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Court of Appeals of Texas, Dallas.

ERIC COOK, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–01072–CR

    Decided: April 20, 2012

Before Chief Justice Wright and Justices O'Neill and Campbell


Opinion By Justice Campbell 1

On October 19, 2005, appellant entered an agreed guilty plea to aggravated assault.   The trial court deferred a finding of guilt, placed appellant on community supervision for a period of three years, and assessed a $1,500 fine.   On December 13, 2005, the trial court extended appellant's community supervision until October 19, 2009.   On March 9, 2009, the State filed a motion to proceed to adjudication of guilt.   On July 30, 2010, the trial court conducted a hearing on the State's motion, granted the motion, and sentenced appellant to eight years' imprisonment.   In his appeal in this Court, appellant raises two issues:  (1) the trial court did not have jurisdiction to proceed to adjudication of guilt, and (2) trial counsel rendered ineffective assistance by failing to object to the trial court's lack of jurisdiction.   We affirm.

Standard of Review

The decision to proceed to an adjudication of guilt and revoke deferred adjudication community supervision is reviewable in the same manner as a revocation of ordinary community supervision.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp.2011).   We review an order revoking community supervision under an abuse of discretion standard.  Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006).


Appellant contends the trial court lacked jurisdiction to proceed with an adjudication hearing because no capias was issued concomitant with the filing of the State's motion to adjudicate guilt.   The gist of appellant's contention is that the trial court was without jurisdiction to hear the case, not because the State's motion and capias were not in the proper sequence per se, but because, appellant contends, the law requires that a motion to proceed to adjudication be accompanied by a capias which relates specifically to that motion.   Appellant points out that the record shows the last capias issued for him in the instant case was in August 2008, and the hearing on the motion to proceed to adjudication was not held until July 2010, more than six months after the probationary period had expired.

In support of his contention, appellant cites for instructive purposes the unpublished opinion in Jones v. State, No. 12–01–00221–CR, 2002 WL 940192, at *1 (Tex.App.—Tyler 2002, no pet.) (not designated for publication).  Jones, however, does not apply to this case because the sole issue decided in Jones was whether the State used due diligence in executing a capias for the defendant.   See id. at *1. In Jones, no capias was ever executed for the defendant on either of the two motions to revoke probation that were filed in the case.   See id. at *2.

The State construes appellant's contention to be that the sequence of capiases and motions was not in the proper order and thus the trial court had no jurisdiction to hear an out-of-time proceeding.   This view of appellant's contention is too restrictive.   Appellant is arguing that the motion to proceed to adjudication was not accompanied by an attendant capias, and therefore the trial court was without jurisdiction to proceed to adjudication of guilt.

Applicable Law

Once a defendant is placed on deferred adjudication community supervision, a district court retains jurisdiction over the probationer during the probationary period.   This enables the court to adjudicate, dismiss, extend, or otherwise modify the deferred adjudication probation.   See generally Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a)-(c), h).  Once the probationary period expires, the trial court, if it has not proceeded to adjudication of guilt, must dismiss the proceedings against the defendant and discharge him.   See id. at § 5(c).  For a trial court to have jurisdiction over a motion to adjudicate after the probationary term has expired, the motion to adjudicate must have been filed and the capias issued prior to the expiration of the probationary term.   See id. at § 5(h).  Absent these statutory requirements, a trial court has no jurisdiction to modify, extend, dismiss, or adjudicate deferred adjudication community supervision after the supervisory term has expired.   See Guillot v. State, 543 S.W.2d 650, 652–53 (Tex.Crim.App.1976);  Garza v. State, 695 S.W.2d 726, 729 (Tex.App.—Dallas 1985), aff'd 725 S.W.2d 256 (Tex.Crim.App.1987).

The cases on which appellant relies are distinguishable because they address two issues not applicable in our case.   First, some of appellant's authorities turn upon whether the State exercised due diligence in serving the defendant with a motion to adjudicate.   See, e.g., Brecheisen v. State, 4 S.W.3d 761, 763 (Tex.Crim.App.1999);  Ramirez v. State, 184 S.W.3d 392, 396 (Tex.App.—Dallas 2006, no pet.);  Jones, 2002 WL 940192, at *1. Second, some involve the issue of whether any capias at all was issued and executed to bring the defendant into custody.   See, e.g., Pollard v. State, 353 S.W.2d 449, 449 (Tex.Crim.App.1962);  Garza, 695 S.W.2d at 729;  Jones, 2002 WL 940192, at *2. Appellant's citation to Guillot is likewise not on point because in that case, the State elected to proceed on a motion to revoke that was filed after the probationary term had expired and the trial court had no jurisdiction.   See Guillot, 543 S.W.2d at 653.

The State relies on Johnston v. State, 774 S.W.2d 818 (Tex.App.—Dallas 1989, no pet.).   In Johnston, the State filed a motion to adjudicate guilt and a capias was issued.  Id. at 819.   The trial court then quashed the State's motion to adjudicate.  Id. The State filed another motion to proceed to adjudication, but no capias was issued on the second motion.  Id. These events all transpired during the defendant's original term of community supervision.  Id. The defendant's contention on appeal was that a second capias had to issue in order to maintain the jurisdiction of the trial court.   Id. This Court disagreed, concluding instead that former code of criminal procedure article 42.12 section 8(a) (now section 21(b)) 2 did not require that a motion be filed prior to the capias being issued.  Johnston, 774 S.W.2d at 819.   This Court concluded that the jurisdictional requirements are met whenever a motion to revoke is filed and a capias is issued during the probationary period, regardless of which comes first.  Id. at 820.   This Court further determined that once the State filed a motion and a capias was issued, the trial court had jurisdiction to decide the merits of the motion.   Id. Whether the motion to adjudicate guilt was an amended motion or a new proceeding, the State was not required to have a new capias issued.  Id. Article 42.12 gives the State the right to file new or amended motions to revoke, but there is no requirement to execute a second capias.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b);  Johnston, 774 S.W.2d at 820.

In Ruiz v. State, 100 S.W.3d 259 (Tex.App.—San Antonio 2002, pet. ref'd), the San Antonio Court of Appeals was confronted with a similar issue.   In that case, the State filed a motion to revoke five days before the end of the probationary term.  Id. at 260.   The next day, the trial court signed an order issuing a capias.  Id. A month later, outside the probationary term, the defendant was arrested.  Id. The arrest, however, was effectuated under a capias that was issued three months before the filing of the motion to revoke.  Id. Ruiz contended that because the date on the capias preceded the date on which the violations occurred, no capias was issued in reference to the State's motion to revoke.  Id. The Ruiz court observed that the purpose of the capias is simply to secure the presence of a defendant at a proceeding against him.  Id. The court looks to the motion to revoke probation, not the capias, to determine what allegations are made as the basis of the revocation hearing.  Id.

Application of Law to Facts

In our case, as in Ruiz and Johnston, the State's motion to proceed to adjudication of guilt was filed seven months before the expiration of appellant's probationary term.   The last capias of the several that were filed during the term of probation, was issued on August 8, 2008, well within the probationary term.   Because both the motion to proceed to adjudicate guilt and the capias were issued within the probationary term, the trial court had jurisdiction to adjudicate appellant's guilt.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(h);  Johnston, 774 S.W.2d at 820;  Ruiz, 100 S.W.3d at 260.

Moreover, we cannot accept appellant's premise that the last capias had no connection with the motion to adjudicate.   There are several connections between the last capias and the motion to adjudicate.   The State alleged in its motion to adjudicate that appellant failed to report to the probation officer as directed on August 8, 2008, the same day that the trial judge signed the order for the capias.   Additionally, the State alleged appellant was unsuccessfully discharged from the substance abuse felony punishment facility continuum of care program on August 8, 2008—again the same day that the trial judge signed the order for the last capias that appears in the clerk's record.   Even though the capias and the motion were not filed and executed at the same time, the motion was clearly issued in conjunction with the August 8, 2008 capias, and with respect to the same events, and both the capias and the motion to adjudicate were each filed within the extended probationary term.   Thus, we conclude the trial court had jurisdiction over the State's motion to proceed to adjudication of guilt.   Appellant's first issue is overruled.

Ineffective Assistance of Counsel

In his second issue, appellant contends trial counsel rendered ineffective assistance of counsel because trial counsel failed to object to the trial court's lack of jurisdiction to hear the motion to adjudicate.   To prevail on a claim of ineffective assistance of counsel, appellant must show (1) counsel's performance fell below an objective standard of reasonableness;  and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different.   See Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).   To satisfy his burden under the first prong of the test, appellant must overcome a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance and might be considered sound trial strategy.  Strickland, 466 U.S. at 689;  Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).   The reasonableness of counsel's performance is judged under prevailing professional norms.  Strickland, 466 U.S. at 688.   Our review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Strickland, 466 U.S. at 689;  Thompson, 9 S.W.3d at 813.   Under the second prong of the test, a reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694;  Thompson, 9 S.W.3d at 812.

Because this Court has concluded the trial court did indeed have lawful jurisdiction to hear the motion, we cannot conclude trial counsel's performance fell below an objective standard of reasonableness in failing to raise the issue of jurisdiction.   See Saldana v. State, 287 S.W.3d 43, 63–64 (Tex.App.—Corpus Christi 2008, pet. ref'd) (holding counsel cannot be found ineffective for failing to make objections that have no legal basis).   Thus, appellant has not satisfied the first prong of the Strickland standard.   See Strickland, 466 U.S. at 687–89.   Appellant's second issue is overruled.

The judgment of the trial court is affirmed.


Court of AppealsFifth District of Texas at DallasJUDGMENT

ERIC COOK, Appellant

No. 05–10–01072–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court No. 4 of Dallas County, Texas.  (Tr.Ct.No.F05–54059–K).

Opinion delivered by Justice Campbell, Chief Justice Wright and Justice O'Neill participating.   Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 20, 2012.

/Charles F. Campbell/




1.  FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.

2.  FN2. The rule is the same for deferred adjudication community supervision.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b).


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