             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,031



                      Ex parte DAVID WILLIAM BAKER, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 3820-A IN THE 216TH DISTRICT COURT
                          FROM GILLESPIE COUNTY


        K ELLER, P.J., filed a dissenting opinion.


        The State mistakenly released applicant, and for ten months, it failed to do anything to rectify

that mistake. I agree with the Court that applicant is entitled to credit for those ten months. I am less

certain, however, about the remaining thirteen months. After ten months, the State did do something

to rectify its mistake – it issued a warrant for arrest. If applicant had remained in Texas, that warrant

could have been served and applicant returned to state jail to serve the remaining thirteen months

of his sentence. But at the time the arrest warrant was issued, applicant was in China. I am aware
                                                                                BAKER DISSENT - 2

of no extradition treaties existing between the United States and China that would have enabled the

State to forcibly return applicant to custody. According to the trial judge’s findings of fact, applicant

and his father knew that applicant had not completed his sentence when they left for China.

        I think an absconder/due diligence rule like that articulated in Peacock v. State1 for

probationers should apply to cases like this. As in the probation revocation context, no express

statutory authority governs the situation before us, and the potential exists for the releasee to take

advantage of the situation by hiding from the authorities.2 Under the facts before us, it appears that

applicant knowingly placed himself beyond the reach of the authorities while his sentence was still

pending.

        But the parties and the trial court have not been alerted to the possibility that an

absconder/due diligence rule might apply in this context. I would remand this case to the trial court

for further factfinding concerning the reasons for applicant moving to China, what the State knew

about where applicant had gone, and any efforts the State made to bring applicant into custody. I

would also order briefing by the parties on whether an absconder/due diligence rule should apply in

this setting, and if so, whether applicant should be considered an absconder and whether the State

exercised due diligence after the arrest warrant was issued to apprehend him, including whether there



        1
            77 S.W.3d 285 (Tex. Crim. App. 2002).
        2
          See id. at 289 (no express statutory authority providing for or prohibiting the extension of
jurisdiction over probationers beyond the expiration of the probationary period; an absconder should
not benefit from his cunning in hiding from authorities but we should be sure that the person in
question is in fact an absconder).
                                                                            BAKER DISSENT - 3

were any appropriate international avenues for seeking or obtaining custody of applicant.

       Because the Court declines to consider the issue further, I respectfully dissent.


Filed: April 1, 2009
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