Appeal Affirmed and Opinion Filed December 4, 2012




                                              In The
                                       (ourt of 1ppcat
                            jfiftb   1D,ttrIrt of Z1rcxac at atta
                                       No. 05-10-01596-CR

                             PAUL TYRELLE CATLIN, Appellant

                                                V.

                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 194th Judicial District Court
                                    Dallas County, Texas
                      —     Trial Court Cause No. F03-72157-M


                            MEMORANDUM OPINION
                          Before Justices Moseley, FitzGerald, and Richter
                                        Opinion By Moseley

       Paul Tyrell Gatlin pled guilty to unlawful possession of cocaine and was placed on four

years of community supervision.        Thereafter, the trial court revoked Gatlin’s community

supervision and assessed punishment at six months’ confinement. Gatlin appeals, asserting two

issues. The background of the case and the evidence adduced at the hearing are well known to

the parties; thus, we do not recite them here in detail. Because all dispositive issues are clearly

settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate

Procedure 47.1. We affirm the trial court’s judgment.
            In his   first issue.     Gatlin     argues    the trial court violated his right to a speedy trial under the

federal and Texas           constitutions because six              years elapsed between the issuance of the capias and

the hearinL on the motion to revoke his community supervision. However. Gatlin failed to raise

a speedy trial objection during the revocation proceeding.                                     When a speedy trial claim is not

raised at trial, no speedy trial issue is presented on appeal. See Mulder                                    i’.   State, 707 S.W.2d 90$,

914—15 (Tex. Crim. App. 1986).1 Likewise, we hold that because Gatlin entered a plea of true to

all but one of the alleged violations of his community supervision order at the revocation hearing

without objecting or moving to dismiss, no speedy trial issue is preserved in the present case.

See id., Guevara v. State. 985 S.W.2d 590, 591—93 (Tex. App.—-Houston [14th Dist.] 1999, pet.

ref’d). We resolve Gatlin’s first issue against him.

            In his second issue, Gatlin claims that the trial court abused its discretion by revoking his

community supervision in spite of the State’s failure to exercise due diligence in executing the

capias. In 2003, the Texas Legislature added section 24 to article 42. 12 of the Texas Code of

Criminal Procedure to modify the common law affirmative defense to community supervision

revocation. Under this section, it is a defense to revocation that an officer with power to arrest

under the warrant failed to contact or attempt to contact the defendant in person at the

defendant’s last know residence or employment address.                                       TEx. CoDE CRIM. PROC. ANN. art.

42.12,     §   24 (West Supp. 2011). However, in order to trigger this defense, the charged violation

of the community supervision agreement must be for “failure to report to a supervision officer as

directed or to remain within a specified place.” Id.

           Here Gatlin entered a plea of true to six different violations of the community supervision

agreement. These violations included: use or ingestion of controlled substances; failure to make

        In Hardes i’. State, this Cou found an appellant who ohected at trial on the grounds that the Speedy Trial Act had been violated was
not precluded from raising constitutional specciy trial claims for the first time on appeal. Hardestr i’. State, 738 S.W.2d 9, 10 (Tex. App—Dallas
1987, pet. ref’d). However, the court of criminal appeals implicitly overruled that holding in Du,,,i i’. Slate by finding an appellant who objected
only on the basis of the Speedy Trial Act at the trial court did not preserve a claim of constitutional speedy trial violations on appeal, Dunn v.
Slate, 819 S.W.2d 510. 526 (Tex. Crim. App. 1991).
restitution payments for urinalysis testing costs; failure to make payments for the cost ol

supervision; failure to complete 120 hours of community service; failure to submit to urine

testing; and failure to undergo CATS testing. Any one of these violations is sufficient to revoke

community supervision.      iVanu/din e. State, 154 S.W.3d 920, 924 (Tex, App.----- Dallas 2005. no

pet.); see also TEX. Cool: CIUM. PRoc. ANN. art. 42. 12. § 21(b) (West Supp. 2011 ) (if violation

lound, court may continue, extend, modify, or revoke community supervision). Even if the State

had alleged failure to report or remain in a specified place, “the statute does not state, and cannot

reasonably be interpreted to read, that it applies to all allegations as long as one of the allegations

is the thilure to report or to remain in a specified place.’ Nunnidin, 154 S.W.3d at 924.

       Gatlin argues we should ignore Nurnidin and apply the traditional common law due

diligence rule because of a “split in the courts of appeals.” In support of this proposition, Gatlin

cites cases from various other districts. However, the only support Gatlin finds in these cases is

dicta. See Houston v. S/ate, 01-09-00669-CR, 2011 WL 946979, at *3 (Tex. App.—-1-louston

[1st Dist.1 Mar. 17, 2011, no pet.) (mem.   op., not   designated for publication) (decision based on

defendant’s arrest prior to expiration of community supervision period, assertion relied on by

defendant cites to a pre-2003 case that was not relied on by court in its decision); Hodge v. State,

2-08-030-CR, 2-08-031-CR, 2008 WL 5265149, at *1 (Tex. App—Fort Worth Dec. 18, 2008,

pet. struck) (mem. op., not designated for publication) (deciding issue on defendant’s failure to

raise the issue at the trial court); Maillet v. State, 07-11-0406-CR, 2012 WE 631912, at *2 (Tex.

App.—Amarillo Feb. 28, 2012, no pet.) (mem. op., not designated for publication) (court stated:

“it may be true that the State must use diligence in executing the capias     .   .   .,“   but decided issue

on basis of procedural default (emphasis added)); DeLeon v. State, 13-10-00581-CR, 2012 WL

914950, at *4 (Tex. App.—-Corpus Christi Mar. 15, 2012, no pet.) (mern. op.. not designated for

publication) (proposition relied on by Gatlin cites to 2002 case, case decided on other grounds).


                                                 —3—
Because this Court’s precedent is well settled that the affirmative defense of due diligence

applies only to violations for failure to report or failure to remain at a designated location, and

because Ciatlin does not convince us to reconsider it, we decide Gatlin’s second issue against

him.

         Having overniled both of Gatlin’s points of                                   of the trial

court.




                                                     ii?,? McELtY
                                                        SliCE

Do Not PubLish
TEx. It An. P.47
101596F.UO5




                                              -4-
                                (auft at Ippeala
                       3TtftIj District at Qlexas at Dallas
                                       JUDGMENT

PAUL TYRELLE GATLIN, Appellant                     Appeal from the 194th Judicial District
                                                   Court of Dallas County, Texas (Trial Court
No. 05-10-01596-CR         V.                      No. P03-721 57-M).
                                                   Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee                       Justices FitzGerald, and Richter
                                                   participating.

      Based on the Court’s opinion of this date, the                            AFFIRMED.
Judgment entered December 4, 2012.



                                                   JUSTIcE                    .4—
