Jimmy Lynn Cagle v. The State of Texas--Appeal from County Court at Law of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00070-CR
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JIMMY LYNN CAGLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law #1
Gregg County, Texas
Trial Court No. 2004-1805
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Jimmy Lynn Cagle appeals from the revocation of his community supervision. He contends that the trial court erred by denying his motion to dismiss. Cagle sought dismissal because the State failed to pursue its motion to revoke with due diligence. Specifically, Cagle argues that the due- diligence defense should extend to situations like this one, in which the motion to revoke was filed January 19, 2005, and an arrest warrant signed the following day, but not executed until February 14, 2007, over two years later. (1) We affirm the trial court's judgment.

At the revocation hearing, the State presented evidence that Cagle violated the terms of his community supervision by failing to pay community supervision fees or his fine, to complete community service, to attend a victim's panel, to pay Crime Stopper fees, or to notify the community officer of any contact between himself and the police.

Cagle argues that, since the delay shows a lack of due diligence which was not explained adequately by the State, the revocation should be reversed. The issue raised in this appeal has been addressed by this Court. In Wheat v. State, 165 S.W.3d 802 (Tex. App.--Texarkana 2005, pet. dism'd, untimely filed), we discussed recent changes in statutory law and concluded that, under the current statutory regime, the due-diligence defense is limited to situations in which the ground for revocation is a failure to report as ordered or to remain within a specified place--neither of which were grounds for revocation in this case. Id. at 805-06; see Tex. Code Crim. Proc. Ann. art. 42.12, 24 (Vernon Supp. 2007). (2)

Arguing that we should revisit our decision in Wheat, counsel contends that the recent amendments were intended to apply only to situations in which a probationer successfully leaves the area for an extended period of time--so the successful absconder is not rewarded with a dismissal of a petition to revoke. Thus, Cagle argues, the prior caselaw addressing a State's failure to exercise due diligence in executing a capias on a probationer should still be given effect here.

We disagree. We continue to hold, as we did in Wheat, that the plain meaning of the amendments eliminated the general due-diligence defense and provided a version of that defense only for enumerated situations and only with a different burden of proof. We decline the invitation to revisit our decision in Wheat. We overrule the contention of error.

We affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: November 19, 2007

Date Decided: November 20, 2007

1. On July 20, 2004, Cagle was placed on two years' community supervision.

2. That is a change from prior law, under which it was the State's duty to exercise due diligence in pursuing community supervision violations. See Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002); Harris v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992).