JANICE JEAN FEAGIN, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND and Opinion Filed December 5, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-95-01895-CR
............................
JANICE JEAN FEAGIN, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-244S-87
..............................................................
O P I N I O N
Before Justices Chapman, Whittington, and Wright
Opinion By Justice Wright
        Janice Jean Feagin appeals from the trial court's denial of her motion to dismiss her probation revocation. In a single point of error, appellant contends the trial court erred by denying her motion to dismiss because the State did not use due diligence to apprehend her after the motion to revoke probation was filed and the capias issued. The State contends that because appellant filed a general notice of appeal, we do not have jurisdiction over this appeal. See Tex. R. App. P. 40(b)(1). We conclude that we have jurisdiction to review appellant's complaint, sustain appellant's point of error, and reverse the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
 
        Appellant pleaded guilty to debit card abuse on December 9, 1987. The trial court sentenced her to five years' confinement, probated for five years, and $2400 restitution. On February 19, 1993, after appellant failed to make monthly payments for restitution, costs, and fees, the trial court extended appellant's probation for one year until December 8, 1993. The trial court also ordered her confined in the Taylor-Callahan-Coleman Counties Restitution Center in Abilene. On November 10, 1993, one month before appellant's extended probation was due to expire, the State filed a motion to revoke appellant's probation. A capias was issued the same day. Appellant was arrested twenty-one months later, on August 31, 1995.
        Prior to the revocation hearing, appellant filed a motion to dismiss based on the State's lack of diligence. At the hearing on the motion to dismiss, appellant testified
that in June or July 1993, she learned her daughter was ill with cancer. She left the restitution center and returned to 523 Northridge in Allen, Texas to help care for her daughter and grandchildren. When she arrived back in Allen, she called Elizabeth Cerda, her probation officer, and told Cerda her address and phone number. Cerda told her that the sheriff's office had not issued a warrant at that time. Appellant contacted the sheriff's office several times over the next year and each time was told a warrant had not been issued. In February or March 1994, both appellant and her daughter moved to Parker. Appellant lived in the house next door to her daughter. Although she did not call and tell Cerda her new phone number, the old number had a message with her daughter's new number.
        Mike White, a deputy sheriff in Collin County, testified that he issued the warrant for appellant about two or three months before the revocation hearing as part of a "major operation to do backlogs." He went to appellant's last known address, 523 Northridge, and spoke with appellant's daughter. According to White, she did not know where appellant was and did not know where appellant worked. White tried several phone numbers and was unable to locate appellant. Appellant was later arrested in Wylie on August 31, 1995. White did not have an explanation for the backlog. Nor did White offer an explanation for the absence of any action on the part of the State from November 10, 1993 when the capias was issued until the warrant was issued in June or July 1995.
        After hearing appellant's and White's testimony, the trial court denied appellant's motion to dismiss the motion to revoke probation. Appellant then pleaded true to the allegations in the motion to revoke probation. After hearing testimony from appellant and her daughter, the trial court found appellant violated the terms and conditions of her probation, revoked her probation, and sentenced her to two years' confinement. Appellant appeals to this Court.
 
JURISDICTION
 
        The State contends this Court lacks jurisdiction over this appeal because appellant's notice of appeal did not comply with rule 40(b)(1) requirements. See Tex. R. App. P. 40(b)(1). Rule 40(b)(1) requires a defendant to file a notice of appeal that states (1) the trial court granted permission to appeal, or (2) the matters appealed were raised by written motion and ruled on before trial. See Tex. R. App. P. 40(b)(1). If the notice of appeal does not include either statement, it is a "general" notice of appeal. See Davis v. State, 870 S.W.2d 43, 45-46 (Tex. Crim. App. 1994). A general notice of appeal does not confer jurisdiction on this Court to consider nonjurisdictional defects or errors that occurred before or after the entry of a negotiated plea. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App.), cert. denied, 114 S. Ct. 2684 (1994).
        This Court has never held that rule 40(b)(1) applies to a revocation appeal, nor will we do so at this time. We are aware that the Texas Court of Criminal Appeals held in Watson v. State, 924 S.W.2d 711 (Tex. Crim. App. 1996), that rule 40(b)(1) applies to cases in which appellant is placed on deferred adjudication probation pursuant to a plea agreement and the probation is subsequently revoked and appellant adjudicated guilty. Watson, 924 S.W.2d at 714-15. However, Watson is limited to cases where adjudication of guilt is deferred. In a deferred adjudication case, a defendant has the right to only a limited appeal of an order deferring adjudication of guilt. See Dillehey v. State, 815 S.W.2d 623, 626 (Tex. Crim. App. 1991); Carreon v. State, 885 S.W.2d 188, 188-89 (Tex. App.--Dallas 1994, no pet.). However, after an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had not been deferred. Edwards v. State, 835 S.W.2d 660, 663 (Tex. App.--Dallas 1992, no pet.). It is only after the adjudication of guilt that an appellant may appeal most issues relating to the proceedings. This appeal is limited by rule 40(b)(1). See Watson, 924 S.W.2d at 714-15.
        On the other hand, in a case involving "regular" probation, at the time the trial court finds the defendant guilty and orders the probation, the defendant has the right to appeal the conviction and sentence. See Tex. Code Crim. Proc. Ann. art. 42.12 § 23(b) (Vernon Supp. 1997). This appeal is subject to rule 40(b)(1). See Tex. R. App. P. 40(b)(1). In the event probation is later revoked, a defendant may appeal the probation revocation. See Tex. Code Crim. Proc. Ann. art. 42.12 § 23(b) (Vernon Supp. 1997). The defendant may appeal from the revocation even if he previously waived the right to appeal his conviction. See Corley v. State, 782 S.W.2d 859, 860 n.2 (Tex. Crim. App. 1989); Hoskins v. State, 425 S.W.2d 825, 829 (Tex. Crim. App. 1967). This appeal is limited, however, to the propriety of the revocation. The defendant may not challenge the original trial. See Corley, 782 S.W.2d at 860. The revocation appeal is separate from the defendant's right to appeal from his conviction. See id.
        Although appellant pleaded guilty to debit card abuse pursuant to a plea bargain agreement, there was not a plea agreement applicable to the separate probation revocation. Therefore, we conclude rule 40(b)(1) is not applicable to this appeal. Because rule 40(b)(1) does not apply, we conclude we have jurisdiction to address appellant's complaint about the propriety of her probation revocation.
DUE DILIGENCE
 
        A trial court preserves its jurisdiction to revoke probation after the probationary period expires if (1) a motion to revoke was filed before the period expired, and (2) a capias issued before the period expired. Harris v. State, 843 S.W.2d 34, 35 (Tex. Crim. App. 1992). After satisfying these two requirements and apprehending the probationer, the State is entitled to a hearing on its motion to revoke probation. Prior to the revocation hearing, appellant filed a motion to dismiss the motion to revoke probation based on the State's lack of diligence. Once the issue is raised by the probationer, the burden is on the State to show by a preponderance of the evidence diligence in apprehending the probationer and hearing the allegations in the motion. Id.
        The mere fact that a motion has been filed during the probation term alleging a violation of the conditions of probation will not authorize revocation after the term of probation has expired. Langston v. State, 800 S.W.2d 553, 554 (Tex. Crim. App. 1990). Only the court's action authorizing the arrest of the probationer, followed by a diligent effort to apprehend, hear, and determine the claimed violation can authorize revocation after the probation term has ended. Id.
        Prior to the revocation hearing, appellant filed a motion to dismiss the motion to revoke probation based on the State's lack of diligence. Thus, the burden was on the State to show by a preponderance of the evidence that it used due diligence in apprehending appellant and in hearing the claimed violation. The State contends that appellant's "deceptive efforts" explain the delay in prosecuting the motion to revoke and show the due diligence used by the State in attempting to apprehend appellant. We disagree.
        Appellant testified that after she left the restitution center she returned to 523 Northridge, the same address listed on the capias as her last known address. FN:1 She notified the probation office of her whereabouts. She remained at that address about eight or nine months until she moved to Parker with her daughter.
        At the hearing on the motion to dismiss, White testified that he issued the warrant for appellant about two or three months before the revocation hearing as part of a "major operation to do backlogs." White did not have an explanation for the backlog. Nor did White offer an explanation for the absence of any action on the part of the State from November 10, 1993 when the capias was issued until the warrant was issued in June or July 1995. Thus, the seventeen-month delay from the expiration of probation until the warrant was issued is unexplained other than there was a major backlog in the sheriff's office in issuing warrants. Once a motion to revoke is filed, the responsibility of apprehending a probationer rests with the sheriff's office. Because the State did not offer an explanation for the delay in issuing the warrant, we conclude the State did not meet its burden to show due diligence in apprehending appellant. We conclude the trial court erred by not granting the motion to dismiss. We sustain appellant's point of error. We reverse the trial court's judgment and remand to the trial court with instructions to set aside the order revoking appellant's probation. See Langston, 800 S.W.2d at 555; Holtzman v. State, 866 S.W.2d 728, 729 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd).
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
951895F.U05
 
FN:1 The State contends appellant "gave a false address for her residence." We disagree. Although White testified the warrant slip he received listed the address as 5123 Northridge, the capias listed 523 Northridge as her last known address. Further, appellant testified she returned to 523 Northridge, the same address she had before she went to the restitution center. Additionally, she notified Cerda of her address. There is no explanation in the record for the incorrect address on the warrant slip and there is nothing in the record to indicate that appellant falsified her address.
File Date[12-04-96]
File Name[951895F]