Justin Clark v. State ( 2010 )


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  •                                      NO. 12-09-00394-CR
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    JUSTIN CLARK,                                        §                APPEAL FROM THE 114TH
    APPELLANT
    V.                                                   §                JUDICIAL DISTRICT COURT OF
    THE STATE OF TEXAS,
    APPELLEE                                             §                SMITH COUNTY, TEXAS
    MEMORANDUM OPINION
    Justin Clark appeals the adjudication of his guilt and revocation of his community
    supervision for burglary of a habitation. He raises two issues on appeal.1 We affirm.
    BACKGROUND
    On January 22, 1998, Appellant was arrested for burglary of a habitation in Smith
    County, Texas. On September 24, 1999, after indictment, Appellant pleaded guilty in an open
    plea and was sentenced to ten years of deferred adjudication community supervision. 2 On
    October 11, 2000, the State filed an application to proceed to final adjudication for alleged
    violations of his community supervision. On October 13, 2000, the trial court signed a capias
    warrant, authorizing officers to arrest Appellant and hold him without bail.                         Appellant’s
    community supervision officer was unable to locate Appellant, and his case was assigned to the
    1
    Appellant asserts two issues on appeal. Although each is differently worded and separately stated, they
    raise the same issue. Consequently, we address them simultaneously.
    2
    “Community supervision” is the current statutory term for what was formerly called “probation.” Ballard
    v. State, 
    126 S.W.3d 919
    , 919 n. 1 (Tex. Crim. App. 2004); see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 2(2)
    (Vernon Supp. 2010) (defining community supervision). When Appellant was originally sentenced, he received
    absconder unit, which was also unable to find Appellant.
    On July 12, 2009, Appellant was arrested in Oklahoma City, Oklahoma, after being
    detained for driving a vehicle with a stolen registration sticker. The Smith County capias was
    served on Appellant at that time. Appellant waived extradition and was returned to Smith
    County on September 23, 2009, one day before his community supervision period expired. On
    October 15, 2009, the trial court held a hearing on the State’s motion to adjudicate and found
    Appellant guilty, revoked his community supervision, and sentenced him to imprisonment for
    fifteen years. Appellant timely appealed.
    DUE DILIGENCE
    In his first and second issues, Appellant argues that the trial court erred in denying his
    motion to dismiss the State’s application to proceed to final adjudication because the State failed
    to exercise due diligence in apprehending him.
    Standard of Review
    We review a trial court’s order revoking community supervision under an abuse of
    discretion standard. Rickles v. State, 
    202 S.W.3d 759
    , 763 (Tex. Crim. App. 2006). The state
    must prove its allegation that a defendant violated a condition of his community supervision by a
    preponderance of the evidence. Cobb v. State, 
    851 S.W.2d 871
    , 873 (Tex. Crim. App. 1993).
    However, the burden is on the defendant to establish an affirmative defense by a preponderance
    of the evidence. TEX. PENAL CODE ANN. § 2.04(d) (Vernon 2010); Wheat v. State, 
    165 S.W.3d 802
    , 807 n.6 (Tex. App.—Texarkana 2005, pet. dism’d).
    Applicable Law
    Under former law, a trial court’s jurisdiction over a motion to revoke community
    supervision did not survive the expiration of the community supervision period unless (1) a
    motion to revoke was filed before the community supervision period expired, (2) an arrest
    warrant, capias, or summons was issued before the community supervision period expired, and
    (3) the state exercised due diligence in having a revocation hearing. Wheat v. 
    State, 165 S.W.3d at 805
    (citing Peacock v. State, 
    77 S.W.3d 285
    , 287-88 (Tex. Crim. App. 2002)). The state’s
    deferred adjudication “probation.” To avoid confusion, we use the more modern “community supervision” in this
    opinion.
    2
    failure to execute a capias with due diligence was regarded as a plea in bar or defense. 
    Id. The state
    bore the burden of proving “its due diligence once the defendant raised the issue.” 
    Id. In 2003,
    the Texas Code of Criminal Procedure was amended to extend the trial court’s
    continuing jurisdiction to revoke deferred adjudication community supervision beyond the
    expiration of the term of community supervision.3 Specifically, article 42.12, section 5(h) reads
    as follows:
    A court retains jurisdiction to hold a hearing under Subsection (b) and to
    proceed with an adjudication of guilt, regardless of whether the period of
    community supervision imposed on the defendant has expired, if before the
    expiration the attorney representing the state files a motion to proceed with
    adjudication and a capias is issued for the arrest of the defendant.
    See Act of June 18, 2003, 78th Leg., R.S., ch. 250, § 1, 2003 Tex. Gen. Laws 1158 (codified at
    TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(h) (Vernon Supp. 2010)).4 This change eliminated
    the “due-diligence element” and “removed the broad, lack-of-due-diligence defense that had
    prevailed according to the prior caselaw.” 
    Wheat, 165 S.W.3d at 805
    ; see also Nurridin v. State,
    
    154 S.W.3d 920
    , 924 (Tex. App.—Dallas 2005, no pet.).
    The legislature also added section 24, “which gives back a limited affirmative defense of
    lack of due diligence:”
    For the purposes of a hearing under Section 5(b) or 21(b), it is an affirmative
    defense to revocation for an alleged failure to report to a supervision officer as
    directed or to remain within a specified place that a supervision officer, peace
    officer, or other officer with the power of arrest under a warrant issued by a
    judge for that alleged violation failed to contact or attempt to contact the
    defendant in person at the defendant’s last known residence address or last
    known employment address, as reflected in the files of the department serving
    3
    A similar amendment relates to traditional community supervision. See Act of June 18, 2003, 78th Leg.,
    R.S., ch. 250, § 2, 2003 Tex. Gen. Laws 1158 (codified at TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(e) (Vernon
    Supp. 2010)).
    4
    This change in the law applies to a hearing on a motion to adjudicate guilt and revoke community
    supervision “that commences on or after the effective date of this Act, regardless of whether the defendant was
    placed on community supervision before, on, or after the effective date of this Act.” See Act of June 18, 2003, 78th
    Leg., R.S., ch. 250, § 4, 2003 Tex. Gen. Laws 1158; see also Pena v. State, 
    201 S.W.3d 764
    , 764 (Tex. Crim. App.
    2006).
    3
    the county in which the order of community supervision was entered.
    Act of June 18, 2003, 78th Leg., R.S., ch. 250, § 3, 2003 Tex. Gen. Laws 1158 (codified at TEX.
    CODE CRIM. PROC. ANN. art. 42.12, § 24 (Vernon Supp. 2010)); see 
    Wheat, 165 S.W.3d at 805
    -
    06. In light of these amendments, due diligence is “an affirmative defense applicable only to the
    grounds of revocation alleging failure to report or failure to remain in a specified location.”
    
    Wheat, 165 S.W.3d at 806
    ; see 
    Nurridin, 154 S.W.3d at 924
    . Other courts, including this court,
    have agreed with this analysis. See, e.g., Horton v. State, No. 10-09-00258-CR, 
    2010 WL 2010932
    , at *2-3 (Tex. App.—Waco May 19, 2010, pet. ref’d) (mem. op., not designated for
    publication); Fuller v. State, No. 12-07-00424-CR, 
    2008 WL 4117857
    , at *1-3 (Tex. App.—
    Tyler Sept. 3, 2008, pet. ref’d) (mem. op., not designated for publication).
    Discussion
    In the instant case, neither party disputes that the motion to adjudicate was filed and the
    capias issued within the period of Appellant’s community supervision. In its motion, the State
    alleged seven violations of Appellant’s community supervision, including failure to remain in a
    specified location5 and failure to report to his community supervision officer. The other five
    violations alleged were failure to (1) complete his community service, (2) pay community
    supervision fees, (3) pay restitution, (4) reimburse the county for the cost of the substance abuse
    questionnaire, and (5) complete his prescribed alcohol and drug treatment program. The trial
    court ultimately found the failure to remain in a specified location allegation to be “not true.”
    Appellant pleaded “true” to the remaining allegations.
    In light of the trial court’s “not true” finding and the current state of the law, the
    affirmative defense of due diligence, as it applies here, pertains only to the State’s allegation that
    Appellant failed to report to his community supervision officer. See TEX. CODE CRIM. PROC.
    ANN. art. 42.12, § 24; see also 
    Wheat, 165 S.W.3d at 805
    -06; 
    Nurridin, 154 S.W.3d at 924
    . But
    irrespective of whether Appellant met his burden, or whether the State proved that it attempted to
    contact Appellant in person or at his last known residence address or last known employment
    address, the trial court could have nevertheless adjudicated Appellant’s guilt. This is because
    5
    This ground did not relate to his flight to Oklahoma, but rather his alleged move from Smith County,
    Texas, to Rusk County, Texas. The motion to adjudicate Appellant’s guilt and to revoke his community supervision
    was filed prior to his flight to Oklahoma and was not amended.
    4
    even if Appellant proved the State’s failure to exercise due diligence, he pleaded “true” to other
    grounds for revocation. The violation of a single provision of his community supervision is
    sufficient to adjudicate his guilt and revoke his community supervision. See Moses v. State, 
    590 S.W.2d 469
    , 470 (Tex. Crim. App. 1979) (holding plea of “true” to any one alleged violation is
    sufficient to support a revocation of supervision).               Therefore, we do not address whether
    Appellant established the State’s failure to exercise due diligence.
    In a related subissue, Appellant argues that the State did not act diligently because of the
    approximately ninety-five day delay between his July 12, 2009 arrest in Oklahoma and his
    October 15, 2009 hearing on the motion to adjudicate his guilt. As shown above, the due
    diligence affirmative defense does not apply to this type of challenge. See TEX. CODE CRIM.
    PROC. ANN. art. 42.12, § 24. Rather, in essence, Appellant asserts a violation of his right to a
    speedy revocation hearing. The burden is on the defendant to request a hearing on the state’s
    motion to adjudicate his guilt, and after such a request is properly made, the trial court must hold
    a hearing within twenty days. See TEX. CRIM. CODE PROC. ANN. art. 42.12, § 21(b) (Vernon
    Supp. 2010). The record does not show that Appellant made such a request. Moreover, the
    ninety-five day period that elapsed between Appellant’s arrest and his hearing is not of sufficient
    magnitude to trigger a constitutional inquiry. See Dingler v. State, No. 05-03-01552-CR, 05-03-
    01553-CR, 
    2005 WL 1039969
    , at *6 (Tex. App.—Dallas May 5, 2005, no pet.) (mem. op., not
    designated for publication) (holding four month delay between arrest and revocation hearing did
    not trigger speedy trial inquiry).
    We overrule Appellant’s issues one and two.
    DISPOSITION
    We affirm the judgment of the trial court.
    SAM GRIFFITH
    Justice
    Opinion delivered November 17, 2010.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    (DO NOT PUBLISH)
    5