Keel v. State

¶1OPINION

¶2This is an appeal from an order revoking probation.

¶3On September 19, 1975, appellant pled guilty to attempted burglary of a habitation before the court and his punishment was assessed at three (3) years. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions of probation, including

“(a) Commit no offense against the laws of this or any other State or the United States.”

¶4On January 13, 1976, the State filed a motion to revoke probation alleging, among other things, that on December 31,1975 the appellant “did then and there intentionally and knowingly operate, without the effective consent of the owner, Danny M. Cain, one motor propelled vehicle, to-wit: 1967 Chevrolet . . . .”

¶5In his sole contention appellant urges that the court erred in failing to grant his motion to require the State to prove its case using as a standard of proof “beyond a reasonable doubt” instead of “by a preponderance of the evidence.”

¶6Prior to the revocation hearing, appellant filed his written motion on the burden of proof and it was denied. The court stated, “This Court will operate under the principle of the State’s proof of violation of probation by a preponderance of evidence.”

¶7Appellant recognizes that in Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974), the majority of this court determined that the burden of proof placed on the prosecution in a revocation hearing was “by a preponderance of the evidence.”1 He urges that reconsideration be given the question and that the holding in Scamardoshould be reexamined and that it should be expanded by adopting a burden of proof of “beyond a reasonable doubt” in revocation proceedings where the alleged violation is the commission of a criminal offense against the laws of this State, any other State, or the United States.

¶8The majority has carefully reconsidered its holding in Scamardoand adheres thereto.

¶9*153It is further observed that the facts in the instant case were sufficient to show that appellant committed the offense charged as the basis of revocation even if the burden of proof had been “beyond a reasonable doubt.”

¶10The judgment is affirmed.