Browder v. State
| Decision Date | 02 July 2003 |
| Docket Number | Nos. 1748/1749-01.,s. 1748/1749-01. |
| Parties | BRUCE BROWDER, Appellant, v. THE STATE OF TEXAS. |
| Court | Texas Supreme Court |
OPINION
In this case, the State sought to revoke appellant's probation on two charges of sexual abuse of a child. Appellant raised a "due diligence" claim in the trial court. The trial court made findings adverse to this claim and revoked appellant's probation. The Court of Appeals decided that the record did not support the trial court's findings on appellant's "due diligence" claim and reversed the trial court's ruling revoking appellant's probation. We decide that the Court of Appeals erred in not viewing the evidence in the light most favorable to the trial court's findings on appellant's "due diligence" claim.
In January 1982, the trial court placed appellant on 10 years probation in Tarrant County on two charges of sexual abuse of a child. In December 1988, the State filed a motion to revoke appellant's probation, and the trial court issued two warrants for appellant's arrest. Appellant was arrested on these warrants in Montgomery County in September 1999, over seven years after his probation had expired.
Appellant claimed at the revocation hearing that he was entitled to a dismissal of the State's motion to revoke his probation because the State failed to use due diligence in arresting him on the 1988 arrest warrants. See generally Peacock v. State, 77 S.W.3d 285, 287-88 (Tex.Cr.App. 2002) (). The State's evidence showed that appellant stopped reporting regularly to his probation officer after June 1988, at which time appellant was in violation of several conditions of his probation.1 In August 1988, appellant telephoned his probation officer and told her that he was living at 1216 McHam in Irving, Texas, in Dallas County.2 This is the same address as his brother-in-law. Between August and December 1988, Tarrant County authorities tried to contact appellant by telephone but were unsuccessful. Tarrant County authorities were also unable to locate appellant at two places where he had indicated that he was employed.
The December 1988 warrants for appellant's arrest listed the brother-in-law's 1216 McHam address in Irving as appellant's last known address. Dallas County authorities unsuccessfully attempted to arrest appellant there at least twice in December 1988. A letter sent to appellant at that address on October 19, 1988, was returned to the probation department. Another letter sent to the Euless, Texas, address on October 7, 1988, was also returned to the probation department.
The State presented evidence that between December 1988 and September 1999 appellant changed his name, changed his address several times, changed his employment, kept utility bills in his wife's name and did not renew his expired driver's license. The State also presented evidence that Tarrant County authorities made other attempts to locate appellant in 1997, 1998 and 1999. See Browder v. State, slip op. at 5-8 (Tex.App.-Fort Worth, June 28, 2001) (nonpublished). For example, a Tarrant County Sheriff's Office investigator testified about her 1997 efforts to locate appellant.
Q. Did you have any luck under the name of Bruce Browder in finding this particular Bruce Browder?
A. No, sir.
Q. But did you eventually have luck under another name?
A. The paperwork on Browder we [sic] kept coming up empty. We would find the residence where his sisters lived and phone numbers, and phone calls was [sic] placed to try to see if they knew where he was, and they had no knowledge of where he was.
Q. What else?
A. I checked the driver's license. Every six months I would pull-this is on what we call ZZ99 list.
Q. 99 meaning the year?
A. No, 99 means they have been worked, they cannot be found.
Q. Okay.
A. Every six months I would pull these out and go back and run the driver's license, run the Social, see if there is any change, see if they have had any renewal. On this one we couldn't get a driver's license, so there wasn't any driver's license renewal. The Social Security number did not come back that Bruce Browder was working anywhere.
Q. Did it come back to another name?
A. Yes, it did.
Q. What it did [sic] come back to?
A. I don't recall in the beginning the name that it come back to.
Q. Do you recall now what it came back to?
A. Yes.
Q. And what did it come back to?
A. Bridges.
Q. Did you learn that name was changed from Browder to Bridges?
A. Yes, sir. We tried all the avenues that we could find. Over and over again I pulled and worked it. My partner pulled and worked it. Sergeant Trubey, who was the sergeant in our task force that I've been changed over to now, which is special operation, he pulled it and made more contact with the sisters and stuff. We couldn't locate anything on it. I run the driver's license again, and they come back issued to a Sanchez.
Q. In other words, the driver's license that was under Bruce Browder has now expired and the number has been reissued to someone else?
A. Yes. As best as I can tell, since '96, Sanchez has had the driver's license number that did belong to Bruce.
Q. Did you go to a Probation Department file or someplace to look for any more information to determine how the name was changed or anything like that?
A. When we kept coming up completely cold on everything, we thought, well, okay, let's start all over again, let's go to Probation and see what they have because sometimes in notes, in their paperwork, they will have something that we don't have access to, information, you know, from other departments.
Q. What did you learn?
A. We found out-we started just flipping through it, and the file is about this thick, and we started going through each page, trying to find something that would help us get another lead, something to go on.
And we came down to one sheet that the probation officer had had a call from Mr. Browder's third ex-wife, and she was upset, she was trying to find him for back child support, and this was in 1990. The note on there said that she knew for a fact that he had changed his name and he was going under the name of Bridges.
Appellant's brother-in-law testified that in December 1988 appellant was living with him at the 1216 McHam address listed in the arrest warrants. Appellant's brother-in-law also testified that no one came to this address to arrest appellant in December 1988. The brother-in-law testified that he kept in regular contact with appellant.
Appellant testified that in December 1988 he was living at his mother's house "as well" as at the 1216 McHam address listed in the arrest warrants.
Q. Between 1988, the last reporting date, and 1996, when you moved to The Woodlands, tell the Court the addresses you lived at?
A. I lived at my mom's house, 108 Kiowa Drive in Arlington, Texas. I also lived in my brother-in-law's house (at the address listed in the warrants) there in Irving, Texas, as well. In 1990, I married a woman that I've been currently married to. We lived in Tarrant County right at the corner of 183 and 360. I don't have the address off the top of my head, but I can get it for you. And we moved across the street to a different apartment. And then we lived in Joshua, Texas, which is right outside Burleson, for two and a half years after that. And then from there we moved to The Woodlands, Texas, where we lived for, I guess, about two and a half years. And then we purchased a home in Conroe where we presently reside.
Appellant's mother testified that appellant lived with her "back in '81, '82, maybe '85." She also testified that the police never came there looking for appellant although she stated "one man came by at one time." Other evidence was presented that the police knew where appellant's mother lived and that her address was listed in an information sheet3 that appellant filled out at the time he was placed on probation in 1982. The probation officer who testified could not state whether or not anyone attempted to locate appellant at the mother's address.
Appellant further testified that he believed that he did not have to continue reporting to his probation officer when he quit reporting after June 1988 because his probation officer told him that he could "get off of it" after serving two thirds of it. On cross-examination, appellant testified that his probation officer never told him that he could stop reporting.
Q. Okay. Did [appellant's probation officer] tell you after you reported in June '88, that, "Hey, you don't have to report anymore, you are done"?
A. No, sir, they didn't say that.
On cross-examination, the Court also asked appellant some questions concerning why appellant did not "have a driver's license for over 10 years."
[THE COURT]: Excuse me just a minute.
Were you without a driver's license from 1987 until three or four months ago?
It's not a hard one.
A. No.
[THE COURT]: What license did you have?
A. No, I was without a driver's license.
[THE COURT]: Do you use a car in your work?
A. Sometimes I do, yes, sir.
[THE COURT]: And you went over ten years without having any kind of driver's license?
A. Yes, sir.
[THE COURT]: Why would you do that?
A. Well, never had a speeding ticket-I mean, I haven't had a speeding ticket in a long time, and I don't know.
[THE COURT]: Are you sure that's what you want to tell me, because you never got a speeding ticket, you didn't have a driver's license for over 10 years?
A. Well, I just-I didn't renew my driver's license. I didn't know the thing was up. I mean, I guess it was up in 1987. I...
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