(dissenting).
The motion to revoke probation filed on May 4, 1970, alleged in part as follows:
II
“The State of Texas further show to the Court, that the defendant Edelmiro Alejandro Casarez, since placed on probation in this cause, and during his said period of probation, has violated the conditions of his probation, in that he, the said defendant and probationer herein, on or about the 26th day of April, A. D. 1970 and anterior to the filing of this State’s Original Application to Revoke Probation, in the County of Hidalgo and State of Texas, did then and there unlawfully by fraud, and by force applied to a coin-operated machine there situate, and under the control of Narciso Rodriquez, without the consent of Nar-ciso Rodriquez, break and enter said coin-operated machine with the purpose of committing the theft of money from said coin-operated machine.
III
“The State of Texas would further show to the Court that the defendant, Edelmiro Alejandro Casarez, since placed on probation in this cause, and during his said period of probation, has violated the conditions of his probation *415in that he, the said defendant and probationer herein, on or about the 26th day of April, A.D. 1970 and anterior to the filing of this State's Original Application to Revoke Probation, in the County of Hidalgo and State of Texas, acting together and with Pablo Rene Salas and Agustín Casarez Delgado, did then and there unlawfully by fraud, and by force applied to a coin-operated machine there situate, and under control of Nar-ciso Rodriquez, without the consent of Narciso Rodriquez, break and enter said coin-operated machine with the purpose of committing the theft of money from said coin-operated machine.”
At the conclusion of the hearing the court revoked probation and entered an order finding and reading:
“ * * *; and the Court is of the opinion and so finds that the Defendant, Edelmiro Alejandro Casarez, has violated the terms and conditions of the judgment by which he was placed on probation in that on or about the 26th day of April, 1970, and during the period of his probation in Hidalgo County, Texas, said Defendant did unlawfully and, by force applied to a coin-operated machine therein situated and under the control of Narciso Rodriquez, without the consent of said Narciso Rodriquez break and enter said coin-operated machine with the purpose of committing the theft of money from said coin-operated machine.” (emphasis supplied)
Appellant vigorously challenges the sufficiency of the evidence to support the allegations of the motion to revoke and the findings of the trial court. He particularly urges that the evidence fails to show a lack of consent on the part of one Narciso Rodriguez as alleged or to show ownership or control of the coin-operated machine as alleged.
The record shows that alleged owner Narciso Rodriguez did not testify. In quoting from the record as to unavailability of the witness the majority stops short. Immediately after Mr. Pena stated he had two partners but he was wanted the next morning by Judge Scanlan, the following statement by the district attorney, who announced ready, is found in the record:
“MR. McINNIS: I would like to recess and be given an opportunity to get hold of this witness. Frankly, I think he is avoiding us.
“MR. PENA: May we have a conference with the Court.
“THE COURT: Yes. (Reporter’s Notes: Whereupon a hearing was had outside the hearing of the Court reporter).”
No other evidence appears in the record as to the unavailability of the witness Rodriguez or the lack of fault on the part of the State.
In 55 Tex.Jur.2d, Theft, Sec. 185, p. 445, it is written:
“Where positive and direct proof is available, want of consent cannot ordinarily be shown by circumstantial evidence. The best evidence of want of consent is the testimony of the owner, and circumstantial evidence is inadmissible to show want of consent unless it appears that the owner is inaccessible by the use of ordinary diligence or is beyond the reach of legal process. Thus where the owner is present and has failed to give direct and positive testimony as to his want of consent to the taking, such want of consent will not be inferred from other circumstances in the evidence. But want of consent may be proved by circumstantial evidence when the owner is dead or is incompetent to testify, or where without fault on the part of the state direct testimony cannot be produced, or where it is alleged that the owner is unknown, or where no ob*416jection is made when the evidence is offered.”
The State offered no proof that the owner was unaccessible by use of ordinary diligence or was beyond the reach of legal process.
Even assuming that circumstantial evidence was admissible to prove want of consent, was the circumstantial evidence offered sufficient to support the court’s findings as to consent and control of the coke machine ?
The only evidence as to ownership and control is quoted in the majority opinion. This shows that the coke machine had been located in front of the Conoco Station “for some period of time” and the station was operated by “a subject named Rodriguez.” Whether this Rodriguez was Jose, Juan, Santiago or Tom, Dick, or Harry is not revealed. The evidence does not reflect the witness had reference to a Narciso Rodriguez. Rodriguez is not an uncommon name, particularly in the county where this cause was tried. There is not even any hearsay testimony to support the trial court’s findings, much less any sworn probative evidence that there was a want of consent by a Narciso Rodriguez as alleged and that he had the care, custody and control of the coke box in question.
Even the majority recognizes the insufficiency of the evidence to sustain the allegations of the motion to revoke and support the findings of the trial court as to the control and want of consent. The majority is careful only to say, “The evidence was sufficient to show that the ownership of the coin-operated machine was not in appellant or either of his two companions.” This fell far short of answering appellant’s contention.
Even if circumstantial evidence was admissible on the issues of control and consent, it is clearly not sufficient to support the trial court’s findings. For this reason alone, I would reverse this judgment.
Bearing in mind that mere presence alone is not sufficient to constitute one a principal, I also have serious reservations that the evidence is sufficient to show that the appellant was a principal to the commission of the offense alleged.
When a probationer is accused of having violated his probationary conditions by committing a penal offense, he is not entitled to require that prior to revocation there be a trial and conviction in a court of competent jurisdiction for the offense which is the basis of the revocation. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589; Ex parte Gomez, Tex.Cr.App., 241 S.W.2d 153; Ex parte Bruinsma, 164 Tex.Cr.R. 358, 298 S.W.2d 838, cert. den. Bruinsma v. Ellis, 354 U.S. 927, 77 S.Ct. 1386, 1 L.Ed.2d 1439; Gorman v. State, 166 Tex. Cr.R. 633, 317 S.W.2d 744; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165. This was a requirement of the former Suspended Sentence Law (Articles 776-781, V.A. C.C.P.1925), but not of the Adult Probation Law (Article 42.12, V.A.C.C.P.)
And such probationer is not entitled to a jury trial to determine if his probation should be revoked. Article 42.12, Sec. 8, V.A.C.C.P.; Hulsey v. State, supra; Dunn v. State, supra; Ex parte Gomez, supra. Further, probation may be revoked for violation of any penal offense; it is not restricted to a violation of a felony or a misdemeanor involving moral turpitude. Jackson v. State, 165 Tex.Cr.R. 380, 307 S.W.2d 809.
This court has said though that once granted probation should not be abitrarily withdrawn by the court, and the court is not authorized to revoke without having found that the probationer has violated conditions of his probation. Wozencraft v. State, Tex.Cr.App., 388 S.W.2d 426. And the burden of proof in revocation proceedings to show such a violation is upon *417the State. Zane v. State, Tex.Cr.App., 420 S.W.2d 953; Campbell v. State, Tex.Cr.App., 456 S.W.2d 918; Perry v. State, Tex.Cr.App., 459 S.W.2d 865; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165.
An arrest on suspicion of burglary is not sufficient alone to support a revocation, Ex parte Gomez, Tex.Cr.App., 241 S.W.2d 153, nor is an arrest and mere filing of complaint sufficient. Flores v. State, 169 Tex.Cr.R. 2, 331 S.W.2d 217. Wicker v. State, Tex.Cr.App., 378 S.W.2d 332 is to the same effect.
The fairly recent opinion in Padillo v. State, Tex.Cr.App., 420 S.W.2d 712, written by then Presiding Judge Woodley, is a good example that heretofore this court has required the State to sustain its burden and to show all the elements of the offense used as the basis of the revocation.
Padillo was on probation and required to “commit no offense against the laws of this or any other state.” A motion to revoke was filed alleging that he had violated his probation by being drunk in a public place, to wit: the city of Littlefield on April 27 and October 16, 1966. Evidence, including testimony of a police officer who stopped the automobile Padillo was driving on April 27, 1966, that Padillo had trouble standing, had strong odor of beer on his person and needed assistance to walk to the patrol car and upstairs at the police station, and testimony of another officer who stopped the automobile in which Padillo was a passenger on October 16, 1966, that Padillo smelled of alcohol, was unsteady on his feet, and beer was in the automobile did not sustain the finding that the defendant was drunk in a public place in violation of probationary conditions. It was noted that a city is not a “public place” as the term is used in Article 477, V.A.P.C. prohibiting being drunk in a public place, and that neither patrolman expressed the opinion Padillo was drunk or intoxicated at the time they “handled” him nor was any evidence offered as to their qualifications to form or express an opinion as to a person’s condition of sobriety. See also Cano v. State, Tex.Cr.App., 450 S.W.2d 646.
While it has been said on a number of occasions that proceedings to revoke probation are not criminal trials in the constitutional sense, Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774; Leija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165, and cases there cited, this statement is not support for the proposition that “anything goes” in a revocation hearing.
Since the earlier decisions of this Court concerning the nature of revocation proceedings, it is now clear that while a state is not constitutionally required to provide for probation and revocation proceedings as a part of its criminal process anymore than it is required to provide for appellate review, but when it does, then due process and equal protection of the law is fully applicable thereto. Douglas v. People of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. See Hoffman v. State, 404 P.2d 644 (Alaska); People v. Price, 24 Ill.App.2d 364, 164 N.E.2d 528; Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779; Blea v. Cox, 75 N.M. 265, 403 P.2d 701. See also this writer’s original dissent in Crawford v. State, Tex.Cr.App., 435 S.W.2d 148. Cf. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620.
And certainly now it is well established that revocation of probation hearings are a part of the criminal law process “where substantial rights of a criminal accused may be affected” and to which federal constitutional standards are applicable. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; McConnell v. Rhay and Stiltner v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 *418L.Ed.2d 2; Crawford v. State, supra; Eiland v. State, Tex.Cr.App., 437 S.W.2d 551.
Regrettably, the majority today has lowered the standards applicable to revocation proceedings. After today’s holding, prosecutors will be urging trial courts around the State that in revocation hearings it is no longer necessary to produce the complaining witness where theft, burglary, breaking and entering a coin-operated machine or automobile, etc., is the basis for revocation; that no reason need be given for the absence of such witness; that the issues of control and want of consent may then be proved by circumstantial evidence and that such evidence need not meet any test; that allegations as to control in and want of consent by a particularly named individual may be sustained by proof only, however strong or weak, that ownership is not in the probationer or his companions, if any. This is not the law nor should it be. It is hoped that conscientious prosecutors will not be tempted to cite today’s decision, or if cited, that our trial judges will not be lured into following the same. Don’t we now have enough post conviction habeas corpus proceedings claiming lack of due process in our trials and revocation proceedings without encouraging more?
A feeling that in revocation proceedings the only criminal appellate court in this state will always affirm in view of the nature of the proceedings, despite a lack of proof or the formal order of revocation detailing certain findings unsupported by proof, will only impose extra burdens of our already overburdened judicial systems which should not be endured or tolerated. A few more minutes of preparation, a few minutes of attention to detail and to the appellate record could avoid all this.
Believing that the State has not sustained its proper burden and that the trial court abused its discretion in revoking probation, I vigorously dissent.