Linda Garcia Palma v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-00-00153-CR & 04-00-00154-CR

Linda Garcia PALMA,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District, Bexar County, Texas
Trial Court Nos. 90-CR-5808A & 90-CR-5809A
Honorable Raymond Angelini, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 21, 2001

AFFIRMED

Linda Garcia Palma appeals the revocation of her probation. In her sole point of error Palma contends the trial court erred in failing to require the State to meet its burden of persuasion in proving due diligence. She argues the trial court erred in holding that the defense of due diligence applies only if the probationary period has expired. We disagree and affirm the judgment of the trial court.

Factual and Procedural Background

Palma entered a plea of guilty to possession of cocaine and heroin. She received ten years of probation after an eight year sentence to the Texas Department of Criminal Justice was suspended on December 12, 1991. The State filed a motion to revoke probation on August 27, 1997, and the capias was issued on August 29, 1997. Palma was arrested on January 21, 2000. The hearing on the motion to revoke probation was held on August 29, 2000. The trial judge declined to consider Palma's motion to dismiss for lack of due diligence because the probationary period had not expired. Palma's probation was revoked and she was sentenced to eight years of confinement in the Institutional Division of the Texas Department of Criminal Justice. Palma appeals the revocation of her probation.

Due Diligence

Palma contends in her sole point of error that the trial judge erred in ruling that the question of due diligence applies only to cases in which the probationary period has expired prior to the execution of the capias. The State is required to exercise due diligence in executing a capias once it issues from a motion to revoke. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). The failure to exercise such diligence is a defense or plea in bar and is required to be raised at the revocation hearing. Id.

However, this due diligence defense has been applied only to cases in which the probationer

was detained after the probationary or supervisory period had ended. See Brecheisen, 4 S.W.3d at 763; Harris v. State, 843 S.W.2d 34, 35 (Tex. Crim. App. 1992); Rodriguez v. State, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991). The due diligence requirement was first formulated to deal with a timely-filed revocation motion which was not heard until after the expiration of the probationary term. See In Re J.A.D., 31 S.W.3d 668, 670 (Tex. App.-Waco 2000, no pet. h.) (citing Ex Parte Fennell, 162 Tex. Crim. 286, 288, 284 S.W.2d 727, 728-29 (1955)). We are unaware of any case in which this rule has been applied when the capias was executed within the probationary period.

Palma was placed on probation for a term of ten years on December 12, 1991. The State filed a motion to revoke Palma's probation on August 27, 1997, and the capias was issued on August 29, 1997. Palma was arrested on January 21, 2000. The hearing on the State's motion to revoke was held on February 29, 2000. The execution of the capias occurred well within the probationary period. Due diligence is inapplicable under these circumstances.

We overrule Palma's sole point of error and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH