(dissenting).
I cannot agree with the opinion of the majority that five years’ probation is “a more severe sentence” than three years’ imprisonment for purposes of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Probation is imposed for the purpose of rehabilitation without confinement, at least in theory. Probation permits an individual found guilty of a crime to continue his education, hold a job, and remain in the supportive company of family and friends. The trial judge here was not being vindictive in changing appellant’s sentence from three years’ imprisonment to five years’ probation after granting his motion for new trial. In fact, he was being more lenient. Probation is not granted on the assumption that it will be revoked, but rather on the assumption that it will be carried to a successful conclusion.
The five-year probated sentence here looks harsher than three years’ imprisonment only when the probation is revoked. North Carolina v. Pearce is aimed at preventing vindictiveness in the imposition of a new sentence, not at a possible subsequent revocation hearing.
For these reasons, I dissent to the majority’s disposition of this case, and proceed to address the ground of error brought forward in appellant’s brief.
In his only ground of error, appellant complains that the trial judge took into consideration his failure to testify in revoking his probation, in violation of Art. 38.08, V.A.C.C.P. We find this contention to be without merit. Although a probation revocation hearing must be attended by due process of law, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970), it is not a trial in all constitutional senses. Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1972); cf. Fariss v. Tipps, 463 *586S.W.2d 176 (Tex.1971); Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975). The accused in such a proceeding is not entitled to trial by jury, Barrow v. State, 505 S.W.2d 808 (Tex.Cr.App.1974); the benefits of the accomplice witness rule of Art. 38.14, V.A.C. C.P., Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969); the ten-day preparation time provided for appointed attorneys by Art. 26.04(b), V.A.C.C.P., Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1972); or a jeopardy bar to further prosecution, Settles v. State, 403 S.W.2d 417 (Tex.Cr.App.1966). And a violation of the probationary terms need only be shown by a preponderance of the evidence, not beyond a reasonable doubt. This being a case of first impression, I would hold that the prohibition of Art. 38.08 applies only to criminal trials and not to probation revocation proceedings. The trial court therefore committed no error when he considered appellant’s failure to offer testimony.
The judgment should be affirmed.