                                NO. 07-02-0431-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                     PANEL E

                                OCTOBER 23, 2003

                        ______________________________


                            VIC VECCHIO, APPELLANT

                                         V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

          FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

               NO. 99-467389; HONORABLE DRUE FARMER, JUDGE

                       _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


                                     OPINION


      In this appeal, appellant Vic Vecchio challenges his probation revocation. On

March 30, 2001, upon his guilty plea, he was found guilty of assault and sentenced to


      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
serve 365 days in the Lubbock County Jail, probated for a period of 24 months. On

September 20, 2002, the probation was revoked and he was ordered to serve the 365-day

sentence in the Lubbock County Jail. In his sole issue, appellant contends that the trial

court reversibly erred in denying his motion to dismiss because of the State’s alleged lack

of due diligence in apprehending him after its revocation motion was filed. Disagreeing,

we affirm the judgment of the trial court.


       In his appeal, appellant does not challenge the sufficiency of the evidence produced

at the revocation hearing to sustain the court’s revocation. As we have indicated, he limits

his appeal to the due diligence question. Appellant’s 24-month probationary period would

have expired on March 30, 2003. The application to revoke his probation was filed on

February 1, 2002, and a capias issued, he was arrested on July 23, 2002 and, as we have

noted, his probation was revoked on September 20, 2002. All of those dates occurred

within the 24-month probation period.


       In supporting his proposition, appellant argues that the delay between the February

1, 2002 date the capias was issued, and his July 23, 2002 arrest, shows a lack of due

diligence on the part of the State sufficient to entitle him to a dismissal of the revocation

petition. As indications of a lack of due diligence, he points out that appellant had notified

the probation department that he had two addresses, one of which was where he resided

with his wife, and the other was his mother’s address where he went when he argued with

his wife, which apparently occurred with some regularity. He also emphasizes that the



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department knew he had worked for the same employer for 11 years and had the name

and telephone number of his employer. During the period of time between February 1,

2002, and July 23, 2002, he asserts the only attempt to apprehend him was made by

sending one letter.


       In advancing his cause, appellant relies primarily upon the court’s decision in

Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002). In that case, also an appeal

from the revocation of probation, the revocation petition and the capias were issued within

the probationary period, but the probationer was not arrested until three months after the

probationary period had elapsed. The court opined that a trial court can hear a motion to

revoke community supervision (probation) even after the period of that supervision has

expired. Id. at 287. However, in order for the jurisdiction of the trial court to extend

beyond the expiration of the supervision period, it required two things to have occurred:

1) a motion to revoke must have been filed and a capias or arrest warrant issued prior to

the expiration of the supervision period, and 2) due diligence to apprehend the probationer

and to hear and determine the allegations in the motion must be shown. Id. The reason

for allowing jurisdiction to continue beyond the termination of the probationary period, the

court explained, was “to prevent probation term violators from benefitting from

absconding.” Id. at 288. Because of that extension of jurisdiction, which was equitable

and not statutory in nature, the court noted that equity also required the State to show it

had exercised due diligence but had been unable to locate the probationer within the

probation period. Id. at 289. That is not the situation before us.


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       In relevant part, Texas Code of Criminal Procedure article 42.12 §21(b) provides:


       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. Any supervision officer, police
       officer or other officer with power of arrest may arrest such defendant with
       or without a warrant upon the order of the judge to be noted on the docket
       of the court. A defendant so arrested may be detained in the county jail or
       other appropriate place of confinement until he can be taken before the
       judge. Such officer shall forthwith report such arrest and detention to such
       judge. If the defendant has not been released on bail, on motion by the
       defendant the judge shall cause the defendant to be brought before the
       judge for a hearing within 20 days of filing of said motion, and after a hearing
       without a jury, may either continue, extend, modify, or revoke the community
       supervision. . . . [emphasis added].


Tex. Code Crim. Proc. Ann. art. 42.12 §21(b) (Vernon Supp. 2003).


       In this case, because the arrest was made within the period of time within which the

trial court had express statutory jurisdiction, the reason for the imposition of an equitable

due diligence requirement did not, and does not, exist. The judgment of the trial court is

affirmed.


                                                  John T. Boyd
                                                  Senior Justice

Do not publish.




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