Mario Chapa A/K/A Mario Chapa Jr. v. the State of Texas ( 2022 )

NUMBER 13-21-00313-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARIO CHAPA A/K/A
MARIO CHAPA JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Longoria
Appellant Mario Chapa a/k/a Mario Chapa Jr., pleaded guilty to driving while
intoxicated, third offense, and was placed on community supervision. See TEX. PENAL
CODE ANN. §§ 49.04, 49.09(b)(2). The trial court later revoked Chapa’s community
supervision on the State’s motion and sentenced him to eight years’ imprisonment in the
Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ). By
one issue, Chapa claims the trial court abused its discretion when it denied his motion to
dismiss and revoked his community supervision. We affirm.
I. BACKGROUND
On July 13, 2015, Chapa pleaded guilty to the offense of driving while intoxicated,
third offense—a third degree felony. See id. The trial court suspended his sentence of
confinement and placed him on community supervision for a term of seven years. On
April 9, 2021, the State filed its original motion to revoke alleging that Chapa had violated
several conditions of community supervision; a warrant of arrest for Chapa was issued
on the same day. On April 23, 2021, Chapa was arrested by the Nueces County Sheriff’s
Office. On May 12, 2021, the trial court called a hearing on the State’s motion to revoke
but the State did not appear and the hearing was reset. On the same day, the State filed
its amended motion to revoke.
On August 30, 2021, Chapa filed his “Motion to Dismiss Revocation for Violations
of Speedy Community Revocation Hearing and Due Process.” On September 29, 2021,
the trial court held a hearing on the State’s amended motion to revoke and Chapa’s
motion to dismiss. The trial court denied Chapa’s motion to dismiss, found that Chapa
violated several terms of his community supervision, and granted the State’s amended
motion to revoke. Chapa’s community supervision was revoked and he was sentenced to
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eight years’ confinement in TDCJ. This appeal ensued.
II. STANDARD OF REVIEW & APPLICABLE LAW
Probationers are entitled to speedy probation revocation hearings. Wisser v. State,
350 S.W.3d 161, 165 (Tex. App.—San Antonio 2011, no pet.) (citing Carney v. State, 573
S.W.2d 24, 26 (Tex. Crim. App. 1978)). At any time during a period of community
supervision, a judge may issue a warrant for an alleged violation of any condition of
community supervision and cause the defendant to be arrested. See TEX. CODE CRIM.
PROC. ANN. art. 42A.751(b). When a defendant is arrested for an alleged violation of a
condition of community supervision, the judge who ordered the arrest may authorize the
defendant’s release on bail. Id. art. 42A.751(c).
If the defendant has not been released on bail as permitted under
Subsection (c), on motion by the defendant, the judge who ordered the
arrest for the alleged violation of a condition of community supervision shall
cause the defendant to be brought before the judge for a hearing on the
alleged violation within 20 days of the date the motion is filed. After a hearing
without a jury, the judge may continue, extend, modify, or revoke the
community supervision.
Id. art. 42A.751(d) (emphasis added). This twenty-day deadline runs from the date the
defendant files his motion for a hearing, not from the date the State files its motion to
revoke. Aguilar v. State, 621 S.W.2d 781, 783–84 (Tex. Crim. App. 1981) (interpreting
identical language under a former statute); see also In re Allen, No. 03-21-00138-CV,
2021 WL 1244671, at *1 (Tex. App.—Austin Apr. 2, 2021, no pet.) (mem. op., not
designated for publication) (“Article 42A.751 only requires a trial court to hold a hearing
on the alleged violation of a condition of community supervision within 20 days of the
defendant filing a motion requesting the hearing.”); Ex parte K.G., No. 13-20-00287-CR,
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2021 WL 4597253, at *3 (Tex. App.—Corpus Christi–Edinburg Oct. 7, 2021 no pet.)
(mem. op., not designated for publication) (same). Thus, the right to a speedy revocation
hearing is only “triggered” by the defendant’s request for a hearing. See Aguilar, 621
S.W.2d at 784 (“When such a request is made the trial court shall cause the probationer
to be brought before it within twenty days, provided that the probationer has not been
released.”).
To determine whether Chapa was denied a speedy revocation hearing, we apply
the Barker balancing test, which requires consideration of the following non-exclusive
factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s
assertion of the right; and (4) the prejudice to the defendant resulting from the delay.
Barker v. Wingo, 407 U.S. 514, 530–32 (1972); see Carney, 573 S.W.2d at 26. However,
before a court engages in an analysis of each Barker factor, the accused must first make
a threshold showing that “the interval between accusation and trial has crossed the
threshold dividing ordinary from ‘presumptively prejudicial’ delay.” Doggett v. United
States, 505 U.S. 647, 651–52 (1992). “‘Presumptive prejudice’ ‘simply marks the point at
which courts deem the delay unreasonable enough to trigger further enquiry.’” Gonzalez
v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014) (quoting State v. Munoz, 991
S.W.2d 818, 821–22 (Tex. Crim. App. 1999) (brackets omitted)). We measure the length
of delay from the time the defendant is arrested or formally accused to the time of trial.
See United States v. Marion, 404 U.S. 307, 313 (1971); Harris v. State, 827 S.W.2d 949,
956 (Tex. Crim. App. 1992). An eight-month delay is presumptively unreasonable and
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prejudicial. Harris, 827 S.W.2d at 956.
III. DISCUSSION
In his sole issue, Chapa contends that the trial court abused its discretion when it
revoked his community supervision. Specifically, Chapa argues that his right to a speedy
revocation hearing was violated and that the trial court should have granted his motion to
dismiss the State’s motion to revoke on this basis.
At the September 29, 2021 hearing, Chapa argued that pursuant to Article
42A.751(d), the State’s motion to revoke had to be heard within twenty days of the filing
of said motion. Chapa further argued the State was to blame for the delay and that it was
fundamentally unfair to proceed on the motion to revoke considering that he had been in
jail since April 23, 2021. The record demonstrates that Chapa did not file a motion
requesting a hearing on the State’s original or amended motion to revoke. In addition,
Chapa’s motion to dismiss did not request a hearing on the State’s motion to revoke, but
rather asked for dismissal of said motion. Thus, Chapa’s right to a speedy revocation
hearing was never triggered under Article 42A.751. See TEX. CODE CRIM. PROC. ANN. art.
42A.751(d); Aguilar, 621 S.W.2d at 784.
Furthermore, Chapa was formally accused of violating the terms of his community
supervision on April 9, 2021, the date the State filed its original motion to revoke. See
Harris, 827 S.W.3d at 956. The hearing on the State’s amended motion to revoke took
place on September 29, 2021. Thus, the delay involved in this case—April 9, 2021
through September 29, 2021—consisted of 173 days, or just under six months. Citing
Article 42A.751 as a guideline, Chapa argues that a delay beyond twenty days is
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presumptively prejudicial but presents no case authority holding as such, and we have
found none. 1
Presumptive prejudice marks the point that delay is deemed unreasonable enough
to trigger further enquiry. Gonzalez, 435 S.W.3d at 808. We note that “the length of delay
that will provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case.” Barker, 407 U.S. 514, 530-31. As discussed above, the only
time limit within which a motion to revoke probation must be heard by the trial court was
not triggered by Chapa. See TEX. CODE CRIM. PROC. ANN. art. 42A.751(d); Aguilar, 621
S.W.2d at 784. Chapa does not explain why the peculiar circumstances in this case would
render the near six-month delay in this case to be presumptively prejudicial. The record
indicates that Chapa had not requested a revocation hearing in his motion or in his
arguments to the trial court at the September 29, 2021 hearing. Rather, Chapa requested
a dismissal of the State’s revocation motion, which strongly suggests that he did not really
want a speedy revocation hearing. See Harris, 827 S.W.2d at 956 (holding that
appellant’s lack of a timely demand for a speedy trial indicates strongly that he did not
really want a speedy trial). We also note that the trial court held a hearing on the State’s
revocation motion immediately after denying Chapa’s motion to dismiss. After considering
the circumstances of this case, we hold that the near six-month delay here was not
sufficient in length to be presumptively prejudicial to trigger further inquiry of the Barker
balancing test. See Harris, 827 S.W.2d at 956. Chapa’s sole issue is overruled.
1 Aguilar held that a trial court’s violation of the twenty-day rule was not “error” which tainted the
trial court’s decision to revoke the probation or mandated a reversal of the judgment. Aguilar v. State, 621
S.W.2d 781, 786 (Tex. Crim. App. 1981) (interpreting former Article 42.12, Section 8(a) of the Texas Code
of Criminal Procedure, a provision with identical language to Article 42A.751(d)).
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IV. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
30th day of August, 2022.
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