                                     NO. 12-09-00394-CR

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

JUSTIN CLARK,                                        §                APPEAL FROM THE 114TH
APPELLANT

V.                                                   §                JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                             §                SMITH COUNTY, TEXAS


                                       MEMORANDUM OPINION
        Justin Clark appeals the adjudication of his guilt and revocation of his community
supervision for burglary of a habitation. He raises two issues on appeal.1 We affirm.


                                                BACKGROUND
        On January 22, 1998, Appellant was arrested for burglary of a habitation in Smith
County, Texas. On September 24, 1999, after indictment, Appellant pleaded guilty in an open
plea and was sentenced to ten years of deferred adjudication community supervision. 2 On
October 11, 2000, the State filed an application to proceed to final adjudication for alleged
violations of his community supervision. On October 13, 2000, the trial court signed a capias
warrant, authorizing officers to arrest Appellant and hold him without bail.                         Appellant’s
community supervision officer was unable to locate Appellant, and his case was assigned to the


        1
            Appellant asserts two issues on appeal. Although each is differently worded and separately stated, they
raise the same issue. Consequently, we address them simultaneously.
        2
           “Community supervision” is the current statutory term for what was formerly called “probation.” Ballard
v. State, 126 S.W.3d 919, 919 n. 1 (Tex. Crim. App. 2004); see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 2(2)
(Vernon Supp. 2010) (defining community supervision). When Appellant was originally sentenced, he received
absconder unit, which was also unable to find Appellant.
        On July 12, 2009, Appellant was arrested in Oklahoma City, Oklahoma, after being
detained for driving a vehicle with a stolen registration sticker. The Smith County capias was
served on Appellant at that time. Appellant waived extradition and was returned to Smith
County on September 23, 2009, one day before his community supervision period expired. On
October 15, 2009, the trial court held a hearing on the State’s motion to adjudicate and found
Appellant guilty, revoked his community supervision, and sentenced him to imprisonment for
fifteen years. Appellant timely appealed.


                                             DUE DILIGENCE
        In his first and second issues, Appellant argues that the trial court erred in denying his
motion to dismiss the State’s application to proceed to final adjudication because the State failed
to exercise due diligence in apprehending him.
Standard of Review
        We review a trial court’s order revoking community supervision under an abuse of
discretion standard. Rickles v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The state
must prove its allegation that a defendant violated a condition of his community supervision by a
preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
However, the burden is on the defendant to establish an affirmative defense by a preponderance
of the evidence. TEX. PENAL CODE ANN. § 2.04(d) (Vernon 2010); Wheat v. State, 165 S.W.3d
802, 807 n.6 (Tex. App.—Texarkana 2005, pet. dism’d).
Applicable Law
        Under former law, a trial court’s jurisdiction over a motion to revoke community
supervision did not survive the expiration of the community supervision period unless (1) a
motion to revoke was filed before the community supervision period expired, (2) an arrest
warrant, capias, or summons was issued before the community supervision period expired, and
(3) the state exercised due diligence in having a revocation hearing. Wheat v. State, 165 S.W.3d
at 805 (citing Peacock v. State, 77 S.W.3d 285, 287-88 (Tex. Crim. App. 2002)). The state’s


deferred adjudication “probation.” To avoid confusion, we use the more modern “community supervision” in this
opinion.
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failure to execute a capias with due diligence was regarded as a plea in bar or defense. Id. The
state bore the burden of proving “its due diligence once the defendant raised the issue.” Id.
        In 2003, the Texas Code of Criminal Procedure was amended to extend the trial court’s
continuing jurisdiction to revoke deferred adjudication community supervision beyond the
expiration of the term of community supervision.3 Specifically, article 42.12, section 5(h) reads
as follows:


                 A court retains jurisdiction to hold a hearing under Subsection (b) and to
                 proceed with an adjudication of guilt, regardless of whether the period of
                 community supervision imposed on the defendant has expired, if before the
                 expiration the attorney representing the state files a motion to proceed with
                 adjudication and a capias is issued for the arrest of the defendant.



See Act of June 18, 2003, 78th Leg., R.S., ch. 250, § 1, 2003 Tex. Gen. Laws 1158 (codified at
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(h) (Vernon Supp. 2010)).4 This change eliminated
the “due-diligence element” and “removed the broad, lack-of-due-diligence defense that had
prevailed according to the prior caselaw.” Wheat, 165 S.W.3d at 805; see also Nurridin v. State,
154 S.W.3d 920, 924 (Tex. App.—Dallas 2005, no pet.).
        The legislature also added section 24, “which gives back a limited affirmative defense of
lack of due diligence:”


                 For the purposes of a hearing under Section 5(b) or 21(b), 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 or attempt 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

        3
           A similar amendment relates to traditional community supervision. See Act of June 18, 2003, 78th Leg.,
R.S., ch. 250, § 2, 2003 Tex. Gen. Laws 1158 (codified at TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(e) (Vernon
Supp. 2010)).
        4
           This change in the law applies to a hearing on a motion to adjudicate guilt and revoke community
supervision “that commences on or after the effective date of this Act, regardless of whether the defendant was
placed on community supervision before, on, or after the effective date of this Act.” See Act of June 18, 2003, 78th
Leg., R.S., ch. 250, § 4, 2003 Tex. Gen. Laws 1158; see also Pena v. State, 201 S.W.3d 764, 764 (Tex. Crim. App.
2006).

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                 the county in which the order of community supervision was entered.


Act of June 18, 2003, 78th Leg., R.S., ch. 250, § 3, 2003 Tex. Gen. Laws 1158 (codified at TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 24 (Vernon Supp. 2010)); see Wheat, 165 S.W.3d at 805-
06. In light of these amendments, due diligence is “an affirmative defense applicable only to the
grounds of revocation alleging failure to report or failure to remain in a specified location.”
Wheat, 165 S.W.3d at 806; see Nurridin, 154 S.W.3d at 924. Other courts, including this court,
have agreed with this analysis. See, e.g., Horton v. State, No. 10-09-00258-CR, 2010 WL
2010932, at *2-3 (Tex. App.—Waco May 19, 2010, pet. ref’d) (mem. op., not designated for
publication); Fuller v. State, No. 12-07-00424-CR, 2008 WL 4117857, at *1-3 (Tex. App.—
Tyler Sept. 3, 2008, pet. ref’d) (mem. op., not designated for publication).
Discussion
        In the instant case, neither party disputes that the motion to adjudicate was filed and the
capias issued within the period of Appellant’s community supervision. In its motion, the State
alleged seven violations of Appellant’s community supervision, including failure to remain in a
specified location5 and failure to report to his community supervision officer. The other five
violations alleged were failure to (1) complete his community service, (2) pay community
supervision fees, (3) pay restitution, (4) reimburse the county for the cost of the substance abuse
questionnaire, and (5) complete his prescribed alcohol and drug treatment program. The trial
court ultimately found the failure to remain in a specified location allegation to be “not true.”
Appellant pleaded “true” to the remaining allegations.
        In light of the trial court’s “not true” finding and the current state of the law, the
affirmative defense of due diligence, as it applies here, pertains only to the State’s allegation that
Appellant failed to report to his community supervision officer. See TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 24; see also Wheat, 165 S.W.3d at 805-06; Nurridin, 154 S.W.3d at 924. But
irrespective of whether Appellant met his burden, or whether the State proved that it attempted to
contact Appellant in person or at his last known residence address or last known employment
address, the trial court could have nevertheless adjudicated Appellant’s guilt. This is because

        5
           This ground did not relate to his flight to Oklahoma, but rather his alleged move from Smith County,
Texas, to Rusk County, Texas. The motion to adjudicate Appellant’s guilt and to revoke his community supervision
was filed prior to his flight to Oklahoma and was not amended.
                                                       4
even if Appellant proved the State’s failure to exercise due diligence, he pleaded “true” to other
grounds for revocation. The violation of a single provision of his community supervision is
sufficient to adjudicate his guilt and revoke his community supervision. See Moses v. State, 590
S.W.2d 469, 470 (Tex. Crim. App. 1979) (holding plea of “true” to any one alleged violation is
sufficient to support a revocation of supervision).               Therefore, we do not address whether
Appellant established the State’s failure to exercise due diligence.
         In a related subissue, Appellant argues that the State did not act diligently because of the
approximately ninety-five day delay between his July 12, 2009 arrest in Oklahoma and his
October 15, 2009 hearing on the motion to adjudicate his guilt. As shown above, the due
diligence affirmative defense does not apply to this type of challenge. See TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 24. Rather, in essence, Appellant asserts a violation of his right to a
speedy revocation hearing. The burden is on the defendant to request a hearing on the state’s
motion to adjudicate his guilt, and after such a request is properly made, the trial court must hold
a hearing within twenty days. See TEX. CRIM. CODE PROC. ANN. art. 42.12, § 21(b) (Vernon
Supp. 2010). The record does not show that Appellant made such a request. Moreover, the
ninety-five day period that elapsed between Appellant’s arrest and his hearing is not of sufficient
magnitude to trigger a constitutional inquiry. See Dingler v. State, No. 05-03-01552-CR, 05-03-
01553-CR, 2005 WL 1039969, at *6 (Tex. App.—Dallas May 5, 2005, no pet.) (mem. op., not
designated for publication) (holding four month delay between arrest and revocation hearing did
not trigger speedy trial inquiry).
         We overrule Appellant’s issues one and two.


                                                    DISPOSITION
         We affirm the judgment of the trial court.

                                                                     SAM GRIFFITH
                                                                          Justice

Opinion delivered November 17, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                              (DO NOT PUBLISH)


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