Sylvia Sims v. State ( 2003 )

NO. 12-02-00162-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

SYLVIA A. SIMS,

§ APPEAL FROM THE 145TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ NACOGDOCHES COUNTY, TEXAS

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MEMORANDUM OPINION  

Sylvia A. Sims ("Appellant") pleaded guilty to the offense of securing execution of a document by deception and was sentenced to six years of imprisonment, probated for six years. Near the end of Appellant's probationary period, the State moved to revoke Appellant's probation and the trial court issued a capias for Appellant's arrest. In one issue, Appellant contends that the trial court abused its discretion in revoking her probation because the State failed to exercise due diligence in procuring her arrest. We affirm.

Background  

On August 22, 1994, Appellant pleaded guilty to securing execution of a document by deception and was sentenced to six years of imprisonment, probated for six years. On July 31, 2000, the State moved to revoke Appellant's probation, alleging that she violated the terms of her probation by failing to (1) pay a $35.00 probation fee, (2) pay her court appointed attorney's fee, (3) pay restitution, and (4) report to her probation officer in person during the first five working days of each month. On that same date, the trial court signed an order directing the district clerk to issue a capias for Appellant's arrest. The capias was not executed until Appellant's arrest on or about February 5, 2002, approximately eighteen months after the capias was issued and Appellant's probationary period expired. ⁽¹⁾

On April 10, 2002, Appellant filed a "Motion to Dismiss State's Motion to Revoke Probation and Defendant's Request for Discharge From Probation," contending that the State failed to exercise due diligence in apprehending Appellant and in hearing and determining the allegations in the State's motion. The trial court heard both motions simultaneously on April 17, 2002. The State called Mike Johnson ("Johnson"), Appellant's probation officer, to testify about Appellant's failure to comply with her probation requirements and the efforts the State made in attempting to apprehend Appellant. ⁽²⁾ Johnson testified that Appellant was doing well as a probationer until the beginning of 2000, when she failed to report as required. He also testified that after Appellant failed to report in the first week of February he sent a letter to Appellant's last known address, informing her that she needed to report by February 18. Johnson went to Appellant's house on February 9, but was unable to make contact with Appellant. On February 18, Appellant reported to Johnson pursuant to the instructions in his letter dated February 8.

Johnson told the trial court that Appellant reported on March 7 but failed to report in April. He also testified that Appellant did not report at the required time in May; however, he saw Appellant on May 15 and she told him that she was having trouble reporting because both she and her daughter were having health problems. At that time, Johnson told her that he sympathized with her but even though she was going through a rough time, she still needed to report.

Appellant failed to report to Johnson in both June and July, and on July 31, the State filed its motion to revoke Appellant's probation. After Appellant did not report in July, Johnson called Appellant's home and spoke with her mother, telling her to make sure that Appellant contacted him as soon as possible. Appellant never called Johnson back. On August 8, Johnson sent another letter to Appellant's last known address, again asking Appellant to contact him. Johnson went to Appellant's home on August 24 and 28 in an attempt to locate Appellant; however, she was nowhere to be found. On September 25 and again on October 23, Johnson made fruitless attempts to locate Appellant at her house. Johnson called Appellant's residence on October 25 and spoke to her mother. During that conversation, Appellant's mother told Johnson that she did not know where Appellant could be found. After this conversation, Johnson determined that Appellant was an absconder and turned Appellant's file over to Lonnie Burns ("Burns"), the Nacogdoches County absconder officer.

Burns testified that he first received the case on October 24, 2000. On November 13, after waiting three to four weeks for the sheriff's office to enter the capias into the TCIC/NCIC database, Burns checked the database and found that the capias had been entered. In February of 2001, Burns ran a driver's license check on Appellant. This check demonstrated that Appellant still had her Nacogdoches address as the address on her driver's license. On May 14, Burns ran a "TCI credit check" on Appellant, which showed an address for Appellant in Houston. That same day, Burns prepared an "apprehension request" and delivered it to the Warrants Division of the Nacogdoches County Sheriff's Office for transmittal to the Harris County Sheriff's Office and the Houston Police Department. Burns told the court that the departmental policy required him to transmit the "apprehension request" to law enforcement agencies outside of Nacogdoches County.

In August, Burns ran another driver's license check and found the same Nacogdoches address listed as Appellant's residence. In November, Burns performed a "warrant check" to determine if the warrant was still entered in TCIC/NCIC. In February of 2002, Burns received a call from the Nacogdoches County warrants officer that Appellant had been arrested on his warrant in Conroe, Texas.

When Appellant testified, she could not remember the last time she spoke with her probation officer. She told the court that she could not report because her daughter was sick with leukemia and was hospitalized in Houston. Appellant testified that she was staying with a cousin in Houston and that in January of 2001, she had written a letter to Johnson, telling him that she was trying to relocate her probation to Harris County. Appellant also testified that in that same month, she appeared in court in Nacogdoches County to prove up a divorce and that she had also filled out change of address forms at the post office.

At the conclusion of the hearing, the trial judge overruled Appellant's motion to dismiss and granted the State's motion. After giving Appellant credit for "back time," the judge sentenced Appellant to two years of imprisonment.

Appellant now challenges the trial court's decision to revoke her probation, contending that the State failed to exercise due diligence in procuring her arrest after the capias was issued and in holding the hearing on the motion to revoke.

Did the State Exercise Due Diligence in Executing the Capias?  

A trial court has jurisdiction to hear a motion to revoke community supervision even after the period of community supervision has expired. Prior v. State, 795 S.W.2d 179, 183 (Tex. Crim. App. 1990). The reason for allowing a trial court's jurisdiction to continue beyond the expiration of the defendant's probationary period is to prevent probation term violators from benefitting from absconding. Peacock v. State, 77 S.W.3d 285, 288 (Tex. Crim. App. 2002). In order for the jurisdiction of the court to extend beyond the expiration of the defendant's community supervision, two events must take place: (1) a motion to revoke probation must be filed, and (2) a capias must be issued. Id. at 287. The issue of lack of due diligence must be raised by the defendant before or during the revocation hearing in order to preserve it for appellate review. Id. Once a defendant has raised the issue, the burden rests with the State to show due diligence. Langston v. State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990). The State must prove by a preponderance of the evidence that due diligence was used in executing the capias and in holding a hearing on the motion to revoke. Peacock, 77 S.W.3d at 288. In determining whether due diligence was exercised in apprehending the defendant, the trial court may consider actions taken by the State before the motion to revoke was filed and the capias issued. Bawcom v. State, 78 S.W.3d 360, 367 (Tex. Crim. App. 2002). Due diligence can be shown by proof of reasonable investigative efforts made to apprehend the person sought. Peacock, 77 S.W.3d at 288. Requiring the State to show due diligence in executing the capias helps a court determine whether the defendant cannot be found because he is trying to elude capture or because no one is looking for him. Id.

In the instant case, both parties agree that the motion to revoke was filed and the capias was issued on July 31, 2000. These events took place before the expiration of Appellant's community supervision period on August 22; therefore, the trial court had jurisdiction to revoke Appellant's probation provided the State exercised due diligence in apprehending her.

The evidence adduced at the hearing on Appellant's motion to dismiss demonstrated that the State, or others at the request of the State, made at least fourteen different investigative efforts to apprehend Appellant once she stopped reporting to her probation officer: (1) Johnson's February 8, 2000 letter requiring Appellant to report by February 18, (2) a field visit to Appellant's home on February 9, (3) a field visit to Appellant's home in May, (4) Johnson's phone call in July to Appellant's mother inquiring as to Appellant's location, (5) a letter sent on August 8 to Appellant asking her to contact Johnson, (6) a field visit to Appellant's home on August 24, (7) a field visit to Appellant's home on August 28, (8) a field visit to Appellant's home on September 25, (9) a field visit to Appellant's home on October 23, (10) a phone call to Appellant's home and a conversation with Appellant's mother on October 24, (11) a driver's license check by Burns in February of 2001, (12) a "TCI credit check" performed by Burns on May 14, (13) an "apprehension request" made by Burns and transmitted to the Harris County Sheriff's Office and the Houston Police Department, and (14) another driver's license check in August.

We hold that the efforts made by the State to apprehend Appellant before and after the capias was issued constitute due diligence. Although eighteen months elapsed before Appellant was arrested, the efforts made by the State were reasonable investigative efforts. This is not a case where the State only sent a letter to Appellant's last known address, only entered the capias into the TCIC/NCIC, or knew Appellant's address but never tried to contact him. See Peacock, 77 S.W.3d at 288 (State failed to prove due diligence when it only entered the capias into TCIC and sent a letter to the defendant's last known address); Harris v. State, 843 S.W.2d 34, 36 (Tex. Crim. App. 1992), overruled in part by Bawcom, 78 S.W.3d 360, 367 (State did not exercise due diligence when it sent four letters to defendant's last known address and made a phone call to his mother); Rodriguez v. State, 804 S.W.2d 516, 517-18 (Tex. Crim. App. 1991) (State did not prove due diligence when the State knew the defendant's address and place of employment, yet did not attempt to apprehend him). The State made efforts to apprehend Appellant based on the information the State had obtained regarding her location. However, the State could not find Appellant because she moved from Nacogdoches County to Houston, all without leaving a forwarding address with the probation department. Thus, this case is similar to cases upholding a trial court's finding of due diligence because the delay in apprehending a defendant was due to the defendant's actions. See Strickland v. State, 523 S.W.2d 250, 251 (Tex. Crim. App. 1975) (delay in apprehending defendant was due to the fact that defendant's address at the time the motion to revoke was filed was entirely different from the address he had reported to the probation department); Rodriguez v. State, 951 S.W.2d 199, 201-02 (Tex. App.- Corpus Christi 1997, no pet.) (delay in apprehending defendant was explained by showing that defendant provided probation officer with six different addresses, none of which were in the city where he was residing).

In Peacock, the Court of Criminal Appeals reversed the court of appeals ruling upholding a finding of due diligence where the State only entered the capias into TCIC and sent a letter to the defendant's last known address. Peacock, 77 S.W.3d at 289. The Court stated in dicta that "[j]ust as the probationer should not benefit from hiding, the State should not benefit by doing nothing meaningful to execute a capias, i.e., if a probationer is not being sought, there is no reason for the court to have continuing jurisdiction." Id. In the instant case, although the State conducted reasonable investigative efforts, Appellant managed to elude those efforts until she was finally arrested. Therefore, Appellant should not benefit from eluding the State's meaningful efforts to apprehend her.

Conclusion  

The State conducted reasonable investigative measures to apprehend Appellant both before and after the motion to revoke was filed and the capias was issued; therefore, the State exercised due diligence in apprehending Appellant. Accordingly, the judgment of the trial court is affirmed.

JAMES T. WORTHEN   

Chief Justice

Opinion delivered March 5, 2003.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1. The capias is not included in the appellate record; however, the parties agree that the capias was issued on July 31, 2000, the day the State filed its motion to revoke Appellant's probation.

2.

The State has the burden to show by a preponderance of the evidence that due diligence was used in executing the capias and in holding the hearing on the motion to revoke. Rodriguez v. State, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991).