In the Interest of A.N.A. , 2004 Tex. App. LEXIS 6455 ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00052-CV

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IN THE INTEREST OF

A. N. A.

 

 

 

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On Appeal from the County Court at Law

Harrison County, Texas

Trial Court No. 3217

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          A. N. A. appeals from an order modifying her probation in a juvenile case. She had been placed on twelve months' probation for truancy, which expired January 7, 2004. The order of modification, signed by the trial court March 8, 2004, extended her probation by an additional twelve months from that date. The petition to modify was filed December 30, 2003. It alleged A. N. A. had failed to attend school during the term of her probation, accumulating over thirteen absences during that time period.

          A. N. A. contends we should reverse because the probationary period had expired: there was nothing to modify. She acknowledges that the motion to modify predated the expiration of probation, but argues that we should apply a criminal law parallel and hold, because no warrant or capias was issued before the probationary period's expiration, the State simply waited too long to request modification.

          As pointed out by A. N. A., a trial court can hear a motion to revoke community supervision in a criminal case even after the period of community supervision has expired, but in order for the jurisdiction of the trial court to extend beyond the expiration of the defendant's community supervision, two things must first occur: 1) a motion to revoke community supervision must be filed; and 2) a capias must be issued. Peacock v. State, 77 S.W.3d 285, 287 (Tex. Crim. App. 2002). As long as both a motion alleging a violation of community supervision terms is filed and a capias or arrest warrant is issued before the expiration of the term, followed by due diligence to apprehend the person on community supervision and to hear and determine the allegations in the motion, the trial court's jurisdiction continues. Rodriguez v. State, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991).

          Juvenile proceedings have many of the same aspects as do criminal proceedings. However, in this situation, there is a specific section of the Family Code that controls the outcome of this argument. Tex. Fam. Code Ann. § 54.05(l) (Vernon Supp. 2004) provides explicitly that a court may modify and extend a period of probation either (a) during the period of probation, or (b) if the motion to modify is filed before the supervision ends, "before the first anniversary of the date on which the period of probation expires."

          In this case, the motion to modify was filed before the supervision ended, and the order extending probation was entered before the first anniversary following the date on which the probationary period expired. The trial court's action falls squarely within the ambit of the rule. No error is apparent.

          A. N. A. also argues the court had no authority to extend the probation for, effectively, more than a period of twelve months. In making this argument, she calculates the length of probation from the date on which the original probationary period expired to the end of the period under the modification: twelve months after March 8, 2004. She bases her argument on In re R.G., 687 S.W.2d 774, 776–77 (Tex. App.—Amarillo 1985, no writ). The Amarillo court held that the trial court had the authority to modify the order placing R. G. on probation despite the expiration of the probationary period's term because the application to modify was filed within the probationary period. In reaching its decision, the Amarillo court recognized that the trial court had authority only to place the child on probation for a period not to exceed one year. In so doing, the court recognized that language then found at Tex. Fam. Code Ann. § 54.04 (d)(1) allowed the court to initially place a child on probation for a period not to exceed one year, subject to extensions of no more than one year each. That portion of the Code was modified in 1993. Counsel has directed us to no similar restrictive language in the current version of the Code, and we are aware of none. We conclude that this argument is likewise without merit.

 

          We affirm the judgment.  

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      July 7, 2004

Date Decided:         July 20, 2004

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00139-CR

                                                ______________________________

 

 

 

                                            IN RE:  BENJAMIN WAYNE MCCOIN

 

 

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                                                     Original Mandamus Proceeding

 

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                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

 

                                                                             

                                                                             

                                                     MEMORANDUM OPINION

 

            Benjamin Wayne McCoin has filed with the Court a document that McCoin titles a writ of mandamus, by which we infer McCoin petitions this Court for mandamus relief.  McCoin’s “petition” is eight pages of angry, insulting, and occasionally vulgar attacks upon the trial court and this Court.  We are unable to discern any request for relief made in this “petition.”  McCoin complains of alleged lies on the part of the trial court; a faulty indictment; and generally alleges himself to be innocent.^[1]

            McCoin’s “petition” does not comply with Rule 52.3 of the Texas Rules of Appellate Procedure.  Just as examples, there is no identification of the parties and no description of why McCoin believes himself entitled to mandamus relief.^[2]  Also, McCoin does not include a prayer which “contain[s] a short conclusion that clearly states the nature of the relief sought.”  Tex. R. App. P. 52.3(i).  

            As McCoin has requested no relief, we may grant none.  Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499 (Tex. 1993) (per curiam) (appellate court may only grant relief requested by party).  We deny McCoin’s petition.  

 

 

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          August 3, 2010

Date Decided:             August 4, 2010

 

Do Not Publish

 

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^[1]McCoin was convicted of attempted capital murder and sentenced to ninety-nine years’ incarceration.  This Court affirmed his conviction.  McCoin v. State, 56 S.W.3d 609 (Tex. App.––Texarkana 2001, no pet.).

 

^[2]Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion or violation of a duty imposed by law when no other adequate remedy by law is available.  State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984).  Due to the nature of this remedy, it is McCoin's burden to properly request and show entitlement to the mandamus relief.  Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.––Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.").