Donald Ray GRANT, Appellant,
v.
The STATE of Texas, Appellee.
No. 48129-A.
Court of Criminal Appeals of Texas.
February 13, 1974.*260 William G. Rosch, III, Houston, for appellant.
Carol S. Vance, Dist. Atty., Ted Poe and Henry Oncken, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is felony theft; the punishment, five (5) years.
This is an appeal from an order revoking probation.
Appellant's brief filed in the trial court concluded that this appeal was frivolous and complied with the terms of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, Tex.Cr.App., 436 S.W.2d 137 (1969).
Thereafter, appellant's court appointed counsel on appeal sent this Court, without presenting same to the trial court, a supplemental brief in which he seeks to invoke the holding of the Supreme Court of the United States in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), and asks for a reversal because as he contends appellant was not afforded a preliminary hearing held to determine probable cause prior to the final hearing on the motion to revoke probation.
The affidavit attached to the supplemental brief is not properly before this Court. Booth v. State, Tex.Cr.App., 499 S.W.2d 129. We decline to discuss appellant's contention as the requests under Art. 40.09, Sec. 13, Vernon's Ann.C.C.P., other than to observe that his contention has been answered adversely to him in our recent opinion in Ex parte Shivers, Tex. Cr.App., 501 S.W.2d 898.
The judgment is affirmed.