## NO. 12

- 13

- 00313

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CARRIE MILLS CRON, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 173RD

JUDICIAL DISTRICT COURT

HENDERSON COUNTY, TE XAS

MEMORANDUM OPINION Carrie Mills Cron appeals her conviction for felony theft. Appellant raises one issue on appeal, challenging the trial court’s jurisdiction to revoke her community sup ervision . We
affirm.

B ACKGROUND A Henderson County grand jury returned an indictment against Appellant, alleging that she committed the offense of theft in an amount of $1,500 or more but less than $20,000. Appellant was placed on deferred adjudication community supervision for a period of six years

. The State filed a motion to proceed with adjudication of guilt and sentence before Appellant’s community supervision expired. Appellant was not arrested
, nor was a hearing conducted
, until
after the term o f Appellant’s community supervision expired . After a hearing, the trial court found the allegations contained in the State’s motion to proceed “true,” adju dicated Appellant guilty of theft
, and sentenced her to two years of confinement. This appeal follo wed.

R EVOCATION OF C OMMUNITY S UPERVISION In her sole issue, Appellant contends that the trial court lost jurisdiction to adjudicate her guilty of the offense of felony theft because the State failed to exercise due diligence to2

apprehend her prior to the expiration of her community supervision. The State argues that the trial court’s judgment should be affirmed because Appellant’s community supervision was revoked on grounds not applicable to the due diligence defense.
Standard of Review
We review a tri al court’s judgment revoking community supervision under an abuse of
discretion standard. Rickels v. State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A single sufficient ground for revocation will support a trial court’s judgment revoking community

sup ervision. Jones v. State , 571 S.W.2d 191, 193

- 94 (Tex. Crim. App. 1978). A trial court’s order revoking community supervision will be affirmed if an appellant does not challenge all grounds upon which the trial court revoked community supervision. Moore v. State , 605 S.W.2d
926 , 926 (Tex. Crim. App. [Panel Op.] 1980). Applicable Law At any time during the period of community supervision, a judge may issue a warrant for violation of any of the conditions of community supervision and cause the defendant to be
arrested. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12, § 21(b) (West Supp. 2013 ). A court retains jurisdiction to “revoke, continue, or modify community supervision, regardless of whether the period of community supervision imposed on the defendant has exp ired, if before the expiration the attorney representing the state files a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest of the defendant.” Id. art. 42.12 , § 21(e).
It is an affirmative defense to revo cation for an alleged failure to report to a supervision officer or to remain within a specified p l ace that the state “failed to contact or attempt to contact the defendant in person at the defendant’s last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of community supervision was entered.” Id. art. 42.12, § 24. Section 24 applies only to revocation allegations involving failure to report to an officer as directe d, and failure to remain within a specified place. See id. ; Garcia v. State , 387 S.W.3d 20, 23

- 26 (Tex. Crim. App. 2012) (“The legislative history reveals that the Legislature intended to replace the common[] law requirement with the due [] diligence statute to reallocate the burden of proof in those instances in which the State has timely alleged violations but has not arrested the defendant before the community[]supervision period has expired.”)

.3

Discussion On February 14, 2007, the trial court signed an order that placed Appellant on deferred adjudication community supervision for a period of six years. 1 The order set forth Appellant’s
cond itions of community supervision
, which required Appellant to report to her supervision
officer at least once each m onth; pay a supervision fee of $40.00 each month; pay her court
costs, fine , court appointed attorney’s fees, and restitution at the rate of $255.00 each month until paid in full ; and complete three hundred hours of community s ervice at the rate of ten hou rs each
month

. On October 31, 2007, the State filed its motion to proceed with adjudication of guilt and sentence. In its motion, the State alleged that Appellant

f ailed to report to her C ommunity S upervision O fficer as directed for the months of August , September[,] and October, 2007;

. . .
f ailed to pay $40.00 per month as directed for supervision fees for the months of August, September[,] and October, 2007;

. . .
f ailed to pay $255.00 per month as directed for [c]ourt costs, restitution[,] and a fine for the months of August, September[,] and October, 2007;
[and]

f ailed to work 10 hours per month of community service work as directed for the months of June, July, August, September[,] and October, 2007[.]

An order for capias was signed on November 14, 2007, a capias was issued on November 26, 2007, and Appellant was arrested on August 29, 2013.
T he hearing on the State’s motion to proceed with adjudication was conducted well beyond the expiration of Appellant’s term of community supervisi on. However, the trial court
had jurisdiction because (1) the State filed its motion to proceed with adjudication prior to the

1 The order specified that the term of community supervision was to begin on “this date
, ” which was February 14, 2007.4

expiration date
, (2) the capias for Appellant’s arrest was issued prior to the expiration of Appellant’s community supervision
, and (3) the affirmative defense of due diligence is no t jurisdictional

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12, § 21 (b), (e), § 24; see also Garcia
, 387 S.W.3d at 23

- 24; Isidro v. State , No. 04

- 13

- 00071

- CR, 2013 WL 5570833, at * 3 n.2 (Tex. App.

— San Ant onio Oct. 9, 2013, no pet.) (mem. op., not designated for publication) ( common law due diligence defense requiring s tate to prove by preponderance of evidence that it used due diligence in executing capias and holding a hearing on motion to revoke replaced by statutory defense in Section 24 of article 42.12). Even if we assume the State failed to exercise due diligence in this case, the trial court did not abuse its discretion in adjudicating Appellant’s guilt and revoking her community supervision. The d ue diligence defense is not available with respect to the State’s allegations that Appellant failed to pay supervision fees; failed to make payments on the total balance of the court costs, restitution, and fine she owed; and failed to work ten hours of co mmunity service for the months of June, July, August, September, and October. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12, § 24; Garcia , 387 S.W.3d at 26. Appellant does not challenge any of these three grounds on appeal. Because the revocation of Appella nt’ s community supervision is just ified on the grounds not challenged on appeal, we conclude the trial court did not abuse its discretion in adjudicating Appellant’s guilt and revoking her community supervision. See Rickels
, 202 S.W.3d at 763; Moore , 605 S.W.2d at 926 ; M inex v. State , No. 12

- 13

- 00062

- CR, 2013 WL 5966355, at *2 (Tex. App.

— Tyler Nov. 6, 2013, no pet.) (mem. op., not designated for publication) . We overrule Appellant’s sole issue.

D ISPOSITION Having overruled Appellant’s sole issue, we af firm the judgment of the trial court.



### S AM 

### G RIFFITH Justice
Opinion delivered June 30 , 201 4

. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30 , 2014

NO. 12

- 13

- 00313

- CR

CARRIE MILLS CRON, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 173rd District Court of Henderson County, Texas (Tr.Ct.No. C

- 14,833) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to th e court below for observance.

Sam Griffith , Justice

. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle , J

.