      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                        NO. 03-00-00681-CR




                                 Todd Adam Beckford, Appellant

                                                   v.

                                    The State of Texas, Appellee




FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT,
       NO. 94-799-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                Todd Beckford appeals from the revocation of his probation. He contends that the

district court erred by finding the State met its burden to prove that it used due diligence in executing

its arrest warrant; he contends this error deprived him of due process. Concluding that the State did

not bear the burden to prove due diligence in this case, we will affirm the revocation.

                This is the second revocation of Beckford’s probation for this offense. In accordance

with Beckford’s December 1995 plea bargain, the court originally sentenced him to two years in state

jail for forgery, but deferred adjudication of guilt pending completion of four years of probation. On

June 19, 1996, the State moved to revoke his deferred-adjudication probation and the district court

issued a warrant for Beckford’s arrest. Following his arrest in August 1996, Beckford negotiated the

plea bargain underlying the judgment dated September 3, 1996, in which the district court adjudicated
his guilt and assessed punishment at two years, but probated confinement for four years.1 The State

moved to revoke this second probation on November 22, 1996; on November 25, 1996, the court

again issued a warrant for Beckford’s arrest. Almost four years later, on July 13, 2000, Beckford

surrendered to the probation department. The State amended its motion to revoke probation on July

24, 2000, alleging many more violations of the probation conditions that had occurred in the interim.

On August 28, 2000, Beckford filed a motion to dismiss the State’s motion to revoke, contending

that the State failed to use due diligence in apprehending him after filing its November 1996 motion

to revoke probation and the issuance of the arrest warrant. He also requested that the court discharge

him from probation. The district court revoked his probation on August 30, 2000 and assessed a

sentence of two years in state jail. This revocation was within the term of Beckford’s probation.

                Beckford contends that the court erred by finding the State met its burden of proof

that it used due diligence in executing its arrest warrant. He relies on Rodriguez v. State to establish

the procedure to be followed when the defendant asserts the State failed to use due diligence. In that

case, the court of criminal appeals wrote


        In Prior, we reaffirmed our rules relating to revocation after the probationary term
        has expired. We held:

            [A] trial court has jurisdiction to revoke . . . probation imposed pursuant to Art.
            42.12, § 3d [V.A.C.C.P.], after the probationary term has expired, as long as
            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, followed by due
            diligence to apprehend the probationer and to hear and determine the allegations
            in the motion. In doing so, we expressly uphold our decision in Coleman, 632
            S.W.2d 616 . . . .


   1
      The length of the probation period initially imposed a five-year period—one year more than
Beckford accepted in the plea bargain. On July 19, 2000, the district court entered a nunc pro tunc
order which reduced the probation period to four years in conformity with the plea bargain.

                                                   2
       Prior, [795 S.W.2d 179, 184 (Tex. Crim. App. 1990)].


Rodriguez, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991) (emphasis added, footnotes omitted). The

court states, however, that it is speaking only of post-expiration revocations.2 Indeed, in the case in

which the doctrine originated3 the court wrote:


       The mere fact that a motion has been filed during the probation term alleging a
       violation of the conditions of probation will not authorize revocation after such term
       has expired. Only the court’s action authorizing the arrest of the probationer,
       followed by diligent effort to apprehend and hear and determine the claimed violation,
       can authorize revocation after the probation term has ended.


Stover v. State, 365 S.W.2d 808, 809 (Tex. Crim. App. 1963). The statute governing community

supervision provides as follows:


       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


  2
      In Brecheisen v. State, the court did not include language limiting the due-diligence defense to
post-expiration revocations. See Brecheisen, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). The court
in Brecheisen, was considering a post-expiration revocation. Id. at 763. The cases cited by the court
in Brecheisen as well as by the parties here regarding the due-diligence requirement are all post-
expiration revocations. See Connolly v. State, 983 S.W.2d 738, 739 (Tex. Crim. App. 1999); Harris
v. State, 843 S.W.2d 34, 35 (Tex. Crim. App. 1992); Rodriguez, 804 S.W.2d at 517; Langston v.
State, 808 S.W.2d 553, 554 (Tex. Crim. App. 1990); Prior v. State, 795 S.W.2d 179, 179-80 (Tex.
Crim. App. 1990); Guillot v. State, 543 S.W.2d 650, 651 (Tex. Crim. App. 1976).
   3
      Judge Keller remarked that the court in Stover created the due-diligence doctrine “out of thin
air.” See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999) (Keller, J., concurring).

                                                  3
        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.


Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (West Supp. 2001). Though the code requires that

the arresting officer report the arrest “forthwith,” there is no expressed time limit on the execution

of the capias or any requirement of diligence. We find no requirement in statutory or case law that

the State show due diligence in seeking arrest of a probation violator when the probation is revoked

during the period of the probation.

               In this case, the court revoked Beckford’s probation on August 30, 2000 before the

probation period expired in September 2000. The State’s due-diligence burden never arose. We need

not review whether the State carried a burden it did not bear. Because the court did not err as

asserted, the error asserted cannot form the basis of a due-process violation. We overrule both points

of error .

               We affirm the revocation of Beckford’s probation.




                                               David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: July 26, 2001

Do Not Publish

                                                   4
