James David Peacock v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-99-345-CR

JAMES DAVID PEACOCK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 30,766

O P I N I O N

This is an appeal from an order revoking the appellant s probation. He raises two issues challenging: 1) the trial court s decision to grant the State s request to reopen the evidence after argument and 2) the trial court s denial of appellant s motion to dismiss the probation-revocation motion based on lack of due diligence by the State in executing the arrest warrant. We affirm.

Facts

On July 1, 1997, James David Peacock was convicted of felony bail jumping and placed on community supervision for two years. On April 20, 1998, the State filed a petition to revoke Peacock s community supervision alleging that he had violated several conditions, including failure to report and nonpayment of fees. The same day, the trial court issued a capias for his arrest. Peacock s probation expired on July 1, 1999. He was arrested September 26, 1999.

On October 22, 1999, the day of the revocation hearing, Peacock filed a pre-hearing motion to dismiss the probation-revocation motion asserting lack of due-diligence by the State in executing the capias. A hearing on Peacock s motion to dismiss was held, followed by the revocation hearing. The trial court denied Peacock s motion and revoked his probation. He was sentenced to two years in prison.

Issue One: Motion to Reopen Evidence

In his first issue, Peacock contends the trial court erred by allowing the State to reopen and introduce additional evidence of due diligence at the hearing on the motion to dismiss after they had concluded argument.

At the hearing on Peacock s motion to dismiss, the State called one witness, a probation officer. Peacock called no witnesses. Then, Peacock and the State made their legal arguments. During argument, however, the State informed the court that it might ask to present more evidence if Deputy Cook found any other activity in the Peacock file. At the conclusion of argument, the court asked if there was anything else and counsel for the State indicated he had nothing further. However, prior to the court ruling on the motion, after only a short break, the State immediately moved to reopen and called Deputy Cook. Peacock s trial counsel objected to this additional testimony. His objection was overruled. Thus, there is some question of whether the state had concluded arguments or whether it was conditional on whether Deputy Cook found any additional evidence the State wanted to present.

The decision to reopen a matter is left to the sound discretion of the trial court. Cain v. State, 666 S.W.2d 109, 111 (Tex. Crim. App. 1984). In support of his position, Peacock cites to Article 36.02 of the Code of Criminal Procedure and case law that prohibits the reopening of the evidence after argument has been concluded. Freeman v. State, 917 S.W.2d 89 (Tex. App. Fort Worth 1996, no pet.); Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon Supp. 2000). We believe Freeman can be factually distinguished. Freeman, 917 S.W.2d 89. First, Freeman involved the actual revocation hearing and not a hearing on a pre-hearing motion. Second, in Freeman the State moved to reopen after argument was clearly complete, the court had already rendered its verdict revoking probation, and the defendant had given his notice of appeal. Therefore, the appellate court held that the motion to reopen was essentially a motion for new trial and concluded it was error to allow the State to reopen because the defendant is the only one who can move for a new trial. Id. at 514. Third, unlike Freeman, in the present case the State had anticipated the need to reopen and requested the right to reopen if more information was obtained. Thus, Freeman is not applicable to the facts here.

The general rule is embodied in Article 36.02 of the Code of Criminal Procedure, which provides in part "[t]he court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981). However, other courts have held this rule inapplicable to similar proceedings, i.e., hearing on a motion to suppress. See Gilbert v. State, 874 S.W.2d 290 (Tex. App. Houston [1st Dist.] 1994, pet. ref d); Montalvo v. State, 846 S.W.2d at 137-38. Accordingly, we find article 36.02 and Freeman inapplicable to the hearing on Peacock s motion to dismiss. Under the circumstances presented here, the trial court could, in its discretion, reopen the evidence on a pre-hearing motion to dismiss. The trial court did not abuse its discretion. Peacock s first issue is overruled.

Issue Two: Due Diligence

In issue two, Peacock contends the trial court erred because the State did not exercise due diligence in arresting him after the petition to revoke his probation was filed and a warrant for his arrest had been issued.

The trial court must satisfy two requirements before it can acquire jurisdiction to revoke a defendant s probation after the probationary period expires. First, the State must file a motion to revoke before the end of the probationary period. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999); Burch v. State, 821 S.W.2d 385, 387 (Tex. App. Waco, no pet.). Second, the State must issue a capias based upon this motion to revoke that orders the arrest of the probationer. Id.

In addition to these jurisdictional requirements, the court is required to use due-diligence in hearing and determining the allegations in the revocation motion. Harris v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992). Also, the State is required to use due-diligence in executing the capias that results from the motion to revoke. Id. The State s failure to exercise due-diligence in the execution of the capias gives rise to a plea in bar or defense. Id. Lack of due-diligence is not an affirmative defense. Rodriguez v. State, 804 S.W.2d 516, 519 (Tex. Crim. App. 1991).

The defendant must raise the due-diligence defense at the revocation hearing to preserve this complaint for review on appeal. Hardman v. State, 614 S.W.2d 123 (Tex. Crim. App. 1981) (holding that the probationer did not preserve his complaint for appellate review when he failed to raise the complaint before or during the revocation hearing that the State did show a diligent effort to apprehend him after filing a motion to revoke). The defendant cannot raise this complaint for the first time on appeal. Id. Once the defendant meets the burden of production by raising the due-diligence issue at the revocation hearing, the State has the burden of persuasion to show that it exercised due diligence. Brecheisen, 4 S.W.3d at 763; Langston v. State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990).

The standard for determining diligence is not firmly established; however, several Court of Criminal Appeals decisions give us some guidance. In Rodriguez and Harris, the court focused on the effort to apprehend the probationer between the filing of the motion to revoke and issuance of the arrest warrant and the time of apprehension. In Rodriguez, they arrested the defendant two years after they filed the motion for revocation and over a year after the probation period expired. In Harris, they arrested the defendant ten years after they filed the motion for revocation. In both cases, however, the evidence clearly established that the probation office knew the defendant s address at all times, but neither the police nor the probation officer tried to contact him. The Court found a lack of due diligence in both cases. In Langston, the court focused on the diligence shown between the termination of the probationary term and probationer s arrest. In Langston, they arrested the defendant eight months after they filed the motion for revocation and seven and a half months after the probationary period ended. Like the other two cases, the State knew the defendant s address during those months but did not explain the delay in apprehension. Therefore, the Court held that the State was not diligent.

In Strickland, eight months lapsed between the filing of the amended motion to revoke his probation and issuance of the arrest warrant and the date Strickland was apprehended. Strickland v. State, 523 S.W.2d 250 (Tex. Crim. App. 1975). On appeal, Strickland complained of a lack of due diligence by the State in locating and apprehending him. However, this delay was explained when it was proven that Strickland's address at the time the motion to revoke was filed was entirely different from the address he had reported to the probation office. The Court held:

In light of his failure to report his change of address to the probation office, we cannot say that the delay of eight months from the issuance of the second warrant until its execution constituted a lack of diligent effort to apprehend appellant.

Strickland, 523 S.W.2d at 251.

In this case, there is no dispute that the State filed the motion to revoke and that the capias for Peacock s arrest was issued before the end of the probationary period. Peacock, however, was not arrested until approximately three months after the probationary period had expired and seventeen months after the motion to revoke was filed and the capias was issued. On the day of the revocation hearing, Peacock filed a motion to dismiss the motion to revoke complaining about the lack of due-diligence in arresting him. Thus, the State had the burden to prove by a preponderance of the evidence that it exercised due-diligence in apprehending him. Burch, 821 S.W.2d at 387.

At the hearing on the motion to dismiss, Peacock asked his probation officer whether she had any record of the State's attempts to execute the outstanding capias. The probation officer answered in the negative. She stated that when Peacock became an absconder in March 1998, he was taken off her caseload and a warrant was issued for his arrest. Deputy Cook testified that the warrant was entered into the TCIC system, a statewide computer system used by law enforcement to identify persons with outstanding warrants for their arrest. However, placing the warrant on the TCIC, without more, is not sufficient evidence to prove due diligence. Harris, 843 S.W.2d at 35.

In Rodriguez, Langston, and Harris, there was conclusive evidence in the record that the probation departments knew of the defendant s address at all times. But that was not the case in Strickland, nor is it here. There was no evidence establishing that Peacock had in fact lived at an address known by the State at all times. In fact, at the hearing on the motion to dismiss, the probation officer testified that Peacock had told her he was living in Fort Worth, but he continued to list a Whitney post-office box for his mailing address. So, there was some question as to his actual address. Deputy Cook testified that the Sheriff s office had attempted to contact Peacock by sending a letter to his last known mailing address informing him of the arrest warrant, but they received no response.

In view of the fact the Sheriff s office sent a letter and placed the warrant on the TCIC, we cannot conclude the State was not diligent. This is not a case where a significant amount of time elapsed between the end of Peacock s probationary period and his apprehension. Furthermore, it is clear from the record that the trial court was very aware of the issue regarding due diligence, and decided after due consideration of the evidence, arguments and relevant case law to deny the motion to dismiss. We hold that the trial court did not err in overruling the motion to dismiss. Accordingly, issue two is overruled.

Conclusion

Having resolved both issues against Peacock, we affirm the order of the trial court.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

(Justice Vance dissenting)

Affirmed

Opinion delivered and filed August 30, 2000

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