Charles Seldon BAWCOM, Appellant, v. The STATE of Texas.
No. 1427-00
Court of Criminal Appeals of Texas
June 26, 2002
360-367
The Court of Appeals erred in dismissing the weight of the evidence in conducting its harm analysis. Though not dispositive, the evidence of the defendant‘s guilt is a relevant factor in conducting a harm analysis under
MEYERS, J., did not participate.
JOHNSON, J., joined Parts I-III and Part V, and concurred in the result with respect to Part IV.
Kyle B. Johnson, Houston, for appellant.
Luther A. Dulevitz, Assist. DA, Houston, Matthew Paul, State‘s Attorney, Austin, for state.
OPINION
KELLER, P.J., delivered the opinion of the Court in which KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.
This is a probation revocation case in which the probationer failed to report as required. The State made numerous efforts to contact the probationer before filing a motion to revoke probation1 and made a few efforts to contact him after the capias issued, but the probationer was not apprehended until after his probationary period had expired. The question presented is whether the trial court may consider actions taken by the State before the motion to revoke is filed in determining whether the State has exercised due diligence in apprehending the probationer.2 We hold that the trial court may consider such evidence.
A. The Facts
The last day appellant reported for his probation was December 19, 1996. He was scheduled to report on January 10, 1997 but failed to do so. On January 14,
On February 27, 1997, phone calls were made to the references in appellant‘s file: Several unsuccessful attempts were made to contact a Rick Bawcom, a message was left on a Ms. Brown‘s machine, and an unsuccessful attempt was made to contact a “Joy G.” None of the recipients of these calls made a return phone call. On March 1, 1997, a call was made to appellant‘s supervisor at appellant‘s place of employment. A message was left, but no return call was received.
A motion to revoke was filed on March 18, 1997, and a capias was issued on that same date. The file reflects no action taken until October 14, 1997, when the file was sent to the probation department‘s offender-apprehension unit. Calls were subsequently made to phone numbers in the file, and to appellant‘s father, brother, and sister. The three could not be
Appellant was eventually arrested on October 4, 1999, over two months after his probationary period had ended. At a revocation hearing held on October 28, 1999, appellant asserted the due diligence defense, and witnesses were heard on the matter. In revoking appellant‘s probation, the trial court specifically commented on the evidence it had considered:
I‘ve read your cases, the cases submitted by the State and defense. I did read the case that you mentioned regarding the State using information or using evidence of diligence after the motion to revoke was filed. However, it seems, while it‘s hard for me to imagine, that the Court would mean that would cut off any information that was not known or any efforts that were made prior to a motion being filed. In other words, that the—it would require the State to redo everything they had done before in trying to locate someone. So, I find there was due diligence in this case and I am denying your motion to dismiss.
B. The Court of Appeals Opinion
Relying upon our earlier opinion in Harris v. State, 843 S.W.2d 34, 36 (Tex. Crim. App. 1992),3 the Court of Appeals discounted efforts to contact appellant that were made before the motion to revoke was filed (and the capias issued).4 The court concluded
C. Analysis
In Harris, this Court stated:
The Court of Appeals incorrectly relied on the letters and phone call to 302 Sterling before the capias issued as evidence of the State‘s diligence. That reliance was misguided because the State must show that it used diligence after the motion to revoke was filed and the capias issued. Rodriguez, 804 S.W.2d at 519; Langston, 800 S.W.2d at 555; Prior, 795 S.W.2d at 185.5
The State contends that the Court of Appeals read Harris too broadly: that Harris prohibits considering pre-capias actions as evidence of diligence but does not prohibit considering such actions in determining whether post-capias actions were diligent. The State then argues that prohibiting the consideration of pre-capias actions would require the State to slavishly repeat earlier futile actions and would reward absconding probationers. We think the Court of Appeals has correctly read Harris. The State‘s attempt to create a distinction is an attempt at hairsplitting that would create confusion about how to apply the due diligence standard. Nevertheless, there is persuasive force to the State‘s claim that trial courts ought to be allowed to consider the authorities’ pre-capias attempts to locate a probationer, and we recently undertook a re-examina-
1. Rules for Overruling Precedent
Under the doctrine of stare decisis, it is often “better to be consistent then right.”7 This doctrine “promotes judicial efficiency and consistency, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”8 However, overruling precedent is acceptable under certain circumstances.9 Some factors that support overruling precedent are: (1) when the original rule is flawed from the outset, (2) when older precedent conflicts with a newer decision that is found to be more soundly reasoned, and (3) when the rule consistently creates unjust results or places unnecessary burdens upon the system.10 An examination of these factors convinces us that the rule in Harris should be abandoned.
2. Flawed at the Outset
Harris relied upon three cases for its holding—Rodriguez, Langston, and Prior—but none of these cases actually supports the holding. In Rodriguez, a probation officer testified that it was the policy of the probation office to cease any further contact with the probationer after a warrant had been issued.11 No one from the probation office had attempted to contact the defendant, even though they knew his address and place of employment.12 The State argued, unsuccessfully, that its lack of diligence should be excused because the defendant stopped reporting once he discovered that a motion to revoke had been filed.13 The page in the Rodriguez opinion cited by Harris contains the following paragraph:
In the instant case, and contrary to the situation in Hardman [v. State, 614 S.W.2d 123 (Tex. Crim. App. 1981)], appellant properly raised and developed the issue of lack of due diligence at the revocation hearing. The burden then shifted to the State, which failed to show it had made a diligent effort to apprehend appellant almost two years after the warrant had been issued for his arrest. Appellant‘s motion to dismiss should have been granted.14
The language “almost two years after the warrant had been issued for his arrest,” upon which Harris apparently relied, simply indicates that the State had failed to show diligence, not that a trial court should ignore efforts to locate a probationer that occur before a capias has issued. Because the defendant did not cease to report until after he discovered the pending motion to revoke, Rodriguez‘s focus on the issuance of the warrant as the beginning point in the due diligence inquiry is not surprising.
In Langston, the prosecutor‘s office filed a motion to revoke probation based upon
However, the record does not show diligence on the part of the State in apprehending appellant on the motion to revoke probation. The seven and one-half month delay from the expiration of probation until appellant‘s arrest is unexplained. The capias was sent to Harris County. Appellant‘s address there was known. As the prosecutor admitted in his argument on the motion to dismiss, there was no indication that appellant was hiding. The San Patricio County probation officer had no conversations with the Sheriff‘s office about appellant. Absent due diligence by the State in apprehending appellant, the motion to dismiss should have been granted.20
Nothing in this passage indicates that a trial court cannot consider pre-capias efforts to locate a defendant for the purpose
In Prior, the defendant failed to report to his probation officer, had not obtained permission to leave the county, and was arrested in New Hampshire.21 Based upon these facts, the court of appeals rejected the defendant‘s due diligence claim.22 Before this Court, the defendant claimed that the State failed to act diligently because “there was no evidence explaining the six-year delay between the time the warrant was issued and the time it was executed and no evidence that the State attempted to contact appellant by mail, phone, or at his home address.”23 We held that the defendant failed to preserve the due diligence claim on appeal by failing to raise the defense at trial.24 We had no occasion to address the merits of the defendant‘s due diligence claim, much less to hold that pre-capias actions would not suffice to establish diligence.
Thus, the three cases cited by Harris for the proposition that pre-capias efforts cannot constitute evidence of due diligence do not in fact stand for that proposition. Yet the Harris Court did not even acknowledge that it was creating a new rule but cited cases as if the rule it laid down were already established.
Moreover, Harris contained other facts that showed a lack of diligence even after
The record showed that the defendant lived in only three places during the period from 1979 to 1990: (1) with his parents at 302 Sterling Street in College Station, (2) with his brother for several months, and (3) at 305 Sterling Street in College Station, in a house across the street from his parents, for the remainder of that period.34 In 1987, the defendant began full-time work for a local business.35
For nearly a decade, the authorities did nothing to attempt to locate the defendant.36 Even though they had information regarding his parents and his brother, no evidence was introduced to show that any agent of law enforcement or the probation office ever went to Sterling Street, wrote to Sterling Street, or made any effort to reach the defendant‘s brother in Fort Worth.37 The authorities’ failure to locate the defendant for such a long time when the defendant was within easy reach surely rebutted any inference of due diligence arising from the pre-capias efforts to locate him. Thus, Harris‘s holding was flawed not only because the cited cases did not support the holding but also because the holding itself was unnecessary under the facts.
3. Conflict with Newer, More Soundly Reasoned Precedent
We recently revisited the due diligence defense in Peacock. In that case, the defendant received permission from authorities to move from Whitney to Fort Worth, and he reported to the probation office the specific address in Fort Worth at which he was living.38 He also told authorities that he was maintaining his post office box in Whitney as his mailing address and that his mother, who lived in Whitney, could be used as a contact person.39 In December 1997, authorities contacted the defendant
We held that the authorities had prematurely characterized the defendant as an absconder:46 “The probation office classified the appellant as an ‘absconder’ without differentiating between probationers who have simply not walked through the front door and those taking furtive actions to hide from the law.”47 We noted that Black‘s Law Dictionary defines “abscond” to mean “to depart secretly or suddenly, especially to avoid service of process; to conceal oneself.”48 The authorities failed to determine that the defendant was in fact an absconder because they did not attempt to reach him at his Fort Worth address or through his mother—even though this contact information was in the file.49 We emphasized that due diligence helped a court determine “whether the probationer cannot be found because he is
Harris‘s bright-line rule excluding from consideration the authorities’ pre-capias efforts to locate probationers is contrary to the purpose, articulated in Peacock, of preventing absconding probationers from benefitting from their wrongful conduct. The timing of the State‘s efforts to locate the probationer—including whether those efforts occurred before or after the filing of a motion to revoke and the issuance of a capias—are simply factors that reflect on the diligence of the State‘s efforts.
4. Unjust Results and Unnecessary Burdens
As discussed above, excluding from the due diligence determination pre-capias efforts to locate a probationer would benefit those who choose to hide from the law. Such a rule also encourages authorities to repeat any pre-capias actions after the capias has issued, even if such a repeat of efforts would be futile—because the State would not want to forfeit the use of such actions in a later due diligence determination. We will not require authorities to repeat efforts to contact a probationer that have already been determined to be fruitless.
D. Conclusion
Insofar as Harris held that actions taken before a motion to revoke is filed or a capias is issued could not be considered as evidence of due diligence, it is overruled. The case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
WOMACK, J., joined the opinion except for Section C1.
JOHNSON, J., filed a concurring opinion in which MEYERS, J., joined.
PRICE, J., concurred in the result.
JOHNSON, J., filed a concurring opinion in which Meyers, J., joined.
I concur in the judgment of the Court. I do not agree that Harris v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992), should be overruled. Harris’ holding appears on page 36.
The Court of Appeals incorrectly relied on the letters and phone call to 302 Sterling before the capias issued as evidence of the State‘s diligence. That reliance was misguided because the State must show that it used diligence after the motion to revoke was filed and the capias issued.
I do not read that holding to require the courts to ignore pre-capias efforts to contact the probationer; it appears merely to proscribe reliance on such efforts as a
The appellant in Harris was easily findable with minimal effort. He continued to live on the same block and work in the same community, yet the authorities made little effort to contact him or known family members at their known addresses. This Court held that letters to the appellant before the capias issued did not make up for the complete lack of effort after issuance of the capias.
In this case, appellant failed to respond to pre-capias letters and telephone calls and moved without permission. His known contacts did not know his whereabouts or failed to respond to efforts to contact appellant. After the capias issued, telephone calls to appellant‘s family were repeated, but their telephones were disconnected. Having exhausted known contacts, the state apparently quit looking.
While the state may be faulted for failing to enter appellant into TCIC/NCIC or to periodically check the city directory and telephone book, the law does not require a vain act. In such circumstances, pre-capias efforts may be a partial explanation of apparent lack of diligence post-capias. Harris did not forbid consideration of such pre-capias efforts, only reliance on them to justify de minimis efforts post-capias. The state must indeed show appropriate diligence after the capias issues. It may be appropriate to consider pre-capias efforts in considering whether post-capias efforts constitute due diligence, but pre-capias efforts will not excuse inaction by the state after a capias issues.