(dissenting).
The majority holds that a five years’ probation is a greater punishment than three years’ confinement in the Texas Department of Corrections. In doing so, it treats a year of probation as equivalent to a years’ confinement.
The matter has not been raised by anyone except the majority of this Court in its own collateral attack upon the judgment of probation.
The majority apparently reasons that probation will be revoked after it is granted. If not, then it apparently reasons that it is possible that the punishment will be greater if probationer commits another or other crimes and the probation is revoked. This is not the case at the time punishment was assessed. The trial judge would not have granted probation if he thought that *583appellant would fail to live up to its conditions.
Under the law at the time this case was tried, the punishment of five years’ probation could have been reduced or terminated after appellant had satisfactorily completed one third of the original probationary period. This, of course, is somewhat less than three years. See Art. 42.12, Sec. 7, V.A.C. C.P.
At the time of revocation, Art. 42.12, Sec. 8(a), V.A.C.C.P. provided that if probation were revoked, the court could have reduced the term of imprisonment to not less than the minimum prescribed for the offense for which he had been convicted.
From the above provisions of probation statutes, it was not mandatory that five years had to be served even if probation were revoked. The probation could have been set aside without serving any time.
Nearly every person charged except perhaps a professional criminal who accepts the risk of getting caught as a part of his business risk, would rather have five years probated than three years’ confinement.
If there could be a question that a judgment of five years probated is less than three years’ confinement, just ask the man who has one or ask a person who has just committed his first felony and been charged with that crime, or ask a lawyer who has represented first offenders.
North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, which holds that the same judge should not assess a greater punishment after a case has been reversed on appeal unless certain facts are shown, has been misconstrued and misapplied by the majority, because in the present case the trial judge assessed appellant a lesser punishment of probation at the time of trial.
In North Carolina v. Pearce, supra, the reason for not permitting a trial judge to assess a higher punishment after a defendant’s cause had been reversed in an appellate court was to prevent a vindictive judge from penalizing a defendant for appealing. In the present case the judge showed compassion, not vindictiveness, in giving appellant probation and another chance.
Let us consider the facts of the case in connection with appellant’s sole contention.
He was convicted May 23, 1972, for defrauding with a worthless check; his punishment was assessed at three years. His motion for new trial was granted August 2, 1972; he entered another plea of guilty and asked for probation. He was assessed a punishment at five years probated. Two of the conditions of probation were that he “(a) commit no offense against the laws of this State or any other State or the United States, (b) avoid injurious and vicious habits, and particularly not become intoxicated in a public place or operate a motor vehicle while under the influence of intoxicating liquors.”
On November 27, 1974, an amended motion to revoke probation was filed. It alleged that the terms and conditions of said probation have been violated as follows:
“a) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas knowingly and intentionally cause physical contact with another, to-wit: Mrs. Robert Robertson, when he, the said defendant knew and should have reasonably believed that the said Mrs. Robert Robertson would regard the said contact as offensive and provocative.
b) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas knowingly and intentionally cause physical contact with another, to-wit: Deola Lechuga, when he, the said defendant knew and should have reasonably believed that the said Deola Lechuga would regard the said contact as offensive and provocative.
c) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas with the intent to damage and destroy furniture and a telephone without the effective consent of Mrs. Robert Robertson, the owner thereof.
*584d) That on or about the 20th day of October, 1974, David Lechuga, was intoxicated in a public place in Terry County, Texas.
e) That David Lechuga on or about the 10th day of January 1974, in Lubbock County, Texas did then and there while in the course of committing theft of good and lawful United States Currency hereafter called the property from Mark Cor-ley, with intent to obtain and maintain control of the property, knowingly and intentionally threaten and place JaNette Hodges in fear of imminent bodily injury and death.”
A “Judgment Revoking Probation” dated December 2, 1974, was entered.
It recited that appellant violated the terms of probation as follows:
“a) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas did knowingly and intentionally cause physical contact with another, to-wit: Deola Lechuga, when he, the said David Lechuga, knew and should have reasonable believed that the said Deola Lechuga would regard the said contact as offensive and provocative.
b) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas did damage and destroy furniture and a telephone without the effective consent of Mrs. Robert Robertson, the owner thereof.
c) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas was intoxicated in a public place in Terry County, Texas.”
Theresa Robertson testified that appellant had been married to her sister Deola, but they were divorced at the time in question. Deola and her children were at the Robertson house while appellant and Theresa’s husband went to a club in Brownfield. Robert Robertson returned to the house at approximately 11:30 or 12:00 o’clock that night. Later appellant came to the house and knocked on the door. He was told to go away. He cursed and beat on the door. She went to the hall to call the officers. Appellant “knocked the door in”. After entering, he dragged Deola out of bed and started striking her with his fists. Theresa again tried to call the officers, but appellant pushed her against the wall and was attempting to hit her when Deola stepped between them.
He then took Deola and the three children outside and stayed a few minutes. Robert Robertson tried to call the police, but appellant came back inside and pulled the telephone off the wall. He tore up the screen and the door. He threw a high chair at Deola and hit a light fixture and broke it.
She did not smell his breath, but he staggered real bad and she believed that he was intoxicated.
Deola Lechuga testified that appellant came to the door of the Robertson house and knocked. She told them not to let him in. He broke in the door and entered. He then struck her “all over” her face and body with his fists. He shoved her and then doubled up his fists to hit Theresa and she stepped between them and got hit in the mouth. She smelled alcoholic beverages on his breath and believed that he was intoxicated. She had seen him on other occasions. She was again asked what was her opinion. She answered, “That he was just drunk, Dog drunk.”
She further related that appellant took their baby and fell down with it.
Robert Robertson testified that on the night in question he and appellant went to the Farmer’s Club in Brownfield. While there he saw appellant have four drinks, maybe more. Robertson left the club at approximately 6:30 and tried to get appellant to leave, but he would not. At that time, “I would say he was pretty well on his way to being intoxicated.” He related that he would not let appellant enter the house. Appellant cursed, tore the screen door loose, broke the glass out of the door, tried to unlock it and then kicked the door open and *585in doing so, broke the facing on the door. His testimony about the assaults was substantially the same as that of the two women.
In revoking probation the judge stated:
“. . . I find that you did, on or about the 20th day of October, strike your former wife, Deola Lechuga, and that you did, intentionally cause physical contact with her and that you should have known and probably did know and believe that this contact with her was offensive and provocative.
I also find that you did, with intent, damage and destroy the light fixture in the house and the telephone and also from a preponderance of the evidence, that you were intoxicated in a public place on or about that day. Although the testimony is rather vague, the Court finds that since you offered none, hereby preponderates that you were intoxicated in a public place on this date.
About taking the money and threatene ing Janetta Hodges, the court finds that the evidence to sustain that part is insufficient.
I will enter a Judgment to this effect.”
It is apparent that the judge did not consider the fact that appellant did not testify when he found in effect that he assaulted Deola Lechuga and destroyed the property in the house.
The only issue in a revocation of probation case is did the trial court abuse its discretion. Here, without considering intoxication, there were two grounds upon which probation was revoked in which the judge did not say that appellant offered no evidence.
Without discussing fully the question about the judge’s statement that appellant offered no evidence being an allusion to appellant’s failure to testify, there was evidence to show that he was with other people at the Farmer’s Club who could have been called.
No error or abuse of discretion has been shown. The judgment should be affirmed.