Opinion
No. 11-03-00417-CR
October 14, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Ector County. This is an appeal from a judgment adjudicating guilt. We affirm.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
OPINION
Procedural Background Daniel Joseph Doshier originally entered a plea of guilty to the offense of possession of a prohibited weapon. On April 11, 1997, the trial court deferred the adjudication of appellant's guilt, placed him on community supervision for 5 years, and assessed a $500 fine. On October 11, 1999, the trial court ordered that appellant's community supervision be extended for one additional year. On February 16, 2000, the State filed a motion to adjudicate guilt, and a capias was issued the same day. Appellant was arrested on October 26, 2003, six months after his supervisory period ended. At the December 3, 2003, hearing on the motion to adjudicate, appellant entered pleas of true to the State's allegations. Appellant's sole contention at the hearing was that the State failed to exercise due diligence in securing his arrest before the term of his community supervision expired on April 11, 2003. The trial court found that the State had established by a preponderance of the evidence that it had exercised due diligence and found that appellant had violated the terms and conditions of his community supervision. The trial court revoked appellant's community supervision, adjudicated his guilt, and sentenced him to confinement for two years. Argument on Appeal In his sole issue on appeal, appellant contends that the trial court erred in assuming jurisdiction because the State did not exercise due diligence in securing his arrest prior to the expiration of his community supervision. To support his arguments, appellant relies on the following cases: Peacock v. State, 77 S.W.3d 285 (Tex.Cr.App. 2002); Brecheisen v. State, 4 S.W.3d 761 (Tex.Cr.App. 1999); Harris v. State, 843 S.W.2d 34 (Tex.Cr.App. 1992), overruled in part by Bawcom v. State, 78 S.W.3d 360 (Tex.Cr.App. 2002); Rodriguez v. State, 804 S.W.2d 516 (Tex.Cr.App. 1991); Nguyen v. State, 109 S.W.3d 820 (Tex.App.-Corpus Christi 2003, pet'n ref'd); Gutierrez v. State, 46 S.W.3d 394 (Tex.App.-Corpus Christi 2001), aff'd, 85 S.W.3d 817 (Tex.Cr.App. 2002). However, we note that each of these cases addresses revocations from "regular" community supervision — that is suspension of the imposition of a sentence after the defendant has been convicted. The present case is factually distinguishable. The trial court originally deferred the adjudication of appellant's guilt, and he was placed on "deferred adjudication" community supervision. Due Diligence is not Jurisidictional A trial court may hear a motion to revoke community supervision after the expiration of the supervision provided that the motion to revoke and the capias issued prior to the expiration of supervision. Ex parte Donaldson, 86 S.W.3d 231, 232 (Tex.Cr.App. 2002); Gutierrez v. State, 85 S.W.3d at 817; Peacock v. State, supra at 287; Brecheisen v. State, supra at 763; Nguyen v. State, supra at 822; Hubbert v. State, 91 S.W.3d 457, 458-59 (Tex.App.-Texarkana 2002, pet'n ref'd); Beaty v. State, 49 S.W.3d 606, 607 (Tex.App.-Beaumont 2001, pet'n ref'd). Due diligence on the part of the State is not a jurisdictional requirement. Brecheisen v. State, supra; Smith v. State, 120 S.W.3d 910, 912 (Tex.App.-Texarkana 2003, no pet'n); Nguyen v. State, supra at 822; Beaty v. State, supra at 607. The Issue Before this Court Appeals from the determination to adjudicate guilt are limited. Therefore, the issue before this court is whether appellant can raise lack of due diligence as a bar. TEX. CODE CRIM. PRO. ANN. art. 42.12, § 5(b) (Vernon Pamph. Supp. 2004-2005) precludes an appeal challenging the trial court's determination to proceed with the adjudication of guilt. Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App. 1992); Olowosuko v. State, 826 S.W.2d 940 (Tex.Cr.App. 1992). In Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App. 1999), the Court of Criminal Appeals held that a defendant is prohibited from raising lack of due diligence in the direct appeal from a judgment adjudicating guilt. Therefore, this court cannot entertain appellant's argument on appeal, and the issue is dismissed. This Court's Judgment The judgment of the trial court is affirmed.
The State waived its Allegation No. 1, and appellant entered pleas of true to Allegation Nos. 2-5.