Oberlender v. State

DICE, Judge. This is an appeal from an order revoking probation and imposing sentence of ten years for the offense of robbery by assault. On November 5, 1954, appellant was convicted in the Criminal District Court of Bexar County upon a plea of guilty at 10 years confinement in the penitentiary. Imposition of sentence was suspended and appellant was placed on probation upon certain terms and conditions, among them being that he “not violate the penal laws of the State of Texas, the United States or any other State.” Thereafter on June 30, 1959, the state, through her district attorney, filed a motion to revoke the probation, alleging as [308] grounds therefor that on or about the 10th day of May, 1959, during the term of probation, the appellant did steal a 1954 Oldsmobile automobile from one Jack McNair and that during the months of April and May, 1959, the appellant did wilfully desert, neglect and refuse to provide for the support and maintenance of his minor child, Sheryl Lynn Oberlender, in violation of the penal laws of this state and the conditions of his probation. On October 23, 1959, after notice and hearing, the trial court entered his order revoking the probation upon a finding that appellant had violated the terms and conditions of probation as alleged in the state’s motion. From such order and sentence imposed by the court, appellant prosecutes this appeal. At the hearing it was shown by the state’s testimony that on the night of May 10, 1959, Jack McNair parked a 1954 Oldsmobile Automobile on a street in the city of San Antonio-The automobile was parked shortly after midnight and when McNair returned around 3 A.M. he discovered that it had been stolen. Around 2 A.M. the stolen automobile was seen by Officers Amman and Dotson parked behind a barricade on Zarzamora Street. As the officers drove alongside the car and shined their light they observed two men in the car. Thereupon, the car drove away with the officers in pursuit and was found abandoned some ten blocks away. Appellant was identified by Officer Amman as the driver of the stolen automobile on the night in question. It was further shown that appellant had not contributed to the support of his minor child during the months of April and May, 1959. Testifying as a witness in his own behalf, appellant denied stealing the automobile from McNair. Appellant further testified that during the months of April and May, 1959, he was only working part time and stated in substance that he was not financially able to contribute to the support of his minor child. On appeals of this nature this court’s review is limited to a determination of whether the trial court abused his discretion in revoking the probation. Dunn v. State, 159 Tex. Cr. R. 520, 265 S. W. 2d 589 and McMillan v. State, 166 Tex. Cr. R. 15, 310 S. W. 2d 116. The evidence presented at the hearing is clearly sufficient [309] to support the trial court’s finding that appellant had violated the terms and conditions of his probation and no abuse of discretion is shown. The judgment is affirmed. Opinion Approved by the Court.