IN THE
TENTH COURT OF APPEALS
No. 10-99-345-CR
JAMES DAVID PEACOCK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court # 30,766
DISSENTING OPINION
The majority declares an attempt to assert the due-diligence defense to a motion to revoke community supervision dead-on-arrival.
The facts are straightforward. Peacock was on community supervision for two years—from July 1, 1997 to July 1, 1999. On April 20, 1998, the State filed a motion to revoke his community supervision, and the court issued a capias for his arrest. The only effort the State made to detain Peacock was to register the capias issued for his arrest with the Texas Criminal Information Management System (TCIC) and send a letter to his “last” mailing address (a Post Office Box in Whitney) advising him that a warrant for his arrest had been issued. Both things were done two days after the capias was issued. On September 26, 1999, over seventeen months after the issuance of the capias and some three months after his community supervision expired, the capias was served on Peacock.
The majority finds that the State has established due diligence, relying on the letter and the State’s action in registering the warrant on TCIC. Nothing else in the record supports the finding of due diligence.
Standards
This appeal raises several questions: What is the standard by which the State must prove that it exercised due diligence in executing an arrest warrant issued after a motion to revoke community supervision is filed? Has the State met the burden to show that it exercised due diligence in this case? What is the standard of review by which we review the trial court’s decision that the State discharged its burden?
As we noted in Burch v. State, 821 S.W.2d 385, 387 (Tex. App.—Waco 1991, no pet.):
. . . , a court has jurisdiction to revoke probation after the probationary period expires if (1) a motion to revoke is filed before the term of probation expires and (2) a capias or warrant is issued prior to the expiration of the probationary period. Once these jurisdictional requirements have been established, they must be followed by proof from the State by a preponderance of the evidence that: (1) the defendant violated a term or condition of his probation; and, if due diligence is raised at the revocation hearing then, (2) due diligence was exercised to apprehend the defendant and (3) due diligence was exercised to hear the motion to revoke. See Shaw v. State, 622 S.W.2d 862, 863 (Tex. Crim. App. [Panel Op.] 1981) (holding that the standard of proof in revocation proceedings is a preponderance of the evidence).
The majority correctly asserts: “Once the defendant meets the burden of production by raising the due-diligence issue at the revocation hearing, the State incurs the burden of persuasion to show that it exercised due diligence.” Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). The majority, citing Burch, says that proof of diligence is required by a preponderance of the evidence. Burch, 821 S.W.2d at 387. Burch, however, relies on the general rule that the State’s burden in revocation cases is the preponderance standard. Id. It does not speak directly to proof of diligence. Thus, the standard of proof of diligence at the trial level remains in question.
In the cases by the Court of Criminal Appeals cited by the majority, the Court appears to review de novo the evidence supporting the finding of due diligence. See Harris v. State, 843 S.W.2d 34, 36 (Tex. Crim. App. 1992); Rodriguez v. State, 804 S.W.2d 516, 518 (Tex. Crim. App. 1991); Langston v. State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990). Doing so implies that the Court believes that diligence is a question of law. However, the Court of Criminal Appeals has never explicitly said what manner of proof is required.
The standard of proof required in the trial court affects the standard of review by this court. The propriety of factual determinations is generally tested by a review of the evidence supporting the finding using legal and/or factual sufficiency standards. Other rulings are reviewed under the abuse-of-discretion standard. Although we have been given no guidance about how to review a determination by a trial court that the State used diligence in arresting the defendant on a revocation warrant, I would review the evidence supporting the finding of due diligence de novo, as the Court of Criminal Appeals did in the cited cases.
The Evidence
At the hearing, the State called two witnesses—Deborah Pruitt, who identified herself as Peacock’s “probation officer” and Mike Cook, a Hill County Deputy Sheriff. Pruitt testified that Peacock received permission to move to Fort Worth on August 6, 1997. Peacock missed several reporting dates after getting permission to move. Pruitt sent “letters” to Peacock’s Whitney mailing address and he reported in October 1997. At that time, Peacock told Pruitt that he was living in Fort Worth. When he again failed to keep a scheduled appointment, she telephoned his mother in December 1997, and Peacock came to her office. After that visit, Peacock did not report again and the motion to revoke his community supervision was filed. Pruitt specifically testified about the State’s efforts after the motion was filed:
Q (by the State):After April 20th of 1998, what did the Hill County Community Supervision and Corrections Department do to attempt to locate James David Peacock?
A:Mr. Peacock became an absconder in March of 1998. At that point he was taken off the case load, and when the warrant was issued it was placed on the computer for the Sheriff’s Department to arrest him.
Q:So do you know of anything the Community Supervision and Corrections did other than notify the Court through a violation report or a petition that the District Attorney filed for revocation in an attempt to locate him, or notify him of his violations and of his need to appear in Court?
A:No, sir.
Deputy Cook testified that the warrant for Peacock’s arrest was entered into TCIC on April 22, 1998, and that a letter was sent “to his last mailing address” on the same day. He added nothing else to the State’s proof of diligence.
Application
I would find that this case is controlled by Harris. Harris, 843 S.W.2d at 36. There, the State knew where the defendant had lived in Brazos County, knew that he had requested permission to move to Fort Worth, and knew the address in Fort Worth where he could have been living. The Court of Criminal Appeals found the State’s proof of diligence lacking because:
For over two years after the capias issued, the State did nothing and has no explanation in the record for its inaction. Even after the probation office placed appellant on the absconder caseload in 1982, no evidence shows that anyone ever went to [the street where the defendant lived], wrote to [the street where the defendant lived], or made any effort to reach appellant’s brother in Fort Worth. These steps were not taken even though the Brazos County Probation Department knew appellant’s first College Station address and knew from his supervision request that he could be with his brother in Fort Worth.
Id. Except for the letter mailed within days of the issuance of the capias, the State made no effort to locate or arrest Peacock. There is no evidence that the State attempted to contact his mother, even though an earlier effort to locate him through her had been successful, or to contact him in Fort Worth, even though the State knew the address at which he could be residing and had been told by Peacock that he was living there.
As the majority correctly notes, placing Peacock’s name in TCIC is not sufficient to show due diligence. See id. at 35-36; Sessions v. State, 939 S.W.2d 796, 799 (Tex. App.—El Paso 1997, no pet.). I would hold that sending a single letter to Peacock’s mailing address two days after the capias was issued constitutes no evidence of due diligence during the seventeen months that followed before Peacock was detained. Save for the one letter, “[f]or over [seventeen months] after the capias issued, the State did nothing and has no explanation in the record for its inaction.” See Harris, 843 S.W.2d at 36.
Furthermore, the State cannot rely on Peacock’s “lack of cooperation” to excuse its own lack of diligence. See Langston, 800 S.W.2d at 555. By relying on the absence of evidence to show where Peacock lived, the majority allows it to do just that. Whether Peacock lived at the same address the entire time or whether he advised the State of his new address whenever he moved is not the issue. See id. The burden is on the State to show what it did; there is no burden on Peacock to show what he did, and the majority’s apparent reliance on the absence of evidence to show where Peacock lived during the seventeen months is improper as well.
The State has argued that we should “re-examine” the due diligence defense and adopt the criticism of it espoused by the concurring opinion in Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999) (Keller, J., concurring). Without forthrightly acknowledging so, the majority effectively discards the due diligence defense by finding due diligence out of the “thin air” of total inaction for over seventeen months. See id. In the courts governed by our decisions, “due diligence” from this point forward means that any action by the State will satisfy its burden. I cannot join this departure from the clearly established precedent.
Thus, I would hold that the State did not exercise due diligence in arresting Peacock after the warrant was issued on the motion to revoke his probation. See Harris, 843 S.W.2d at 36. I would reverse the judgment and remand the cause to the trial court with instructions to discharge Peacock from community supervision.
Because the majority holds otherwise, I dissent.
BILL VANCE
Justice
Dissenting opinion delivered and filed August 30, 2000
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