TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00513-CR

Barry Bentley Miller, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 34,737, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

After a plea of guilty on December 12, 1986, appellant Barry Bentley Miller was placed on 

community supervision for aggravated assault, which was subsequently revoked. Miller now appeals from 

the revocation order. He raises two issues contending that the State failed to prove, and the trial court 

abused its discretion in finding, that due diligence was used to apprehend him before the expiration of his 

probationary period. We will affirm the order of the trial court.

BACKGROUND
2

On December 12, 1986, Miller was placed on deferred adjudication community supervision 

for a term of seven years. The trial court later modified the terms and conditions of his community 

supervision and extended his probationary period until May 29, 2001.1 A capias and the final motion to 

revoke in this case were filed February 16, 1999. The capias was executed by arresting Miller on June 29, 

2001, approximately 29 days after his probationary period expired and more than two years after the 

capias was issued.

 

1

 The record indicates that the State filed motions to revoke his probation and amendments to those 

motions in 1992, 1993, 1994, and 1995. In 1996, a judgment adjudicating guilt was entered based on the 

original 1986 conviction, and Miller was sentenced to five years, probated for that same period, and 

ordered to a substance abuse felony punishment facility. He was released from the facility in 1997. 
3

At a trial court hearing on July 19, 2001, Miller filed a motion to dismiss arguing that the 

State failed to use due diligence in arresting him. E. Lynn Draper, a resident of Ohio, testified on behalf of 

Miller. Draper testified that he owned a 400-acre ranch in Lampasas on which two houses, two barns, and 

another residence in which Miller lived were located. Draper further testified that Miller had lived there for 

three years, and he spoke to Miller once each month by phone. John Mahowald, a resident of Minnesota, 

also testified on Miller=s behalf. Mahowald testified that he had known Miller about two years, had visited 

Miller about four times while in Texas on vacation, and had also spoken to him on the phone. Joseph 

Sturgeon, Miller=s probation officer, and John Kucker, an employee of the Bell County Community 

Supervision and Corrections Department working in the absconder apprehension unit, testified on behalf of 

the State. Sturgeon and Kucker testified regarding the investigative efforts made by the State to apprehend 

Miller. The trial court denied Miller=s motion to dismiss, revoked his community supervision, and sentenced 

him to five years in prison. Miller now appeals to this Court.

DISCUSSION
4

A trial court has jurisdiction to hear a motion to revoke community supervision even after 

the probationary period has expired; to hold otherwise would reward an absconder who is able to elude 

capture until the expiration of his probationary period. Peacock v. State, 77 S.W.3d 285, 287 (Tex. Crim. 

App. 2002). A trial court=s jurisdiction extends beyond the expiration of the defendant=s community 

supervision if a motion to revoke is filed and a capias has been issued. Id. A>[A]s long as both a motion 

alleging a violation of probationary terms is filed and a capias or arrest warrant is issued prior to the 

expiration of the term, followed by due diligence to apprehend the probationer and to hear and determine 

the allegations in the motion= the trial court=s jurisdiction continues.@ Id. (quoting Rodriguez v. State, 804 

S.W.2d 516, 517 (Tex. Crim. App. 1991)). Miller raised the issue of lack of due diligence during the 

revocation hearing; accordingly, the issue is preserved for appellate review, and the State has the burden to 

show by a preponderance of the evidence due diligence was used in executing the capias and in holding the 

hearing on the motion to revoke. Id., at 287-88. In this case, the motion to revoke Miller=s community 

supervision was filed on February 16, 1999, and the capias was issued on that same date. Both events 

were completed before the expiration of Miller=s probationary period. Accordingly, the trial court would 

have had jurisdiction at the time of the revocation hearing provided the State exercised due diligence in 

apprehending Miller.

In two issues, Miller contends that the State failed to prove, and the trial court abused its 

discretion in finding, that due diligence was used to apprehend him before the expiration of his probationary 

period. Requiring the State to show due diligence Ahelps a court to determine whether the probationer 

cannot be found because he is trying to elude capture or because no one is looking for him.@ Id., at 289. 
5

ADue diligence can be shown by proof of reasonable investigative efforts made to apprehend the person 

sought.@ Id., at 288. Miller contends that the record shows that the State did not exercise due diligence 

because he established that he lived at the Lampasas address which he had provided the community 

supervision and corrections department during his entire probationary period; there was no evidence that his 

name and information had been entered into the TCIC or NCIC network;2there was no evidence that he 

actively avoided law enforcement officials; and there was evidence that he could have been apprehended by 

tracking him in connection with charges filed against him in Burnet County.

 

2

 TCIC and NCIC are criminal information databases used by law enforcement agencies.
6

The record shows that Miller was informed by his probation officer, Sturgeon, on February 

19, 1999, that a capias had been filed.3 In April of 1999, Sturgeon sent a letter to Miller=s Lampasas 

address informing him that the capias had been issued, along with a warrant for his arrest, and requesting 

him to report to the probation office. This letter was never returned; it is presumed to have been delivered. 

Sturgeon also contacted Lisa Whitehead at the Burnet County courthouse in April regarding charges 

pending against Miller in that county and requested a copy of the complaint. In February or March of 

2000, Kucker, on behalf of the absconder apprehension unit, began searching Miller=s probation file and the 

internet to obtain an address for Miller. In June of 2000, Kucker contacted Miller=s wife, who was not then 

living with Miller, and she informed Kucker that Miller was living at the Lampasas address. In July, Kucker 

drove to the Lampasas address and spoke to a man named H. R. Keelin who lived in one of the houses on 

the property. Keelin informed Kucker that he did not know Miller. Kucker then contacted Miller=s 

brother. Miller=s brother informed Kucker that he and Miller had had a Afalling out@ and he didn=t know 

where Miller was. Kucker asked Miller=s brother to call if he received any information regarding Miller; 

Kucker was never contacted. That same month, Kucker also contacted both the Lampasas Police 

Department and the Burnet County Sheriff=s Department and requested assistance in locating Miller; in 

addition, he contacted the local water department and appraisal district in an attempt to obtain an address 

for Miller, but was told by a representative from each office that they could not release that information. In 

December, Kucker again contacted Miller=s wife and spoke to her mother who informed Kucker that she 

 

3

 Sturgeon testified that, although the capias and arrest warrant had been filed February 16, the 

arrest warrant had not yet been issued by February 19. As a result, he was not authorized to arrest Miller; 

accordingly, he informed him of the impending events.
7

did not know Miller=s address or phone number. He again went to the Lampasas address and failed to 

locate Miller. Finally, in April 2001, Kucker made his last visit to the Lampasas address and spoke to 

Miller=s wife who informed him that Miller was in Corpus Christi working on a job.

We conclude that the record supports the trial court=s conclusion that the State exercised 

due diligence in apprehending Miller. Miller contends that he lived at the same address during his entire 

probationary period and that there was no evidence that he Aactively@ avoided law enforcement officials. In 

support of his argument, he directs our attention to Gutierrez v. State, 46 S.W.3d 394 (Tex. 

App.CCorpus Christi 2001, pet. granted). In Gutierrez, the only actions taken by the State in attempting 

to apprehend the defendant were mailing a letter to his address and conducting a criminal history and 

warrant check. Id. at 397. The Gutierrez court considered cases in which the court of criminal appeals 

had found that the State did not exercise due diligence where a significant period of time elapsed between 

the filing of the motion to revoke or the expiration of the probation and the arrest. Id. at 396 (citing Harris 

v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992)) (almost ten years between filing of motion to revoke 

and arrest and minimal efforts to apprehend); Rodriguez v. State, 840 S.W.2d 516 (Tex. Crim. App. 

1991) (approximately two years between filing of motion to revoke and revocation of probation and one 

year between expiration of probation and revocation of probation; State knew person=s address and did 

nothing to apprehend); Langston v. State, 800 S.W.2d 553 (Tex. Crim. App. 1990) (eight months 

between filing of motion to revoke and arrest and over seven months between expiration of probation and 

arrest; State knew person=s address and no evidence he was hiding). In the present case, the State=s 
8

actions involved considerably more than mailing a letter and a background check, as detailed above. 

Furthermore, although more than two years elapsed between the filing of the motion to revoke and the 

arrest, only 29 days elapsed between the expiration of Miller=s probationary period and his arrest. The 

record demonstrates that Miller ceased reporting to his probation officer, did not respond when informed by 

Sturgeon that a capias and arrest warrant would be issued, did not respond when he was sent a letter 

informing him that a capias and arrest warrant had been issued and requesting him to report, and was never 

located at his Lampasas address when Kucker visited, although others apparently could reach him there.4

Miller also contends that there is no evidence that his name and information were entered 

into the TCIC or NCIC network database; however, what he fails to state is that there was no evidence to 

the contrary. The record is silent on this issue. As this constitutes only one of many factors in determining 

whether the State exercised reasonable investigative efforts, we do not find this absence of proof

dispositive.

Finally, Miller contends that there was evidence that he could have been apprehended by 

tracking him in connection with charges filed against him in Burnet County. Sturgeon=s testimony indicates 

that Miller was arrested and released on bond in January 1999, before the capias and motion to revoke 

were filed. Sturgeon called Lisa Whitehead at the Burnet County courthouse in January and again in April 

1999. In April, he requested a copy of the complaint, but the record does not indicate anything further, 

including whether Miller made a court appearance at which the State would have had an opportunity to 

 

4

 Both Draper and Mahowald testified that Miller was at the Lampasas address each time they 

visited. Both also testified that they spoke to him by phone and he was there each time they called. In 

addition, Draper testified that he was able to send Miller mail at the Lampasas address.
9

apprehend him. We do not find this determination dispositive in light of the other investigative efforts made 

by the State.

As demonstrated by the record, this is not a case where the State knew where Miller was 

and then did nothing; nor is this a case where the State offered no explanation for the delay in apprehending 

Miller. We conclude that the State presented sufficient evidence of reasonable investigative efforts and, 

therefore, satisfied its due diligence burden. Accordingly, the trial court did not abuse its discretion in 

revoking Miller=s probation.

CONCLUSION

Having overruled Miller=s issues, we affirm the trial court=s order.

__________________________________________

Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: September 26, 2002

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