NUMBER 13-10-00284-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
VICTOR MARTINEZ GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
Appellant, Victor Martinez Garcia, pleaded true to allegations in the State‘s motion
to revoke his probation. The trial court ordered his probation revoked, sentenced him to
seven years‘ confinement in the Institutional Division of the Texas Department of
Criminal Justice, and ordered him to pay a $1,000 fine. By one issue, Garcia contends
that the trial court abused its discretion by not dismissing the case for lack of
prosecutorial diligence in pursuing the revocation. We reverse and remand.
I. BACKGROUND
Garcia was indicted for the offense of third-degree felony possession of a
controlled substance on July 12, 2002. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115 (West 2010). He entered into a plea agreement with the State, pleaded
guilty, and the trial court assessed punishment at ten years‘ confinement in the
Institutional Division of the Texas Department of Criminal Justice and a $1,000.00 fine.
In accordance with his plea agreement, the punishment was probated for a term of five
years beginning on May 1, 2003.
On January 19, 2006, the State filed a motion to revoke Garcia‘s probation
alleging that Garcia withdrew from a treatment facility without written release from the
court and failed to report a change of address within two working days. The trial court
executed a warrant for Garcia‘s arrest the same day.
On May 1, 2008, when Garcia‘s probation would have expired, he had still not
been served capias on the motion to revoke and the State had taken no additional
action. The record before us is unclear as to the exact dates, but sometime before
June 5, 2008, Garcia was arrested on unrelated charges and served a prison term
lasting until July 2009. After that time, Garcia was released from prison and registered
as a sex offender in San Patricio County where he resided until his arrest on the warrant
in this case in January 2010.
At the hearing, Garcia pleaded ―true‖ to the allegations in the 2006 motion to
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revoke.1 Garcia‘s counsel argued during the punishment phase of the hearing that the
cause should have been dismissed. The trial court granted the motion to revoke and
sentenced Garcia to seven years‘ imprisonment along with fines and costs. This appeal
followed.
II. APPLICABLE LAW
We review the revocation of a probated sentence for an abuse of discretion.
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (citing Caddell v. State,
605 S.W.2d 275, 277 (Tex. Crim. App. 1980)). A trial court abuses its discretion if it
acts without reference to any guiding rules or principles. Montgomery v. State, 810
S.W.2d 372, 379 (Tex. Crim. App. 1990). In Brecheisen v. State, the Texas Court of
Criminal Appeals described the diligence requirements in prosecuting a motion to
revoke:
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 . . . . 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
1
Generally, a "plea of true, standing alone, is sufficient to support the revocation of probation."
Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979). However, if a defendant raises
a defensive plea in bar, the State must additionally provide supporting evidence to meet its burden of proof
on the defensive issue. See Brecheisen v. State, 4 S.W.3d 761, 763–65 (Tex. Crim. App. 1999)
(describing the state‘s additional burden when a defensive issue is raised and likening the defendant‘s
ability to seek review of his due diligence claim to that under the Sixth Amendment right to a speedy trial).
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issue at the revocation hearing, the State incurs the burden of persuasion
to show that it exercised due diligence.
4 S.W.3d 761, 763 (Tex. Crim. App. 1999) (citations omitted).
III. ANALYSIS
In his sole issue on appeal, Garcia contends that the State did not exercise due
diligence in executing the capias or in prosecuting the motion to revoke in this case, and
therefore, the trial court abused its discretion by not dismissing the case. We agree.
In this case, four years passed from the time the capias was issued until the time
that Garcia was finally served. For two of these years, Garcia was incarcerated within
the state of Texas, and for an additional six months, he was registered as a sex offender
within San Patricio County. The State clearly had access to Garcia‘s whereabouts well
before the time that the capias was actually served and could have served it within his
original term of probation ending in May 2008. The record is silent as to what
measures, if any, the State took in order to execute the capias and bring Garcia before
the court on the motion to revoke. Once the issue is raised, ―the State incurs the
burden of persuasion to show that it exercised due diligence[,]‖ and therefore, because
the state presented no evidence that it exercised any diligence whatsoever in the course
of the four years in which the capias was pending, the trial court should have dismissed
the case. See id.; Rodriguez v. State, 804 S.W.2d 516, 518 (Tex. Crim. App. 1991)
(citing Langston v. State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990)) (―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.‖).
The State contends that Garcia did not ―meet[] the burden of production by raising
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the due-diligence issue at the revocation hearing,‖ and therefore, the State‘s burden to
show due diligence was never triggered. See Brecheisen, 4 S.W.3d at 762. We
disagree. No precise combination of words is necessary to raise a defensive issue or to
preserve it for our appeal. See TEX. R. APP. P. 33.1(a) (noting that a complaint is
preserved for our review if it was made by a timely request in which the grounds for the
complaint were explained ―with sufficient specificity to make the trial court aware of the
complaint‖). In this case, Garcia‘s counsel made the following argument to the court at
the hearing:
Judge, as you can read in the P.S.I., he was incarcerated in the
institutional division for a period of two years I believe. I don‘t know why
no one found him or knew where he was. I don‘t know why he was
released if there was a warrant out for his arrest from [January 2006] . . . .
This is an old case. I‘d ask the [c]ourt to dismiss this probation and let him
go on his way. I think that—I don‘t know why he was not allowed to take
care of this when he was—whatever was going on in Harris County, but
that would have been the time to handle this M.T.R. and get this all taken
care of. . . . So, I‘d ask the [c]ourt to dismiss this case.
We conclude that this was sufficiently specific to inform the judge that Garcia was
complaining about the delay in service, the State‘s failure to ―find‖ him even though he
was in state custody, and that the proper relief would be a dismissal.
The State additionally contends that the above quoted request was insufficient to
raise the issue of due diligence because it was not provided in a written motion. See
Brecheisen, 4 S.W.3d at 762 (addressing the due diligence issue based on a written
motion from the defendant); Rodriguez, 804 S.W.2d at 518 (same); Langston v. State,
800 S.W.2d 553, 555 (same). Although the court of criminal appeals has not addressed
the due diligence issue based on an oral motion, we hold that the defendant was entitled
to make such a motion during the revocation hearing and to have that motion preserved
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for our review to the same extent as if he had filed a written motion. See Smith v. State,
120 S.W.3d 910, 911–12 (Tex. App.—Texarkana 2003, no pet.) (citing Peacock v. State,
77 S.W.3d 285, 287–88 (Tex. Crim. App. 2002)) (―The issue of the lack of due diligence
is a defense that the defendant must raise before or during the revocation hearing.‖
(emphasis added)).
In response to Garcia‘s argument at the hearing, the State did not provide any
reason why the warrant was not served during Garcia‘s period of incarceration, nor did it
provide any evidence that the State had engaged in any activities whatsoever to bring
Garcia before the court. See Brecheisen, 4 S.W.3d at 763–65 (dismissing a motion to
revoke because ―the State ‗wholly failed‘ to meet its burden to show that it exercised due
diligence in executing the capias and apprehending the appellant‖). Therefore, the trial
court abused its discretion in failing to dismiss the motion to revoke, and we sustain
Garcia‘s sole issue on appeal.
IV. CONCLUSION
Because we hold that the trial court erred in failing to dismiss the State's motion to
revoke, we reverse the judgment and remand the case to the trial court with directions to
dismiss the motion to revoke probation.
________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of July, 2011.
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Victor Martinez Garcia v. State
Combined Opinion