COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-030-CR
NO. 2-08-031-CR
MARCUS ELLSWORTH HODGE, JR. APPELLANT
A/K/A MARCUS HODGE
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Based on the timing of two separate offenses of sexual assault of a child,
two separate indictments, and the orders placing Appellant Marcus Ellsworth
Hodge, Jr. on deferred adjudication community supervision, Appellant ended up
being placed on deferred adjudication community supervision for both offenses.
On June 27, 2005, Appellant was placed on eight years’ deferred adjudication
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… See Tex. R. App. P. 47.4.
community supervision for the first offense and on April 24, 2006, Appellant
was sentenced to seven years’ deferred adjudication community supervision for
the second offense.
On August 9, 2006, the State filed a petition to proceed to adjudication
in both cases. At the hearing on the State’s motion, Appellant entered a plea
of true to paragraphs two, three, and five of the petitions, admitting that he had
failed to report as ordered, failed to notify the community supervision office of
a change of address or employment within five days of the change, and failed
to attend sex offender treatment and comply with treatment requirements. The
trial court proceeded to adjudicate Appellant’s guilt in both cases and sentenced
him to ten years’ confinement in the Institutional Division of the Texas
Department of Justice in each case.
In a single issue on appeal, Appellant claims that the State offered no
evidence that it had complied with Texas Code of Criminal Procedure article
42.12, section 24’s due diligence requirement. See Tex. Code Crim. Proc. Ann.
art. 42.12 § 24 (Vernon Supp. 2008). Appellant claims that no evidence exists
in the record that the State exercised due diligence in bringing the issue of
community supervision revocation before the trial court. The State points
out—and Appellant candidly concedes—that the issue of lack of diligence was
not raised in the trial court at the revocation hearing. Although Appellant
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claims that the State should have explained what steps it took to exercise
reasonable diligence in issuing a capias and bringing this matter to the trial
court’s attention, the issue of lack of diligence must be raised by a defendant
before or during the revocation hearing in order to preserve it for appellate
review. Peacock v. State, 77 S.W.3d 285, 287–88 (Tex. Crim. App. 2002);
Brecheisen v. State, 4 S.W.3d 761, 764 (Tex. Crim. App. 1999). Once a
defendant raises the issue, the State has the burden to show due diligence.
Peacock, 77 S.W.3d at 288 (quoting Langston v. State, 800 S.W.2d 553, 555
(Tex. Crim. App. 1990)). Consequently, we hold that because Appellant did
not raise the issue of lack of diligence in the trial court, he has not preserved
it for our review; moreover, because Appellant did not raise the issue of due
diligence before or during the revocation hearing, the State did not have the
burden to show due diligence. See, e.g., id. at 287–88.
And finally, the State points out that, in any event, Texas Code of
Criminal Procedure article 42.12, section 24’s due diligence requirement is
relevant only when the community supervision period has expired prior to the
defendant’s arrest and does not apply if the defendant is arrested within the
community supervision period. See Ballard v. State, 126 S.W.3d 919, 921
(Tex. Crim. App. 2004). Here, Appellant was arrest on outstanding capias
warrants on December 16, 2007, well within the community supervision period
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for both offenses. Consequently, even if Appellant had preserved this issue for
our review, it would be overruled on the merits. We overrule Appellant’s sole
issue on appeal.
Having overruled Appellant’s sole issue, we affirm the trial court’s
judgments.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 18, 2008
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