                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-030-CR
                               NO. 2-08-031-CR


MARCUS ELLSWORTH HODGE, JR.                                        APPELLANT
A/K/A MARCUS HODGE

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Based on the timing of two separate offenses of sexual assault of a child,

two separate indictments, and the orders placing Appellant Marcus Ellsworth

Hodge, Jr. on deferred adjudication community supervision, Appellant ended up

being placed on deferred adjudication community supervision for both offenses.

On June 27, 2005, Appellant was placed on eight years’ deferred adjudication


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          … See Tex. R. App. P. 47.4.
community supervision for the first offense and on April 24, 2006, Appellant

was sentenced to seven years’ deferred adjudication community supervision for

the second offense.

      On August 9, 2006, the State filed a petition to proceed to adjudication

in both cases. At the hearing on the State’s motion, Appellant entered a plea

of true to paragraphs two, three, and five of the petitions, admitting that he had

failed to report as ordered, failed to notify the community supervision office of

a change of address or employment within five days of the change, and failed

to attend sex offender treatment and comply with treatment requirements. The

trial court proceeded to adjudicate Appellant’s guilt in both cases and sentenced

him to ten years’ confinement in the Institutional Division of the Texas

Department of Justice in each case.

      In a single issue on appeal, Appellant claims that the State offered no

evidence that it had complied with Texas Code of Criminal Procedure article

42.12, section 24’s due diligence requirement. See Tex. Code Crim. Proc. Ann.

art. 42.12 § 24 (Vernon Supp. 2008). Appellant claims that no evidence exists

in the record that the State exercised due diligence in bringing the issue of

community supervision revocation before the trial court.       The State points

out—and Appellant candidly concedes—that the issue of lack of diligence was

not raised in the trial court at the revocation hearing.     Although Appellant

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claims that the State should have explained what steps it took to exercise

reasonable diligence in issuing a capias and bringing this matter to the trial

court’s attention, the issue of lack of diligence must be raised by a defendant

before or during the revocation hearing in order to preserve it for appellate

review. Peacock v. State, 77 S.W.3d 285, 287–88 (Tex. Crim. App. 2002);

Brecheisen v. State, 4 S.W.3d 761, 764 (Tex. Crim. App. 1999). Once a

defendant raises the issue, the State has the burden to show due diligence.

Peacock, 77 S.W.3d at 288 (quoting Langston v. State, 800 S.W.2d 553, 555

(Tex. Crim. App. 1990)). Consequently, we hold that because Appellant did

not raise the issue of lack of diligence in the trial court, he has not preserved

it for our review; moreover, because Appellant did not raise the issue of due

diligence before or during the revocation hearing, the State did not have the

burden to show due diligence. See, e.g., id. at 287–88.

      And finally, the State points out that, in any event, Texas Code of

Criminal Procedure article 42.12, section 24’s due diligence requirement is

relevant only when the community supervision period has expired prior to the

defendant’s arrest and does not apply if the defendant is arrested within the

community supervision period. See Ballard v. State, 126 S.W.3d 919, 921

(Tex. Crim. App. 2004). Here, Appellant was arrest on outstanding capias

warrants on December 16, 2007, well within the community supervision period

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for both offenses. Consequently, even if Appellant had preserved this issue for

our review, it would be overruled on the merits. We overrule Appellant’s sole

issue on appeal.

      Having overruled Appellant’s sole issue, we affirm the trial court’s

judgments.




                                                SUE WALKER
                                                JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 18, 2008




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