*1 implement to “serve to cause it is intended jury, to Tex.Code pursuant instructs 3(a) (b), requirement,” Geesa is 87.07, § the constitutional Proc. art. & Crim. phase. It is guilt-innocence limited to the any proven offense must be extraneous punishmеnt phase inapplicable to the it could beyond a reasonable doubt before are Fields, convictions which any prior In as to at 688. be considered. S.W.3d Therefore, a contrast, with offered for enhancement. the instant case deals at that phase instruction of “reasonable doubt” reasonable-doubt whether definition There- required sponte. sua required is sua of trial is not punishment phase at the fore, Attоrney’s ground to de- District second jury is instructed sponte, when 12.42,1 Prosecuting At- termine, and the State to Tex. Pen.Code for review pursuant sus- for review should be torney’s ground are allegations the enhancement whether Thus, doubt. tained. beyond true reasonable give guidance can us some
while Fields only in foregoing, I concur Based on case, it to “dic- the instant cannot be said Ap- judgment reversing the Court in this decision. tate” the outcome pеals. Fields, As we stated set
The definition of reasonable doubt specifically applies
out Geesa trial; al- phase of
guilt-innocence
though the rules are not of constitutional [they] se ... serve to per
dimension require- the constitutional
implement
ment that a criminal conviction cannot
BRECHEISEN, Appellant,
Kathleen E.
proof beyond a rea-
except upon
stand
sonable doubt.
of Texas.
The STATE
Fields,
Geesa,
(citing
at 688
S.W.3d
Winship,
at 163 & In re
397 U.S.
S.W.2d
No. 0452-98.
(1970))
leged; already that has done Rather, offenses.
ous trials for those beyond a
prosecution prove to the defendant on
reasonable doubt that named each
trial is the same defendant and, if alleged felony convictions alleged
applicable, that the order statutory re- comports with
prior offenses pertain The burden does not
quirements. trial, rather offense at but proving
to in- authority to establishing the state’s Enhancement of punishment.
crease statute, rather
punishment is based on Be- mandate.
than on
constitutional
(Tex.
grounds, Bell v.
Yolanda M. Assist. Austin, by a defendant аt the must raised Paul, Atty., for which be State’s Matthew hearing. revocation the State. defense, however, is not an
This *3 State, v. Rodriguez defense. affirmative 516, (Tex.Cr.App.1991). 804 S.W.2d WOMACK, J., opinion delivered the the burden of meets Once the dеfendant Court, MEYERS, PRICE, in which the due-diligence is by raising the production KEASLER, JOHNSON, HOLLAND, and hearing, the State at the revocation sue JJ., joined. to show persuasion the incurs burden application in this case is the The issue Id.; Lang diligence. it due thаt exercised denial analysis a to the harmless-error (Tex.Cr. State, 553, 555 v. 800 S.W.2d ston probation-revoca- a of a motion to dismiss App.1990). the did not use
tion when State 12, 1991, case, the September on In this executing capiаs. in the We diligence due ap- the suspended imposition of trial court did not Appeals hold that the Court of placed and her sentence for DWI pellant’s analysis, and we properly apply such The years. on for two State probation judgment. reverse its 31, 1992, a motion to revoke on March filed 16, 1992, trial court issued April the and met for requirements Two must be But appellant’s for the arrest. capias a jurisdiction to re acquire a trial court to 4, 1993, did the State not until October The must file with voke State During capias appellant. on the serve the court, of the expiration the trial before the the the interim between issuance most оf probationary period, a motion to revoke it, the and the service capias alleges probationer that vio probation custody in in other had been appellant probation judgment. lated the terms of the of which charges, of Texas on new counties (Tex. State, 650, v. Guillot 543 S.W.2d The pro- officer was aware. probation her then, Cr.App.1976). The trial court must call telephone made one bation office had expiration probationary before unanswered, went appellant, which upon this mo period, capias issue based attempt did little to to locate but otherwise proba tion that orders the arrest of the her. tioner. Id. dismiss filed a motion to appellant The jurisdictional In addition to these motion, arguing probation-revocation required court is to use requirements, in diligence by the State exe- lack of due determining in and diligence hearing due urged her motion cuting capias. She motion. allegations in the revocation trial court hearing. The at the revocation (Tex.Cr. State, 34, 34
Harris v.
843 S.W.2d
proba-
and revoked her
denied her motion
to
App.1992).
The State is also
tion,
credit on her sentence
gave
but
her
executing
capias
diligence
use due
jails of
confined in the
for the time she was
from the motion to revoke.
that results
capias was out-
while her
other counties
State,
Connolly
983 S.W.2d
standing.
Harris v.
(Tex.Cr.App.1999) (quoting
that
found
The Court
(Tex.Cr.App.
35 n.
843 S.W.2d
its
to
“wholly failed” to meet
burden
1992)),
previous opinions
we disavowed
State
diligence
due
it exercised
rеquirement of due
show
which we held the
capias
apprehending
executing
ele
jurisdictional
to be a third
diligence
trial court’s
it affirmed the
appellant,
The lack
but
probation revocations.
ment of
ishment,”
it was essential to them.
judgment by applying
harmless-error
See
44.2(a).
analysis.
Tex.R.App. P. Rule
And it cannot
said that a defendant’s
be
substantial
existing ease law does
We understand
rights
the failure
by
were not affected
to
anаlysis
not
for harmless error
provide
give
complete
prose-
effect to a
defense to
grant
of a trial court’s failure to
a mo-
44.2(b).
P.
Tex.R.App.
cution. See
Rule
a motion to revoke for
tion
dismiss
long
So
as the State’s failure to exercise
diligence
executing
lack of due
revo-
revocation,3
is a
defense to
However,
cation arrest warrant.
under
give
the erroneous failure to
effect to the
case,
this
and fair-
the facts of
reason
defense cannot be said to be harmless.
harm-
compel
ness
our decision to utilize
analysis.
less error
The harm from reversible errors
*4
State,
490,
Brecheisen v.
958 S.W.2d
492
plain;
appel
that would
is
bar a retrial
the
1997).
(Tex.App.
Worth
The court
- Fort
lant
if not for the error.
would be free
said,
and in this
presumed,
first
“Harm is
remedy
The standard
for reversible error
case,
It found that the
it is clear.” Ibid.
provide
appellant
is to
the
with a new
credit
appellant
harm to the
was “denial of
that is free from the error that
proceeding
custody”
in
in
for the time she was
the
required reversal. Because the outcome
cоunties,
potential
other
and the “loss of a
pro
appellant’s probation-revocation
reaped
windfall” which should would have
the trial
ceeding depended upon
court’s
from a dismissal.
Id. at 492-93. Because
remedy
on
this
is not
ruling
diligence,
due
granted
appellant
the trial court had
A
practical.
new
without the
in custody,
credit for the time she was
in
appellant’s
error would result
re
whole,”
appellant had been
“ma[d]e
probation.
lease from her
not
to the convic
error “did
contribute
deprive
it
punishment.
tion or
Nor did
Supreme
The United States
Court
Appellant
right.”
of a
Id. at
substantial
remedy
of
for errors
took this view the
disсretionary
granted
493.1 We
review.
that would
retrial after reversal on
bar
in a
that is similar to ours.
appeal,
case
The
conclusion is
Appeals’
Court
States,
434,
412
Strunk v. United
U.S.
93
wrong on its face under either standard
(1973),
2260,
L.Ed.2d 56
the de
S.Ct.
in Tеx.R.App.
for reversible error found
in a
44.2(a)
(b).2
prison
was confined
state
fendant
only did the trial
Proc.
&
Not
a federal officer that
when he confessed to
denying
motion to dis
court’s error
he
of a federal offense. When
pun-
guilty
miss “contribute to the conviction or
was
beyond a
adverted to stan-
the court determines
reasonable
1. Here the Court
dards for reversible error of both constitution-
doubt that the error did not contributе
dimension,
al and non-constitutional
which
punishment.
conviction or
44.2(a)
(b).
&
error, defect,
are found in
Tex.R.App. Proc.
(b)
Any
Errors.
other
Other
opinion
due
The Court said earlier in its
that
irregularity,
does not affect
or varianсe that
process required
due
State to exercise
dili-
disregarded.
rights
substantial
must be
warrant;
gence
executing an arrest
opinion of a
district court was cited as
federal
738,
State,
Connolly v.
S.W.2d
3.See
case,
аuthority.
To resolve this
it
Id. at 492.
1999) (Keller, J.,
(ar
concurring)
(Tex.Cr.App.
necessary
pro-
due
is not
to decide whether
concerning the
guing
jurisprudence
that the
diligence.
requires such due
cess
justi
due-diligence
questionable
dеfense is
fication); Rodriquez v.
992 S.W.2d
44.2(a)
(b) provide:
&
2. Rule
J.,
(Mansfield,
(Tex.Cr.App.1999)
concur
(a)
appellate
Constitutional Error.
If the
(arguing
due-diligence defense
ring)
that the
reveals constitution-
record in criminal case
basis).
nо
statutory
The State makes
has no
subject
that is
to harmless error re-
al error
due-diligence requirement
claim that
view,
appeals
reverse a
the court of
must
applied
case.
should not be
in this
punishment
judgmеnt of
or
unless
conviction
diligence
pursuing
him for
to exercise
prosecute
failed to
government
That case
revoke
motion to
months,
trial
speedy
denied the
ten
he was
defendant
only whether
conсerned
required by the Sixth Amend-
which is
could,
from the revocation
appeal
attempted
appeals
ment. The court
complain of the suf-
adjudication,
deferred
by giving
credit
cure the error
Strunk
of the so-called
ficiency of the evidence
during
for the time
against his sentence
held that no
at 741. We
defense.
speedy
denied a
trial.
which he had been
deci-
the district court’s
appeal lies from
reversed, holding that
Supreme
The
Court
Id. at 741.
sion on that matter.
remedy” for a violation
“only possible
speedy
to a
right
Amendment
Sixth
not raise the issue of
case also does
This
Id. at
violation. See id.
Similarly, probation- failure to dismiss a has
revocation when State cannot be
failed to show a new that would by hearing
remedied
permit the defense. Ap- hold that the
Because we Court finding that the trial court’s
peals erred
failure to motion to dismiss the State’s Sally GRACE, Appellant, error, Ann
revoke was harmless we reverse judgments and the Appeals Court of v. court, and remand the case trial court with direсtions dismiss COLORITO, M.S., Janey motion to revoke L.P.C., Appellee. Reversed and remanded. No. 03-99-00143-CV. Texas, Court KELLER, J., concurring opinion filed a Austin. McCORMICK, P.J., and
in which MANSFIELD, J., joined. Oct. 1999.
KELLER, J., concurring delivered McCORMICK,
opinion in which P.J.
MANSFIELD, J., joined.
Connolly
(Tex.Crim.App.1999), we the State is
the issue whether by pro- be remedied public Amendment that could afford a 4. The Court listed failure to Strunk, trial, charges, viding rights at a new trial. jury, or those impartial notice of S.Ct. 2260. U.S. at compulsory process as violations of the Sixth