Oscar Vernon West v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-94-018-CR

OSCAR VERNON WEST,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 27,569

O P I N I O N

Oscar West appeals from an order revoking his probation and sentencing him to two years' imprisonment. See Tex. Code Crim. Proc. Ann. art. 42.12, 21, 23 (Vernon Supp. 1994). He first argues that the State failed to show due diligence in apprehending him and obtaining a hearing on its motion to revoke. He then argues that the court erred in admitting evidence over his hearsay objection. Finally, he challenges the sufficiency of the evidence supporting the revocation of his probation. We will reverse and render.

On March 25, 1985, West pleaded guilty to burglary of a vehicle and was placed on probation for two years. See Tex. Penal Code Ann. 30.04 (Vernon 1989). On December 3, 1986, the State filed a motion to revoke his probation, alleging he had failed to report to his probation officer for three months and had fallen $165 behind on his probation-fee payments. Although the court ordered a capias for his arrest issued on that day, the capias was not executed until December 1, 1993, almost seven years later. Finally, on January 17, 1994, a hearing was held on the State's motion. The court found that the allegations were true, revoked West's probation, and sentenced him to two years' imprisonment.

In his first point of error, West argues that the court was not authorized to revoke his probation because the State failed to show due diligence in apprehending him. The State does not contend that it showed the required diligence; instead, the State argues that West failed to raise the issue properly and, so, cannot complain on appeal about lack of diligence.

We discussed the requirements of a motion to revoke heard after the end of the probationary period in Burch v. State, 821 S.W.2d 385, 387 (Tex. App. Waco 1991, no pet.):

[A] court has jurisdiction to revoke probation after the probationary period expires if (1) a motion to revoke is filed before the term of probation expires and (2) a capias or warrant is issued prior to the expiration of the probationary period. Once these jurisdictional requirements have been established, they must be followed by proof from the state by a preponderance of the evidence that: (1) the defendant violated a term or condition of his probation; and, if due diligence is raised at the revocation hearing then, (2) due diligence was exercised to apprehend the defendant and (3) due diligence was exercised to hear the motion to revoke.

Id.; see also Harris v. State, 843 S.W.2d 34, 35 & n.1 (Tex. Crim. App. 1992). Also, we have held that failure to raise the issue of lack of diligence at trial waives the complaint. See Parker v. State, 832 S.W.2d 188, 190 (Tex. App. Waco 1992, no pet.).

The State now claims that West was required to raise this argument in a motion to dismiss the application for revocation. We disagree. Dismissal of the application would follow a finding of want of jurisdiction. See Burch, 821 S.W.2d at 386. However, the requirement of diligence is not jurisdictional. Id. at 387; Harris, 843 S.W.2d at 35 & n.1. To vest jurisdiction in the court, the state must file the motion and ensure that the capias is issued prior to the end of the probationary period. Id. "After satisfying these two requisites and apprehending the probationer, the State is entitled to a hearing on its motion to revoke probation." Harris, 843 S.W.2d at 35 (emphasis added). Thus, the proper request by the defendant is a request to deny the motion to revoke based on a lack of due diligence. See Burch, 821 S.W.2d at 387-88.

At the hearing on the motion to revoke, West questioned each of the witness regarding the State's efforts to apprehend him. He then argued:

Your Honor, . . . I believe case law indicates that any kind of motion pending for this long, that it is the State's burden to show due diligence in attempting to bring a person to court even on a motion to revoke. This in an extremely long period of time for the motion to be outstanding with apparently no particular search on the part of the State to bring in Mr. West or to find out why, you know, why this thing is outstanding, to find out what his problems might have been, to in any way attempt to resolve this case at an earlier time.

In response to this argument, the State replied:

Your Honor, further as to due diligence, we would submit that the defendant, of course, had an obligation to being on felony probation to report, and would also submit that I don't feel like there has been any showing that he has been around where he could have been arrested.

West raised the issue of the State's diligence by his questions of the witnesses and his argument to the court. See Hunter v. State, 820 S.W.2d 5, 6 (Tex. App. Austin 1991, no pet.). The State did not attempt to argue that it had shown due diligence in its efforts to apprehend West or that it was surprised by his arguments. There is no evidence in the record reflecting what efforts the State made to locate West after the capias was issued. We conclude that the State has failed to carry the burden of showing due diligence after West raised the issue. Thus, we reverse the order of the trial court and render judgment denying the State's motion to revoke. See Burch, 821 S.W.2d at 388. Because of our disposition of this point, we do not address the other arguments West raises.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and rendered

Opinion delivered and filed July 20, 1994

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