                                   NO. 07-04-0330-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                      MAY 11, 2005

                           ______________________________


                           ALONZO B. MOSS, III, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                    NO. 33,504-E; HONORABLE ABE LOPEZ, JUDGE

                          _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       Appellant Alonzo B. Moss, III challenges an order of the trial court revoking his

community supervision and sentencing him to four years confinement. In a single point of

error, Moss contends the court erred in denying his motion to dismiss the State’s motion to

revoke his community supervision because the State failed to exercise due diligence in

executing the capias for his arrest. We affirm.
       On October 24, 1994, appellant pled guilty to aggravated theft and received two years

deferred adjudication probation. In February 1996, the State reported that appellant had

violated the terms of his probation and filed a motion to proceed with adjudication of guilt.

Appellant did not contest the violations and the court extended his probation by three years.

In August 1998, the State filed a second motion to revoke his probation, citing additional

violations and a new theft offense. Appellant was adjudicated guilty on the original theft

charge on November 20, 1998, but the sentence was suspended in favor of four years of

community supervision. In June 2002, the State discovered that appellant had been detained

on felony theft charges in Lubbock County. The State filed a motion to revoke appellant’s

community supervision on September 17, 2002, based on the new theft charges and

appellant’s failure to report to his supervision officer. Three days later, on September 20th,

the court issued a capias for appellant’s arrest.


       In December 2002, the Community Supervision Office learned that Lubbock County

authorities were not aware of the Potter County capias. The office immediately requested that

a teletype of the warrant be sent to Lubbock County. Following the request, they received a

confirmation from the Potter County Sheriff’s Office stating that the warrant had been served.

No further action was taken regarding the capias. Appellant was released by Lubbock County

on bond in March 2003. After his release, appellant resided in Lubbock and contacted the

Community Supervision Office in Potter County to see if he owed any money. Believing that

his community supervision had expired, he did not report the fact that he had been released

or his new Lubbock address. The Community Supervision Office did not inform him of the


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pending capias for his arrest. Appellant resided in Lubbock until October 2003, when he was

jailed again on previous charges. On April 15, 2004, the trial court issued a bench warrant

requesting that appellant be returned to Potter County. Following his apprehension, appellant

filed a motion to dismiss the State’s motion to revoke his community supervision claiming that

the State had not exercised due diligence in executing the capias warrant. Following a

hearing, appellant’s motion was denied, and the court assessed the original sentence of four

years confinement.


       Appellant contends the State did not use due diligence because he was not

apprehended until approximately eighteen months after the motion to revoke was filed and

approximately sixteen months after the expiration of his community supervision. We disagree.

We review the revocation of community supervision under an abuse of discretion standard.

Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984). In determining an abuse of

discretion we must look to whether the trial court’s decision was arbitrary, unreasonable, and

without reference to guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380

(Tex.Cr.App. 1990) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)).


       A trial court may hear a motion to revoke community supervision even after the period

of community supervision has expired. Peacock v. State, 77 S.W.3d 285, 287 (Tex.Cr.App.

2002). However, in order for a trial court’s jurisdiction to be extended, two acts must occur

prior to the expiration of the probationer’s community supervision: 1) the State must file a

motion to revoke, and 2) a capias must be issued for the probationer’s arrest. Id.; Tex. Code

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Crim. Proc. Ann. art. 42.12, § 21(e) (Vernon Supp. 2004-05). A capias warrant may be issued

for any violation at any time during the period of community supervision. Art. 42.12, § 21(b).

Once the jurisdictional requirements are met, the State must use due diligence in executing

the capias. Id. at § 24; Peacock, 77 S.W.3d at 287-88. The State’s failure to execute the

capias with due diligence is an affirmative defense to revocation. Art. 42.12, § 24. See also

Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App. 1999) (holding that failure to execute

the capias with due diligence is a plea in bar for the probationer). As an affirmative defense,

the probationer has the burden of raising the issue of due diligence at the revocation hearing.

Peacock, 77 S.W.3d at 287-88. Once the issue is before the court, the burden shifts to the

State to show by a preponderance of the evidence that due diligence was used in executing

the capias. Id. at 288.


       Here, the jurisdiction of the trial court is undisputed as the State’s motion to revoke was

filed and capias was issued prior to the expiration of appellant’s community supervision. The

motion to revoke was based on new thefts committed by appellant in Lubbock County in

January 2001 and June 2002 and appellant’s failure to report to his supervision officer. Due

to appellant’s failure to abide by the conditions of his community supervision, the court issued

a capias for his arrest on September 20, 2002. Appellant maintains the first time he learned

of the capias was when he was arraigned in Lubbock on April 13, 2004. Therefore, he claims

the State did not use due diligence in executing the warrant. Article 42.12, section 24 of the

Texas Code of Criminal Procedure provides that the State’s failure to execute a capias with

due diligence is a defense “to revocation for an alleged failure to report to a supervision officer


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as directed or to remain within a specified place . . . .” Applying the rules of statutory

construction, we must accord criminal statutes their plain and ordinary meaning. See Barrow

v. State, 973 S.W.2d 764, 768 (Tex.App.–Amarillo 1998, no pet.). In doing so, we find the due

diligence statute makes no mention of probation violations resulting from a probationer’s

failure to refrain from committing additional crimes against the State. We agree with the

State’s argument that the due diligence defense as stated in section 24 applies only to

appellant’s failure to report to his community supervision officer. The law does not require the

State to exercise due diligence in executing a capias issued for crimes perpetrated while

under community supervision. See Nurridin v. State. 154 S.W.3d 920, 924 (Tex.App.–Dallas

2005, no pet.). Because this rule is dispositive of appellant’s motion to dismiss, we find it

unnecessary to determine whether the State acted with due diligence on appellant’s failure

to report. Appellant’s sole point of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                            Don H. Reavis
                                              Justice

Do not publish.




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