                         NOS. 07-08-0497-CR, 07-08-0498-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 FEBRUARY 9, 2010

                            __________________________

                          PEDRO CERVANTEZ, APPELLANT

                                          V.

                          THE STATE OF TEXAS, APPELLEE
                           ___________________________

            FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

          NOS. CR-88J-120, CR-88J-121; HONORABLE H. BRYAN POFF, JR.
                        _____________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      On March 7, 1989, appellant, Pedro Cervantez, pleaded no contest to two counts

of aggravated assault with a deadly weapon.1 As a result of a plea bargain, appellant

was placed on community supervision probation for a period of 10 years on each case.

Subsequently, in 1993, appellant’s probation was modified. Thereafter, on October 24,

1994, the State filed an application to revoke appellant’s probation. However, appellant

was not arrested on the capias issued in each case until August 8, 2008. On November



      1
          See TEX. PENAL CODE ANN. § 22.02(2) (Vernon Supp. 2009).
26, 2008, the trial court found that the allegations contained in each of the respective

applications to revoke probation were true. Appellant’s probation was revoked and he

was sentenced to two years confinement in the Institutional Division of the Texas

Department of Criminal Justice (ID-TDCJ). Appellant appeals the judgment of the trial

court contending that the trial court’s action in revoking his probation was

unconstitutional. Disagreeing with appellant, we affirm.


                          Factual and Procedural Background


      After appellant was placed on community supervision probation in 1989, his

probation was modified in 1993. The modification was a result of a motion to revoke

appellant’s probation that resulted in an agreed modification. Thereafter, on October

24, 1994, the State filed a second motion to revoke each of appellant’s probations. The

State alleged that appellant 1) had failed to report for specified months, 2) failed to

make his monthly payments, and 3) failed to report to the Hockley County Probation

Department as required by the terms of his probation. A capias was issued in each

case on October 24, 1994. However, the capias was not served on appellant until

August 8, 2008.


      A hearing on the State’s application to revoke, in each case, was held on

November 26, 2008. Appellant entered a plea of not true to the allegations contained in

the State’s motions to revoke.     The State presented evidence about the failure of

appellant to report, failure to pay the fees, and the failure to report to the Hockley

County Probation Department during the period appellant lived in Hockley County. The

State also presented evidence about the steps they had taken to attempt to serve the


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arrest warrants on appellant following the filing of the motions to revoke. After the State

rested its case, appellant presented evidence that he had not fled the jurisdiction of the

court and, in fact, had resided for a number of years at the address reflected in one of

his probation reports. During arguments about how the court should rule on the motions

to revoke, appellant’s counsel argued that the State had not exercised due diligence in

attempting to apprehend appellant. However, the trial court ruled that the State had

exercised due diligence in attempting to apprehend appellant and found the allegations

contained in the State’s motions to revoke true. The trial court revoked appellant’s

probations in each case and sentenced appellant to serve two years confinement in the

ID-TDCJ.


       Appellant appeals the trial court’s decision to revoke alleging that the State is

constitutionally barred from impairing the contractual obligation existing between

appellant and the State and that the State had to use due diligence in apprehending

appellant following the issuance of a capias. We disagree with appellant’s contention

and, therefore, affirm the judgment of revocation.


                                Constitutional Challenge


       Appellant contends that, at the time he entered his plea, the State, having filed

the motions to revoke, was bound to prove they used due diligence in serving him with

the arrest warrants. Consequently, appellant contends that this obligation became part

of his contract with the State in connection with the entry of his plea that led to him

being placed on community supervision probation. By legislation, the due diligence




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requirement2 that existed at the time of the entry of appellant’s plea has been replaced

with an affirmative defense,3 which necessarily alters the contractual obligation existing

between appellant and the State. As such, it appears to the Court that appellant is

complaining about the constitutionality of the statute as it was applied to him, rather

than that the statute is unconstitutional on its face.


       Construing appellant’s contention to be that he is presenting a case of

constitutional infirmity based on how the statute is being applied to him, we will apply

the following standard of review. A claim challenging the constitutionality of a statute’s

application cannot be raised for the first time on appeal.     See Curry v. State, 910

S.W.2d 490, 496 (Tex.Crim.App. 1995). Therefore, we must examine the record to

determine if appellant has properly preserved this issue for appeal. See TEX. R. APP. P.

33.1. Our review of the record reveals that the only objection made by appellant at the

time of his hearing on the State’s motions to revoke was that the State had failed to

demonstrate the exercise of due diligence in serving the warrants for appellant’s arrest.

This objection or statement in no way apprises the trial court that appellant is

contending that the statute is being applied to him in an unconstitutional manner. To

preserve this issue for appeal, all counsel had to do is “let the trial judge know what he

wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to

understand him at a time when the judge is in the proper position to do something about

it.” Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009). As appellant did not

object, there is nothing preserved for appeal and there is nothing presented for our


       2
           See Peacock v. State, 77 S.W.3d 285, 287-88 (Tex.Crim.App. 2002).
       3
           See TEX. CRIM. PROC. CODE ANN. art. 42.12, § 24 (Vernon Supp. 2008).
                                              4
review. See Starks v. State, 252 S.W.3d 704, 707 (Tex.App.--Amarillo 2008, no pet.).

Accordingly, appellant’s sole issue is overruled.


                                       Conclusion


       Having overruled appellant’s only issue, the judgments of the trial court are

affirmed.



                                                    Mackey K. Hancock
                                                         Justice




Do not publish.




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