







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
KIRBY NEAL SMITH,                                        )
                                                                              )              
No.  08-02-00456-CR
Appellant,                          )
                                                                              )                    Appeal from the
v.                                                                           )
                                                                              )                
109th District Court
THE STATE OF TEXAS,                                     )
                                                                              )             
of Crane County, Texas
Appellee.                           )
                                                                              )                        (TC# 956)
                                                                              )
 
 
O
P I N I O N
 
Appellant, Kirby
Neal Smith, appeals the revocation of his community supervision and brings one
issue on appeal:  whether the trial court
abused its discretion in revoking his probation outside the community supervision
period because of a lack of due diligence to apprehend Appellant.  We affirm.
On October 29,
1992, Appellant pled guilty to the offense of burglary of a habitation.   The trial court sentenced him to an
eight-year probated sentence.  A motion
to revoke was filed in November 1996, and on January 6, 1997, the trial court
entered an order slightly modifying Appellant=s
probation conditions.  In October 2000, a
second motion to revoke was filed and the trial court once again modified the
terms of his supervision and extended the probation until October 29, 2001.




The State filed a
third motion to revoke Appellant=s
community supervision on October 17, 2001. 
Two days later, the trial court issued a capias for Appellant=s arrest.  
Appellant was arrested about three
months later, on January 10, 2002, but a hearing on the motion to revoke was
not held until September 15, 2002. 
Appellant pled true to two violations and not true to the remaining
alleged violated conditions; however, he raised a due diligence defense limited
to the execution of the capias.  The
trial judge found that Appellant had violated the terms of his community
supervision as alleged and revoked his supervision.  Appellant was sentenced to eight years= confinement.
If both a motion
alleging a violation of probationary terms is filed and a capias or arrest
warrant is issued prior to the expiration of the term, and there is due
diligence to apprehend the probationer and to hear and determine the
allegations in the motion, the trial court=s
jurisdiction continues.  Peacock v.
State, 77 S.W.3d 285, 287 (Tex.Crim.App. 2002).  Once the defendant meets the burden of
production by raising the due‑diligence issue at the revocation hearing,
the State incurs the burden of persuasion to show that it exercised due
diligence.  Brecheisen v. State, 4
S.W.3d 761, 763 (Tex.Crim.App. 1999). 
Due diligence is not an affirmative defense, meaning that, once the
defendant raises the due diligence issue, the state incurs the burden of
persuasion to show, by a preponderance of the evidence, it used due diligence
in executing the warrant and in holding a hearing on the motion to revoke.  Peacock, 77 S.W.3d at 288; Brecheisen,
4 S.W.3d at 763. 




At the hearing,
Appellant claimed a lack of due diligence only as to the time span between the
issuance of the capias and Appellant=s
apprehension.  He never raised any issue
regarding the almost one-year passage between the near simultaneous issuance of
the capias and expiration of his probationary period, and the hearing on the
motion to revoke.  The record before us
is inexplicably silent about that delay and was therefore not properly raised.  
At the hearing,
the only witness presented by the State was Mr. John Farmer, Appellant=s probation officer.  Mr. Farmer first testified on direct
examination that he was made aware on September 25, 2001, that Appellant had
been released from the Mental Health and Retardation (AMHMR@) hospital in Big Springs, Texas to Del
Rio, Texas.  On cross-examination, Mr.
Farmer conceded to defense counsel that he was contacted by MHMR with this information
on September 13, 2001.  He provided the
Crane County Sheriff=s
Department with the information regarding Appellant=s
whereabouts.  The warrant for Appellant=s arrest was sent by the Crane County
Sheriff=s
Department to the Val Verde County Sheriff=s
Department.  Mr. Farmer testified that he
left it up to the Sheriff=s
Department in Del Rio to arrest the Appellant. 
He also testified that he never personally contacted the Val Verde
Sheriff=s
Department nor the Del Rio Police Department about this matter.  He did not send Appellant a letter because he
did not have Appellant=s
address nor did he list Appellant as an absconder.  Mr. Farmer testified that the only action he
took to locate the Appellant was talk to MHMR in September and he made two
phone calls.  Both calls were to a
neighbor of Appellant=s
mother; the first was made on September 17, 2001 and the second on October 23,
2001.  No explanation was offered about
how he had the neighbor=s
phone number.




Appellant also
testified on his own behalf.  He stated
that he was receiving treatment at MHMR for a drug overdose and for bipolar
disorder.  During his stay at MHMR,
Appellant testified that he did not contact Mr. Farmer because he was told by a
caseworker that he could not notify anyone, so he signed a paper releasing all
his information to Mr. Farmer. 
Furthermore,  the MHMR=s caseworkers told Appellant that he
had been declared mentally ill and did not have any rights to anything.  Appellant also testified that the reason he
was released to Del Rio, Texas was because MHMR required him to have a place to
live in the location where he would be released, otherwise he could not be
released.  The only location he had to
live was at his mother=s
home in Del Rio, Texas.  He also
testified that his mother had told him Mr. Farmer had contacted her and that
she had informed Mr. Farmer that Appellant was living with her.  Appellant stated  that at least Mr. Farmer had the number to
where he was living.  Appellant was also
aware that a warrant for his arrest had been issued, but he testified that no State
authority had attempted to arrest him. 
On the day he was arrested, Appellant testified that he was in Crane
County at his aunt=s
house.  Appellant stated that he and his
mother had gone to Crane County for the purpose of turning  himself in, but that first, they had stopped
at his aunt=s house
to drop-off some things.  Without him
knowing, his aunt called the police which arrived shortly after and arrested
him.  Appellant stated that when the
police arrived, he made no attempt to run. 
Appellant testified that he knew he needed to notify Mr. Farmer as to
his whereabouts, but that he did not do so because he believed MHMR had taken
care of that matter.




While the actions
of the State were only nominal, Mr. Farmer did provide the Crane County Sheriff=s Department with Appellant=s whereabouts and he did make two phone
calls to Del Rio in attempt to contact the Appellant.  On the other hand, the Appellant knew that
there was a warrant for his arrest, and though he claimed that he went to Crane
to surrender himself, he was arrested when his Aunt turned him in.  Given the relatively short period of time
between the issuance of the capias and his apprehension, some effort by the
State in locating and apprehending Appellant, and Appellant=s awareness that the State was looking
for him, we conclude that the State satisfied its burden by a preponderance of
the evidence. 
We overrule Issue
One and affirm the judgment of the trial court. 
 
 
July
8, 2004
DAVID WELLINGTON
CHEW, Justice
 
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
 
(Publish)

