Damaris Nacole Johnson v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00048-CR
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DAMARIS NACOLE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 21257
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Damaris Nacole Johnson appeals the revocation of her community supervision. On or about May 5, 2006, Johnson pled guilty to a charge of theft of rental property valued at more than $1,500.00 but less than $20,000.00. See Tex. Penal Code Ann. 31.04 (Vernon Supp. 2006). The State prosecuted the offense as a Class A misdemeanor under Section 12.44 of the Texas Penal Code. See Tex. Penal Code Ann. 12.44 (Vernon Supp. 2006). The trial court found Johnson guilty and placed her on community supervision. On or about October 24, 2006, the State filed a motion to revoke Johnson's community supervision. The trial court found Johnson had violated the terms of her community supervision by failing to pay various fees and failing to attend a "personal development seminar," (1) revoked Johnson's community supervision, and sentenced Johnson to one year of imprisonment in the county jail. On appeal, Johnson argues the trial court lacked jurisdiction to revoke her community supervision because of the lack of a capias warrant.

Johnson argues the lack of a capias warrant deprived the trial court of jurisdiction. (2) The Texas Code of Criminal Procedure provides:

At any time during the period of community supervision the judge may issue a warrant for violation of any of the conditions of the community supervision and cause the defendant to be arrested. Any supervision officer, police officer or other officer with power of arrest may arrest such defendant with or without a warrant upon the order of the judge to be noted on the docket of the court . . . .

 

Tex. Code Crim. Proc. Ann. art. 42.12, 21(b) (Vernon 2006). After Johnson filed her brief, the State supplemented the clerk's record with a capias warrant. The capias warrant was issued October 24, 2006, and states it was executed November 22, 2006. Because the record establishes a capias warrant was issued, (3) we overrule Johnson's sole issue on appeal.

 

We affirm the judgment of the trial court.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: September 25, 2007

Date Decided: September 26, 2007

 

Do Not Publish

 

1. The State also alleged Johnson cashed a fraudulent check at a check cashing business. The check Johnson was accused of fraudulently cashing was accompanied by a letter informing Johnson that she had won an "International Sweepstake Draw." The letter requested Johnson return part of the money for a "Non Resident Government Service Tax." Sergeant James Mazy, a police officer with the Paris, Texas, Police Department, determined the check was part of a scam by a fraudulent business. The trial court found the evidence of Johnson's intent to defraud the check cashing business was insufficient.

2. In support of this proposition, Johnson cites Harris v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992), overruled in part by Bawcom v. State, 78 S.W.3d 360, 363 (Tex. Crim. App. 2002) (abandoning rule in Harris concerning pre-capias due diligence), and modified by statute as explained in Wheat v. State, 165 S.W.3d 802, 805 (Tex. App.--Texarkana 2005, pet. ref'd, untimely filed) (discussing legislative amendments concerning due diligence); Davis v. State, 150 S.W.3d 196, 208 n.6 (Tex. App.--Corpus Christi 2004), rev'd on other grounds, 195 S.W.3d 708 (Tex. Crim. App. 2006). The cases cited by Johnson concern the trial court's jurisdiction when the hearing to revoke community supervision is held after the expiration of the term of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, 21(e) (Vernon 2006). Johnson does not argue that the hearing occurred after the expiration of the term of her community supervision.

3. In the alternative, the State argues the trial court acquired jurisdiction when Johnson personally appeared at the revocation proceeding. Because the supplemented record contains a capias warrant, it is not necessary for us to address this alternative argument.