                             NUMBER 13-10-00284-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

VICTOR MARTINEZ GARCIA,                                                     Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.


                           MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides
      Appellant, Victor Martinez Garcia, pleaded true to allegations in the State‘s motion

to revoke his probation.   The trial court ordered his probation revoked, sentenced him to

seven years‘ confinement in the Institutional Division of the Texas Department of

Criminal Justice, and ordered him to pay a $1,000 fine.   By one issue, Garcia contends
that the trial court abused its discretion by not dismissing the case for lack of

prosecutorial diligence in pursuing the revocation. We reverse and remand.

                                    I. BACKGROUND

      Garcia was indicted for the offense of third-degree felony possession of a

controlled substance on July 12, 2002.         See TEX. HEALTH & SAFETY CODE ANN.

§ 481.115 (West 2010). He entered into a plea agreement with the State, pleaded

guilty, and the trial court assessed punishment at ten years‘ confinement in the

Institutional Division of the Texas Department of Criminal Justice and a $1,000.00 fine.

In accordance with his plea agreement, the punishment was probated for a term of five

years beginning on May 1, 2003.

      On January 19, 2006, the State filed a motion to revoke Garcia‘s probation

alleging that Garcia withdrew from a treatment facility without written release from the

court and failed to report a change of address within two working days.   The trial court

executed a warrant for Garcia‘s arrest the same day.

      On May 1, 2008, when Garcia‘s probation would have expired, he had still not

been served capias on the motion to revoke and the State had taken no additional

action. The record before us is unclear as to the exact dates, but sometime before

June 5, 2008, Garcia was arrested on unrelated charges and served a prison term

lasting until July 2009. After that time, Garcia was released from prison and registered

as a sex offender in San Patricio County where he resided until his arrest on the warrant

in this case in January 2010.

      At the hearing, Garcia pleaded ―true‖ to the allegations in the 2006 motion to




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revoke.1 Garcia‘s counsel argued during the punishment phase of the hearing that the

cause should have been dismissed. The trial court granted the motion to revoke and

sentenced Garcia to seven years‘ imprisonment along with fines and costs. This appeal

followed.

                                          II. APPLICABLE LAW

        We review the revocation of a probated sentence for an abuse of discretion.

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (citing Caddell v. State,

605 S.W.2d 275, 277 (Tex. Crim. App. 1980)).                  A trial court abuses its discretion if it

acts without reference to any guiding rules or principles.                  Montgomery v. State, 810

S.W.2d 372, 379 (Tex. Crim. App. 1990). In Brecheisen v. State, the Texas Court of

Criminal Appeals described the diligence requirements in prosecuting a motion to

revoke:

                Two requirements must be met for a trial court to acquire jurisdiction
        to revoke probation. The State must file with the trial court, before the
        expiration of the probationary period, a motion to revoke probation that
        alleges the probationer violated the terms of the probation judgment. The
        trial court must then, before the expiration of the probationary period, issue
        a capias based upon this motion that orders the arrest of the probationer.

              In addition to these jurisdictional requirements, the court is required
        to use due diligence in hearing and determining the allegations in the
        revocation motion. The State is also required to use due diligence in
        executing the capias that results from the motion to revoke . . . . The lack
        of due diligence is a plea in bar or defense, which must be raised by a
        defendant at the revocation hearing.

              This defense, however, is not an affirmative defense. Once the
        defendant meets the burden of production by raising the due-diligence

        1
            Generally, a "plea of true, standing alone, is sufficient to support the revocation of probation."
Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979). However, if a defendant raises
a defensive plea in bar, the State must additionally provide supporting evidence to meet its burden of proof
on the defensive issue. See Brecheisen v. State, 4 S.W.3d 761, 763–65 (Tex. Crim. App. 1999)
(describing the state‘s additional burden when a defensive issue is raised and likening the defendant‘s
ability to seek review of his due diligence claim to that under the Sixth Amendment right to a speedy trial).

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      issue at the revocation hearing, the State incurs the burden of persuasion
      to show that it exercised due diligence.

4 S.W.3d 761, 763 (Tex. Crim. App. 1999) (citations omitted).

                                       III. ANALYSIS

      In his sole issue on appeal, Garcia contends that the State did not exercise due

diligence in executing the capias or in prosecuting the motion to revoke in this case, and

therefore, the trial court abused its discretion by not dismissing the case. We agree.

      In this case, four years passed from the time the capias was issued until the time

that Garcia was finally served.   For two of these years, Garcia was incarcerated within

the state of Texas, and for an additional six months, he was registered as a sex offender

within San Patricio County.   The State clearly had access to Garcia‘s whereabouts well

before the time that the capias was actually served and could have served it within his

original term of probation ending in May 2008.         The record is silent as to what

measures, if any, the State took in order to execute the capias and bring Garcia before

the court on the motion to revoke.      Once the issue is raised, ―the State incurs the

burden of persuasion to show that it exercised due diligence[,]‖ and therefore, because

the state presented no evidence that it exercised any diligence whatsoever in the course

of the four years in which the capias was pending, the trial court should have dismissed

the case.   See id.; Rodriguez v. State, 804 S.W.2d 516, 518 (Tex. Crim. App. 1991)

(citing Langston v. State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990)) (―Because the

seven and one-half month delay in arresting the defendant was not explained, there was

nothing to show diligence on behalf of the State. Therefore, the defendant's motion to

dismiss should have been granted.‖).

      The State contends that Garcia did not ―meet[] the burden of production by raising

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the due-diligence issue at the revocation hearing,‖ and therefore, the State‘s burden to

show due diligence was never triggered.         See Brecheisen, 4 S.W.3d at 762.       We

disagree. No precise combination of words is necessary to raise a defensive issue or to

preserve it for our appeal.   See TEX. R. APP. P. 33.1(a) (noting that a complaint is

preserved for our review if it was made by a timely request in which the grounds for the

complaint were explained ―with sufficient specificity to make the trial court aware of the

complaint‖).   In this case, Garcia‘s counsel made the following argument to the court at

the hearing:

              Judge, as you can read in the P.S.I., he was incarcerated in the
      institutional division for a period of two years I believe. I don‘t know why
      no one found him or knew where he was. I don‘t know why he was
      released if there was a warrant out for his arrest from [January 2006] . . . .
      This is an old case. I‘d ask the [c]ourt to dismiss this probation and let him
      go on his way. I think that—I don‘t know why he was not allowed to take
      care of this when he was—whatever was going on in Harris County, but
      that would have been the time to handle this M.T.R. and get this all taken
      care of. . . . So, I‘d ask the [c]ourt to dismiss this case.

We conclude that this was sufficiently specific to inform the judge that Garcia was

complaining about the delay in service, the State‘s failure to ―find‖ him even though he

was in state custody, and that the proper relief would be a dismissal.

      The State additionally contends that the above quoted request was insufficient to

raise the issue of due diligence because it was not provided in a written motion.      See

Brecheisen, 4 S.W.3d at 762 (addressing the due diligence issue based on a written

motion from the defendant); Rodriguez, 804 S.W.2d at 518 (same); Langston v. State,

800 S.W.2d 553, 555 (same). Although the court of criminal appeals has not addressed

the due diligence issue based on an oral motion, we hold that the defendant was entitled

to make such a motion during the revocation hearing and to have that motion preserved


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for our review to the same extent as if he had filed a written motion.   See Smith v. State,

120 S.W.3d 910, 911–12 (Tex. App.—Texarkana 2003, no pet.) (citing Peacock v. State,

77 S.W.3d 285, 287–88 (Tex. Crim. App. 2002)) (―The issue of the lack of due diligence

is a defense that the defendant must raise before or during the revocation hearing.‖

(emphasis added)).

       In response to Garcia‘s argument at the hearing, the State did not provide any

reason why the warrant was not served during Garcia‘s period of incarceration, nor did it

provide any evidence that the State had engaged in any activities whatsoever to bring

Garcia before the court.   See Brecheisen, 4 S.W.3d at 763–65 (dismissing a motion to

revoke because ―the State ‗wholly failed‘ to meet its burden to show that it exercised due

diligence in executing the capias and apprehending the appellant‖). Therefore, the trial

court abused its discretion in failing to dismiss the motion to revoke, and we sustain

Garcia‘s sole issue on appeal.

                                     IV. CONCLUSION

       Because we hold that the trial court erred in failing to dismiss the State's motion to

revoke, we reverse the judgment and remand the case to the trial court with directions to

dismiss the motion to revoke probation.



                                                         ________________________
                                                         GINA M. BENAVIDES,
                                                         Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of July, 2011.


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