








In The
Court of Appeals
For the
First District of Texas
____________

NO. 01-99-01397-CR
____________

CHARLES SELDON BAWCOM, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 9412485



OPINION ON REMAND FROM
THE COURT OF CRIMINAL APPEALS

	On original submission, this Court, relying on Harris v. State, (1) held that the
State's actions before a motion to revoke probation ("MRP") (2) was filed and capias
was issued could not be considered in determining whether the State exercised due
diligence in apprehending appellant.  Bawcom v. State, 24 S.W.3d 613, 615 (Tex.
App.--Houston [1st Dist.] 2000), rev'd, No. 1427-00 (Tex. Crim. App. June 26,
2002) (designated for publication).  Accordingly, considering only the State's post-MRP actions, we held that the State did not exercise due diligence.  Id.  We thus
reversed and remanded with instructions to dismiss the MRP.  Id.  The Court of
Criminal Appeals reversed our judgment, overruling Harris to hold that the State's
actions occurring before an MRP is filed or capias is issued may be considered in
determining due diligence.  No. 1427-00, slip op. at 2, 13.  Upon remand, we again
address whether the trial court abused its discretion in denying appellant's motion to
dismiss the MRP for the State's alleged failure to exercise due diligence in
apprehending appellant.  We now affirm.
Background
	Pursuant to a plea-bargain agreement, appellant, Charles Seldon Bawcom, pled
guilty to the felony offense of driving while intoxicated.  On July 26, 1994, the trial
court assessed punishment at five years in prison, probated for five years, and a $500
fine.  On March 18, 1997, the State filed an MRP, and capias was issued the same
day.  Appellant was not arrested until October 4, 1999, over two months after
appellant's community-supervision period had ended on July 26, 1999 and over two
and one-half years after the capias had issued.
	Appellant moved to dismiss the MRP for the State's failure to exercise due
diligence in apprehending and bringing him to court on the MRP.  The trial court
denied the motion after a hearing.  Pursuant to a plea-bargain agreement, appellant
then pled true to the MRP's allegations.  The trial court revoked appellant's
community supervision and, pursuant to the agreement, assessed punishment at four
years in prison and a $500 fine.
Discussion
	In his sole point of error, appellant contends the trial court committed
reversible error by denying his motion to dismiss the MRP for the State's failure to
exercise due diligence in apprehending and bringing him to court.
A.	The Law of Due Diligence
	"At any time during the period of community supervision the judge may issue
a warrant for violation of any of the conditions of the community supervision and
cause the defendant to be arrested."  Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b)
(Vernon Supp. 2002).  A trial court may hear an MRP after the community-supervision period has expired: allowing otherwise would reward an absconder who
is able to elude capture until his community-supervision period has ended.  Peacock
v. State, 77 S.W.3d 285, 287 (Tex. Crim. App. 2002); Prior v. State, 795 S.W.2d 179,
183 (Tex. Crim. App. 1990).  For the trial court's jurisdiction to extend beyond the
community-supervision period's expiration, however, (1) an MRP must be filed and
(2) capias must be issued during the community-supervision period.  Peacock, 77
S.W.3d at 287.  
	The State must then also exercise due diligence "to apprehend the probationer
and to hear and determine the allegations in the motion."  Id. (citing Rodriguez v.
State, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991)).  "Requiring the State to show
due diligence in executing the capias helps a court determine whether the probationer
cannot be found because he is trying to elude capture or because no one is looking for
him.  Just as the probationer should not benefit from hiding, the State should not
benefit by doing nothing meaningful to execute a capias, i.e., if a probationer is not
being sought, there is no reason for the court to have continuing jurisdiction." 
Peacock, 77 S.W.3d at 289.  The State's actions occurring before an MRP is filed or
capias is issued may be considered in determining due diligence.  Bawcom, No. 1427-00, slip op. at 2, 13.  Due diligence can be shown by proof of reasonable investigative
efforts to apprehend the defendant.  Peacock, 77 S.W.3d at 288.  In contrast, diligence
may be lacking if the State does not explain lengthy delays in the arrest.  See
Rodriguez, 804 S.W.2d at 518; Langston v. State, 800 S.W.2d 553, 555 (Tex. Crim.
App. 1990), overruled on other grounds, Harris v. State, 843 S.W.2d 34, 35 n.1 (Tex.
Crim. App. 1992); Sessions v. State, 939 S.W.2d 796, 798 (Tex. App.--El Paso 1997,
no pet.).
	To preserve the issue, the defendant must raise due diligence before or during
the revocation hearing.  Peacock, 77 S.W.3d at 287-88.  Once the defendant raises the
issue, the State must show due diligence by a preponderance of the evidence.  Id. at
288.  We review the trial court's ruling for abuse of discretion, viewing the evidence
in the light most favorable to that ruling.  Beaty v. State, 49 S.W.3d 606, 607 (Tex.
App.--Beaumont 2001, pet. ref'd).  Witness credibility is for the trial court to assess. 
Strickland v. State, 523 S.W.2d 250, 251 (Tex. Crim. App. 1975).
B.	Facts
 The State produced the following evidence of its pre-MRP efforts to contact
appellant.  The last day appellant reported to his community-supervision officer was
December 19, 1996, although he was to report again on January 10, 1997.  On
January 14, 1997, appellant was advised by letter that his reporting date had been
reset to January 29, 1997.  Appellant again failed to report.  On January 29, 1997, a
voice-mail message was left at appellant's residence, but no one returned the call.  An
officer visited appellant's residence on February 14, 1997, where the officer spoke
to Chris Brown, who claimed to be appellant's nephew.  Brown said that appellant
had moved away after the new year and that Brown did not know where he went. 
When Brown said that his mother (3) might know where appellant was, the officer left
a business card and asked Brown to have his mother call with "any information
concerning appellant's whereabouts if they speak to [appellant]."
	On February 27, 1997, phone calls were made to the references in appellant's
file, including a Rick Bawcom, a Ms. Brown, and a "Joy G."  Rick Bawcom did not
return the several phone messages left for him.  Brown did not return the message left
on her answering machine.  Joy G. could not be reached.  On March 1, 1997, a phone 
message was left for appellant's supervisor at appellant's work place.  The supervisor
never returned the call.
	The State also produced the following evidence of its post-MRP actions.  On
October 14, 1997, appellant's file was sent to the community-supervision
department's offender-apprehension unit.  Officers in the unit called appellant's
father, brother, and sister, whose phone numbers were in the file; however, these
family members could not be reached because their phones had been disconnected. 
Appellant's file did not contain any information regarding whether the unit officers
made any other efforts to find appellant, such as contacting the Department of Public
Safety ("DPS"), the phone company, or the post office. (4)
C.	Application of the Law to the Facts
	The trial court would not have abused its discretion if it implicitly found that
appellant's own actions or his hiding prevented his apprehension.  For example, the
results of the State's pre-MRP investigation, which included a visit to appellant's
home, indicated that appellant had violated his community-supervision conditions by
changing his residence without court permission; at least one relative (Brown), who
lived at appellant's residence, stated appellant had moved away to a location
unknown; another relative (Brown's mother), for whom an officer left instructions to
call with information about appellant, did not respond; and three of appellant's own
references did not return officers' phone messages.  Given this pre-MRP context, the
trial court did not abuse its discretion when it ruled that the State acted with due
diligence, even though the State's only actions after filing the MRP were to call some
of appellant's other relatives one time.  We distinguish the cases, on which appellant
relies, in which courts have reversed for lack of due diligence: in each, the State knew
or had indications of where the probationer was, but failed to effectuate his arrest. (5) 
Here, in contrast, the record supports the implicit conclusion that appellant had
hidden himself or intentionally rendered his location unknown.
	As appellant points out, however, the State did not take some rather basic steps
to locate him.  For example, no one followed up on the one call to appellant's work
supervisor.  There was also no attempt to locate Brown's mother, who purportedly
knew of appellant's whereabouts.  Additionally, no officer contacted the DPS, the
phone company, or the post office.  These last types of actions are generally taken
when a probationer is placed on the absconder caseload of the Brazos County
Probation Department.  See Harris, 843 S.W.2d at 35.  
	Although the State could have done more, we hold that appellant's actions in
not reporting his address change excused the State's delay in effectuating appellant's
arrest until just over two months past the expiration of appellant's community-supervision period.  See Strickland, 523 S.W.2d at 251 (holding State sufficiently
diligent when defendant, who failed to report address change, was arrested seven
months past expiration of community supervision); Beaty, 49 S.W.3d at 608-09
(holding State sufficiently diligent--despite 14 months' delay between capias and
arrest and five months' delay between community-supervision period's expiration and
arrest--when defendant's daughter told officer she had not known where defendant
was for two years, defendant's sons twice told officer they did not know where
defendant was, and neighbor was asked to report if she saw defendant, but did not
report; dissenting opinion notes that officers did not visit defendant's home, contact
him through mail, question his labor union, check Social Security records, or check
probation files to find acquaintances to contact).  Accordingly, we hold the trial court
did not abuse its discretion in finding that the State acted with due diligence in
apprehending appellant and, thus, in denying appellant's motion to dismiss.
	Accordingly, we overrule appellant's sole point of error.

Conclusion
	We affirm the judgment of the trial court.


 
							Tim Taft
							Justice

Panel consists of Justices Hedges, Taft, and Jennings.

Publish.  Tex. R. App. P. 47.4.
1. 843 S.W.2d 34, 36 (Tex. Crim. App. 1992).
2. The Legislature adopted the term "community supervision" for "probation"
effective September 1, 1993.  Act of May 29, 1993, 73rd Leg., R.S., ch. 900,
§ 4.04, 1993 Tex. Gen. Laws 3716, 3743.  The terms are generally used
interchangeably.  See id.; Ex parte Renfro, 999 S.W.2d 557, 559 n.2 (Tex.
App.--Houston [14th Dist.] 1999, pet. ref'd).
3. Our prior opinion and the Court of Criminal Appeals's opinion indicate that
Brown was referring here to appellant's mother, but the record indicates that
Brown was referring to his own mother.
4. The State argues it is a fair inference from the fact of appellant's arrest that his
information was entered into the statewide criminal-information database used
by law enforcement agencies.  However, the circumstances of appellant's arrest
were not developed in the record, and we thus decline to make any such
inference.  See Bawcom v. State, 24 S.W.3d 613, 617 (Tex. App.--Houston
[1st Dist.] 2000) (Taft, J., dissenting, declining to make this inference in State's
favor), rev'd, No. 1427-00 (Tex. Crim. App. June 26, 2002).
5. See Harris, 843 S.W.2d at 36 (probationer never left county except to live with
relatives known to probation department, lived and worked in same city for
years, and "had not escaped from custody and gone into hiding."); Rodriguez
v. State, 804 S.W.2d 516, 518 (Tex. Crim. App. 1991) (probation department
knew probationer's residence and place of employment, but department had
policy to cease further contact with probationer once warrant issued); Langston
v. State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990) (probationer's address
known), overruled on other grounds, Harris, 843 S.W.2d at 35 n.1; Moyers v.
State, 948 S.W.2d 359, 360-61 (Tex. App.--Amarillo 1997, no pet.)
(probationer's out-of-state address known); Sessions v. State, 939 S.W.2d 796,
798 (Tex. App.--El Paso 1997, no pet.) (probationer's out-of-state address
known); Holtzman v. State, 866 S.W.2d 728, 729 (Tex. App.--Houston [14th
Dist.] 1993, pet. ref'd) (deputy did not follow up information, given by
unknown person at appellant's last known address, that probationer was jailed
in Florida); Perry v. State, 841 S.W.2d 924, 925 (Tex. App.--Corpus Christi
1992, no pet.) (probationer's address known); Burch v. State, 821 S.W.2d 385,
387 (Tex. App.--Waco 1991, no pet.) (State did not serve capias for years,
although probation department had received signed return receipts for letters
sent to out-of-state address of probationer, who had been given permission to
serve probation in that state); Hunter v. State, 820 S.W.2d 5, 7 (Tex.
App.--Austin 1991, no pet.) (probation department's file contained letter with
out-of-state street address for probationer, yet probationer not arrested until
nine years later).
