Tone v. State

OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation.

On April 23, 1971, after a plea of guilty, the appellant was found guilty of the offense of robbery by assault and the punishment assessed was ten years’ imprisonment. The appellant was granted probation. On August 9, 1972, an order revoking probation was entered and 'sentence was pronounced.

The appellant contends that the trial court abused its discretion in revoking probation because the motion to revoke probation failed to give notice of .the offense alleged in a manner which would afford due process to the appellant and that the evidence is not sufficient to support the order of revocation.

The State’s motion to revoke probation in part alleged that:

“THE STATE WOULD FURTHER SHOW THE COURT THAT said Defendant herein did then and there violate the terms and conditions of his probation in this, to-wit: THAT said defendant committed the offense of FELONY THEFT on or about May 4, 1972, in Harris County, Texas; THAT said Defendant committed the offense of THEFT BY BAILEE on or about May 1, 1972, in Harris County, Texas;

*301After proceedings in the revocation hearing had commenced the appellant’s counsel dictated into the record an oral motion complaining that there were no allegations concerning the ownership or the descriptions of the property alleged to have been stolen.

The disposition of this contention is controlled by the majority opinion in the recent case of Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App.1973) in which a full treatment of almost the identical contention is given in both the majority and dissenting opinions. In Dempsey the motion to revoke probation alleged that the defendant had committed the offense of shoplifting without naming the store where it was committed or describing the merchandise taken. We hold here as we did there that the overruling of the oral motion made after the proceedings in the revocation hearing had commenced and the failure to require the State to amend its pleadings did not constitute an abuse of discretion.

The appellant’s remaining contention that the evidence is insufficient to sustain the revocation order is without merit. The State’s evidence was that the appellant had taken, sold and appropriated to his own benefit the proceeds received for several household appliances owned by his elderly grandparents. The appellant testifying in his own behalf admitted taking and selling for $100.00 the appliances owned by his grandparents. It was his testimony, however, that he had their consent and permission to sell the property to obtain money to pay for a child’s medical expenses. The grandfather testified that he did not give the appellant permission to sell the appliances. An oral stipulation was made in open court that the grandmother who was ill and could not be present in Court did not give her permission to the appellant to take and sell the appliances.

The Court as the trier of the facts resolved the issues against the appellant and the evidence is sufficient to support the order revoking probation. No abuse of discretion is shown.

The judgment is affirmed.

Opinion approved by the Court.