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Beaty v. State

The state met its burden of showing due diligence through its explanation that even though attempts had been made to locate the defendant, he was avoiding apprehension.

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OPINION

Douglas Wayne Beaty appeals the trial court’s decision to grant the State’s motion to revoke his community supervision. Beaty was sentenced to three years’ confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, Beaty claims the trial court erred in finding the State exercised due diligence in apprehending him after capias was issued for his arrest.

The Court of Criminal Appeals’ decisions applying the due diligence standard have typically involved circumstances in which the probationer is not trying to avoid apprehension and his location is known. Under those circumstances, the Court has usually found a lack of due diligence when the State’s efforts to locate the probationer are non-existent or minimal. See Harris v. State, 843 S.W.2d 34, 36 (Tex. Crim. App. 1992); Rodriguez v. State, 804 S.W.2d 516, 518 (Tex. Crim. App. 1991); Langston v. State, 800 S.W. 2d 553, 555 (Tex. Crim. App. 1990). In contrast is the holding in Strickland v. State, 523 S.W.2d 250, 251 (Tex. Crim. App. 1975), where the Court found due diligence by the State when the probationer did not report his address change. Here, the trial court heard evidence that Beaty had “taken off” and left the county. The probation officer, as a result, had no way to contact him. Beaty did not report his whereabouts to his own family, and the only “address” law enforcement authorities had for him was his parents’ post office box (P.O. Box 526) in Goodrich, Texas.

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