Carl Barnes v. State ( 1991 )

CR0-327 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-90-327-CR





CARL BARNES,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 264th JUDICIAL DISTRICT

NO. 26,287, HONORABLE JOE CARROLL, JUDGE

PER CURIAM

Carl Barnes appeals the revocation of his probation, trial court cause number 26,287. In August 1985, appellant was placed on shock probation for an offense committed in 1977, possession of a controlled substance. He had been on probation for that offense, had that probation revoked, and later was placed on shock probation. Appellant's current probation was revoked based on his conviction for possession of cocaine, trial court cause number 39,270. The hearing on the motion to revoke probation occurred at the same time as appellant's trial to the court on the cocaine possession charge.

Appellant brings four points of error: (1) the trial court abused its discretion in revoking appellant's probation because the State failed to prove that appellant was the person previously placed on probation; (2) the evidence was insufficient to prove appellant possessed cocaine; (3) the trial court erred in admitting a set of scales found in appellant's automobile because they were not relevant; and (4) the judgment of the trial court needs to be reformed. We have discussed and overruled points two and three in our opinion in cause 3-90-326-CR, decided June 19, 1991, and overrule these two points in this opinion for the same reasons.

IDENTITY

Appellant contends that the trial court erred in revoking his probation because the State did not prove that he was the person on probation. We hold that appellant has waived any complaint because he did not complain in the trial court.

Both the possession charge and the revocation were dealt within the same proceeding. The court first called cause 26,287, the revocation of probation. The court stated that the defendant's name was Carl Barnes, and that the proceeding was one to revoke probation. The court then asked if both sides were ready and said, "This is the Defendant, Carl Barnes?" to which his counsel responded, "Yes." The court then called cause 39,270, the possession charge, and asked if this was the defendant on that charge, Carl Barnes, to which the same answer was given.

Later the court asked: "All right, Mr. Barnes, you understand that a Motion to Revoke your probation has been filed?" To which appellant responded, "Yes your Honor." He then pleaded "untrue" to the allegations in the State's motion to revoke.

Appellant never claimed to be anyone other than Carl Barnes, the person whose probation was being revoked in one of the two causes on trial. Appellant had several opportunities to object that he was not Carl Barnes, or that he was Carl Barnes, but was not on probation. Instead, both he and his counsel made affirmative responses to inquiries addressed by name to Carl Barnes. By not raising his identity as an issue at trial, appellant has waived the issue. Riera v. State, 662 S.W.2d 606 (Tex. Cr. App. 1984); Barrow v. State, 505 S.W.2d 808 (Tex. Cr. App. 1974) (appellant who appeared and pleaded not guilty to the allegations of the motion to revoke probation and who did not make his identity an issue at trial could not raise identity for the first time on appeal). We overrule point one.

REFORMATION OF JUDGMENT

The State agrees with appellant that the judgment needs to be reformed. The State's "First Amended Motion to Revoke Probation" contained four paragraphs alleging a violation of two of appellant's conditions of probation: condition one, that he not commit any offenses and condition thirteen, that he pay a fine. The first three paragraphs of the State's motion alleged violations of condition one by: (1) possession of cocaine; (2) public intoxication; and, (3) resisting arrest. The fourth paragraph alleged a violation of condition thirteen by failing to complete payment on his fine. The State presented evidence only on paragraph one. The statement of facts shows that the court found paragraph one "true" and the other paragraphs "untrue." The court's judgment and sentence read that appellant violated conditions one and thirteen as alleged in the State's "First Amended Motion to Revoke Probation." We sustain point four.

The order revoking probation is reformed to reflect that the revocation was based only on the State's first paragraph --violation of condition one by possession of cocaine. As reformed, we affirm the order revoking probation.

[Before Justices Powers, Aboussie and Kidd]

Reformed, and as Reformed, Affirmed

Filed: July 3, 1991

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