James Anthony Spanos v. The State of Texas--Appeal from County Court at Law No 1 of Galveston County

Opinion issued June 2, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00470-CR

JAMES ANTHONY SPANOS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1

Galveston County, Texas

Trial Court Cause No. 187,129

MEMORANDUM OPINION

Appellant, James Anthony Spanos, appeals the revocation of community supervision from his conviction for the misdemeanor offense of assault, pursuant to which the trial court sentenced him to four months in jail. In his sole issue, appellant contends that the trial court lacked jurisdiction to revoke his community supervision because (1) the motion to revoke hearing was conducted after the community supervision period had expired; (2) there is no evidence that a timely motion to revoke community supervision was filed; and (3) there is no evidence that a capias was issued for his arrest during the probationary period. We affirm.Procedural Background

A jury convicted appellant of assault, and on March 21, 2000, the trial court sentenced him to one year confinement, suspended for one year of community supervision, and assessed a fine of $600. Appellant appealed his conviction, and his community supervision was stayed pending the appeal. This Court affirmed his conviction, and issued the mandate of affirmance on November 18, 2002. On January 30, 2003, the trial court entered an Order After Mandate in which it ordered appellant to begin community supervision.

On October 30, 2003, the State filed a motion to revoke community supervision, alleging that, on October 18, 2003, appellant violated the terms and conditions of community supervision by committing the offenses of assault by causing bodily injury and interference with 911 communication, and by failing to notify his Supervision Officer of his arrest for these new offenses. The trial court issued a capias for his arrest the following day, October 31, 2003. Appellant was arrested three days later on November 3, 2003.

The State filed its first amended motion to revoke community supervision on January 8, 2004, alleging the same violations of the terms and conditions of community supervision as in the original motion, and adding an allegation that, on December 7, 2003, appellant committed the offense of violation of a protective order. The hearing to revoke community supervision was heard on April 2 and April 5, 2004. At the conclusion of the hearing, the trial court found all the allegations to be true, except for the protective order allegation, and revoked appellant s community supervision. Discussion

Appellant contends that his community supervision began on November 18, 2002, when this Court issued the mandate of affirmance, rather than on January 30, 2003, when the trial court ordered the community supervision to commence upon entry of this order i.e., the order issued pursuant to the mandate of affirmance. Appellant asserts that, since his community supervision began when the mandate of affirmance was issued on November 18, 2002, his community supervision term expired on November 17, 2003, and the trial court no longer had jurisdiction to revoke his community supervision (1) when the State filed its first amended motion to revoke community supervision on January 8, 2004, and (2) when the hearing to revoke community supervision was heard on April 2 and April 5, 2004. He further contends that there is no evidence that the trial court issued a capias/warrant for his arrest during the probationary period.

The Code of Criminal Procedure provides that a trial court may issue a warrant for the arrest of a person on community supervision for violation of any of the conditions of the community supervision at any time during the period of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, 21(b) (Vernon Supp. 2004-2005). The Code further provides that, regardless of whether the period of community supervision imposed on the defendant has expired, the trial court retains jurisdiction to hold a hearing to determine whether the defendant has violated the terms of the conditions of the community supervision at any time during the period of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, 21(e) (Vernon Supp. 2004-2005). The trial court may revoke, continue, or modify community supervision, if, before the expiration of the term of the community supervision (1) the attorney representing the State files a motion to revoke, continue, or modify community supervision and (2) a capias is issued for the arrest of the defendant. Id.; Nurridin v. State, 154 S.W.3d 920, 922-23 (Tex. App. Dallas 2005, no pet h.).

Even if we were to assume that appellant s community supervision began on November 18, 2002, when this Court issued the mandate of affirmance, rather than on January 30, 2003, when the trial court ordered the community supervision to begin, the record shows that a motion to revoke community supervision was filed on October 30, 2003, and thus, well within the one-year community supervision term that appellant asserts ended on November 17, 2003. Appellant has cited no authority to support his argument that the State could not later amend the motion to revoke community supervision. // The record also shows that a capias authorizing the arrest of appellant was issued on October 31, 2003, well within the one year community supervision term that appellant asserts ended on November 17, 2003. //

We therefore hold that the trial court retained jurisdiction to hold the revocation hearing on April 2 and April 5, 2004, a time beyond the expiration of appellant s one-year community supervision term, because the attorney representing the State filed a motion to revoke community supervision and the trial court issued a capias for the arrest of appellant during the term of appellant s community supervision. See id. Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.

Do Not Publish. Tex. R. App. P. 47.2(b).