recognizes that, according to Texas law, revocation of a probated sentence is within the trial judge's discretion and that in the absence of a clear showing of abuse of that discretion, his order will not be disturbed. Stratmon v. State of Texas, 1960, 169 Tex.Cr.R. 188, 333 S.W.2d 135; Soliz v. State of Texas, 1961, 171 Tex.Cr.R. 376, 350 S.W.2d 566; Broadus v. United States, 5 Cir., 1963, 317 F.2d 212. No abuse of that discretion has been shown in the instant case.

The order of the district court denying this petition for a writ of habeas corpus is hereby,