
    Ex parte Billy Joe BRUINSMA.
    No. 28692.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1956.
    Rehearing Denied Jan. 30, 1957.
    
      Parker McVicker, Collins, Garrison, Ren-frew & Zeleskey, Henry H. Rogers, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Relator is confined in the penitentiary under two concurrent sentences pronounced in Criminal District Court of Jefferson County, Texas. He has attacked both sentences as void, and has been granted a hearing and an opportunity to develop the facts. The record made at such hearing before Hon. O. M. Lord, Judge of said Criminal District Court, is before us.

On April 14, 1954, in Cause No. 19,239, relator was assessed a ten year term for assault with intent to murder and was placed on probation, one of the conditions being that he commit no offense against the laws of this state.

The probation officer named in the order granting such probation having filed a motion alleging that on November 7, 1954, relator did rob, by the use of -firearms, J. T. Sturrock, hearing was-had on November 19, 1954, and the probation was revoked.

The trial judge found in the order of revocation that relator had violated the terms of his probation in that he committed the offense of Robbery by Assault, and sentenced relator to serve a ten year term in the penitentiary.

On the same day, November 19, 1954, relator pleaded guilty in Cause No. 19,789 to the indictment charging robbery by assault of J. T. Sturrock and was sentenced to a twenty year term for that offense.

At the recent hearing before Judge Lord, in which evidence was heard as to the validity of the two convictions, the motion of the State for entry nunc pro tunc of judgment and sentence in Cause No. 19,789 was granted and the judgment and sentence actually pronounced on November 19, 1954, and entered nunc pro tunc appear to be regular and no appeal has been prosecuted therefrom.

The judgment so entered shows that on November 19, 1954, appellant appeared before the court accompanied by his attorney, waived a jury and pleaded guilty to the second count of the indictment (which charged robbery by assault); that the first count of the indictment was duly abandoned by the State; that the consent and approval of the attorney representing the State was filed in the papers before the plea of guilty was entered, and that all prerequisites by law for the waiving of the right to trial by jury had been performed.

The judgment further recites that the State introduced evidence showing the guilt of the defendant which was accepted by the court and found sufficient to support the plea of guilty and the charge in the indictment.

The record on the hearing does not disprove these recitations of the judgment.

W. T. McNeill, a licensed attorney, appeared before the court at the trial of Cause No. 19,789 as appellant’s attorney. He testified that he came to court at the request of relator’s father-in-law and that the trial judge requested him to act for relator, and he did, and that he asked leniency of the court.

The State introduced in evidence the written confession of relator and the sworn statement of the prosecuting witness J. T. Sturrock, each of which was read in the presence of the court and of relator and his counsel. The affidavit and statement fully show relator’s guilt.

We held in Villarreal v. State, Tex.Cr.App., 214 S.W.2d 464, that an accused on a plea of guilty before the court, may waive the appearance of witnesses and agree that their affidavit be introduced in evidence.

The affidavit and confession, in the absence of objection by appellant or his counsel, constituted evidence and was sufficient to support the plea of guilty. The record as well as the recitations of the judgment show a compliance with Art. 12 V.A.C.C.P.

Crawford v. State, 161 Tex.Cr.R. 554, 556, 278 S.W.2d 845, was a case where no evidence was introduced and court appointed counsel, without the defendant’s approval, agreed that if certain witnesses were called they would testify to certain facts. Here the written sworn statement of the witness was introduced without objection, as was also the confession of relator.

As to the conviction in Cause No. 19,239, for assault with intent to murder, and the revocation of probation, no appeal has been prosecuted and we are aware of no basis upon which it could be said that the conviction is void.

It is true that the sentence is for ten years when it should have been for not less than two nor more than ten years, under the indeterminate sentence law, Art. 775, V.A.C.C.P. But we have held that the sentence is not void for such reason and may be corrected in a proper proceeding. Ex parte Davis, 157 Tex.Cr.R. 370, 248 S.W.2d 133.

Also, assuming that relator made an issue as to whether the court revoked probation before he .adjudged relator guilty of the robbery by assault of J. T. Sturrock, this Court has held that probation may be revoked upon a finding by the court as a fact that the terms of probation have been violated, and it is not necessary that there be a trial and conviction for the offense which is the basis of the revocation. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589.

If either conviction is valid, relator is lawfully confined in the penitentiary and is not entitled to release. Neither is found to be void.

The application is denied.

On Motion for Rehearing.

MORRISON, Presiding Judge.

In our original opinion we distinguished the case at bar from Crawford v. State, 161 Tex.Cr.R. 554, 278 S.W.2d 845, by pointing out that in the Crawford case counsel for the accused, without the joinder of the accused himself, agreed what the evidence would be if the witnesses were produced. Another distinction not mentioned originally is that in the case at bar the Honorable Owen Lord, the Presiding Judge at the time the appellant plead guilty, testified as follows: “I asked him (referring to the appellant himself) if he would waive the appearances of the witnesses, being confronted by the witnesses, he said he did.”

Remaining convinced that we properly disposed of this cause originally, relator’s motion for rehearing is overruled.

DAVIDSON, Judge

(dissenting).

My dissenting opinion in the case of Ex parte Clark, Tex.Cr.App., 299 S.W.2d 128, upon the proposition of the accused’s waiving proof by the state of guilt upon a plea of guilty and trial before the court, is applicable here.

For the reasons there set forth, I respectfully enter my dissent here.  