Roger Todd Drake v. The State of Texas--Appeal from County Court at Law No 1 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-92-266-CR

ROGER TODD DRAKE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

McLennan County, Texas

Trial Court # 882847 CR1

O P I N I O N

Roger Drake appeals the revocation of his probation for driving while intoxicated. In a single point of error Drake contends that the court erred in overruling his Motion to Dismiss Motion To Revoke Probation because the State failed to prove due diligence in apprehending him after filing the Motion to Revoke Probation.

The State filed a Motion To Revoke Probation on August 26, 1991, alleging, among other things, Drake's failure to report to his probation officer in Travis County. A warrant for Drake's arrest was issued and delivered to the McLennan County Sheriff's Office on August 26. Drake was not arrested, however, until May 10, 1992, when he was stopped for an unrelated traffic offense in Austin. On September 17 Drake filed a Motion To Dismiss Motion To Revoke Probation. On October 2 the court denied Drake's Motion to Dismiss, and Drake pleaded true to the failure-to-report allegations. The court revoked Drake's probation and assessed punishment at sixty days in jail and a $2000 fine.

When a defendant raises the issue, the State has the burden to show due diligence. // The State argues that the McLennan County Probation Office was unable to contact Drake by mail because he had failed to keep them informed of his current address as required by the conditions of probation. Mark Clark, an adult probation officer for McLennan County, testified that he mailed delinquency letters to Drake's address of record in March, April, May, June, and July, 1991. According to Clark, the delinquency letters were all returned by the post office, undelivered. After the Motion to Revoke Probation was filed in August, Clark mailed additional letters two in September and two in December to a different address. Although these letters were not returned by the post office, Clark testified that he did not have a current address for Drake.

In light of Drake's failure to report his change of address, we cannot say that the delay of nine months from the issuance of the arrest warrant until its execution constituted a lack of diligent effort to apprehend him. // Although Drake testified that he provided current addresses to the Probation Office with each move, the credibility of the witnesses was for the trial judge to assess. // In Langston, the Court of Criminal Appeals held that a motion to dismiss should have been granted because a seven-and-one-half-month delay remained unexplained. // In that case, however, the court noted that the appellant's address was known and there was no indication that he was hiding. // In this case the State offered Clark's testimony that he was unable to contact Drake by mail and that he did not have a current address for him as an explanation for the nine month delay. We overrule Drake's single point of error.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 12, 1993

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