Phillip Bernard Jackson v. State

Opinion

                             NUMBER 13-03-00495-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

PHILLIP BERNARD JACKSON,                                                       Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 105th District Court of Nueces County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

Pursuant to a plea agreement, appellant, Phillip Bernard Jackson, pleaded guilty on September 11, 2000, to  the offense of aggravated assault.  In accordance with the plea agreement, the trial court deferred the adjudication of guilt, assessed a fine of $250, and placed appellant on community supervision for a term of five years.

On February 17, 2003, the State filed a motion to revoke appellant=s deferred adjudication community supervision.  The State subsequently filed amended motions to revoke on March 6, 2003, March 27, 2003, April 28, 2003, and May 23, 2003.  On July 24, 2003, after considering the motion and hearing the evidence presented, the trial court (1) found that appellant had violated the conditions of his community supervision, (2) revoked his community supervision, (3) adjudicated him guilty of the offense of aggravated assault, and (4) assessed his punishment at twelve years= imprisonment.  The trial court has certified that this is not a plea-bargain case and appellant has the right of appeal.  See Tex. R. App. P. 25.2(a)(2).  In a single point of error, appellant contends the trial court lacked jurisdiction to act on the State=s fourth amended motion to revoke his community supervision because the court did not sign and enter a capias after the motion was filed by the State.  We affirm.

The issues of law presented by this case are well settled and the parties are familiar with the facts.  Therefore, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

Appellant argues that two requirements must be met for a trial court to acquire jurisdiction to revoke probation: (1) the State must file a motion to revoke prior to the expiration of the probationary period; and (2) the trial court must issue a capias based upon this motion, ordering the arrest of the probationer before the expiration of the probationary period.  In support of his argument, appellant cites Brecheisen v. State, 4 S.W.3d 761 (Tex. Crim. App. 1998) (citing Guillot v. State, 543 S.W.2d 650, 652 (Tex. Crim. App. 1976).

The cases cited by appellant refer to timely-filed motions to revoke probation beyond the probationary period.  The record shows that this was not the situation in this case.  Appellant was within the period of community supervision when the amended motion to revoke probation was filed and heard.

The applicable statute states that revocation proceedings may commence without a warrant during the period of community supervision:

At any time during the period of community supervision the judge may issue a warrant for violation of any of the conditions of the community supervision and cause the defendant to be arrested.  Any supervision officer, police officer or other officer with the power of arrest may arrest such defendant with or without a warrant upon the order of the judge to be noted on the docket of the court.

Tex. Code Crim. Proc. Ann. art. 42.12, ' 21(b) (Vernon Supp. 2004-05) (emphasis added).  Because the record reflects that the revocation occurred within the period of community supervision, an arrest warrant, or capias, was not required.^[1]

The judgment of the trial court is affirmed.  

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 18th day of August, 2005.

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^[1] The record indicates that a capias was in fact issued in the present case.  It was labeled an Aarrest warrant,@ rather than a Acapias,@ but satisfies the statutory requirements for a capias.  See Tex. Code Crim. Proc. Ann. art. 23.02 (Vernon 1989).  See also Rodriguez v. State, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991) (concluding that Aas long as the revocation motion was filed and the capias or arrest warrant issued before the expiration of the appellant's probationary term, the hearing conducted shortly after his arrest was proper@); Ballard v. State, 33 S.W.3d 463, 466 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d) (citing Harris v. State, 843 S.W.2d 34, 35 & n.1 (Tex. Crim. App. 1990) (noting decisions holding that a trial court retained jurisdiction to revoke probation where, among other situations, Aa capias or arrest warrant issued prior to expiration of the [probation] period@).