Foy and Betty Jean Crockett v. Eunice Elaine McSwain--Appeal from 266th District Court of Erath County

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Laws-info.com » Cases » Texas » 11th District Court of Appeals » 2001 » Foy and Betty Jean Crockett v. Eunice Elaine McSwain--Appeal from 266th District Court of Erath County

State: Texas

Court: Texas Northern District Court

Docket No: 11-00-00374-CV

Case Date: 11/01/2001

Plaintiff: Foy and Betty Jean Crockett

Defendant: Eunice Elaine McSwain--Appeal from 266th District Court of Erath County

Preview:Russell Hamilton Harris v. The State of Texas--Appeal
from 272nd District Court of Brazos County
MAJORITY | MAJORITY
Russell Hamilton Harris v. The State of Texas /**/
IN THE
TENTH COURT OF APPEALS
No. 10-99-210-CR
RUSSELL HAMILTON HARRIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court # 16,577-272
O P I N I O N
The court revoked Russell Hamilton Harris s probation for indecency with a child and sentenced him to ten years
imprisonment. Harris presents the following points: (1) the trial court lost jurisdiction to revoke his probation because
the motion to revoke was filed and the capias was issued after the expiration of his probation; and (2) the trial court
erred in revoking his probation because the State failed to exercise due diligence in executing the capias.
BACKGROUND
Harris pleaded guilty to indecency with a child and was sentenced to ten years confinement in the Texas Department of
Corrections. The court suspended imposition of sentence and placed him on probation for ten years. The court signed
the judgment and sentence in September 1986 and Harris appealed. The appellate court affirmed the judgment and
issued its mandate on January 28, 1988. The State filed a Motion to Revoke on October 6, 1997. A capias issued on the
same date. California authorities served the capias on April 14, 1999. The court heard the revocation motion one month
later.
JURISDICTION
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Harris claims in his first point that the jurisdiction of the court to revoke his probation lapsed before the State filed the
Motion to Revoke and the capias issued. Harris is correct if probation commences on the day of sentencing,
notwithstanding an appeal. However, where an appeal is taken, probation does not commence until the mandate of the
appellate court issues. See Ex Parte Hatcher, 894 S.W.2d 364, 365 (Tex. Crim. App. 1995) (citing Delorme v. State,
488 S.W.2d 808, 810 (Tex. Crim. App. 1973); Cuellar v. State, 985 S.W.2d 656, 658 (Tex. App. Houston [1st Dist.]
1999, no pet.)). Harris probation commenced on January 28, 1988 when the appellate court s mandate issued.
Consequently, the Motion to Revoke and capias were timely. Accordingly, we overrule Harris s first point.
DUE DILIGENCE
Harris claims in his second point that the State did not exercise due diligence. Harris raised the issue of due diligence
at the hearing on the Motion to Revoke. The burden of showing due diligence is on the State only if the defendant
raises the issue at the revocation hearing. Burch v. State, 821 S.W.2d 385, 386 (Tex. App. Waco 1991, no pet.) (citing
Langston v. State, 800 S.W.2d 553, 554 (Tex. Crim. App. 1990)). Once raised, the State must prove by a
preponderance of the evidence that it exercised due diligence. Shaw v. State, 622 S.W.2d 862, 863 (Tex. Crim. App.
1981). The State cannot rely on efforts to locate the defendant prior to the issuance of the capias, to establish due
diligence. Rodriguez v. State, 804 S.W.2d 516, 519 (Tex. Crim. App. 1991); Langston, 800 S.W.2d at 555; Prior v.
State, 795 S.W.2d 179, 185 (Tex. Crim. App. 1990).
The capias issued on October 6, 1997. Harris was apprehended in May of 1999, nineteen months later. The State placed
Harris on the absconder caseload in October 1997, after the capias issued. Harris was placed in the Most Wanted
section of a local newspaper in January 1998. Finally, a records check with the Los Angeles County Sheriff s
Department was performed in November 1998. These were the only actions taken to apprehend Harris after the capias
was issued. Similar to Langston, appellant here had relatives that the State knew of but did not contact. Langston, 800
S.W.2d at 553. The State knew of Harris grandmother in Caldwell, Texas but made no effort to contact her. Similar to
this Court s opinion in Peacock, there is no evidence in this case that the State knew appellant s address at any time.
Peacock v. State, No. 10-99-345-CR, 2000 Tex. App. LEXIS 6046 (Tex. App. Waco August 30, 2000 no pet. h.). We
cannot conclude that the State failed to exercise due diligence in this case. We overrule appellant s second point.
We affirm the judgment.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Vance and
Justice Gray
(Justice Vance Dissenting)
Affirmed
Opinion delivered and filed November 22, 2000
Do not publish
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