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LARRY JACKSON v. STATE (12/11/57)

decided: December 11, 1957.

LARRY JACKSON
v.
STATE



Receiving and Concealing Stolen Property -- Revocation of Probation. Appeal from district court of Navarro County; penalty, confinement in the penitentiary for five years. Hon. James C. Sewell, Judge Presiding.

COUNSEL

Mays & Jacobs, by J. C. Jacobs, Corsicana, for appellant.

Leon Douglas, State's Attorney, Austin, for the state.

Woodley, Judge. Davidson, Judge, dissenting.

Author: Woodley

[ 165 Tex. Crim. Page 380]

    On January 11, 1957, appellant waived a jury trial and pleaded guilty to the felony offense of receiving and concealing stolen property. The judgment recited that an application for suspended sentence had been filed and the court found in the judgment that he had never before been convicted of a felony in this or any other state, and that his reputation was good.

The judgment assessed the punishment at five years in the penitentiary and adjudged "that the sentence of the judgment of conviction in this case be suspended and probated during the good behavior of the defendant."

On the same day sentence was pronounced ordering appellant

[ 165 Tex. Crim. Page 381]

    delivered to the manager of the prison system of the State of Texas and that he be confined in said penitentiary for not less than two years nor more than five years; but suspending the execution of the sentence and ordering appellant placed on probation with the sheriff for a period of five years in accordance with the adult probation and parole laws of Texas upon condition "That said Larry Jackson shall (1) commit no offense against the laws of this or any other state, or the United States; (2) attend a church of his choice at least once a month." A third condition was that he report in writing to the sheriff every sixty days. No appeal was taken from this judgment.

On May 17, 1957, petition was filed by the county attorney alleging that appellant had violated the first condition of said probation in that on May 3, 1957, he (1) made an assault upon Robert Earl Holditch with his fists and (2) that on the same day he was guilty of theft of Holditch's automobile of the value of $51.00.

Upon the filing of said petition, hearing was set for June 10, 1957, and after hearing had on that day the trial judge revoked the probation, from which order this appeal is prosecuted.

Appellant first contends that the judgment should be construed as one suspending the sentence under the Suspended Sentence Law, Art 777 V.A.C.C.P., and not as granting probation under Art. 781b V.A.C.C.P.

In addition to reliance upon the above quoted wording of the judgment, appellant construes the majority opinions in Ex parte Pittman, 157 Tex. Crim. 301, 248 S.W.2d 159, as requiring that the ...


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