Henry Leija v. State, 167 Tex. Crim. 300

MORRISON, Presiding Judge. This is an appeal from an order of the Criminal District Court of Bexar County revoking probation. From the record before us, it appears that the appellant was convicted in the Criminal District Court of Bexar County on June 4, 1954, of the offense of burglary, and his punishment assessed at four years, that the imposition of such sentence was suspended and appellant was placed on probation.

It further appears that on April 20, 1958, the appellant was arrested in the vicinity of a filling station which had been burglarized in possession of some of the property which had been stolen therefrom, that an May 2, 1958, the state filed a motion to revoke probation, and the court ordered a capias for appellant’s arrest to be issued and set the hearing on said motion for May 9, that appellant presented a motion to postpone the hearing, which was refused except that the appellant was given until June 6 in which to present his witnesses, and on said date the court granted the state’s motion.

We shall discuss the contentions advanced in appellant’s brief. He first contends that the evidence is insufficient to support the order of revocation. We need only observe that the appellant was apprehended in the immediate vicinity of the burglarized premises, was seen with part of the stolen property in his possession, had pieces of broken glass in the cuffs of his trousers, and that the window of the burglarized premises had been broken. We hold the evidence amply sufficient.

He next contends that the court erred in revoking probation because the term of probation expired five days before the order was entered. In Ex parte Fennell, 162 Texas Cr. Rep. 286, 284 S.W. 2d 727, we held that, where the motion to revoke was filed and the capias issued during the probationary term, an order entered after the expiration of the term was valid. In Fennell, as in the case at bar, the appellant relies upon Ex parte Fernandez, 156 Texas Cr.

Rep. 246, 241 S.W. 2d 155, where the violation of probation occurred, the motion to revoke was filed, and the order of arrest was issued after the term of probation had expired. Fernandez has no application in the case at bar, and Fennell is controlling. Appellant’s contention that a jury should have been impaneled to hear the motion to revoke is in direct conflict with

Section 5 of

Article 781b, V.A.C.C.P., which provides that such hearing- shall be without a jury and with the holdings of this court in Wilson v. State, 156 Texas Cr. Rep. 228, 240 S.W. 2d 774; Lynch v. State, 159 Texas Cr. Rep. 267, 263 S.W. 2d 158; Dunn v. State, 159 Texas Cr. Rep. 520, 265 S.W. 2d 589; Gist v. State, 160 Texas Cr. Rep. 169, 267 S.W. 2d 835; and Gossett v. State, 162 Texas Cr. Rep. 52, 282 S.W. 2d 59. Finding no reversible error, the judgment of the trial court is affirmed.