Jackson, Joshua P. v. State ( 2004 )

Affirmed and Memorandum Opinion filed March 2, 2004

Affirmed and Memorandum Opinion filed March 2, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00212-CR

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JOSHUA P. JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 94-26991

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M E M O R A N D U M   O P I N I O N

            Joshua Jackson appeals the revocation of his community supervision on a conviction for attempted capital murder^[1] on the grounds that: (1) the trial court erroneously permitted his motion for new trial to be overruled by operation of law when the State did not file a controverting affidavit; (2) the State failed to use due diligence to apprehend appellant for over a year from the filing of the motion to revoke; and (3) the trial court abused its

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discretion by revoking appellant’s community supervision for technical violations.  We affirm.

            Appellant’s first issue argues that the trial court erred by allowing his motion for new trial to be overruled by operation of law after the State failed to file a controverting affidavit.  Appellant contends that because there was thus no evidence to controvert his affidavit, the trial court should have found the facts he alleged true and granted his motion for new trial.^[2]

            A trial court’s denial of a motion for new trial is reviewed for abuse of discretion.  Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).  A defendant is not entitled to even a hearing on his motion for new trial, let alone to have it granted, unless the motion and accompanying affidavit raise matters that are not determinable from the record and reflect that reasonable grounds exist for holding that the accused could be entitled to relief.  See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).

            In this case, appellant’s affidavit alleged ineffective assistance of counsel based on his appointed counsel’s alleged failure to: (1) investigate and prepare his case; (2) call witnesses on his behalf; (3) interview his employer, instructors, or family; (4) meet more than once with him before the revocation hearing; (5) call his doctor to inform the court that he “had prescriptions that covered his positive urine samples”; and (6) retain a chemist to challenge the community supervision department’s labs.  However, the grounds on which his community supervision was revoked were appellant’s admitted failures to report to his community supervision officer and to work his monthly community service hours.  Because appellant’s first issue fails to demonstrate how the facts he alleged in support of his motion for new trial could have overcome these grounds for revoking his community supervision, it is overruled.

            Appellant’s second issue contends that the State failed to use due diligence to apprehend him for over a year after the filing of the motion to revoke. However, any such lack of diligence must be raised by a defendant before or during the revocation hearing in

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order to preserve it for appellate review.  Peacock v. State, 77 S.W.3d 285, 287-88 (Tex. Crim. App. 2002).  In this case, because appellant did not do so, his second issue presents nothing for our review.  In addition, the due diligence requirement does not apply if a defendant is arrested within the community supervision period.  Ballard v. State, 2004 WL 57421, *2 (Tex. Crim. App. 2004).  In this case, appellant was arrested on December 6, 2002, well within his ten year community supervision period that began in 1995.  Accordingly, appellant’s second issue is overruled.

            Appellant’s third issue asserts that the trial court abused its discretion by revoking appellant’s community supervision for technical violations in that there was no new law violation, he had completed 341 hours of his community service, and he was attending school, working, and seeking help for his drug problem. However, appellant cites no authority to support his claim that revoking community supervision under these circumstances is an abuse of discretion if a violation of the terms is shown.  In this case, appellant admitted that he had failed to report to his community supervision officer or work any community service hours^[3] for nearly a year and-a-half, from August of 2001 until the revocation hearing in January of 2003.  Appellant’s third issue thus fails to show an abuse of discretion in revoking his community supervision.  Accordingly, it is overruled, and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed March 2, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish — Tex. R. App. P. 47.2(b).

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^[1]           A jury found appellant guilty and assessed punishment at ten years community supervision. The State later filed a motion to revoke the community supervision, and the trial court revoked it and assessed punishment at ten years confinement.

^[2]           The record does not indicate whether a hearing was held on the motion for new trial except that the motion is marked with the following handwritten, unsigned, notation: “Do by aff. 3-24.”  Appellant does not assign error to any denial of a hearing.

^[3]           Appellant was required to work twenty such hours per month.