Terry Ray Bender v. State

NO. 07-03-0235-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 7, 2005

______________________________

TERRY RAY BENDER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 47^TH DISTRICT COURT OF RANDALL COUNTY;

NO. 7499-A; HON. HAL MINER, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

Terry Ray Bender (appellant) appeals from an order revoking his probation. His two issues concern the authority of the trial court to enter the order after his probationary period expired and the court formally discharged him from probation. We affirm the order of revocation.

As for the matter of revoking probation after the probationary period expired, authority holds that a trial court may do so if two conditions are met. They consist of the State moving to revoke and obtaining the issuance of a warrant or capias before the period's end. Ex parte Donaldson, 86 S.W.2d 231, 233 (Tex. Crim. App. 2002). At bar, it is undisputed that the motion to revoke was filed and a capias was issued before September 25, 2002, the date on which appellant's community supervision was to lapse. The conditions of Donaldson having been satisfied, the trial court had jurisdiction to rule on the motion after September 25, 2002. Thus, this issue is overruled.

As to the allegation that the trial court lacked authority to rescind a prior order discharging appellant from probation and, thereafter, grant a timely motion to revoke, we find the argument insufficiently briefed. ⁽¹⁾ In short, appellant cited neither direct nor analogous authority to support his contention. ⁽²⁾ Furthermore, when an appellant inadequately briefs an issue, the reviewing court has the authority to overrule it. See Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (overruling the point due to inadequate briefing). Moreover, failing to cite either direct or analogous authority in support of a contention is an example of inadequate briefing. See e.g., id. Given that lack of citation by appellant in support of this particular contention, we overrule it as well.

Accordingly, the judgment revoking appellant's community supervision is affirmed. ⁽³⁾

Per Curiam

Do not publish.

1. The trial court signed on November 5, 2002, an order discharging appellant from probation. However, an order vacating the November 5^th decree and a judgment revoking appellant's community supervision were signed on December 5, 2002, and May 14, 2003, respectively.

2.

We do not consider appellant's reference to Ex parte Donaldson, 86 S.W.2d 231 (Tex. Crim. App. 2002) as either direct or analogous support for this particular issue. This is so because it did not purport to address a situation wherein the court previously executed an order discharging the appellant from probation. Nor does he argue that Donaldson actually applies to the specific question before us.

3.

We make no comment on whether this issue may be addressed via habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure.

nt again waived his complaint. Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991) (stating that a defendant must object each time evidence on a particular subject matter is offered unless he makes a running or continuing objection or moves the court outside the presence of the jury to consider the admissibility of all evidence on a particular subject matter); Russell v. State, 904 S.W.2d 191, 196-97 (Tex. App.-Amarillo 1995, pet. ref'd) (stating that a party must continue to object each time the purportedly inadmissible evidence is offered to preserve error).

Accordingly, we affirm the judgment of the trial court.

Per Curiam

Do not publish.