                         NUMBERS 13-13-00554-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JOE ANTHONY CUEVAS,                                                          Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 156th District Court
                           of Bee County, Texas.


                          MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
               Memorandum Opinion by Justice Perkes

       Appellant Joe Anthony Cuevas appeals the trial court’s revocation of his

community supervision. After appellant pleaded not true to five allegations, the trial court

found four allegations to be true and sentenced appellant to four years’ imprisonment in

the Texas Department of Criminal Justice, Institutional Division. By one issue, appellant

contends that he proved due diligence as a defense to the State’s failure to report
allegation and that the evidence was legally insufficient to prove the other violations. We

affirm.

                                      I.     BACKGROUND

          In 2001, appellant was indicted for aggravated assault with serious bodily injury, a

second-degree felony. TEX. PENAL CODE ANN. § 22.02(a)(1) (West, Westlaw through

Chapter 46 2015 R.S.).           Appellant entered a plea agreement for eight years of

confinement.       The trial court suspended appellant’s sentence and placed him on

community supervision for a period of six years. The trial court extended appellant’s

community supervision on multiple occasions because of his continuing violations of the

terms and conditions of community supervision. The State thereafter filed a motion to

revoke appellant’s community supervision based upon appellant’s continuing failure to

comply. The State’s motion to revoke appellant’s community supervision alleged:

          1. On or about the 27th day of September, 2012, in the County of Live Oak,
             State of Texas, Appellant, did fail to keep employment as required in
             Conditions of Community Supervision in Live Oak County as;

          2. On or about the 27th day of September, 2012, in the County of Live Oak,
             State of Texas, Appellant, did fail to report in person to the Supervision
             Officer of Live Oak County, Texas, two times per month for the month of
             September 2012, and further failed to report to the Supervision Officer
             of Live Oak County, Texas, two (2) times per month for the succeeding
             months of October 2012, November 2012, December 2012, January
             2013, February 2013, March 2013;

          3. On or about the 27th day of September, 2012, in the County of Live Oak,
             State of Texas, Appellant, did fail to report within two (2) Supervision
             Department working days, a change of address to the Supervision
             Officer of Live Oak County, Texas, as required in the Conditions of
             Community Supervision;

          4. On or about the 10th day of March 2011, in the County of Live Oak, State
             of Texas, Appellant, did fail to pay, to the Supervision Officer of Live Oak

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            County, Texas, a Statutory Supervisory Fee of $60.00 per month for the
            month of March 2011, and further failed to pay said Supervisory Fee on
            the 10th day of the succeeding months of April 2011 through April 2013;
            being in arrears $2,700.00; and

        5. On or about the 27th day of September, 2012, in the County of Live Oak,
           State of Texas, the said Joe Anthony Cuevas, did fail to submit to
           random urinalysis one (1) time per week for the week of September 27,
           2012, and further failed to submit to random urinalysis one (1) time per
           week for the succeeding weeks of the succeeding months of October
           2012, November 2012, December 2012, January 2013, February 2013,
           March 2013.

        Two witnesses testified during the revocation hearing: Community Supervision

Officer Grace Garcia and appellant. Regarding the allegation that appellant failed to

report, Garcia testified that appellant was discharged from a treatment center in Fort

Worth on September 13, 2012, and that appellant was given instructions prior to

discharge that he was required to report to his probation officer on September 27, 2012.1

Thereafter, appellant was required to report to his probation officer twice each month.

Garcia stated that the probation office made no attempt to contact appellant at his place

of residence. Regarding the other violations, Garcia testified: (1) appellant was

unemployed at some point during his period of community supervision; (2) appellant

changed addresses, moving from a halfway house in Fort Worth to another address, but

failed to notify the probation department of his change of address; (3) appellant failed to




        1  Appellant’s probation officer at the time of his discharge was Keane Monroe. Garcia was
appellant’s probation officer at the time of the revocation hearing and her testimony relied on Monroe’s
documentation included in appellant’s file. Garcia stated that there was nothing in appellant’s file to prove
that he was advised about his post-discharge appointment, and Monroe did not testify. The file, however,
includes notes from appellant’s previous probation officer indicating that appellant was scheduled to report
on September 27. Garcia explained that appellant would have been informed about his post-discharge
reporting requirements during the “treatment team meeting” which took place two days before appellant’s
discharge from the treatment center.
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pay any supervisory fees from March, 2011 to April, 2013; and (4) appellant failed to

submit to urinalysis testing during the months he failed to report.

       Appellant testified that after his discharge from the halfway house in Fort Worth,

he returned to his residence in George West, Texas. He claimed that he was waiting for

the probation department to contact him because he did not have any transportation. On

cross-examination, appellant admitted that his residence was eleven blocks from the

probation office; that he knew he was required to report, but that did not report out of fear

of going to jail; and that he understood the conditions of his community supervision. He

further admitted that he did not participate in any drug testing.

       The trial court found the first allegation—that appellant failed to maintain

employment—“not true”, but the trial court found “true” on the other four probation

violations, issued a judgment revoking appellant’s community supervision, and

sentencing him to four years’ imprisonment.

                                   II.    DUE DILIGENCE

       By his sole issue, appellant contends that the trial court abused its discretion in

revoking appellant’s probation because: (1) appellant proved due diligence as a defense

to failure to report; and (2) the evidence is legally insufficient to prove a violation of any

of the other conditions of community supervision. Specifically, appellant argues that

since Garcia admitted that the probation office made no attempt to contact him at his last

known address during his term of community supervision, that he successfully raised the

due-diligence defense to the alleged violation of failure to report.

       A. Applicable Law and Standard of Review


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       The State must prove by a preponderance of the evidence that the defendant

violated the terms and conditions of community supervision.           Rickels v. State, 202

S.W.3d 759, 763 (Tex. Crim. App. 2006). In determining questions regarding sufficiency

of the evidence in probation revocation cases, the burden of proof is by a preponderance

of the evidence. Id. The State satisfies this burden when the greater weight of the

credible evidence before the court creates a reasonable belief that it is more probable

than not that the defendant has violated a condition of his probation as alleged in the

State's motion. Id. at 763–64; Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.

1993) (en banc).

       Appellate review of an order revoking community supervision is limited to

determining whether the trial court abused its discretion. Rickels, 202 S.W.3d at 763;

Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref'd); Becker v.

State, 33 S.W.3d 64, 66 (Tex. App.—El Paso 2000, no pet.) (“Given the broad discretion

vested in the trial court and the nature of the proceeding, the courts have traditionally held

that the only issue presented in an appeal from an order revoking probation is whether

the trial court abused its discretion.”). If the State fails to meet its burden of proof, the

trial court abuses its discretion by revoking the community supervision. Cardona v.

State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984) (en banc). The fact-finder alone

determines the weight and credibility of the evidence. Id. We may not re-evaluate the

weight and credibility of the record and substitute our judgment for that of the fact-finder.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

       Appellant’s argument that he raised the affirmative defense of due-diligence


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requires us to interpret the due-diligence statute. Statutory construction is a question of

law we review de novo. Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011);

Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009). In construing a statute,

we must “seek to effectuate the ‘collective’ intent or purpose of the legislators who

enacted the legislation.” Harris, 359 S.W.3d at 629 (quoting Boykin v. State, 818 S.W.2d

782, 785 (Tex. Crim. App. 1991) (en banc)). “We look first to the statute’s literal text, and

‘we read words and phrases in context and construe them according to the rules of

grammar and usage.’” Id. (quoting Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim.

App. 2008)); Jones v. State, 323 S.W.3d 885, 888 (Tex. Crim. App. 2010). “We must

‘presume that every word in a statute has been used for a purpose and that each word,

phrase, clause, and sentence should be given effect if reasonably possible.’” Harris, 359

S.W.3d at 629 (quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997) (en

banc)). Only if the statutory language is ambiguous or leads to absurd results that the

legislature could not have possibly intended, may we consult extra-textual sources. Id.;

Jones, 323 S.W.3d at 888; Boykin, 818 S.W.2d at 785. In the process, we consider any

prior judicial construction of the statute.       Jones, 323 S.W.3d at 888.       A judicial

construction of the statute is the law until it is overruled. Id. at 888–89. The interests of

stare decisis are at their height for judicial constructions of legislative enactments

because parties rely on the constructions for guidance in complying with the enactments.

Id. at 889.

       B. Discussion – Failure to Report

       Prior to the amendment of article 42.12, the common-law due-diligence defense


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allowed the trial court jurisdiction over a motion to revoke that was filed after the period

of community supervision had expired, provided a motion alleging a violation of

probationary terms was filed and a capias or arrest warrant was 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. Peacock v. State, 77 S.W.3d 285, 287 (Tex.

Crim. App. 2002) (superseded by Garcia v. State, 387 S.W.3d 20 (Tex. Crim. App. 2012)).

       In 2003, the Legislature amended Texas Code of Criminal Procedure Article 42.12

by adding Sections 21(e) and 24. See Act of May 30, 2003, 78th Leg., R.S., ch. 250, §§

2, 3, effective June 18, 2003. Section 21(e) expressly extends the trial court's jurisdiction

over revocation proceedings beyond the expiration of a defendant's community

supervision so long as, before that time, the State has filed a motion to revoke, continue,

or modify community supervision and a capias has issued. Garcia, 387 S.W.3d at 23;

see TEX. CODE CRIM. PROC. ANN. art 42.12 §§ 21(e), 24 (West, Westlaw through Chapter

46 2015 R.S.); Nurridin v. State, 154 S.W.3d 920, 922–23 (Tex. App.—Dallas 2005, no

pet.) To section 21 of article 42.12, the legislature added paragraph (e):

       A court retains jurisdiction to hold a hearing under Subsection (b) and to
       revoke, continue, or modify community supervision, regardless of whether
       the period of community supervision imposed on the defendant has expired,
       if before the expiration the attorney representing the state files a motion to
       revoke, continue, or modify community supervision and a capias is issued
       for the arrest of the defendant.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(e).

       In addition to paragraph (e), the legislature replaced the common-law due-

diligence requirement by adding section 24:

       For the purposes of a hearing under Section 5(b) or 21(b), it is an affirmative

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       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.

See TEX. CODE CRIM. PROC. ANN. art 42.12 § 24.

       Appellant argues that the statute requires the probation department to attempt to

contact a probationer in cases where the probationer fails to report as directed. This

argument suggests that during a probationer’s term of community supervision, the State

is required to report to the probationer. Such a reading effectively shifts the burden of

reporting to the State, even in situations where the probationer is still within the term of

community supervision—and the jurisdiction of the trial court—and fails to report as

required under the terms of community supervision. While we acknowledge that the

language of the statute is ambiguous, we disagree with appellant’s interpretation.

       In a prior analysis of the statute, the Court of Criminal Appeals has concluded that

“the legislative history reveals that the new due-diligence statute reallocates the burden

of proof in those instances in which the State has timely alleged violations but has not

arrested the defendant before the community-supervision period expired”. Garcia, 387

S.W.3d at 25 (emphasis added); see TEX. CRIM. PROC. ANN. art. 42.12 § 24. The due-

diligence statute limits the State's duty to contacting or attempting to contact the

defendant at his last-known residential or employment addresses, whereas common law

required reasonable investigative efforts to apprehend the defendant. See Garcia, 387

S.W.3d at 23. The court noted that legislative supporters of the statutory amendment

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were concerned with rewarding absconding offenders and that “[the bill] would ensure

that a defendant is not rewarded for absconding and thereby escaping the court’s

jurisdiction.” Id. at 24 (citing HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. H.B.

1634, 78th Leg., R.S. (April 24, 2003)). While the Court of Criminal Appeals did not

address the particular issue before us, our interpretation of the due-diligence statute is

consistent with their analysis. Jones, 323 S.W.3d at 888.

       Contrary to appellant’s claims, a due diligence defense pertains to the State’s duty

in apprehending a defendant when the State has not arrested the defendant prior to the

expiration of the community supervision period. See Garcia, 387 S.W.3d at 25. Based

on our construction of sections 21(e) and 24, we agree with the State that the statute

does not contemplate the duty and failure to report; rather, it contemplates the timeliness

in apprehending a defendant after the expiration of his period of community supervision.

See id. Appellant concedes that he did not report as required and it is undisputed

appellant was arrested prior to the expiration of his period of community supervision.

Therefore, the new due diligence defense under article 42.12 section 24 does not apply

in this case.

       Appellant testified that he knew he was required to report and lived eleven blocks

from the probation office, but did not report because he was afraid of going to jail.

Additionally, appellant acknowledged that he did not participate in any drug screening.

Appellant’s admissions, coupled with Garcia’s testimony, is sufficient for the State to meet

its burden with respect to the allegations of failure to report and failure to comply with

drug testing. The trial court did not abuse its discretion in finding that appellant violated


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this term of community supervision.       Because a single violation of a condition of

community supervision is sufficient to support the trial court’s decision to revoke, we need

not address the other violations found true by the trial court. See Garcia, 387 S.W.3d at

26. We overrule appellant’s point of error.

                                   III.    CONCLUSION

      We affirm the trial court's order revoking appellant's community supervision.


                                                    GREGORY T. PERKES
                                                    Justice

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

Delivered and filed the
9th day of July, 2015.




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