       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                         NO. 03-01-00513-CR




                                   Barry Bentley Miller, Appellant

                                                    v.

                                    The State of Texas, Appellee




          FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
              NO. 34,737, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING




                After a plea of guilty on December 12, 1986, appellant Barry Bentley Miller was placed on

community supervision for aggravated assault, which was subsequently revoked. Miller now appeals from

the revocation order. He raises two issues contending that the State failed to prove, and the trial court

abused its discretion in finding, that due diligence was used to apprehend him before the expiration of his

probationary period. We will affirm the order of the trial court.


                                           BACKGROUND
                On December 12, 1986, Miller was placed on deferred adjudication community supervision

for a term of seven years. The trial court later modified the terms and conditions of his community

supervision and extended his probationary period until May 29, 2001.1 A capias and the final motion to

revoke in this case were filed February 16, 1999. The capias was executed by arresting Miller on June 29,

2001, approximately 29 days after his probationary period expired and more than two years after the

capias was issued.




        1
          The record indicates that the State filed motions to revoke his probation and amendments to those
motions in 1992, 1993, 1994, and 1995. In 1996, a judgment adjudicating guilt was entered based on the
original 1986 conviction, and Miller was sentenced to five years, probated for that same period, and
ordered to a substance abuse felony punishment facility. He was released from the facility in 1997.




                                                    2
                At a trial court hearing on July 19, 2001, Miller filed a motion to dismiss arguing that the

State failed to use due diligence in arresting him. E. Lynn Draper, a resident of Ohio, testified on behalf of

Miller. Draper testified that he owned a 400-acre ranch in Lampasas on which two houses, two barns, and

another residence in which Miller lived were located. Draper further testified that Miller had lived there for

three years, and he spoke to Miller once each month by phone. John Mahowald, a resident of Minnesota,

also testified on Miller=s behalf. Mahowald testified that he had known Miller about two years, had visited

Miller about four times while in Texas on vacation, and had also spoken to him on the phone. Joseph

Sturgeon, Miller=s probation officer, and John Kucker, an employee of the Bell County Community

Supervision and Corrections Department working in the absconder apprehension unit, testified on behalf of

the State. Sturgeon and Kucker testified regarding the investigative efforts made by the State to apprehend

Miller. The trial court denied Miller=s motion to dismiss, revoked his community supervision, and sentenced

him to five years in prison. Miller now appeals to this Court.


                                              DISCUSSION




                                                      3
                A trial court has jurisdiction to hear a motion to revoke community supervision even after

the probationary period has expired; to hold otherwise would reward an absconder who is able to elude

capture until the expiration of his probationary period. Peacock v. State, 77 S.W.3d 285, 287 (Tex. Crim.

App. 2002). A trial court=s jurisdiction extends beyond the expiration of the defendant=s community

supervision if a motion to revoke is filed and a capias has been issued. Id. A>[A]s 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= the trial court=s jurisdiction continues.@ Id. (quoting Rodriguez v. State, 804

S.W.2d 516, 517 (Tex. Crim. App. 1991)). Miller raised the issue of lack of due diligence during the

revocation hearing; accordingly, the issue is preserved for appellate review, and the State has the burden to

show by a preponderance of the evidence due diligence was used in executing the capias and in holding the

hearing on the motion to revoke. Id., at 287-88. In this case, the motion to revoke Miller=s community

supervision was filed on February 16, 1999, and the capias was issued on that same date. Both events

were completed before the expiration of Miller=s probationary period. Accordingly, the trial court would

have had jurisdiction at the time of the revocation hearing provided the State exercised due diligence in

apprehending Miller.

                In two issues, Miller contends that the State failed to prove, and the trial court abused its

discretion in finding, that due diligence was used to apprehend him before the expiration of his probationary

period. Requiring the State to show due diligence Ahelps a court to determine whether the probationer

cannot be found because he is trying to elude capture or because no one is looking for him.@ Id., at 289.


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ADue diligence can be shown by proof of reasonable investigative efforts made to apprehend the person

sought.@ Id., at 288. Miller contends that the record shows that the State did not exercise due diligence

because he established that he lived at the Lampasas address which he had provided the community

supervision and corrections department during his entire probationary period; there was no evidence that his

name and information had been entered into the TCIC or NCIC network;2 there was no evidence that he

actively avoided law enforcement officials; and there was evidence that he could have been apprehended by

tracking him in connection with charges filed against him in Burnet County.




        2
            TCIC and NCIC are criminal information databases used by law enforcement agencies.



                                                     5
                The record shows that Miller was informed by his probation officer, Sturgeon, on February

19, 1999, that a capias had been filed.3 In April of 1999, Sturgeon sent a letter to Miller=s Lampasas

address informing him that the capias had been issued, along with a warrant for his arrest, and requesting

him to report to the probation office. This letter was never returned; it is presumed to have been delivered.

Sturgeon also contacted Lisa Whitehead at the Burnet County courthouse in April regarding charges

pending against Miller in that county and requested a copy of the complaint. In February or March of

2000, Kucker, on behalf of the absconder apprehension unit, began searching Miller=s probation file and the

internet to obtain an address for Miller. In June of 2000, Kucker contacted Miller=s wife, who was not then

living with Miller, and she informed Kucker that Miller was living at the Lampasas address. In July, Kucker

drove to the Lampasas address and spoke to a man named H. R. Keelin who lived in one of the houses on

the property. Keelin informed Kucker that he did not know Miller. Kucker then contacted Miller=s

brother. Miller=s brother informed Kucker that he and Miller had had a Afalling out@ and he didn=t know

where Miller was. Kucker asked Miller=s brother to call if he received any information regarding Miller;

Kucker was never contacted. That same month, Kucker also contacted both the Lampasas Police

Department and the Burnet County Sheriff=s Department and requested assistance in locating Miller; in

addition, he contacted the local water department and appraisal district in an attempt to obtain an address

for Miller, but was told by a representative from each office that they could not release that information. In

December, Kucker again contacted Miller=s wife and spoke to her mother who informed Kucker that she


        3
          Sturgeon testified that, although the capias and arrest warrant had been filed February 16, the
arrest warrant had not yet been issued by February 19. As a result, he was not authorized to arrest Miller;
accordingly, he informed him of the impending events.

                                                      6
did not know Miller=s address or phone number. He again went to the Lampasas address and failed to

locate Miller. Finally, in April 2001, Kucker made his last visit to the Lampasas address and spoke to

Miller=s wife who informed him that Miller was in Corpus Christi working on a job.




                 We conclude that the record supports the trial court=s conclusion that the State exercised

due diligence in apprehending Miller. Miller contends that he lived at the same address during his entire

probationary period and that there was no evidence that he Aactively@ avoided law enforcement officials. In

support of his argument, he directs our attention to Gutierrez v. State, 46 S.W.3d 394 (Tex.

App.CCorpus Christi 2001, pet. granted). In Gutierrez, the only actions taken by the State in attempting

to apprehend the defendant were mailing a letter to his address and conducting a criminal history and

warrant check. Id. at 397. The Gutierrez court considered cases in which the court of criminal appeals

had found that the State did not exercise due diligence where a significant period of time elapsed between

the filing of the motion to revoke or the expiration of the probation and the arrest. Id. at 396 (citing Harris

v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992)) (almost ten years between filing of motion to revoke

and arrest and minimal efforts to apprehend); Rodriguez v. State, 840 S.W.2d 516 (Tex. Crim. App.

1991) (approximately two years between filing of motion to revoke and revocation of probation and one

year between expiration of probation and revocation of probation; State knew person=s address and did

nothing to apprehend); Langston v. State, 800 S.W.2d 553 (Tex. Crim. App. 1990) (eight months

between filing of motion to revoke and arrest and over seven months between expiration of probation and

arrest; State knew person=s address and no evidence he was hiding). In the present case, the State=s


                                                      7
actions involved considerably more than mailing a letter and a background check, as detailed above.

Furthermore, although more than two years elapsed between the filing of the motion to revoke and the

arrest, only 29 days elapsed between the expiration of Miller=s probationary period and his arrest. The

record demonstrates that Miller ceased reporting to his probation officer, did not respond when informed by

Sturgeon that a capias and arrest warrant would be issued, did not respond when he was sent a letter

informing him that a capias and arrest warrant had been issued and requesting him to report, and was never

located at his Lampasas address when Kucker visited, although others apparently could reach him there.4

                Miller also contends that there is no evidence that his name and information were entered

into the TCIC or NCIC network database; however, what he fails to state is that there was no evidence to

the contrary. The record is silent on this issue. As this constitutes only one of many factors in determining

whether the State exercised reasonable investigative efforts, we do not find this absence of proof

dispositive.

                Finally, Miller contends that there was evidence that he could have been apprehended by

tracking him in connection with charges filed against him in Burnet County. Sturgeon=s testimony indicates

that Miller was arrested and released on bond in January 1999, before the capias and motion to revoke

were filed. Sturgeon called Lisa Whitehead at the Burnet County courthouse in January and again in April

1999. In April, he requested a copy of the complaint, but the record does not indicate anything further,

including whether Miller made a court appearance at which the State would have had an opportunity to


        4
          Both Draper and Mahowald testified that Miller was at the Lampasas address each time they
visited. Both also testified that they spoke to him by phone and he was there each time they called. In
addition, Draper testified that he was able to send Miller mail at the Lampasas address.

                                                     8
apprehend him. We do not find this determination dispositive in light of the other investigative efforts made

by the State.

                 As demonstrated by the record, this is not a case where the State knew where Miller was

and then did nothing; nor is this a case where the State offered no explanation for the delay in apprehending

Miller. We conclude that the State presented sufficient evidence of reasonable investigative efforts and,

therefore, satisfied its due diligence burden. Accordingly, the trial court did not abuse its discretion in

revoking Miller=s probation.


                                             CONCLUSION

                 Having overruled Miller=s issues, we affirm the trial court=s order.




                                                  __________________________________________

                                                  Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: September 26, 2002

Do Not Publish




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