AFFIRM; and Opinion Filed February 27, 2014.




                                            S    In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                         No. 05-13-00430-CR

                                DAVID CARL SWINGLE, Appellant
                                             V.
                                 THE STATE OF TEXAS, Appellee

                         On Appeal from the 382nd Judicial District Court
                                     Rockwall County, Texas
                                 Trial Court Cause No. 2-06-16

                                MEMORANDUM OPINION
                             Before Justices Bridges, O’Neill, and Brown
                                     Opinion by Justice O’Neill
          The trial court granted the State’s motion to revoke unadjudicated probation and request

for adjudication against appellant David Carl Swingle. Appellant appeals his adjudication of

guilt.

          In his first issue, he argues the evidence is legally insufficient to prove the State used due

diligence in apprehending him after the capias was issued. Secondly, he argues the trial court

erred by not conducting a separate punishment hearing before pronouncing his sentence. We

affirm.

                                              Background

          Around 11:30 p.m. on September 3, 2005, appellant was walking in Robertson Park. The

police had received numerous complaints about criminal activity in this particular area.
            Officer Stephen Nichols stopped appellant and asked him what he was doing. Appellant

said he was flying a kite, which Officer Nichols found extremely odd given the time of night, the

location, and the lack of wind. He also observed appellant acting nervously and sweating

profusely. As Officer Nichols continued to question appellant, appellant changed his story and

said he had lost his kite and was trying to find it.

            Trooper Lance Amos approached appellant’s car and shined his light inside. He observed

a cooler and a plastic bag containing a white, powdery substance. It was later determined to be

methamphetamine.                  Appellant was arrested and charged with possession of a controlled

substance.

            Appellant filed a motion to suppress, which the trial court denied. 1 Appellant then

pleaded guilty and a finding of guilt was deferred. He was placed on community supervision for

four years.

            On October 9, 2006, the State filed a motion to revoke unadjudicated probation and

requested final adjudication. The State asserted appellant violated conditions 2, 4, 10, 11, and 12

of his probation. These conditions specifically included his failure to pay certain fines, his

failure to perform 250 hours of community supervision, and his failure to avoid the use of drugs.

A capias was issued on October 12, 2006. Appellant’s probation expired on or about June 12,

2010.

            After his probation expired but before he was arrested, appellant began sending taunting

emails to the trial judge, the Rockwall County District Attorney, the Dallas Morning News, and

the FBI.          In an email dated February 16, 2011, he referred to himself as “Your friendly

neighborhood fugitive.” He proclaimed he “might be the longest standing fugitive on record in

Rockwall County history.” He said he was “long gone” and “not in your backyard.” He

    1
        Appellant did not appeal the denial of his motion to suppress.



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described the legal system as a joke and said he had “sailed the world, braved huge storms for

what I believe.”

       He sent another email on June 29, 2011 in which he acknowledged an upcoming hearing

on his case; however, he said “To turn myself in would be foolhardy.” On September 29, 2011,

he again informed the court he would not be attending a hearing scheduled for December 14,

2011 and sent the email to the court, the press, and the FBI.

       His emails continued to describe the many legal injustices directed towards him and how

he would not back down until the truth came out. In April of 2012, he said Rockwall County had

“crossed swords with the wrong pirate, I do NOT negotiate with TERRORISTS!”

       Appellant was finally arrested in Cameron County, Texas on November 8, 2012. The

State filed an amended motion to revoke unadjudicated probation on January 2, 2013; however,

during the motion to revoke hearing, the State abandoned its amended motion and proceeded on

the original motion to revoke filed on October 9, 2006.

       At the motion to revoke hearing, the State presented evidence that appellant failed to

report to the probation department as required by the terms of his probation. The last time he

reported was July 14, 2006. Further, the State presented evidence of a positive urinalysis for

methamphetamine.      The State also presented evidence that appellant had not paid certain

required fees or completed his community service hours.

       At the end of the hearing, the trial court found the allegations in the State’s motion true

and adjudicated appellant guilty of possession of a controlled substance.         The trial court

sentenced him to three years in the Texas Department of Criminal Justice.

                                          Due Diligence

       In his first issue, appellant argues the evidence is legally insufficient to prove the State

used due diligence in apprehending him after the capias was issued on its motion to adjudicate.


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The State responds appellant relies on a defense not available to him under these facts.

Furthermore, the State claims even if it failed to use due diligence, the trial court heard evidence

of four other probation violations upon which it could have granted the motion to adjudicate.

       We review the trial court’s order revoking probation for an abuse of discretion. Rickels v.

State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In a probation revocation hearing, the State

must prove by a preponderance of the evidence that the defendant violated a condition of his

probation. Greer v. State, 999 S.W.2d 484, 486 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d). Proof of a single violation is sufficient to support revocation. Id.

       Appellant argues the State failed to use due diligence in apprehending him once the

capias was issued. He cites Peacock v. State, 77 S.W.3d 285, 288 (Tex. Crim. App. 2002) for

the proposition that “Due diligence can be shown by proof of reasonable investigative efforts

made to apprehend the person sought,” which he claims the State failed to show on the present

facts. However, appellant fails to recognize the common law due diligence defense was replaced

by a 2003 amendment to article 42.12 of the Texas Code of Criminal Procedure.

       Article 42.12, section 24 of the Texas Code of Criminal Procedure provides that:

               For purposes of a hearing under Section 5(b) or 21(b-2), it is an
               affirmative defense to revocation for an alleged failure to report to
               a supervision officer as directed or to remain within a specified
               place that a supervision officer, peace officer, or other officer with
               the power of arrest under a warrant issued by a judge for that
               alleged violation failed to contact the defendant in person at the
               defendant’s last known residence address or last known
               employment address, as reflected in the files of the department
               serving the county in which the order of community supervision
               was entered.

       TEX. CODE CRIM. PROC. ANN. art. 42.12, § 24 (West Supp. 2013). By adding section 24,

the legislature eliminated the common law due diligence defense and replaced it with the limited

affirmative defense provided in section 24. Garcia v. State, 387 S.W.3d 20, 24 (Tex. Crim. App.

2012). The due diligence defense now applies only to two revocation allegations: failure to
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report to an officer as directed and failure to remain within a specified place. Id.; see also TEX.

CODE CRIM. PROC. ANN. art. 42.12, § 24.

       Here, regardless of the State’s failure to report violation against appellant, appellant has

not challenged the sufficiency of the evidence to support any of the remaining four violations

alleged by the State. Proof of a single violation will support revocation. Greer, 999 S.W.2d at

486. The State proved the four remaining violations, and the trial court could have based its

order of adjudication on any one of them. Because the due diligence defense does not apply to

the remaining violations, the trial court did not abuse its discretion by adjudicating guilt. See

Garcia, 387 S.W.3d at 26. We overrule appellant’s first issue.

                     Failure to Conduct a Separate Punishment Hearing

       In his second issue, appellant argues the trial court erred by failing to conduct a separate

punishment hearing after it pronounced him guilty. The State responds appellant failed to

preserve the issue and even if preserved, appellant was afforded the opportunity to present

mitigating evidence during the hearing.

       Appellant relies on Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (en banc)

to argue that “when a trial court finds that an accused has committed a violation as alleged by the

State and adjudicates a previously deferred finding of guilt, the court must then conduct a second

phase to determine punishment.” The Issa court further held that based on article 42.12, section

5(b) a defendant is “entitled to a punishment hearing after the adjudication of guilt, and the trial

court must allow the accused the opportunity to present evidence.” Id. (emphasis in original);

see also TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2013).

       At the conclusion of appellant’s hearing, the trial court stated the following:

               With regard to the Motion to Adjudicate, based on the evidence
               that was presented here today, I find that the allegations in the
               motion are true. And as a result of that, I find you guilty of the
               offense of possession of a controlled substance in the amount of 1
                                                –5–
               gram or more but less than 4 grams, and your sentence is set at
               three years in the Texas Department of Criminal Justice.

Appellant claims the trial court violated Issa because it pronounced him guilty and sentenced

him “all in one breath.”

       Assuming appellant preserved his issue for review, we conclude the trial court did not err

by failing to conduct a separate punishment hearing. Issa does not stand for the absolute right to

a separate punishment hearing. Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999).

Instead, it requires the defendant to have the opportunity to present evidence in mitigation of

punishment, if not afforded during adjudication. Id.

       Here, the trial court gave appellant the opportunity to present mitigating evidence prior to

adjudicating his guilt. Appellant argued he had never had any prior felony convictions. While

he acknowledged he “may have been absconded for quite a while,” he stayed out of trouble

during that time. Prior to his arrest, he told the court he was gainfully employed as an aerospace

engineer, took care of his family, and paid the bills. He argued “there’s no reason to go for

anything more than the minimum here, Your Honor.” These matters had nothing to do with

whether he violated any of the terms of his probation. Rather, it was mitigating evidence against

punishment.

       Thus, we conclude appellant was afforded an opportunity to present evidence in

mitigation of punishment. It is immaterial that the presentation of this evidence occurred before

the actual words of adjudication. See Hardeman, 1 S.W.3d at 691; Willis v. State, No. 05-08-

01120-CR, 2009 WL 1140085, at *1 (Tex. App.—Dallas Apr. 28, 2009, no pet.) (not designated

for publication). Appellant’s second issue is overruled.




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                                           Conclusion

       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O’NEILL
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47

130430F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DAVID CARL SWINGLE, Appellant                        On Appeal from the 382nd Judicial District
                                                     Court, Rockwall County, Texas
No. 05-13-00430-CR        V.                         Trial Court Cause No. 2-06-16.
                                                     Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                         Justices Bridges and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of February, 2014.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE




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