Briones v. State

¶1*40OPINION

¶2This appeal is from an order revoking probation.

¶3On March 26, 1970, appellant pleaded guilty to the offense of driving while intoxicated, subsequent offense, and his punishment was assessed at two years in the Department of Corrections. Imposition of sentence was suspended and probation was granted, one of the conditions being that he commit no offense against the laws of this or any other state, or of the United States.

¶4On September 16, 1970, following a hearing on motion to revoke probation, an order was entered finding that appellant had violated the terms and conditions of his probation by driving and operating an automobile upon a public highway while intoxicated; making an assault upon Lupe Flores; and, passing a worthless check. On the same day, sentence was pronounced and notice of appeal given.

¶5The sufficiency of the evidence to revoke probation is not challenged. The only question presented to this court is whether the order placing appellant on probation was valid. Appellant contends that the judgment is void since the county court judgment allegedly convicting the appellant of the first offense assessed only a fine and did not assess the mandatory jail time.1

¶6On appeal from an order of the court revoking probation, review is limited to a determination of whether an abuse of discretion is shown by the trial court in revoking the probation. Martin v. State, Tex.Cr.App., 449 S.W.2d 234; Wilkerson v. State, Tex.Cr.App., 395 S.W.2d 618.

¶7Irregularities in the record may, in a proper proceeding, be corrected nunc pro tunc. Martin v. State, supra; Barker v. State, 169 Tex.Cr.R. 277, 334 S.W.2d 182; Lenore v. State, 137 Tex.Cr.R. 417, 129 S.W.2d 657. See also Hoskins v. State, Tex.Cr.App., 425 S.W.2d 825.

¶8We find no abuse of discretion on the part of the trial judge in revoking probation.

¶9The judgment is affirmed.