                            NUMBER 13-10-106-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

JAVIER CISNEROS CAMPOS,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                      Appellee.


                  On appeal from the 103rd District Court
                       of Cameron County, Texas.


                       MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Vela
      A Cameron County grand jury indicted appellant, Javier Cisneros Campos, for

possession of less than twenty-eight grams of cocaine. He pleaded guilty and received

five years’ deferred-adjudication probation, beginning July 14, 1992.   Following an
adjudication hearing, the trial court adjudicated him guilty and sentenced him to twenty

years’ imprisonment. By one issue, appellant argues the trial court erred in failing to

dismiss the motion to adjudicate guilt because the State did not use due diligence to bring

him to face his adjudication of guilt. We affirm.

                                  I. PROCEDURAL HISTORY

         On August 25, 1993, the State filed a motion for adjudication of guilt, alleging

appellant violated various conditions of his probation. Following a hearing, the trial court

continued him on probation. On September 22, 1995, the State filed a second motion for

adjudication of guilt, alleging appellant violated eight conditions of his probation, including

an allegation that he committed capital murder on April 24, 1995. On October 9, 1995,

the trial court ordered the clerk to issue a capias, commanding the sheriff to arrest

appellant so that he could answer the allegations in the second motion for adjudication of

guilt.

         On August 6, 1999, the trial court signed an order to show cause, directing the

State to (1) show cause why the trial court should not dismiss the second motion for

adjudication of guilt for want of prosecution, and (2) present evidence regarding “all

diligence heretofore used to effect the arrest of [appellant] herein to answer to the

Motion.” In two letters addressed to the trial court, Blanca Castaneda, a Cameron

County community supervision officer, stated she had contacted the Florida Highway

Department, which reported that appellant was residing in Bonita Springs, Florida and

that he had obtained a valid driver’s license until the year 2000. Castaneda stated this

information was forwarded to the Cameron County Sheriff’s Department.


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       On March 1, 2004, the trial court signed a second order to show cause, which

contained the same directives as the first order signed by the court. In a letter addressed

to the trial court dated March 12, 2004, Castaneda informed the court that on August 2,

2001, Detective Lucio of the Brownsville Police Department told her that he believed

appellant was in custody at the jail in Matamoros, Tamaulipas, Mexico, and wanted a

copy of appellant’s picture and fingerprints. On August 5, 2002, Detective Lucio told

Castaneda that Mexican officials claimed appellant was furloughed and that he never

returned. Castaneda also stated that on January 13, 2004, she contacted appellant’s

cousin, Ricardo Cisneros, who claimed appellant was living in Mexico and hiding from

Mexican officials.

       On December 5, 2005, the trial court signed a third order to show cause, which

contained the same directives as the prior two orders signed by the court. In a letter

addressed to the trial court dated November 21, 2008, Connie Jaramillo, a Cameron

County community supervision officer, informed the court that on August 20, 2008, a

home visit was conducted at appellant’s previous address, but the new residents said

they did not know anybody by appellant’s name. Jaramillo also stated that contact was

made with appellant’s friend, Abel Munoz, who claimed he had not seen appellant in

approximately fifteen years. In a letter addressed to the trial court dated January 4,

2010, Jaramillo advised that “[o]n November 19, 2008, the defendant was extradited by

Mexican Officials and is currently detained at the Olmito County Jail.”

       On January 14, 2010, the trial court held a hearing on the second motion for

adjudication of guilt.   Appellant attended this hearing but did not testify.      Connie


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Jaramillo, the Cameron County supervision officer assigned to appellant’s case, testified

that the probation department gave appellant “permission to go to the State of Florida,

and from then on, we didn’t know of him anymore.” When the prosecutor asked her

about the efforts she made in trying to locate appellant, she said, “[W]e’ve contacted

references, done home visits. At one point, we found out that he was in the State of

Florida, and we were having contact with some agents from the State of Florida, which

were also trying to locate him.”       She testified that the Cameron County Probation

Department listed appellant as an “absconder.”

       On cross-examination, when defense counsel asked Jaramillo if the Cameron

County Probation Department “use[d] due diligence in sending a warrant to the Florida

police to go down to . . . [appellant’s Bonita Springs, Florida] address to see if [appellant]

was there and have him picked up?”, she said that the probation department forwarded

the information “[t]o our [Cameron County] sheriff’s office, and then I believe they are the

ones who sent the information to Florida.” When asked, “[D]o you have a means to

check with the NCIC/TCIC[1] computer to see if his [appellant’s] information has been

placed in the computer?”, she said, “Yes, we do.” When asked “[a]nd did you do that?”,

she said, “Yes, we did.” Jaramillo testified that on August 20, 2008, she made a home

visit to appellant’s last known address on Jennifer Avenue and found out that appellant’s

family no longer lived at that address.

       Samuel Lucio, a police officer with the Brownsville Police Department, testified

appellant told him that from April 1995 to the present time he had been in Mexico. Officer


       1
       NCIC and TCIC stands for National Crime Information Center and Texas Crime Information
       Center.
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Lucio testified that “[t]he Mexican authorities turned him [appellant] over to our

department.”

       The defense called David Martinez, who testified that on April 24, 1995, he was

with his brother and appellant outside a home in Brownsville. At that time, Martinez

heard appellant fire “several shots” from a rifle. After the shooting, they left the scene

and saw appellant’s brother on a motorcycle. Appellant left with his brother. Two days

later, Martinez saw appellant in Matamoros.

       Connie Jaramillo testified for the defense that she did not know when the warrant

for appellant’s arrest was entered into NCIC/TCIC.

       After the trial judge heard the testimony, she announced in open court that “I’m

going to take judicial notice of the Court’s file, . . . that tells me . . . that a warrant was, in

fact, issued in 1995, and we know it was eventually placed in NCIC/TCIC. I don’t have

the exact date of when it was placed in NCIC/TCIC, but I know a warrant was active.”

The trial judge found that appellant violated the conditions of his probation because he (1)

“did not report as instructed,” (2) “did not, within ten days, inform the probation

department that he had been arrested again,” (3) “did not avoid persons and places of

disreputable or harmful character,” and (4) “was arrested for a new offense, which is the

capital murder offense.” The trial judge adjudicated appellant guilty and sentenced him

to twenty years’ imprisonment. The trial judge also stated that “I do find due diligence

was made to find him [appellant] in the United States where we’re capable of doing this.”




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                                     II. DISCUSSION

       By a single issue, appellant argues the trial court erred in failing to dismiss the

motion to adjudicate guilt because the State did not use due diligence in bringing him to

face his adjudication of guilt.

       Under Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002), “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 802, 805 (Tex.

App.−Texarkana 2005, pet. dism’d, untimely filed) (citing Peacock v. State, 77 S.W.3d

285, 287-88) (Tex. Crim. App. 2002)). In Peacock, the State's failure to execute a capias

with due diligence was regarded as a plea in bar or defense, and the State bore the

burden of proving “its due diligence once the defendant raised the issue.” Id. (citing

Rodriquez v. State, 804 S.W.2d 516, 517-18 (Tex. Crim. App. 1991)).

       Thereafter, section 21(e) was added to article 42.12 of the Texas Code of Criminal

Procedure “to extend the trial court's continuing jurisdiction to revoke community

supervision after the expiration of the term of community supervision:” Id.; see Act of

May 30, 2003, 78th Leg., R.S., ch. 250, §§ 2, 3, 2003 TEX. GEN. LAWS 1158 (codified at

TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 21(e), 24 (Vernon Supp. 2010)); see also

Nurridin v. State, 154 S.W.3d 920, 922-23 (Tex. App.−Dallas 2005, no pet.) A court

retains jurisdiction to hold a hearing under subsection (b) and to revoke, continue, or


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modify community supervision, regardless of whether the period of community

supervision imposed on the defendant has expired, if before the expiration, the State’s

attorney filed a motion to revoke, continue, or modify community supervision and a capias

is issued for the arrest of the defendant. Wheat, 165 S.W.3d at 805; see TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 21(e); see also Nurridin, 154 S.W.3d at 924. 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 Nurridin, 154 S.W.3d at 924.

       The Legislature also added section 24 to article 42.12, “which gives back a limited

affirmative defense of lack of due diligence.” Wheat, 165 S.W.3d at 805. The Wheat

court stated that:

       [f]or the purposes of a hearing under Section . . . 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 the county in which the order of community supervision
       was entered.

Id. at 805-06 (citing TEX. CODE CRIM. PROC. ANN. art. 42.12, § 24) (emphasis added); see

Nurridin, 154 S.W.3d at 923.

       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.




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       In this case, the trial court found that appellant violated his probation because he

“did not report as instructed.” Accordingly, the affirmative defense of due diligence

would apply to this ground of revocation. See Wheat, 165 S.W.3d at 806; Nurridin, 154

S.W.3d at 904. However, the trial court also found that appellant violated his probation in

three other ways; i.e., (1) “he did not, within ten days, inform the probation department

that he had been arrested again,“ (2) “did not avoid persons and places of disreputable or

harmful character,” and (3) “he was arrested for a new offense” of capital murder. Under

the current state of the law, the affirmative defense of due diligence was not applicable to

all of the State's allegations, but only those alleging appellant’s failure to report or remain.

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. The sole issue for review is overruled.

                                       III. CONCLUSION

       We affirm the trial court’s judgment.




                                                      ROSE VELA
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of December, 2010.




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