


 
 
 



IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1639-04


HENRY GARCIA PENA, JR., Appellant
 
v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS

LIVE OAK COUNTY



 
 Keasler, J., delivered the opinion for a unanimous Court.


O P I N I O N

 
	Pena was placed on three years' probation for  marihuana possession on March 29,
2000.  Two years later, on April 3, 2002, the State moved to revoke and an arrest warrant
issued.  Pena was apprehended on September 9, 2003, five months after his probationary
term expired.  He received one year in a state jail after unsuccessfully contending that the
State failed to exercise due diligence in executing the arrest warrant.  The Court of Appeals
agreed with Pena's argument and reversed.  We disagree and reverse the Court of Appeals's
judgment.
	The amendment to Article 42.12, Section 24, enacted by the Texas Legislature in
2003, applies to this case.  Its effective date was June 18, 2003, and it applies to all hearings
commencing on or after that date, regardless of whether a defendant was placed on
community supervision before.  Although the State did not argue that Section 24 was
applicable in the Court of Appeals, it had no obligation to do so.  The State was not required
to preserve anything because it was successful in the trial court.  Therefore, the decision of
the Court of Appeals is reversed, and this case is remanded with instructions to reconsider
it in light of that provision.

DATE DELIVERED: September 20, 2006.
PUBLISH 
