Court of Civil Appeals of Texas, 1986

Owens v. State

Court of Civil Appeals of Texas · Decided December 17, 1986 · Dies

722 S.W.2d 518; 1986 Tex. App. LEXIS 9422 (South Western Reporter, Second Series)

Opinion of the Court

OPINION

DIES, Chief Justice.

Appellant was indicted in 1984 for burglary of a habitation. He pleaded guilty and received a sentence of ten years in the Texas Department of Corrections. The sentence was probated, subject to appellant’s observance of several conduct requirements. Subsequently, the State filed a motion to revoke the probation, which the trial court granted, and ordered appellant to the Jefferson County Adult Restitution Center. In May, 1986, a hearing was conducted in which the State offered evidence that appellant had violated rules and procedures of the restitution center. Following this hearing, the court sentenced appellant to ten years in the Texas Department of Corrections, from which appellant has perfected appeal to this court on one point of error, to-wit: appellant’s commitment to the restitution center is void.

The argument is: “Our record is completely void of the legal requisites of a commitment to the Restitution Center”, as required by TEX. CODE CRIM.PROC. ANN art. J)2.12, sec. 6e (Vernon Supp. 1986).1

Appellant’s argument is quite novel and well stated and, if upheld by this court, would require a convicted defendant’s consent before the trial court was authorized to place him in a restitution center.

However, we do not reach that decision. The statement of facts we have is from the hearing to establish whether appellant had violated the rules of the center, as prohibited by the court’s judgment. We do not have the entire record, or any of the statement of facts, if such there be, of the hearing resulting in appellant’s being placed in the restitution center. The burden to establish any irregularity in the trial court’s decision to place appellant into the restitution center would be on the appellant. See, generally, 25 TEX.JUR.3d *519Criminal Law sec. 3559, at 492-494 (1983). If appellant desired to make a motion to arrest the judgment of the trial court revoking his probation and placing him in the restitution center, he should have complied with TEX. CODE CRIM.PROC.ANN. art. ⅛1.02 (Vernon Supp. 1986). This point of error is overruled.

The judgment of the trial court is affirmed.

. Subsection (a)(3) speaks of defendant’s requesting, before sentencing, certain special issues, (A) and (B), which, (4) if answered in the negative, and the court determines (5) that defendant does not have an extensive history of drug or alcohol abuse and is employable, so that the judge may impose probationary sentence under this section as an alternative to “shock probation” under section 3e.

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