Ronny Gene Tibbs v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00218-CR
______________________________
RONNY GENE TIBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 21282
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
While Ronny Gene Tibbs was serving a period of community supervision that was to
expire December 20, 2016, based on a third offense of driving while intoxicated, he admittedly
ingested bootlegged whiskey, a clear violation of a condition of his community supervision. The
trial court revoked Tibbs’ community supervision and imposed a sentence of ten years’
confinement. Tibbs appeals the trial court’s judgment revoking community supervision on the
sole ground that it lacked jurisdiction because a capias warrant never issued.
In support of his argument, Tibbs relies only on cases interpreting Section 21(e) of Article
42.12 of the Texas Code of Criminal Procedure, which states:
(e) A court retains jurisdiction to hold a hearing under Subsection (b) and to revoke,
continue, or modify community supervision, 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 revoke, continue, or
modify community supervision and a capias is issued for the arrest of the
defendant.
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(e) (Vernon Supp. 2009). All of Tibbs’ cited cases
dealt with a trial court’s jurisdiction to revoke community supervision after the supervision period
had expired.1 They are inapplicable here, since Tibbs’ period of community supervision had
clearly not expired.
1
Harris v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992), overruled in part by Bawcom v. State, 78 S.W.3d 360, 363
(Tex. Crim. App. 2002); Davis v. State, 150 S.W.3d 196 (Tex. App.—Corpus Christi 2004), rev’d on other grounds,
195 S.W.3d 708 (Tex. Crim. App. 2006) (citing Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002); Calderon v.
State, 75 S.W.3d 555 (Tex. App.—San Antonio 2002, pet. ref’d) (op. on reh’g) (per curiam)).
2
Article 42.12, Section 21(b) of the Texas Code of Criminal Procedure states:
At any time during the period of community supervision the judge may issue a
warrant for violation of any of the conditions of the community supervision and
cause the defendant to be arrested. Any supervision officer, police officer or other
officer with power of arrest may arrest such defendant with or without a warrant
upon the order of the judge to be noted on the docket of the court.
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (Vernon Supp. 2009) (emphasis added). Since
the statute discusses issuance of capias as discretionary, it cannot be a general requirement for the
court’s jurisdiction to revoke community supervision. In other words, because the record reflects
that Tibbs’ revocation occurred within the period for community supervision, issuance of a capias
warrant was not required.2 We overrule Tibbs’ sole point of error on appeal.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 3, 2010
Date Decided: August 4, 2010
Do Not Publish
2
See Jackson v. State, No. 13-03-00495-CR, 2005 WL 1981522, at *2 (Tex. App.—Corpus Christi Aug. 18, 2005, no
pet.) (mem. op., not designated for publication). Although this unpublished case has no precedential value, we may
take guidance from it “as an aid in developing reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789,
794 (Tex. App.—Amarillo 2003, pet. ref’d).
3