NO. 1748/1749-01






Meyers, J., filed a concurring opinion, joined by Price and Johnson, JJ.


The majority holds that the Court of Appeals erred by failing to view the evidence in the light most favorable to the trial court findings, under Guzman. I write separately simply to point out that the standard of appellate review of trial court findings in the due diligence context is not governed by the "almost total deference" standard invoked by the majority.

The defense of lack of due diligence in apprehending a probationer must be raised by the appellant before or during the revocation hearing. Hardman v. State, 614 S.W.2d 123, 127 (Tex. Crim. App. 1981). Once the defendant raises the issue, the burden shifts to the State to show that due diligence was used in apprehending the defendant. Langston v. State, 800 S.W.2d 553, 555 (Tex. Crim. App. 1990). Thus, lack of due diligence is not an affirmative defense, and the State bears the ultimate burden of persuasion. Rodriguez v. State, 804 S.W.2d 516, 519 (Tex. Crim. App. 1991).

When, as here, a defendant challenges the factual sufficiency of the rejection of a defense, we have held that "the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The Guzman requirement of viewing the evidence in the light most favorable to the trial court's holding is inapplicable here.

The Court of Appeals in this case properly reviewed the findings of the trial court in a neutral light, and determined that the State had failed to meet its burden of showing, by a preponderance of evidence, that it acted with due diligence. The majority reverses the Court of Appeals' judgment, holding that the Court of Appeals erroneously applied a de novo standard of review. I write separately because I believe that the Court of Appeals applied the correct standard of review, but reached the wrong result.

A brief survey of the Texas courts' decisions on this issue shows that in most of the cases in which lack of due diligence was found, the State made little or no effort to locate a missing probationer. Compare, Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002)(only attempt to locate missing probationer was letter sent to post office box, although State possessed other contact information); Rodriguez v. State, 804 S.W.2d 516 (Tex. Crim. App. 1991)(no efforts made by probation office to contact appellant, even though they knew his address and workplace) with Strickland v. State, 523 S.W.2d 250 (Tex. Crim. App. 1975)(delay of eight months in arresting probationer who failed to report change of address did not constitute lack of diligence); Beaty v. State, 49 S.W.3d 606 (Tex. App. - Beaumont 2001)( State met burden of showing due diligence where sheriff entered warrant in police database, visited relatives of probationer, and ran driver's licence checks periodically).

Once appellant properly raised the issue of lack of due diligence, the burden shifted to the State to show, by a preponderance of evidence, that it made a diligent effort to apprehend him. The State presented a significant amount of testimony regarding efforts to locate appellant, who had remarried, changed his name, had moved several times, and had not renewed his driver's license for ten years. While appellant proffered explanations for many of these actions, the trial court was within its discretion, after hearing and considering all the evidence, in finding that appellant's actions foiled the State's diligent efforts to apprehend him. Viewing the evidence in a neutral light, I would still reach the conclusion that the State met its burden of showing due diligence. Therefore, I concur in the judgment of the Court.

Meyers, J.

Filed: July 2, 2003