Albert J. Simmons v. The State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-95-301-CR

ALBERT J. SIMMONS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 28803

O P I N I O N

Appellant, Albert James Simmons, pled guilty to the felony offense of possession of a controlled substance, Tex. Health & Safety Code Ann. 481.115(a) (Vernon Supp. 1996), and was placed on two years' deferred adjudication. After the State filed a motion to revoke Simmons' probation based on probation violations, the trial court held a revocation hearing and sentenced Simmons to twelve years' incarceration for his original offense. Simmons raises one point of error on appeal: the trial court erred in proceeding to adjudication of his conviction because it lacked jurisdiction. However, because Simmons failed to preserve his complaint, we overrule it and affirm the trial court's judgment.

Simmons contends that the trial court's failure to adjudicate his guilt on the original charge of possession of a controlled substance prior to the expiration of his probationary period deprived the trial court of its jurisdiction over him. Simmons relies on Article 42.12, Section 5(c), of the Code of Criminal Procedure for this contention. Tex. Code Crim. Proc. Ann. art. 42.12, 5(c) (Vernon Supp. 1996). In pertinent part, the section reads: "On expiration of a community supervision period . . . , if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him." Id. In Prior v. State, the Court of Criminal Appeals set forth the requirements of this section. 795 S.W.2d 179, 184 (Tex. Crim. App. 1990). The Court held specifically that "a trial court has jurisdiction to revoke deferred adjudication probation . . . after the probationary term has expired, as long as both a motion alleging a violation of probationary terms is filed and a capias or arrest warrant is issued prior to the expiration of the term, followed by due diligence to apprehend the probationer and to hear and determine the allegations in the motion." Id. Simmons' probationary period expired on March 18, 1995. On March 10, 1995, eight days before Simmons' probationary term expired, the State filed a motion alleging Simmons had violated his probation and a capias was issued for his arrest.

Simmons' argument, however, focuses on the due diligence requirement imposed by Prior. Id. Simmons maintains that because the trial court did not adjudicate his guilt until September 28, 1995, over six months after his probationary term expired, the State failed to satisfy the due diligence requirement, resulting in the trial court's loss of jurisdiction over him. This Court has held that lack of due diligence is not a jurisdictional issue. Burch v. State, 821 S.W.2d 385, 386-87 (Tex. App. Waco 1991, no pet.). Therefore, because a motion to revoke Simmons' probation had been filed and a capias issued for his arrest before the expiration of his probationary period, the trial court had proper jurisdiction over Simmons' revocation hearing.

Lack of jurisdiction is considered a fundamental error which does not require preservation for appeal. Stine v. State, 908 S.W.2d 429, 431 (Tex. Crim. App. 1995) (holding that lack of jurisdiction is a fundamental error that is appealable at any time even if it is raised for the first time on appeal). However, because we have determined that Simmons' complaint is not grounded in a jurisdictional basis and was thus not a fundamental error, he was required to properly preserve his complaint about due diligence at the trial level. Tex. R. App. P. 52(a).

Prior holds that a probationer, who fails to specifically raise the issue of lack of due diligence by the State before or during his revocation hearing, waives his right to such complaint because it cannot be raised for the first time on appeal. Prior, 795 S.W.2d at 185. In Prior, the appellant sought to complain of the lack of due diligence in the State's apprehension of him after the arrest warrant had been issued. Id. at 184-85. In the present case, Simmons seeks to complain of the State's lack of due diligence in holding the revocation hearing after his arrest. The requirement of preserving a complaint of lack of due diligence is the same in both instances. At his revocation hearing, Simmons' only complaint was to the trial court's lack of jurisdiction to revoke his probation and adjudicate his guilt on the original charge. No specific complaint as to the State's lack of due diligence was made. Because the court had jurisdiction and Simmons did not properly preserve his complaint, we overrule his point of error. Chambers v. State, 903 S.W.2d 21, 32 (Tex. Crim. App. 1995); Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994), cert. denied, U.S. , 115 S. Ct. 1115 (1995); Fuller v. State, 827 S.W.2d 919, 920 (Tex. Crim. App. 1992) (complaint raised on appeal must comport with the objection made at trial).

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings,

Justice Vance, and

Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 11, 1996

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