Carl Louis MEACHUM, Appellant, v. The STATE of Texas, Appellee, 629 S.W.2d 799

SAM ROBERTSON, Judge. This is an appeal from an order revoking appellant’s probation. We affirm. Appellant was indicted for aggravated robbery in violation of Texas Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 1974), waived trial by jury, and pled guilty to a reduced charge of robbery. The court found him guilty and assessed punishment at eight years confinement and a fine of eight hundred dollars. Imposition of the sentence was suspended, and probation was granted.

On September 9, 1980, the state filed its motion to revoke probation, alleging that appellant had committed the offenses of resisting arrest and possession of a controlled substance. At a hearing on the motion, on October 27, 1980, appellant pled “not true,” and evidence was presented. The trial court found that appellant violated the terms and conditions of his probation by resisting arrest but postponed a decision as to any revocation and released appellant on his own recognizance, resetting the case for ninety days.

The state filed a second motion to revoke probation on December 23, 1980, alleging a new violation. No evidentiary hearing was held on this motion. On January 27, 1981, the court revoked probation based on the testimony and findings in the October 27, 1980 hearing. Appellant here complains that he was denied an evidentiary hearing on the second motion to revoke, thus denying him due process of law. He argues that the court continued his probation after the October hearing and that any subsequent revocation should not have been based on allegations before the court at that hearing.

The court here was authorized to continue, modify, or revoke appellant’s probation or to continue the hearing. Tex.Code Crim.Pro.Ann. art. 42.12 § 8(a) (Vernon 1979); Ex Parte Feldman, 593 S.W.2d 720 (Tex.Cr.App.1980). The record clearly indicates that her choice was the last of these. At the October hearing, the court found that appellant had violated his probation and postponed any decision as to revocation for ninety days. At the January hearing, the court referred to testimony and findings at the earlier hearing before revoking appellant’s probation.

No reference was made to the state’s second motion to revoke until sentencing, at which time appellant’s first counsel withdrew and his present counsel raised the question of an evidentiary hearing on the second motion to revoke in the context of a request that sentencing be set forward to allow him time to prepare. The request was denied. In short, at no time does the record reveal that the January revocation was based on anything but the evidence adduced at the October hearing. The judgment is affirmed.