¶1(concurring).
¶2I concur in the result reached by the majority in this cause simply because I cannot find in the record before this court where this appellant was ever granted probation. Certainly one who has been convicted but who has never been granted probation cannot complain if the court “revokes probation” and imposes sentence.
¶3The judgment entered on January 6, 1970 is entirely silent as to probation. There is no separate order of probation, and there are no other instruments or entries in the record reflecting that the appellant was placed on probation, and setting forth the conditions with which he was expected, if he was, to comply.
¶4The first indication that the appellant may have received probation is found in the State’s motion to revoke. It is from this instrument that the majority has taken the wording of the probationary condition allegedly violated. There is no order that this was a condition imposed by the court as is incumbent upon the court to enter, McDonald v. State, 442 S.W.2d 386 (Tex.Cr.App.1969), and the cases there cited, and nothing to reflect the clerk served a copy of the conditions on the appellant and noted delivery on the minutes of the court as required by Article 42.12, § 6, Vernon’s Ann.C.C.P.
¶5For the reasons stated, I concur.
¶6If, on the other hand, the granting of probation and the condition of probation allegedly violated can somehow be inferred, I would dissent to the affirmance of this conviction on the ground that the trial court failed to apply the proper standard of proof in revoking probation. See my dissenting opinion in Kelly v. State, 483 S.W.2d 467.
¶7For the reasons stated, I concur.