Opinion
On Motion to Reinstate the Appeal June 22, 1960.
[169 TEXCRIM 632] No attorney for appellant of record on appeal. Murray J. Howze, Monahans, for appellant on motion to reinstate the appeal.
Leon B. Douglas, State's Atty., Austin, for the State.
Appellant was convicted for the unlawful possession of marijuana and his punishment assessed at confinement in the penitentiary for 5 years.
Imposition of sentence was suspended and appellant was placed on probation upon certain terms and conditions.
This purports to be an appeal from an order entered by the court revoking the probation and imposing sentence upon appellant.
The record does not contain the court's order revoking probation, in the absence of which this court is without jurisdiction of the appeal. Lutz v. State, 146 Tex.Cr.R. 158, 172 S.W.2d 342 and Floyd v. State, Tex.Cr.App., 243 S.W.2d 171.
The appeal is dismissed.
DICE, Commissioner.
Opinion approved by the Court.
On Motion to Reinstate the Appeal
WOODLEY, Judge.
Supplemental transcript has been furnished which contains the order entered October 1, 1959, revoking probation, from which order this appeal is prosecuted.
The appeal is reinstated. The statement of facts relating to the hearing which resulted in the probation being revoked and sentence pronounced is not [169 TEXCRIM 633] approved by the trial judge nor does it appear to have been agreed to by appellant or his counsel, or counsel for the state.
The approved statement of facts appearing in the record relates to a 'hearing on a motion in arrest of judgment' on November 24, 1959. It consists of stipulations as to what certain witnesses would testify, if present, which at most would establish that appellant's parents did not know of his having violated the terms of his probation, and did not know his probation had been revoked until it had been done, and that certain witnesses who were well acquainted with appellant and his family would testify that, as far as they knew, he had not committed any serious violation of the terms of his probation.
The evidence introduced at the hearing on the motion in arrest of judgment showed no abuse of discretion in the revocation of probation and no facts requiring that the revocation order be arrested or set aside.
The judgment is affirmed.