IN THE

TENTH COURT OF APPEALS

No. 10-01-323-CR

                                           No. 10-01-324-CR

     TESA BALLARD,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 13th District Court

Navarro County, Texas

Trial Court Nos. 25,971 & 25,972

DISSENTING OPINION

      What we do today is illogical. The effect of today’s extension of Peacock is that due diligence is a defense even if the motion to revoke/adjudicate, the issuance of the capias, incarceration, and hearing all occur during the period of supervision. See Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002). Due diligence should only be an issue if the defendant is not incarcerated before the community supervision has expired. Ballard was incarcerated before her community supervision expired. I respectfully dissent.

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion delivered and filed August 28, 2002

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