Gatlin, Paul Tyrelle v. State ( 2012 )

Appeal Affirmed and Opinion Filed December 4, 2012
In The
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No. 05-10-01596-CR
PAUL TYRELLE CATLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
— Trial Court Cause No. F03-72157-M
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Richter
Opinion By Moseley
Paul Tyrell Gatlin pled guilty to unlawful possession of cocaine and was placed on four
years of community supervision. Thereafter, the trial court revoked Gatlin’s community
supervision and assessed punishment at six months’ confinement. Gatlin appeals, asserting two
issues. The background of the case and the evidence adduced at the hearing are well known to
the parties; thus, we do not recite them here in detail. Because all dispositive issues are clearly
settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate
Procedure 47.1. We affirm the trial court’s judgment.
In his first issue. Gatlin argues the trial court violated his right to a speedy trial under the
federal and Texas constitutions because six years elapsed between the issuance of the capias and
the hearinL on the motion to revoke his community supervision. However. Gatlin failed to raise
a speedy trial objection during the revocation proceeding. When a speedy trial claim is not
raised at trial, no speedy trial issue is presented on appeal. See Mulder i’. State, 707 S.W.2d 90$,
914—15 (Tex. Crim. App. 1986).1 Likewise, we hold that because Gatlin entered a plea of true to
all but one of the alleged violations of his community supervision order at the revocation hearing
without objecting or moving to dismiss, no speedy trial issue is preserved in the present case.
See id., Guevara v. State. 985 S.W.2d 590, 591—93 (Tex. App.—-Houston [14th Dist.] 1999, pet.
ref’d). We resolve Gatlin’s first issue against him.
In his second issue, Gatlin claims that the trial court abused its discretion by revoking his
community supervision in spite of the State’s failure to exercise due diligence in executing the
capias. In 2003, the Texas Legislature added section 24 to article 42. 12 of the Texas Code of
Criminal Procedure to modify the common law affirmative defense to community supervision
revocation. Under this section, it is a defense to revocation that an officer with power to arrest
under the warrant failed to contact or attempt to contact the defendant in person at the
defendant’s last know residence or employment address. TEx. CoDE CRIM. PROC. ANN. art.
42.12, § 24 (West Supp. 2011). However, in order to trigger this defense, the charged violation
of the community supervision agreement must be for “failure to report to a supervision officer as
directed or to remain within a specified place.” Id.
Here Gatlin entered a plea of true to six different violations of the community supervision
agreement. These violations included: use or ingestion of controlled substances; failure to make
In Hardes i’. State, this Cou found an appellant who ohected at trial on the grounds that the Speedy Trial Act had been violated was
not precluded from raising constitutional specciy trial claims for the first time on appeal. Hardestr i’. State, 738 S.W.2d 9, 10 (Tex. App—Dallas
1987, pet. ref’d). However, the court of criminal appeals implicitly overruled that holding in Du,,,i i’. Slate by finding an appellant who objected
only on the basis of the Speedy Trial Act at the trial court did not preserve a claim of constitutional speedy trial violations on appeal, Dunn v.
Slate, 819 S.W.2d 510. 526 (Tex. Crim. App. 1991).
restitution payments for urinalysis testing costs; failure to make payments for the cost ol
supervision; failure to complete 120 hours of community service; failure to submit to urine
testing; and failure to undergo CATS testing. Any one of these violations is sufficient to revoke
community supervision. iVanu/din e. State, 154 S.W.3d 920, 924 (Tex, App.----- Dallas 2005. no
pet.); see also TEX. Cool: CIUM. PRoc. ANN. art. 42. 12. § 21(b) (West Supp. 2011 ) (if violation
lound, court may continue, extend, modify, or revoke community supervision). Even if the State
had alleged failure to report or remain in a specified place, “the statute does not state, and cannot
reasonably be interpreted to read, that it applies to all allegations as long as one of the allegations
is the thilure to report or to remain in a specified place.’ Nunnidin, 154 S.W.3d at 924.
Gatlin argues we should ignore Nurnidin and apply the traditional common law due
diligence rule because of a “split in the courts of appeals.” In support of this proposition, Gatlin
cites cases from various other districts. However, the only support Gatlin finds in these cases is
dicta. See Houston v. S/ate, 01-09-00669-CR, 2011 WL 946979, at *3 (Tex. App.—-1-louston
[1st Dist.1 Mar. 17, 2011, no pet.) (mem. op., not designated for publication) (decision based on
defendant’s arrest prior to expiration of community supervision period, assertion relied on by
defendant cites to a pre-2003 case that was not relied on by court in its decision); Hodge v. State,
2-08-030-CR, 2-08-031-CR, 2008 WL 5265149, at *1 (Tex. App—Fort Worth Dec. 18, 2008,
pet. struck) (mem. op., not designated for publication) (deciding issue on defendant’s failure to
raise the issue at the trial court); Maillet v. State, 07-11-0406-CR, 2012 WE 631912, at *2 (Tex.
App.—Amarillo Feb. 28, 2012, no pet.) (mem. op., not designated for publication) (court stated:
“it may be true that the State must use diligence in executing the capias . . .,“ but decided issue
on basis of procedural default (emphasis added)); DeLeon v. State, 13-10-00581-CR, 2012 WL
914950, at *4 (Tex. App.—-Corpus Christi Mar. 15, 2012, no pet.) (mern. op.. not designated for
publication) (proposition relied on by Gatlin cites to 2002 case, case decided on other grounds).
—3—
Because this Court’s precedent is well settled that the affirmative defense of due diligence
applies only to violations for failure to report or failure to remain at a designated location, and
because Ciatlin does not convince us to reconsider it, we decide Gatlin’s second issue against
him.
Having overniled both of Gatlin’s points of of the trial
court.
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JUDGMENT
PAUL TYRELLE GATLIN, Appellant Appeal from the 194th Judicial District
Court of Dallas County, Texas (Trial Court
No. 05-10-01596-CR V. No. P03-721 57-M).
Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee Justices FitzGerald, and Richter
participating.
Based on the Court’s opinion of this date, the AFFIRMED.
Judgment entered December 4, 2012.
JUSTIcE .4—