Clive Carson Peacock v. The State of Texas--Appeal from 27th District Court of Bell County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2008 » Clive Carson Peacock v. The State of Texas--Appeal from 27th District Court of Bell County

State: Texas

Court: Criminal Court of Appeals

Docket No: 03-08-00128-CR

Case Date: 06/20/2008

Plaintiff: Linda Susanne King

Defendant: Bank of New York and Countrywide Home Loans, Inc.--Appeal from 36th District Court of San Patricio

Preview:Debra Elaine Chetwood v. The State of Texas--Appeal
from County Court at Law No 9 of Bexar County
MEMORANDUM OPINION
No. 04-03-00199-CR
Debra Elaine CHETWOOD,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 9, Bexar County, Texas
Trial Court No. 744106
Honorable Oscar J. Kazen, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Sarah B. Duncan, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: March 10, 2004
AFFIRMED
Debra Elaine Chetwood ("Chetwood") challenges the trial court's judgment revoking her community supervision. (1)
We affirm.
Background
Pursuant to a plea-bargain agreement, Chetwood pled nolo contendere to driving while intoxicated as a second
offense. On December 4, 2000, the trial court assessed punishment at six months in jail, probated for six months, and a
$500 fine. On May 15, 2001, the trial court extended the term of her community supervision until October 4, 2001. On
August 2, 2001, the State filed a motion to revoke Chetwood's probation, and a capias ordering the arrest of Chetwood
was issued on the same day. Chetwood was not arrested until February 25, 2003, more than eighteen months after the
capias issued.
Chetwood moved to dismiss the motion to revoke her probation alleging the State failed to use due diligence in
executing the arrest warrant. At the hearing on March 5, 2003, the trial court denied Chetwood's motion to dismiss.
Chetwood then pled "true" to violating the conditions of her community supervision and the trial court sentenced her to
180 days house arrest.
Due Diligence
In two issues, Chetwood argues the trial court erred in: 1) finding that the State used due diligence in executing the
arrest warrant, and 2) improperly shifting the burden of proof to Chetwood to show the State's lack of due diligence. A
trial court's ruling on a motion to dismiss is subject to an abuse of discretion standard of review. Williams v. State, 464
S.W.2d 842, 844-45 (Tex. Crim. App. 1971); State v. Hernandez, 830 S.W.2d 631, 635 (Tex. App.--San Antonio 1992,
no pet.). In considering whether the trial court abused its discretion, we must determine whether its ruling lies outside
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the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
At any time during the period of community supervision, a motion to revoke may be filed alleging a violation of a
condition of the supervision and an arrest warrant may be issued. Tex. Code Crim. Proc. Ann. art. 42.12, 21(b)
(Vernon 2003). It is well established that a trial court may rule on a motion to revoke probation even after the
community supervision period has expired. Peacock v. State, 77 S.W.3d 285, 287-88 (Tex. Crim. App. 2002). For the
trial court's jurisdiction to extend beyond the term of community supervision, the motion to revoke probation must be
filed and the capias must be issued before the expiration of the community supervision period. (2) Id. In addition, the
State must exercise due diligence to apprehend the probationer and obtain a hearing and ruling on its motion to revoke;
however, the hearing may occur after expiration of the probation period. Id. at 288.
Once the defendant raises the defense of the State's lack of diligence in arresting her, the State has the burden of
persuasion to show that it exercised due diligence. See Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999).
Requiring the State to show due diligence in executing the capias helps a court determine whether the probationer was
not found earlier because she was trying to elude capture or because no one was looking for her. Peacock, 77 S.W.3d
at 289.Diligence may be lacking if the State does not explain lengthy delays in arrest. See Rodriguez v. State, 804
S.W.2d 516, 518 (Tex. Crim. App. 1991); Bawcom v. State, 84 S.W.3d 821, 824 (Tex. App.--Houston [1st Dist.] 2002,
pet. ref'd).
Analysis
At the revocation hearing, Chetwood's probation officer, Kay Nolan ("Nolan"), testified that the arrest warrant issued
on August 2, 2001, and that she sent a letter to Chetwood at 443 East Edmonds the next day, notifying Chetwood that
the State had filed a motion to revoke her probation. On August 8, 2001, Nolan received a phone call from Chetwood.
During their conversation, Chetwood acknowledged receiving the letter and was instructed by Nolan to turn herself in
to the authorities. Chetwood told Nolan that she had already spoken to her attorney about the motion to revoke, but did
not state whether she planned to surrender. A second letter was sent to Chetwood at the same address on October 1,
2001, notifying Chetwood that she had missed her September probation meeting. On cross-examination, Nolan
admitted she did not attempt to visit Chetwood's residence or contact Chetwood's relatives to determine her physical
whereabouts. Furthermore, Nolan testified that she did not believe Chetwood was intentionally "hiding" from the
probation department.
Chetwood's brother, Robert Robins ("Robins"), testified Chetwood had lived at 443 East Edmonds for at least six years
and that she had remained in constant contact with her relatives during that time. When questioned by the court as to
whether Chetwood knew about the outstanding arrest warrant, Robins testified Chetwood was aware of the warrant and
that she was concerned about it. Robins further stated Chetwood had been in contact with her attorney for the past year
trying to resolve the matter; however, she had been hospitalized several times during that period causing her to delay
her surrender. Additionally, the record reflects Chetwood's attorney tried to arrange her surrender on several occasions,
but that each time she received a phone call a day or two prior to her surrender stating Chetwood was in the hospital
again.
On appeal, Chetwood relies on Peacock in arguing the State failed to prove its due diligence in executing the arrest
warrant because she had maintained the same address from the time she was placed on community supervision until
the day of her arrest. Furthermore, Chetwood argues that the State could have visited her residence and contacted her
relatives to determine her location, but failed to do so. In Peacock, the Court of Criminal Appeals failed to find that
due diligence had been exercised by the State where the only actions taken were the entry of the capias into a
statewide database used by law enforcement to track criminals and the mailing of one letter to the defendant's last
known address. See Peacock, 77 S.W.3d at 288.
We find that the facts of this case are distinguishable from Peacock. The record reflects that: 1) a warrant was placed
in the system informing law enforcement agencies of Chetwood's status; 2) the State sent Chetwood two letters
notifying her that an arrest warrant had been issued; 3) her probation officer spoke to Chetwood and instructed her to
surrender in August 2001; 4) Chetwood failed to attend her last probation meeting in September 2001; 5) Robins
testified Chetwood knew about the warrant and was worried about being taken into custody; and 6) Chetwood's
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attorney arranged for her surrender on several occasions, but it was repeatedly delayed by Chetwood. The State not
only exerted a greater effort in contacting Chetwood than it did in Peacock, but the delay in executing the warrant was
also due in large part to Chetwood's own actions to delay or avoid her arrest.
Although the State could have done more to apprehend Chetwood, we hold that there is sufficient evidence that the
State exercised due diligence to execute the arrest warrant. Chetwood received written notice that a motion to revoke
had been filed and an arrest warrant had issued. Furthermore, in their conversation on August 8, 2001, Chetwood was
immediately instructed by her probation officer to surrender. And, while Chetwood not only failed to surrender at this
point, she received another letter notifying her of her failure to attend her last meeting with the same probation officer.
Over the next year, she made arrangements with her attorney to surrender on several occasions, only to cancel at the
last minute. Just as the State should not benefit from its absence of action in executing a warrant, a probationer should
not benefit from avoiding arrest. See Bawcomb, 84 S.W.3d at 823-24. Accordingly, we overrule Chetwood's first and
second issues on appeal and affirm the judgment of the trial court. (3)
Phylis J. Speedlin, Justice
DO NOT PUBLISH
1. The Legislature adopted the term "community supervision" on September 1, 1993. See Act of May 29, 1993, 73rd
Leg., R.S., ch. 900, 4.04, 1993 Tex. Gen. Laws 3716, 3743. The terms "community supervision" and "probation" are
used interchangeably.
2. After Chetwood's probation was revoked, the Legislature added subsection (e) to Section 21of Article 42.12 of the
Texas Code of Criminal Procedure. See Acts 2003, 78th Leg., ch. 250, 2 (effective June 18, 2003).
3. We find nothing in the record to show the trial court improperly shifted the burden of proof from the State to
Chetwood as stated in her second issue.
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