Joe Valentino Tellez v. State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-00-00544-CR
Joe Valentino TELLEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 1991-CR-2576
Honorable Pat Priest, Judge Presiding (1)

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Karen Angelini, Justice

Delivered and Filed: September 26, 2001

AFFIRMED

Joe Valentino Tellez ("Tellez") appeals the revocation of his probation. Tellez contends that the trial court erred in: 1) basing its decision on allegations contained within a motion that he had no notice of; 2) failing to issue a second warrant for his arrest after the warrant issued from the State's motion to revoke was returned to the court "not executed;" 3) overruling his motion to dismiss when the State failed to execute its capias with "due diligence;" and 4) accepting his plea of "true" without first admonishing him of the consequences of such a plea. We disagree and affirm the trial court's judgment.

BACKGROUND

Tellez was indicted on a two-count indictment for the felony offenses of aggravated sexual assault and indecency with child-contact. Tellez pleaded guilty to indecency with child-contact pursuant to a plea bargain agreement and was assessed a $1,000 fine and an eight-year term of imprisonment suspended and probated for eight years. Less than a year after the trial court's judgment, the State filed a motion to revoke, alleging that Tellez had violated the conditions of his probation. At his revocation hearing, Tellez pleaded true to the allegation that he violated his probation by failing to report to his Supervision Officer for the months of February and October 1993. Based on his plea, the trial court revoked Tellez's probation and sentenced him to eight years of imprisonment. It is from this ruling that Tellez now appeals.

DISCUSSION

Standard of Review

This court reviews an order revoking probation under an abuse of discretion standard. Lanum v. State, 952 S.W.2d 36, 39 (Tex. App. -- San Antonio 1997, no pet.) A trial court abuses its discretion when it "applie[s] an erroneous legal standard, or when no reasonable view of the record could support [its] conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion." Id. (quoting DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996)).

Point of Error One

In his first point of error, Tellez contends that the trial court erroneously based its decision on allegations contained within a motion that he had no prior notice of. On December 1, 1993, the State filed its motion to revoke alleging, among other violations, that Tellez failed to report to his Supervision Officer for the months of February and October 1993. Following Tellez's arrest in May 2000, the State filed a motion to supplement its motion to revoke while Tellez awaited hearing. In this supplemental motion, the State alleged that Tellez had further violated the conditions of his probation by failing to report to his Supervision Officer for the months of November 1993 through May 2000.

Tellez argues that he did not receive notice of the supplement's allegations until his revocation hearing and that this violated his right to due process under Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. 1979). We find this argument without merit.

The State provided Tellez with written notice of the alleged probation violations for the months of February and October 1993 in its motion to revoke. These violations alone constituted adequate grounds to support revoking Tellez's probation, thus eliminating the trial court's need to rely on the State's supplemental motion. Moreover, nothing in the record even suggests that the trial court based its decision on the allegations made within the supplemental motion. Because Tellez received notice of the initial allegations against him prior to his hearing, his first point of error is overruled.

Point of Error Two

In Tellez's second point of error, he contends that the trial court should have issued a second capias for his arrest after the warrant issued from the State's motion to revoke was returned to the court "not executed." On December 1, 1993, the State filed its motion to revoke. An arrest warrant for Tellez was issued on December 3, 1993, but the Bexar County Sheriff returned it to the court on December 7, 1993 marked "not executed." Officials did not apprehend Tellez until May 12, 2000.

Tellez argues that the trial court should have issued a new capias after the warrant issued from the State's motion to revoke was initially returned to the court "not executed," yet he fails to cite any legal authority in support of this proposition. See Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). A party must cite a specific legal authority and provide a legal argument based upon that authority in order for this court to consider the merits of a claim. Id. Tellez's second point of error is inadequately briefed and, therefore, overruled.

Point of Error Three

In Tellez's third point of error, he contends that the trial court erred in overruling his motion to dismiss because the State failed to execute the capias with "due diligence."

The State is required to exercise due diligence in executing a capias once it issues from a motion to revoke. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). The State's failure to exercise due diligence is a defense or plea in bar which defendant must raise at his revocation hearing. Id. The courts have recognized the due diligence defense, however, only in cases in which the defendant was detained after the probationary period had ended. See id.; Harris v. State, 843 S.W.2d 34, 35 (Tex. Crim. App. 1992); Rodriguez v. State, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991). We are unaware of any case requiring due diligence when the capias was executed within the probationary period.

Here, Tellez was placed on probation for a term of eight years on September 10, 1992. The State filed a motion to revoke on December 1, 1993 and a capias was issued two days later. Tellez was arrested on May 12, 2000, more than seven years after the warrant for his arrest was first issued. The capias, however, was executed within Tellez's probationary period, which lasted until September 10, 2000. Due diligence is inapplicable under these circumstances and Tellez's third point of error is overruled.

Point of Error Four

In his final point of error, Tellez argues that the trial court erroneously accepted his plea of "true" without first admonishing him of the consequences of such a plea.

Article 26.13(a) of the Texas Code of Criminal Procedure requires the trial court to admonish a defendant of the consequences of his plea prior to accepting a plea of guilty or nolo contendere. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2001). A judgment must be reversed and the case remanded for a new trial if the defendant demonstrates that the trial court failed to admonish him in substantial compliance with Article 26.13 and the error was harmful. Lanum, 952 S.W.2d at 39. The admonishment requirements of Article 26.13, however, are not applicable in probation revocation proceedings. Id.; Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974). Therefore, the trial court did not err when it failed to admonish Tellez of the consequences of his plea in the present matter. Tellez's fourth point of error is overruled.

Conclusion

Overruling Tellez's points of error, we affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

1. The Honorable Mary Rom n presided over the revocation proceeding and orally pronounced the sentence. The Honorable Pat Priest signed the written judgment.