                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-426-CR


DONALD SHIRLEY                                                    APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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      Appellant Donald Shirley appeals from the revocation of his deferred

adjudication community supervision. Appellant pleaded guilty to possession of

less than one gram of cocaine in October 1999 in accordance with a plea

bargain, and the trial court placed him on four years’ deferred adjudication

community supervision. The State filed a petition to proceed to adjudication in



      1
          … See T EX. R. A PP. P. 47.4.
October 2001, asserting that Appellant had failed to report to the community

supervision office for the prior fifteen months. Six years later, on November 9,

2007, the trial court conducted a hearing on the petition, found that Appellant

had violated the terms of community supervision, and sentenced him to 180

days in jail.

      In his second point, Appellant argues that he established a prima facie

defense of lack of due diligence and that the State failed to rebut the defense.

See T EX. C ODE C RIM. P ROC. A NN. art. 42.12 § 24 (Vernon Supp. 2007)

(providing an affirmative defense to revocation of community supervision for

failure to report when an officer with the power of arrest under a warrant

issued for the alleged violation fails to contact or attempt to contact the

defendant in person at the defendant’s last known address or place of

employment).    The State has filed a letter brief conceding that Appellant’s

second point is meritorious and joining Appellant’s prayer to reverse his

conviction and sentence and remand the case to the trial court.




                                       2
      We therefore sustain Appellant’s second point and, without considering

his first point,2 reverse the trial court’s judgment and remand the case for

further proceedings. See T EX. R. A PP. P. 43.2(d), 47.1.

                                           PER CURIAM

PANEL F:     GARDNER, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: April 10, 2008




      2
       … In his first point, Appellant argues that the trial court erred by
overruling his hearsay and Confrontation Clause objections to the testimony of
a community supervision officer after the officer testified that his knowledge
of Appellant’s failure to report derived solely from the community supervision
records.

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