Rodriguez v. State , 1991 Tex. Crim. App. LEXIS 38 ( 1991 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant pleaded guilty before the trial court to theft on March 28, 1983. On that same date, after assessing a five year sentence, the trial court granted him probation. On June 27, 1989, the trial court revoked appellant’s probation. The Court of Appeals affirmed the trial court’s judgment. Rodriguez v. State, 784 S.W.2d 582 (Tex.App.-Corpus Christi 1990).

Appellant complained on appeal that the trial court had no jurisdiction to revoke his probation after the term had expired because the State did not exercise due diligence in arresting him after the trial court issued the warrant. The Court of Appeals rejected this contention, holding that as long as the revocation motion and capias or arrest warrant issues before the expiration of the probationary term, a hearing conducted after the arrest is proper. The Court of Appeals also held that appellant had failed to show a lack of due diligence on the part of the State in arresting appellant. This Court granted appellant’s petition for discretionary review to determine whether the Court of Appeals’ holding was proper. See Tex.R.App.Pro. 200(c)(1) and (3).

The record reflects that appellant was assessed a five year term of probation on March 28, 1983. Although the motion to revoke was filed on June 25, 1987, which was well within the probationary period, appellant was not arrested until June 3, 1989. His probation was not revoked until June 27, 1989, about two years after the motion to revoke was filed, and over a year after his term of probation had expired. The Court of Appeals held that lack of due diligence is an affirmative defense, citing Hardman v. State, 614 S.W.2d 123 (Tex.Cr.App.1981). Therefore, the burden was on appellant to show by a preponderance of evidence that the State failed to exercise diligence in arresting appellant two years after the capias had issued and a year after the expiration of his probationary term. Because the record was silent as to diligence on the part of the State, the court below held appellant failed to prove this defense. We disagree.

The Court of Appeals was correct in holding that the trial court was entitled to hold a hearing on the motion to revoke even though it was held after appellant’s term of probation had expired. Guillot v. State, 543 S.W.2d 650 (Tex.Cr.App.1976). As long as the revocation motion was filed and the capias or arrest warrant issued before the expiration of the appellant’s probationary term, the hearing conducted shortly after his arrest was proper. Prior v. State, 795 S.W.2d 179 (Tex.Cr.App.1990); Shahan v. State, 792 S.W.2d 101 (Tex.Cr.App.1990); Coleman v. State, 632 S.W.2d 616 (Tex.Cr.App.1982). Therefore, we do not dispute the Court of Appeals’ finding that the trial court had general jurisdiction over the State’s motion to revoke probation. However, the court below erred in its analysis of the due diligence question.

In Prior,¹ we reaffirmed our rules relating to revocation after the probationary term has expired. We held:

[A] trial court has jurisdiction to revoke ... probation imposed pursuant to Art. 42.12, § 3d [Y.A.C.C.P.], after the probationary term has expired, as long as both a motion alleging a violation of probationary terms is filed and a capias or arrest warrant is issued prior to the expiration of the term, followed by due diligence to apprehend the probationer and to hear and determine the allegations in the motion. In doing so, we expressly uphold our decision in Coleman, 632 S.W.2d 616....”

Prior, supra, at 184.

We have recently addressed a contention similar to the one raised in appellant’s petition. In Langston v. State, 800 S.W.2d 553 (Tex.Cr.App.1990), the State’s motion to revoke was properly filed within the defendant’s probationary period. However, the defendant was arrested eight months after the motion to revoke was filed, and seven and one-half months after the expiration of his probationary period. At the revocation hearing, there was no showing of any diligence on the part of the State and, in fact, the record revealed that the State at all times knew the defendant’s address, and knew he was still residing there. The defendant filed a motion to dismiss the State’s motion to revoke his probation, and by so doing, contested the diligence of the State in arresting him. This Court held that once the defendant had raised the issue, the State had the burden of showing due diligence. Id., 800 S.W.2d at 555, citing Prior, supra, at 185, and Stover v. State, 365 S.W.2d 808, 809 (Tex.Cr.App.1963). Because the seven and one-half month delay in arresting the defendant was not explained, there was nothing to show diligence on behalf of the State. Therefore, the defendant’s motion to dismiss should have been granted.

In the instant case, appellant filed a motion to dismiss complaining of lack of due diligence. He also argued lack of diligence throughout the hearing, and at its conclusion again unsuccessfully requested the motion to revoke be dismissed. Once the issue was raised the burden shifted to the State to show it exercised due diligence. Langston, supra, 800 S.W.2d at 555. At the hearing on the State’s motion, the only witnesses were Mario Bazan, Thomas Durham, and Tony Davis, three probation officers who had dealt with appellant’s case over the years. Durham, who was in charge of appellant’s case when the motion to revoke was initially filed, stated that it was the policy of the probation office to cease any further contact with the probationer after a warrant has been issued. He said that no one from his office attempted to contact appellant, even though they knew his address and place of employment. Durham could not recall whether anyone from the sheriff’s or district attorney’s offices had tried to contact him to obtain information. Davis, who replaced Durham and was the probation officer when appellant was arrested, said appellant was apprehended at the Department of Public Safety office and that appellant “advised [Davis] he’d been in Beeville the whole time.” Davis also stated that no one from either the sheriff’s or the district attorney’s offices had contacted him regarding appellant’s whereabouts.

The Court of Appeals found that the testimony from these three witnesses showed nothing regarding either due diligence or lack thereof, and that the revocation of appellant’s probation by the trial court implied that appellant failed to establish his “affirmative defense” by a preponderance of the evidence. We disagree. Appellant properly raised the question of diligence by his motion to dismiss, and further developed the issue by questioning the witnesses as to steps taken by the State in executing the arrest warrant in his effort to show a lack of diligence. However, the State offered nothing to show it had made a diligent effort to apprehend appellant after the motion to revoke was filed.

The State argues that because appellant ceased reporting when he found out a motion to revoke had been filed and because the sheriff's office was provided with copies of the motion to revoke and identification information, due diligence is “evident.” The State complains that nothing is pertinent except the filing of the warrant within the probationary period, and that any other construction would allow a probationer to “avoid the execution of his sentence by escaping from the custody of the probation officer” and would “defeat the purpose of the probation law.” However, unlike cases cited by the State and the Court of Appeals, there is no indication appellant had escaped from custody and was hiding. See Prior, 795 S.W.2d at 185. The two year delay from the date of issuance of the motion to revoke and arrest warrant is unexplained.

For the notion that lack of due diligence is an affirmative defense, the Court of Appeals relied on Hardman wherein this Court cited with approval the following language:

“Although we do not condone arbitrary delays in revocation proceedings, we do reiterate that to preserve such contention it is incumbent upon the probationer to raise and develop the issue at such hearing to secure appellate review.”

Hardman, supra, 614 S.W.2d at 127, quoting Cotton v. State, 523 S.W.2d 673, 675 (Tex.Cr.App.1975). The Court of Appeals was unwarranted in extending this statement because Hardman concerned preservation of error, and did not create an affirmative defense. In that case the defendant had not raised this contention at the revocation hearing. This Court has never held that lack of due diligence is an affirmative defense which a defendant must prove by a preponderance of the evidence.² This matter is simply one of burden shifting which requires the State to come forward with evidence of diligence once the defendant has raised and developed the issue at the revocation hearing.

In the instant ease, and contrary to the situation in Hardman, appellant properly raised and developed the issue of lack of due diligence at the revocation hearing. The burden then shifted to the State, which failed to show it had made a diligent effort to apprehend appellant almost two years after the warrant had been issued for his arrest. Appellant’s motion to dismiss should have been granted. See Langston, supra, 800 S.W.2d at 555.

The judgment of the Court of Appeals is therefore reversed, and the cause is remanded to the trial court for proceedings consistent with this opinion.

BAIRD, J., concurs in the result. OVERSTREET, J., not participating.

1 . Although our decision in Prior concerned deferred adjudication probation, we specifically held that the provisions concerning revocation for both deferred adjudication and "regular” probation refer to Art. 42.12, § 8, V.A.C.C.P., for procedures to follow upon an allegation that a probationer has violated the terms of probation. 795 S.W.2d at 182; Shahan supra at 102.

2 . The Court of Appeals notes that affirmative defenses are often used in probation revocation proceedings. For example, in Hill v. State, 719 S.W.2d 199 (Tex.Cr.App.1986), this Court held that inability to pay probation fees was an affirmative defense. However, in Hill, we relied on Article 42.12, § 8(c), V.A.C.C.P., which specifically provides that “the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence.”