dissenting.
I agree with the majority opinion that the State did not exercise due diligence in apprehending appellant, but I disagree that the analysis ends with that determination. The majority opinion does not consider a venerable Court of Criminal Appeals opinion excusing any lack of diligence when, as here, the probationer had changed residence without notifying his probation officer. Indeed, an analysis of the cases reversed for lack of due diligence reveals that the probationers’ whereabouts were known, but the State failed to apprehend them. Therefore, I respectfully dissent for the reasons more fully developed below.
While the State and the trial court relied on efforts made prior to filing the Motion to Revoke Probation (MRP), appellant contends that this evidence is not relevant in determining whether the State acted with due diligence. Appellant cites Hams, in which the Court of Criminal Appeals stated: “That reliance [on efforts prior to filing the MRP] was misguided because the State must show that it used diligence after the motion to revoke was filed and the capias issued.” Harris, 843 S.W.2d at 36 (emphasis added).
The State argues that, while the pre-capias acts of the State cannot be used to demonstrate due diligence, the same activity can be used to set the context from which to evaluate the post-capias activity of the State. The State then argues that, given the context of what the State knew from its pre-capias efforts, the post-capias action of the State does satisfy the requirement of due diligence. Specifically, the State argues that it knew appellant was either hiding from the State or simply could not be found. Therefore, the State acted with due diligence when it called appellant’s father, brother, and sister.
I believe the State has a valid point that actions taken before the MRP is filed may be relevant in determining what actions taken thereafter might constitute due diligence, even though actions taken before filing the MRP may not constitute due diligence by themselves. The State relies on Strickland v. State, in which the probationer’s failure to report his change of address excused a delay of eight months from the issuance of a warrant until the probationer’s arrest, some seven months after the probation period expired. 523 S.W.2d 250, 251 (Tex.Crim.App.1975). If the acts of a probationer before the MRP is filed can be considered, certainly the actions of the State, before filing the MRP, should not be overlooked. More importantly, in Strickland, the Court of Criminal Appeals did not even examine the diligence, if any, of the State because Strickland’s failure to report his change of address excused the eight-month delay in executing the arrest warrant. See id.
Indeed, a survey of the cases, cited by appellant as reversing for the State’s failure to establish due. diligence, shows a common factor: the State knew where the probationer was located, but failed to effectuate his arrest at the known address. See Harris, 843 S.W.2d at 35 (probationer appears to have been living with his parents, which was his last known address, when MRP filed); Rodriguez v. State, 804 S.W.2d 516, 518 (Tex.Crim.App.1991) (probation department knew probationer’s residence and place of employment, but it was policy to cease further contact with probationer once MRP filed); Langston v. State, 800 S.W.2d 553, 555 (Tex.Crim.App.1990) (probation department knew probationer’s address); Moyers v. State, 948 S.W.2d 359, 360 (Tex.App.—Amarillo 1997, no pet.) (probationer’s out-of-state address known); Sessions v. State, 939 S.W.2d 796, 798 (Tex.App.—El Paso 1997, no pet.) (probation department knew probationer’s out-of-state address); Holtzman v. State, 866 S.W.2d 728, 729 (Tex.App.—Houston [14th Dist.] 1993, pet. ref'd) (deputy did not fol*617low up information, given by unknown person at appellant’s last known address, that probationer was in jail in Florida); Burch v. State, 821 S.W.2d 385, 387 (Tex.App.—Waco 1991, no pet.) (probation department had received signed return receipts for letters informing of delinquent payments at probationer’s out-of-state address).
In this case, appellant had changed his place of residence without permission of the Court, through his probation officer, in violation of the conditions of his probation. Therefore, appellant’s unlawful actions rendered his current location unknown to the State. Attempts were made to locate appellant by calling references in appellant’s file, to no avail. As appellant points out, however, some rather basic attempts to locate appellant apparently were not made, such as by checking telephone information, the post office, or the Department of Public Safety. These are the types of actions taken when a probationer is placed in the absconder caseload of the Brazos County Probation Department. See Harris, 843 S.W.2d at 35. Furthermore, the attempt to locate appellant at his place of employment consisted only of leaving a message without following up on it. There is also no showing by the State that any attempt was made to locate appellant’s mother.
The State argues it is a fair inference from the fact of his arrest that appellant’s information was entered into the computer. The circumstances of appellant’s arrest were not developed in the record, however, and thus we should decline to make any inference concerning computer entries or appellant’s arrest. Appellant’s motion to dismiss alleges that appellant was arrested on the job, but this fact, also, was not developed at the hearing.
While the State’s diligence in this case was nothing of which to be proud, I would hold that appellant’s actions in not reporting his change of address excused the State’s delay in effectuating appellant’s arrest just two months past the expiration of appellant’s period of probation. See Strickland, 523 S.W.2d at 251 (in which defendant was arrested seven months past expiration of probation).
Accordingly, I would overrule appellant’s sole point of error.