James William Bates v. The State of Texas--Appeal from 296th District Court of Collin County

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Bates-W v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-95-174-CR

 

JAMES WILLIAM BATES,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 296th District Court

Collin County, Texas

Trial Court # 296-80659-90

 

O P I N I O N

 

Appellant James William Bates was convicted in the District Court of Collin County of the felony offense of driving while intoxicated, wherein his punishment was assessed at three years confinement, probated, plus a $1,000 fine. Thereafter, the State filed a motion to revoke Appellant's probation, in which the State alleged that, while Appellant was on probation, he committed an offense against the State of Texas, to-wit: On or about the 6th day of February 1994, in the County of Hunt, and State of Texas, he did then and there while intoxicated, drive and operate a motor vehicle in a public place.

The Collin County District Court conducted a revocation hearing with live witnesses from which the trial court found sufficient evidence by a preponderance of the evidence, to the effect that Appellant committed the offense of driving while intoxicated in a public place in Hunt County, Texas, in accordance with the State's allegations in the motion to revoke probation. That is to say, the trial court revoked Appellant's probation based upon an unadjudicated factual allegation that Appellant committed a misdemeanor offense in Hunt County, Texas when there had been no factual determination by a court of competent jurisdiction. The trial court sentenced Appellant to three years in the Texas Department of Criminal Justice, Institutional Division, and a $1,000 fine.

Appellant comes to this court on one point of error, asserting the trial court erred in making the original factual determination without a judgment, conviction or other finding of fact from a court of competent jurisdiction, that Appellant committed a misdemeanor offense in Hunt County, Texas, and in revoking Appellant's probation.

We overrule this point of error and affirm the judgment of the trial court.

The gist of Appellant's argument, as we understand it, is that the district court lacks jurisdiction to determine whether an unadjudicated misdemeanor offense committed in another county can constitute a violation of a lawful probation order. We do not agree. Tex. Code Crim. Proc. art.42.12, 21, empowers the court to cause an alleged probation violator to be arrested and detained for a hearing for any violation of probation. If a violation is found by the court, probation may be properly revoked. By performing such function, the court is not exercising jurisdiction over an out-of-county offense, but instead is determining whether the probationer has violated one of its own lawful probation orders.

Proceedings to revoke probation are not a criminal trial in the constitutional sense. Campbell v. State, 456 S.W.2d 918, 921 (Tex. Crim. App. 1970). They are administrative in nature, a means of protecting society and rehabilitating lawbreakers. Hill v. State, 480 S.W.2d 200 (Tex. Crim. App. 1972). The State must prove the allegations in the motion to revoke probation by a preponderance of the evidence. Scarmardo v. State, 517 S.W.2d 293 (Tex. Crim. App. 1974). The only question presented in an appeal from an order revoking probation is whether the trial court abused its discretion in revoking probation. Lloyd v. State, 574 S.W.2d 159 (Tex. Crim. App. 1978); also see Martinez v. State, 635 S.W.2d 762 (Tex. App. Corpus Christi 1982).

The law seems to be well-settled against Appellant's contention and in favor of the trial court's revocation of Appellant's probation in the manner in which the trial court acted. See Slater v. State, 646 S.W.2d 528 (Tex. App. Houston [1st Dist.] 1982, pet. ref'd); Fonteno v. State, 677 S.W.2d 80 (Tex. App. Houston [14th Dist.], 1984 pet. ref'd); Hendrixon v. State, 679 S.W.2d 616 (Tex. App. Beaumont 1984); Hughes v. State, 729 S.W.2d 352 (Tex. App. Dallas 1987, pet. ref'd, untimely filed); Goode v. State, 685 S.W.2d 789 (Tex. App. Fort Worth 1985); Trcka v. State, 744 S.W.2d 677 (Tex. App. Austin 1988, pet. ref'd) (Underlying judgment was in Hays County; subsequent offense [DWI] was somewhere between Austin and San Antonio; held that the county in which an alleged offense occurs is not an essential element of the State's case in a revocation hearing; the State needs only to prove by a preponderance of the evidence that the crime was committed in Texas.) (citing Montez v. State, 629 S.W.2d 871 (Tex. App. 1982, no pet.)) .

The judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

 

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed February 21, 1996

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