


NUMBER 13-99-588-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
____________________________________________________________________


OSCAR TORRES,								Appellant,


v.

THE STATE OF TEXAS,							Appellee.

____________________________________________________________________


On appeal from the 105th District Court of Nueces County,

Texas.

____________________________________________________________________


O P I N I O N

Before Justices Hinojosa, Yañez, and Chavez 
Opinion by Justice Yañez

	Appellant, Oscar Torres, Jr., appeals the revocation of his
community supervision.  We reverse and remand.  

	Torres was convicted of delivery of marijuana on June 22, 1992
and was sentenced to seven years confinement, probated for seven
years.  The State filed a motion to revoke Torres's community
supervision on April 22, 1999, and issued a warrant for his arrest on
April 26, 1999.  Torres was not served with the warrant until August
3, 1999.  Following a hearing, at which Torres had a court-appointed
attorney, Torres's community supervision was revoked and he was
assessed punishment of seven years confinement.  Torres filed a motion
for new trial, which was denied following a hearing.

	Torres brings two issues to this Court.  With his first issue, Torres
argues that the trial court abused its discretion by not granting him a
new trial.  With his second issue, Torres contends that his trial counsel
was so ineffective as to violate his constitutional right to counsel.

	To determine if a trial counsel's representation was ineffective to
the point that it violated a defendant's Sixth Amendment right to
counsel, we apply the two-part test set out by the United States
Supreme Court.  Strickland v. Washington, 466 U.S. 668 (1984);
Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).  To
establish ineffective assistance of counsel, a defendant must show that
(1) his counsel's performance fell below an objective standard of
reasonableness, and (2) the defendant suffered harm as a result of his
counsel's inadequate performance.  Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999).  The appellant must show a reasonable
probability that, but for counsel's unprofessional errors, the outcome of
the trial would have been different.  Id.; Holland v. State, 761 S.W.2d
307, 314 (Tex. Crim. App. 1988).  In this context, a reasonable
probability is a probability sufficient to undermine confidence in the
outcome.  Thompson, 9 S.W.3d at 812; Hernandez, 726 S.W.2d at 55. 
The purpose of this inquiry is to determine if the trial counsel's errors
undermined the proper functioning of the adversarial process to the
point that the trial cannot be relied on to have produced a reliable result. 
Thompson, 9 S.W.3d at 812.  There is a strong presumption that the
trial counsel provided effective assistance.  Stafford v. State, 813
S.W.2d 503, 506 (Tex. Crim. App. 1991).

	Torres contends that trial counsel was ineffective because he
failed to raise, as a defense to the revocation, the failure of the State to
exercise due diligence in executing the capias that resulted from the
motion to revoke.

	Under Texas law, there are two requirements that must be met for
a trial court to acquire jurisdiction to revoke community supervision.

The State must file with the trial court, before the expiration
date 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
on this motion that orders the arrest of the probationer.



Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999)(citations
omitted).  The State is further required to exercise due diligence in
executing the capias issued on the motion to revoke.  Id.  

	The failure of the State to exercise due diligence is a plea in bar or
defense, which must be raised by a defendant at the revocation
hearing.  Id.  This is not an affirmative defense; however, once the
defense raises the due-diligence issue at the hearing, the State incurs
the burden of persuasion to show the exercise of due diligence.  Id. 

	In the case now before this Court, ample evidence was developed
at the hearing on Torres's motion for new trial that Torres had a
legitimate claim that the State failed to exercise due diligence in serving
him with the capias on the motion to revoke.(1)  At the hearing on his
motion for new trial, Torres testified that he had lived at 5810 Glen
Arbor, Corpus Christi, from January of 1999 until his arrest and his
probation officer had the address.  Torres further stated that he worked
in Alice, Texas, and he had informed the probation officer of the address
of that job.  Evidence introduced at the hearing showed that the water
and electricity bills for 5810 Glen Arbor were in Torres's name.  The
State did not controvert any of this evidence.  Torres testified that prior
to the capias being issued, he was told by a probation officer that the
probation office was considering revoking his community supervision. 
Torres stated that at that point he feared a warrant would issue and he
started "running;" however Torres's "running" apparently consisted of
simply not reporting to his probation officer.  Torres and his mother
both testified that Torres was never informed that a warrant had
actually issued.  His mother also confirmed that he lived at 5810 Glen
Arbor.

	The evidence indicates that the only action taken by the State,
other then putting the record of the arrest warrant into the State
database, was to send an officer to 5810 Glen Arbor on May 5, 1999. 
The officer found no one at the residence.  There is no evidence in the
record as to the time of day when the officer visited. Ultimately, Torres
was arrested when a car, in which he was a passenger, was stopped
and his identification was checked.

 Based on the evidence before this Court, Torres had a valid
defense against the revocation of his community supervision.  Torres's
trial counsel erred by not raising the question of due diligence.  If raised,
the State would have been required to show due diligence, and the
evidence before this court strongly indicates that the State would have
been unsuccessful.  The inability of the State to show due diligence
would have required dismissal of the motion to revoke.  Langston v.
State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990).  Torres's trial
counsel failed to raise a defense which would have prevented Torres's
conviction.  The failure to raise the question of due diligence is such a
serious error that by failing to raise this question Torres's trial counsel's
performance fell below an objective standard of reasonableness. 
Further, there is a reasonable probability that, but for this error, the
outcome of the hearing on the motion to revoke would have been
different.  Issue number two is sustained.

	The judgment of the trial court is REVERSED and the cause is
REMANDED for a new hearing on the motion to revoke community
supervision.


 

							LINDA REYNA YAÑEZ

							Justice



Publish.  Tex. R. App. P. 47.3.


Opinion delivered and filed this 

the 14th day of December, 2000.

1. Torres's attorney for both the motion for new trial and this
appeal is not the same attorney who represented Torres at the
hearing on the motion to revoke.

