Martin v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission in an appeal from a revocation order appellant complained that the trial court’s determination at the revocation of probation proceedings that he was sane at the time of the commission of the burglary offense, which was the basis of the revocation order, “is against the great weight and preponderance of evidence.”

On February 1, 1979, appellant entered a guilty plea before the court to the offense of burglary. He was placed on ten (10) years’ probation after the suspension of the sentence. On June 12, 1979, the State filed a motion to revoke probation alleging a subsequent offense committed on or about May 31, 1979, in violation of appellant’s probationary conditions.

On October 5,1979, the court conducted a hearing on said motion, at the conclusion of which it revoked appellant’s probation, finding that he had committed the burglary alleged in violation of his probationary conditions. The evidence as to the burglary was undisputed.

*261 Appellant had earlier filed his notice that he would rely upon the defense of insanity at the commission of the subsequent burglary alleged in the revocation motion. He relied upon such defense and offered evidence in support thereof.

In revoking probation the court in effect rejected the insanity defense although there was no express finding as to sanity. Appellant admits the evidence is conflicting as to the sanity issue, and the trial judge was the trier of the facts, the credibility of the witnesses, and the weight to be given the witnesses but contends the court erred because while there was evidence to support the court’s finding of sanity, it is against “the greater weight and preponderance of evidence.” We are asked for that reason to set aside the court’s finding as to sanity and to reverse this conviction.

In White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979), we were faced with a similar question. There we stated at p. 856:

“After an examination of the constitutional and statutory provisions relating to the jurisdiction of the Court of Criminal Appeals, we conclude that this court has no fact jurisdiction as do the Court of Civil Appeals, and cannot ‘unfind’ a vital fact finding by a jury. Since we do not have the jurisdiction to pass upon the great weight and preponderance of the evidence, appellant’s contention is overruled.”

In the instant case the fact finder is the trial court, not the jury, and it is a revocation of probation proceeding, but what we said in White v. State, supra, is here applicable and we adhere thereto.

Appellant’s motion for rehearing is overruled.