Jesus Fuentes A/K/A Jesus Alberto Fuentez v. State of Texas--Appeal from 81st Judicial District Court of Wilson County

Nos. 04-00-00403-CR & 04-00-00456-CR
Jesus FUENTES,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st District Court, Wilson County, Texas
Trial Court Nos. 90-05-068-CRW & 90-05-069-CRW
Honorable Olin B. Strauss, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: May 16, 2001

AFFIRMED

This appeal challenges a probation revocation on the grounds that the requisite capias or arrest warrant was untimely issued, depriving the trial court of jurisdiction. We disagree and affirm the trial court's revocation judgments.

Facts

The Appellant, Jesus Fuentes ("Fuentes"), was indicted on two offenses of aggravated assault causing serious bodily injury. Fuentes entered a plea to both charges and on June 16, 1992 was sentenced to 6 years of deferred adjudication probation. Fuentes failed to abide by the terms of his probation by, among other things, repeatedly failing to report to his probation officer, refusing to pay court costs, probation fees, and restitution, and using cocaine. As a result, the State filed a petition to revoke Fuentes's probation on March 31, 1994.

The original petition resulted in the presiding judge's signing a fiat, filed with the district court on March 31, 1994, ordering Fuentes's arrest. Fuentes was not arrested at this time, however, and remained out on probation. The State's petition was subsequently amended five times as Fuentes continued to accumulate probation violations. According to the docket sheet, Fuentes was in custody on September 23, 1998, at which time he pleaded true to both counts of aggravated assault and on May 17, 2000, a judgment was signed revoking supervision and sentencing Fuentes to 10 years in prison.

Fuentes argues that the trial court did not order a capias or arrest warrant within the probationary period, and therefore lacked jurisdiction to revoke Fuentes's probation. Further, he argues, because revocation orders and sentences pronounced after a defendant's probationary period has expired are void, the charges against Fuentes should be dismissed. We disagree, finding that the State's original Petition for Revocation of Probation controls. Fuentes's probation revocation and prison sentence are affirmed.

Discussion

A trial court retains jurisdiction and may revoke a defendant's supervised status at any time

during the probationary period, and even afterwards provided that the State filed a petition to revoke and a capias during the original probationary term. 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); Prior v. State, 795 S.W.2d 179, 184 (Tex. Crim. App. 1991); Gallegos v. State, 971 S.W.2d 626, 627 (Tex. App.-San Antonio 1998, pet. refused). "As long as the revocation motion was filed and the capias or arrest warrant issued before the expiration of the appellant's probationary term, the hearing conducted shortly after his arrest was proper." Rodriguez, 804 S.W.2d at 517.

In Fuentes's case, the original petition for revocation of probation included a request for a warrant of arrest and was filed on March 31, 1994. That same day, a fiat was issued, ordering Fuentes's arrest. Both the petition for revocation and the arrest warrant were issued far in advance of the expiration of Fuentes's formal term of probation, June 16, 1998. Each of the amended petitions for probation revocation contained a request for an arrest warrant, with the fifth and final motion filed on June 4, 1998.

The original motion for probation revocation was timely filed and the subsequent warrant was issued well within Fuentes's probationary period. The amended pleadings supercede any prior pleadings. Parker v. State, 832 S.W.2d 188, 190 (Tex. App.-Waco 1992, no pet.). Any amended pleadings relate back to the time that the original pleading was filed. Id.; City of Houston v. Glover, 355 S.W.2d 757, 760 (Tex. Civ. App.-Waco 1962, writ ref'd n.r.e.). We find that using either the date of filing the original motion for revocation or any of the amended motions, the trial court had jurisdiction to revoke Fuentes's probation and to sentence him to 10 years imprisonment.

Conclusion

The trial court's decisions are affirmed.

Phil Hardberger, Chief Justice

DO NOT PUBLISH