
    BEARD v. STATE.
    No. 26973.
    Court of Criminal Appeals of Texas.
    April 28, 1954.
    
      Everett Lord, Beaumont, for appellant.
    Wesley Dice, State’s Atty., Austin, for the State.
   GRAVES, Presiding Judge.

This is an appeal from the revocation of a probation.

Appellant was convicted on his plea of guilt before the trial court under a charge of robbery by assault and assessed a term of ten years in the state penitentiary, the trial taking place on April 30, 1953. However, the trial court saw fit to place the appellant on probation under the terms of Article 781b, Vernon’s Ann.C.C.P., which provided, among other things, that the appellant should “Commit no offense against the laws of this or any other State or the United States.”

It is shown from the testimony that appellant was twice found in a drunken condition on the streets of the city of Beaumont after he was released on probation from this ten-year sentence. It is further shown that he was arrested on December 10, 1953, and upon the trial was convicted on a charge of drunkenness in a public place; and that on the 19th day of July, 1953, he was found driving on the wrong side of a one-way street and was intoxicated while thus driving. The question of his drunkenness was contested before the court, and there was testimony to show that he was intoxicated at such times.

In this hearing the court revoked the probation of the appellant’s ten-year sentence, and he was remanded to the custody of the sheriff to be taken to the state penitentiary to begin serving his sentence therein.

It is noted, however, that in the revocation of the sentence and the entry of the same herein, the court failed to apply the indeterminate sentence law. Vernon’s Ann. C.C.P. art. 775. We therefore reform such sentence so as to read that the said Conrad Alfred Beard, alias “Fats” Beard, shall be confined in the state penitentiary for a term of not less than five nor more than ten years, etc.

With the sentence thus reformed, this cause is affirmed.  