NUMBERS 13-99-442-CR and 13-99-443-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
SAMUEL AREVALO, A/K/A SAM GONZALEZ
, Appellant,v.
THE STATE OF TEXAS
, Appellee.___________________________________________________________________
____________________________________________________________________
Appellant pleaded guilty before the court to credit card abuse and forgery. The court deferred adjudication and placed him on probation for five years. The original hearing before the trial court occurred on May 18, 1992.
On February 17, 1994, the guilt of appellant was adjudicated and punishment was assessed at confinement for five years, however, the imposition of sentence was suspended and he was placed on probation for five years. On April 19, 1995 the state filed motions in both cases to revoke probation, alleging failure to report to his probation officer, failure to pay court costs or restitution, and failure to attend meetings of Alcoholics Anonymous. The probation officer testified that warrants were issued from the motions that were filed, however, these motions were not heard until June 9, 1999. The court revoked appellant's probation in both cases which resulted in this appeal.
The testimony of appellant at the hearing to revoke was at odds with the state's testimony in some respects. It is undisputed that appellant left Texas to go to Colorado to work. What is disputed was whether appellant had permission from his probation officer to go to Colorado and whether he left a phone number with the probation department. The court found against appellant and revoked his probation.
Appellant's one point of error alleges that the state failed to use due diligence to apprehend him. He cites the gap of four years from the filing of motions to revoke and his arrest.
In Brecheisen v. State, 4 S.W.3d 761 (Tex. Crim. App. 1999) the court of criminal appeals said (citations omitted throughout):
Two requirements must be met for a trial court to acquire
jurisdiction to revoke probation. The State must file with the
trial court, before the expiration of the probationary period,
a motion to revoke probation that alleges the probationer
violated the terms of the probation judgment. The trial court
must then, before the expiration of the probationary period,
issue a capias based upon this motion that orders the arrest
of the probationer.
In addition to these jurisdictional requirements, the court is
required to use due diligence in hearing and determining the
allegations in the revocation motion. The State is also
required to use due diligence in executing the capias that
results from the motion to revoke.
Also:
The lack of due diligence is a plea in bar or defense, which
must be raised by a defendant at the revocation hearing.
This defense, however, is not an affirmative defense. 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, 4 S.W.3d at 763.
As the state admits in its brief: "However, though [appellant] never unequivocally stated that he was challenging due diligence, his counsel did present evidence from defense witnesses calling into question the state's efforts to locate [appellant]." We leave for a moment the question of whether appellant sufficiently raised the issue of due diligence in order to examine the state's evidence to show whether, in fact, it used due diligence in serving the capias.
At the hearing on the motion to revoke, appellant testified that he asked his probation officer for permission to move to Colorado but that the officer denied such permission. He moved to Colorado anyway and claimed he tried, but failed, to phone his probation officer. He also admitted using several aliases while in Colorado. Appellant testified that when he heard of the outstanding capias he returned to Texas.
In addition, appellant's mother testified that appellant lived with her before he went to Colorado. She said he did not receive any calls or letters from the probation department. She also testified that no one from law enforcement, the district attorney's office, the court, or the probation department made any efforts to communicate with her to try to find appellant.
The state countered with appellant's probation officer who testified that after appellant stopped reporting she called the phone numbers appellant had provided her but was unable to find him. She also checked the addresses he had left with her through the "criss-cross" with no result. She said she made yearly searches by running his name through the National Crime Information Center with no results. She denied that appellant had told her about moving to Colorado.
A sheriff's deputy testified that after receiving the capias he (1) tried to locate appellant by contacting his stepfather who told him appellant was living on the streets, (2) ran appellant's name through the Texas Crime Information Center, and (3) put appellant's name and picture in the local (Corpus Christi) newspaper in its "Top 10" wanted list, all to no avail.
Appellant did not file anything in the record to indicate that he was claiming due diligence as a plea in bar or defense to the motion to revoke. Nor did he announce anything of this nature at the hearing on the motion in so many words. He pleaded "not true" to each allegation in the motion to revoke and, after the state had rested its evidence, offered the testimony hereinbefore summarized. Following appellant's evidence, the state called a rebuttal witnesses (the officer who attempted to serve the capias) to further show due diligence.
We hold that appellant did not properly raise due diligence as a plea in bar or defense. The trial court is entitled to more notice of what it is to rule on than what was given here. In addition, we hold that the court heard enough evidence to justify his denial of appellant's claim of lack of due diligence, even if it had been properly raised. We overrule appellant's one point of error and AFFIRM the judgment of the trial court.
NOAH KENNEDY
Retired Justice
Do not publish
.Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this the 19th day of October, 2000.
1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).