Connolly v. State, 03-97-00182-CR
| Decision Date | 09 October 1997 |
| Docket Number | No. 03-97-00182-CR,03-97-00182-CR |
| Citation | 955 S.W.2d 411 |
| Parties | Charles David CONNOLLY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
James H. Kreimeyer, Belton, for Appellant.
Arthur Cappy Eads, District Attorney, James T. Russell, Administrative Assistant, Belton, for Apellee.
Before POWERS, ABOUSSIE and B.A. SMITH, JJ.
The district court found Charles David Connolly violated the terms of his deferred adjudication community supervision, adjudged him guilty of theft, and sentenced him to two years of confinement in the Institutional Division of the Texas Department of Justice. Connolly appeals the judgment, claiming in part that the district court erred in denying his motion to dismiss the State's motion to revoke community supervision and proceed to adjudication of guilt. Because we find the State failed to present sufficient evidence of due diligence in apprehending Connolly after expiration of his supervisory term, we will reverse the district court's adjudication of guilt and remand for further proceedings consistent with this opinion.
After finding that the evidence substantiated Connolly's guilt of theft, the district court on November 8, 1990, deferred adjudication and placed him on five years of community supervision. The district court ordered Connolly to report to his supervision officer monthly and to pay $6,347.95 in restitution, $109.50 in court costs and $40 per month in supervisory fees to the Adult Probation Department of Bell County.
On March 16, 1995, the State filed a motion to revoke supervision and adjudicate guilt because Connolly had missed numerous meetings with his supervision officer and was delinquent on his restitution payments, court costs and supervisory fees. The State filed a capias on the same day. On Nov. 1, 1995, just one week before Connolly's supervision expired, the State filed an amended motion to revoke, revising the amount owed and number of meetings missed. The State filed an amended capias on the same day.
A Bell County sheriff's deputy executed the capias on March 19, 1996, more than one year after the State filed the first motion to revoke and more than four months after expiration of Connolly's supervisory term. At the revocation hearing on February 6, 1997, 1 Connolly moved to dismiss the motion to revoke, claiming the State had failed to exercise due diligence in apprehending him. Although Bell County Community Supervision Officer Wayne Smith testified at the hearing that a letter was sent to Connolly's listed address on May 25, 1995, informing him that he was delinquent under the terms of his supervision, there is no evidence in the record that the State had tried to arrest Connolly before March 19, 1996. Nor is there evidence in the record that Bell County deputies had tried and been unable to locate him. Nevertheless, on February 19, 1997, the district court proceeded to an adjudication of guilt after finding Connolly had violated his supervision.
In his first point of error, Connolly alleges the trial court erred in denying his motion to dismiss the motion to revoke supervision and adjudicate guilt because the State failed to present sufficient evidence of due diligence in apprehending him after his supervisory term had expired. In his second point of error, Connolly asserts the trial court erred in making assumptions about due diligence without evidentiary support. Because both points allege insufficient evidence to support the trial court's finding of due diligence, we will address them together.
After granting deferred adjudication supervision under Tex.Code Crim. Proc. Ann. art. 42.12, § 5 (West Supp.1997), a trial court may revoke the supervision and adjudicate guilt after expiration of the term as long as the motion alleging a violation "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." Prior v. State, 795 S.W.2d 179, 184 (Tex.Crim.App.1990); 2 see also Shahan v. State, 792 S.W.2d 101, 102-03 (Tex.Crim.App.1990); Langston v. State, 800 S.W.2d 553, 554 (Tex.Crim.App.1990); Stover v. State, 365 S.W.2d 808, 809 (Tex.Crim.App.1963). A defendant must raise the issue of lack of due diligence either before or during the revocation hearing; otherwise, error is not preserved. See Prior, 795 S.W.2d at 185. Once the defendant raises the issue, the State has the burden of showing due diligence by a preponderance of the evidence. See Burch v. State, 821 S.W.2d 385, 387 (Tex.App.--Waco 1991, no pet.); see also Shaw v. State, 622 S.W.2d 862, 863 (Tex.Crim.App.1981) (). 3
In Langston, the court held that the State had failed to present sufficient evidence of due diligence in apprehending the probationer after expiration of the probationary term. Langston, 800 S.W.2d at 555. The probationer was arrested eight months after the motion to revoke probation had been filed and seven and a half months after expiration of the probationary period. Id. at 554. In reaching its holding, the court noted that after the probationer properly raised the issue of due diligence at the revocation hearing, the State offered no explanation for the lapse of seven and a half months, and there was no evidence the probationer was in hiding after expiration of the term. Because the State had failed to meet its burden of showing due diligence in apprehending the probationer, the court reversed the trial court's adjudication of guilt. Id.
We find Langston analogous to this case. Like the probationer in Langston, Connolly properly raised the issue of due diligence at his revocation hearing. As in Langston, the State has offered no explanation for the delay, and there is no evidence that the defendant was hiding after expiration of the term. Langston involved a lapse of seven and a half months; Connolly was arrested approximately four and a half months after his supervisory term had expired. Nonetheless, no precedent suggests that a shorter lapse shifts the burden of proof: Once the term has expired and the defendant properly raises the issue, the State bears the burden to establish due diligence.
In this case, the only evidence of due diligence the State presented was testimony by Community Supervision Officer Smith about a letter that Bell County tried to send Connolly on May 25, 1995. Furthermore, without any evidentiary support, the district court concluded that the Bell County sheriff must have tried to arrest Connolly before March 19, 1997, because it was the sheriff's duty to do so. In fact, in ruling against the defendant, the court explicitly recognized that it was basing its holding in part on an "assumption" that the Bell County sheriff had attempted to apprehend Connolly. In effect, the district court's assumption shifted the burden to Connolly to show lack of due diligence. Well-established authority dictates that the State bears the burden of showing due diligence. See, e.g., Prior, 795 S.W.2d at 184; Shahan, 792 S.W.2d at 102-03; Langston, 800 S.W.2d at 554; Stover, 365 S.W.2d at 809.
Because the State failed to show by a preponderance of the evidence that Bell County sheriff's deputies exercised due diligence in attempting to apprehend Connolly, we hold the district court abused its discretion in revoking Connolly's supervision and adjudicating guilt after the supervisory term had ended. We sustain points of error one and two . 4
We reverse the district court's adjudication of guilt and remand the cause with instructions to dismiss the motion to revoke and proceed to adjudication and for further proceedings consistent with this opinion.
Reversed and Remanded.
In its motion for rehearing, the State first complains that we failed to address its contention that the question of due diligence cannot be applied under article 42.12, section 5(b) of the Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp.1997). In fact, we stated in footnote three that "a defendant may raise the due diligence issue even though no appeal may be taken from the decision to proceed to adjudication." We therefore turn to the State's second complaint, which is that the authorities on which we relied in making the quoted statement have been disapproved.
In Prior v. State, 795 S.W.2d 179, 184 (Tex.Crim.App.1990), the court of criminal appeals held that a trial court may revoke deferred adjudication probation...
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Rodriquez v. State
...diligence finding at a deferred adjudication hearing may be appealed pursuant to Article 42.12, § 5(b). In Connolly v. State, 955 S.W.2d 411, 415 (Tex.App.--Austin 1997, pet. granted) (op. on reh'g), the court looked to prior Texas Court of Criminal Appeals precedent that entertained due di......
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Connolly v. State
...concerning sufficiency of the evidence to prove due diligence and did not reach his remaining point of error. Connolly v. State, 955 S.W.2d 411, 414 (Tex.App.--Austin 1997). The Court of Appeals rejected the State's argument Article 42.12, section 5(b) states that no appeal may be taken fro......
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Rodriquez v. State
...in any way altered the fundamental nature of those cases and correctly applied Harris and the previous cases. Connolly v. State, 955 S.W.2d 411, 415 (Tex. App. - Austin 1997) (on motion for rehearing), rev'd, 983 S.W.2d 738 (Tex. Crim. App. 1999). Yet, while purporting to follow Harris, a m......