Henry Garcia Pena, Jr. v. State

NUMBER 13-03-648-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG HENRY GARCIA PEÑA, JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 156th District Court of Live Oak County, Texas. MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Yañez Appellant, Henry Garcia Pena, Jr., appeals the trial court’s decision to revoke his community supervision and sentence him to one year in a state jail facility for possession of marihuana. In a single issue, appellant contends the State failed to use due diligence in executing the arrest warrant associated with the motion to revoke his community supervision. We reverse and remand. As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4. The record contains the trial court’s certification that the case is not a plea-bargain case, and the defendant has the right to appeal. See Tex. R. App. P. 25.2(a)(2). Background Pursuant to a plea bargain, on March 29, 2000, the trial court found appellant guilty of possession of marihuana, sentenced him to two years of confinement and a fine of $2,500, suspended the sentence, and placed him on community supervision for three years. On April 3, 2002, the State filed a motion to revoke appellant’s community supervision and an order for his arrest. Seventeen months later, appellant was arrested on September 9, 2003, over five months after the expiration of his community supervision. On October 6, 2003, appellant filed a motion to dismiss the State’s motion to revoke, arguing that the State had failed to use due diligence in executing the arrest warrant. On October 8, 2003, the trial court simultaneously held a hearing on appellant’s request for dismissal and the State’s motion to revoke. The trial court denied appellant’s motion to dismiss, and appellant pled “true” to several allegations in the State’s motion. The trial court found the allegations true, revoked appellant’s community supervision, and sentenced him to one year in a state jail facility. Standard of Review In reviewing the revocation of an appellant’s probation, courts of appeals use an abuse of discretion standard. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); Nguyen v. State, 109 S.W.3d 820, 822 (Tex. App.–Corpus Christi 2003, pet. ref’d). It is a clear abuse of discretion where the record indicates the trial court acted without reference to any guiding principles or rules, such that its decision is arbitrary or unreasonable. Nguyen, 109 S.W.3d at 822. Applicable Law A trial court has the jurisdiction to hear a motion to revoke community supervision even after the period of community supervision has expired. Prior v. State, 795 S.W.2d 179, 183 (Tex. Crim. App. 1990). The reason for allowing a trial court's jurisdiction to continue beyond the expiration of the defendant's probationary period is to prevent probation-term violators from benefitting from absconding. Peacock v. State, 77 S.W.3d 285, 288 (Tex. Crim. App. 2002). In order for the jurisdiction of the court to extend beyond the expiration of the defendant's community supervision, two events must take place: (1) a motion to revoke probation must be filed; and (2) a capias must be issued. Id. at 287; Nguyen, 109 S.W.3d at 822. The issue of lack of due diligence must be raised by the defendant before or during the revocation hearing in order to preserve it for appellate review. Peacock, 77 S.W.3d at 288. Once a defendant has raised the issue, the burden rests with the State to show due diligence. Langston v. State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990); Nguyen, 109 S.W.3d at 822. The State must prove by a preponderance of the evidence that due diligence was used in executing the capias and in holding a hearing on the motion to revoke. Peacock, 77 S.W.3d at 288; Nguyen, 109 S.W.3d at 822. In determining whether due diligence was exercised in apprehending the defendant, the trial court may consider actions taken by the State before the motion to revoke was filed and the capias issued. Bawcom v. State, 78 S.W.3d 360, 367 (Tex. Crim. App. 2002). Due diligence can be shown by proof of reasonable investigative efforts made to apprehend the person sought. Peacock, 77 S.W.3d at 288. Requiring the State to show due diligence in executing the capias helps a court determine whether the defendant cannot be found because he is trying to elude capture or because no one is looking for him. Id. Generally, lack of due diligence is found when a significant amount of time has elapsed between the issuance and execution of the capias, and no meaningful effort was made to locate the probationer. Nguyen, 109 S.W.3d at 822; see Peacock, 77 S.W.3d at 288 (State failed to prove due diligence when it only entered capias into TCIC and sent letter to defendant's last known address); Harris v. State, 843 S.W.2d 34, 36 (Tex. Crim. App. 1992) (State did not exercise due diligence when it sent four letters to defendant's last known address and made a phone call to his mother), overruled in part by Bawcom, 78 S.W.3d at 367; Rodriguez v. State, 804 S.W.2d 516, 517-18 (Tex. Crim. App. 1991) (State did not prove due diligence when State knew defendant's address and place of employment, yet did not attempt to apprehend him). In each of the cases cited above, the probationer was not actively avoiding apprehension and there were inexplicable lapses in activity between the time the capias was issued and the time the capias was executed. See Nguyen, 109 S.W.3d at 823 (citing cases). However, when the State produces evidence showing that the significant delay in executing the capias was the probationer's own fault instead of lack of diligence on the part of the State, the trial court's finding of due diligence will generally be upheld. Id. (citing Strickland v. State, 523 S.W.2d 250, 251(Tex. Crim. App. 1975); Beaty v. State, 49 S.W.3d 606, 609 (Tex. App.–Beaumont 2001, pet. ref'd); Rodriguez v. State, 951 S.W.2d 199, 201-02 (Tex. App.–Corpus Christi 1997, no pet.)). The entering of the capias into the TCIC alone is not sufficient to show due diligence on the part of the State. Id. (citing Harris, 843 S.W.2d at 35-36). Likewise, a letter sent to a probationer's last known address is inadequate to show due diligence. Id. (citing Peacock, 77 S.W.3d at 288). Analysis At the hearing, the only witness was Carlos Buenteo, an adult probation officer, who testified that although he had custody of appellant’s file, he did not supervise appellant. Buenteo testified that after the motion to revoke was filed on April 3, 2002, copies of the warrant were forwarded to the sheriff’s office for execution. When asked whether he had any knowledge regarding why appellant was not arrested until September 22, 2003, Buenteo said he did not. Buenteo said that the procedure at the sheriff’s office is to enter the arrest warrant into the TCIC, a statewide criminal information database used by law enforcement agencies. Based on information in appellant’s file, Buenteo testified that the community supervision department sent a certified letter to appellant at his last known address on February 15, 2002; the letter was returned unclaimed. Buenteo testified that appellant’s records reflect that on April 11, 2002, a probation officer talked to appellant’s stepmother. Buenteo testified that after the probation department provided the sheriff’s office with appellant’s last known address, his involvement in the case ended. We conclude the State failed to carry its burden to show it made a diligent effort to apprehend appellant. See Peacock, 77 S.W.3d at 289 (unexplained delay of seventeen months from issuance to execution of capias while probationer’s whereabouts are known is not due diligence). Although the sheriff’s office was provided with appellant’s last known address, the record does not reflect that the State used reasonable investigative efforts to execute the arrest warrant. Because we find that the trial court abused its discretion in finding due diligence on these facts, see Jackson, 645 S.W.2d at 305, we sustain appellant’s issue. We reverse the judgment of the trial court and remand this cause to the trial court with instructions to dismiss the State’s motion to revoke. LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum opinion delivered and filed this the 26th day of August, 2004.