I respectfully dissent from the majority's opinion. The record reflects that at the October 27, 1980 hearing the court conditioned revocation of appellant's probation in the following manner:
The Court: All right, please stand up, Mr. Meachum. Carl Louis Meachum, on the evidence introduced herein, the court finds you did violate the terms and conditions of your probation in that on or about the 30th day of August of 1980 in Harris County, Texas you did then and there unlawfully and intentionally obstruct and prevent the arrest and search of you by J.H. Williams by use of force against Mr. Williams, knowing he was a police officer. However, I am not going to determine at this time whether or not I am going to revoke your probation or not. (sic) I am going to give you ninety days to see if you can clean your act up because if you can clean it up in ninety days and not get yourself in one ounce of trouble-I am talking about not so much as spitting on the sidewalk then you won't go to the penitentiary. (sic) You so much as spit on the sidewalk and you are going up for eight years I guarantee you. I am going to release you on recognizance and I am going to reset this case for ninety days.
In an order signed December 23, 1980, the court ordered filed the State's second motion to revoke probation. The court revoked probation at the hearing on January 27, 1981. No evidence was introduced. Counsel for appellant, who was substituted for trial counsel for purposes of appeal, complained of the procedure used by the court in revoking appellant's probation without any evidence that appellant had not "cleaned up his act."
The same concerns Judge Onion had in his dissenting opinion in Ex parte Feldman are germane to the case before us. Ex parte Feldman, 593 S.W.2d 720, 722-23 (Tex.Cr.App. 1980). That case also involved a motion to revoke probation on which an initial hearing was held in December 1977. The court found the appellant had violated his probation and passed the hearing generally. Seven and one half months later, the *Page 801 appellant was again brought before the court. At that second hearing the court stated it was "taking up the remainder of (the earlier hearing) and bringing that hearing to a conclusion." The court then proceeded to revoke probation.
Article 42.12 § 8(a) provides that at a hearing on a motion to revoke probation a trial court may continue, modify or revoke the probation. Tex Code Crim.Pro. (Vernon 1980). Because the court in Feldman neither revoked nor modified the probation at the first hearing, its sole option under Article 42.12 was to continue that hearing, which intention the above quoted language from that case reflects.
The record in the case before us appears to reflect that same intention, i.e., the court continued the appellant on probation just as if the court had entered an order continuing the appellant on probation. I believe, as did the four dissenting justices in Ex Parte Feldman, that taking a revocation matter under advisement or continuing probation should not result in summary revocation of probation without the introduction of evidence supporting that action.
From a review of the record in this case, I would find the court continued appellant's probation, and due to the manner in which the court imposed conditions upon revocation of appellant's probation, the proper procedure for the court at the second hearing should have been to hear evidence.