Summary
In McShan v. State, 458 S.W.2d 78 (Tex.Cr.App. 1970) it was held that the Court did not abuse its discretion in revoking probation where there had been a failure to comply with the statute requiring the clerk to note on the docket the date of delivery of a copy of probation terms and conditions, where the clerk testified that the defendant had been given a copy of the order and a copy entered on minutes reflected acknowledgment of its receipt.
Summary of this case from Sell v. StateOpinion
No. 43014.
July 15, 1970. Rehearing denied October 14, 1970.
Appeal from the Second Judicial District Court, Nacogdoches County, J. W. Summers, J.
Marion G. Holt, Paul Tatum, Nacogdoches, for appellant.
David D. Adams, Dist. Atty., Nacogdoches, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
Appellant entered a plea of guilty and upon trial before the court on November 21, 1967, was found guilty of the felony offense of Drunk Driving and his punishment was assessed at three years in the Texas Department of Corrections. Imposition of sentence was suspended and probation was granted. The appeal is from an order entered after hearing on July 25, 1969, revoking probation and pronouncing sentence.
The evidence adduced at the hearing sustains the court's finding that appellant violated the conditions of his probation as alleged in the motion of the District Attorney, in that he did on or about the 21st day of March, 1969, in Nacogdoches County, Texas, unlawfully drive an automobile upon a public road while under the influence of intoxicating liquor.
It is contended that the court abused its discretion in revoking probation because the District Clerk failed to comply with that portion of Art. 42.12 Vernon's Ann.C.C.P., Sec. 6, which provides that the Clerk of the Court shall furnish a copy of the terms and conditions of probation to the probationer "* * * and shall note the date of delivery of such copy on the docket."
The District Clerk testified at the revocation hearing that she gave appellant a copy of the order containing the terms and conditions of probation and a copy of such order entered on the minutes reflecting appellant's acknowledgement of receipt of a copy thereof was introduced in evidence.
No abuse of discretion in revoking probation appears.
The judgment is affirmed.