Rodriquez v. State
Rodriquez v. State
Opinion of the Court
OPINION
delivered the opinion of the Court,
After appellant pled nolo contendere to voluntary manslaughter, the trial court placed him on ten years’ deferred adjudication probation. The trial court subsequently adjudicated appellant guilty of the voluntary manslaughter offense and sentenced him to twenty years’ confinement.
Appellant filed a direct appeal from the adjudication proceeding claiming the State failed to use due diligence in apprehending him and bringing him before the trial court for a hearing. The Court of Appeals dismissed the appeal for lack of jurisdiction because, among other things, appellant’s general notice of appeal failed to vest the Court of Appeals with jurisdiction over appellant’s appeal. Rodriquez, 972 S.W.2d at 139.
We granted appellant’s discretionary review petition to review this decision. Although we disagree with- the Court of Appeals’ reasoning, we agree with its ultimate holding that it lacked jurisdiction over appellant’s appeal based on our recent decision in Connolly v. State, 983 S.W.2d 738, 741, (Tex.Cr.App. 1999).
The judgment of the Court of Appeals is affirmed.
MANSFIELD, J., filed a concurring opinion in which KELLER, J., joined.
Concurring Opinion
delivered the concurring opinion
in which KELLER, J., joined.
I join the opinion of the Court, affirming the judgment of the Court of Appeals. I write further to express my support for the position expressed by Judge Keller in her concurring opinion in Connolly v. State, 983 S.W.2d 738 (Tex.Crim.App. 1999) that the Legislature has not imposed on the State an obligation to exercise “due diligence” in apprehending an individual whose probation it seeks to revoke.
Nowhere in the Code of Criminal Procedure is there set forth any requirement that the State must do certain things or undertake certain actions to execute promptly a warrant for the arrest of a probationer alleged to have violated the conditions of his probation. Whether we should impose such a requirement in the absence of any legislative directive is a question we should not answer unless and until the appropriate case comes before us.
Dissenting Opinion
filed a dissenting opinion,
in which MEYERS, PRICE and HOLLAND, J.J., joined.
I respectfully dissent. In 1982, appellant entered a plea of nolo contendere to voluntary manslaughter, and the trial court placed him on deferred adjudication probation for ten years. In 1988, the State filed a motion to adjudicate, based on alleged violations of probation. A warrant
Now, however, the majority affirms the judgment of the Court of Appeals on the basis of our recent decision in Connolly v. State, 983 S.W.2d 738 (Tex.Crim.App. 1999). I joined Judge Meyers’s dissent in that case, and I continue to believe that Connolly was wrongly decided.
In Connolly, we held that, pursuant to Tex.Code Crim. PROC. art. 42.12, § 5(b), a defendant whose deferred adjudication community supervision was revoked after his supervisory term had expired could not appeal the trial court’s finding of due diligence on the part of the State in apprehending him and having the revocation hearing. Id. at 741. In doing so, the majority purported to rely on several precedents from this Court. It cited one of these, Harris v. State, 843 S.W.2d 34, (Tex.Crim.App. 1992), for the proposition that the issue of due diligence was really in the nature of a plea in bar or defense which must be raised by a defendant at the revocation hearing. Connolly, 983 S.W.2d at 741. In Harris, we did say that the due-diligence requirement is in the nature of a plea in bar or defense, but we said so in the context of preservation of the trial court’s jurisdiction to revoke probation after expiration of the probationary period. Harris, 843 S.W.2d at 35 & n. I.
The Court of Appeals in Connolly rejected the State’s assertion that Harris
. In the footnote, we said:
In both Langston and Prior the Court held a trial court has jurisdiction to revoke probation after the probationary term has expired if three requirements were met, viz: (1) a motion alleging a violation of probationary terms was filed prior to expiration of the period, (2) a capias or arrest warrant issued prior to expiration of the period, and (3) the State exercised due diligence in apprehending and in hearing and determining the allegations in the motion. Pri- or, 795 S.W.2d at 184; Langston, 800 S.W.2d at 554. Thus, we have considered due diligence as necessary for the trial court’s jurisdiction to revoke probation after expiration of the probationary period. See discussion in Rodriguez, 804 S.W.2d at 519-521 (Teague, J., dissenting). As Judge Benavides noted in the court of appeals’ opinion in Rodriguez v. State, 784 S.W.2d 582 (Tex.App.—Corpus Christi 1990), the "due diligence” requirement is really in the nature of a plea in bar or defense which must be raised by the probationer. Jurisdiction is therefore contingent upon the establishment of only the first two requirements listed above. Any language to the contrary in prior decisions of this Court is disavowed.
Harris, 843 S.W.2d at 35-36 n. 1.
. On remand, the Court of Appeals noted that this court had "disavowed its earlier opinions on which we relied and concluded that the due diligence points should have been dismissed without reaching their merits.” Connolly v. State, No.03-97-00182-CR, 1999 WL 143829 (Tex.App. -Austin March 18, 1999, no pet. h.) (not designated for publication), 1999 WL 143829.
Reference
- Full Case Name
- Edward Davilia RODRIQUEZ, Appellant, v. the STATE of Texas
- Cited By
- 21 cases
- Status
- Published