Opinion
No. 10-02-170-CR
Opinion delivered and filed August 29, 2003. DO NOT PUBLISH.
From the 13th District Court, Navarro County, Texas, Trial Court # 24350. AFFIRMED
Before Justice VANCE, Justice GRAY, and Senior Justice HILL (Sitting by Assignment).
MEMORANDUM OPINION
Gregory McCowen appeals from the revocation of his 1992 probation for aggravated possession of a controlled substance. He claims in two points that the trial court abused its discretion in revoking his probation because: (1) the State relied solely on hearsay to prove the allegations in the revocation motion; and (2) the State failed to exercise due diligence in arresting him and bringing him before the trial court for a hearing on the motion. McCowen argues in his second point that the State failed to exercise due diligence in arresting him and bringing him before the court for the revocation hearing. The State responds that due diligence is not an issue because the revocation hearing was held before McCowen's probationary term expired. We agree. The court placed McCowen on probation on August 28, 1992 for a period of ten years. The State filed the revocation motion on September 18, 2001. The capias issued the next day. According to testimony in the record, McCowen was arrested on the capias one month later. The court conducted the revocation hearing on June 5, 2002. McCowen's probationary term expired on August 27, 2002. The trial court can conduct a revocation hearing after the probationary term has expired if: (1) the revocation motion is filed before expiration of the term; (2) a capias issues for the defendant's arrest before expiration of the term; and (3) the State exercises due diligence in apprehending the defendant and bringing him before the court for the hearing. Peacock v. State, 77 S.W.3d 285, 287 (Tex.Crim.App. 2002). The 1989 version of article 42.12 applies to McCowen's case because he committed the offense in September 1991. Section 24(a) of that statute authorized a trial court to issue a capias for a violation of probationary terms "[a]t any time during the period of probation." Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, sec. 24, 1989 Tex. Gen. Laws 3471, 3516-17 (amended 1991) (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon Supp. 2003)). A defendant can raise the issue of due diligence if the revocation hearing is not conducted until after the expiration of his probationary term. See Peacock, 77 S.W.3d at 287. However, the State's lack of diligence in executing a timely capias is irrelevant unless the revocation hearing does not occur until after the probationary term has expired. See White v. State, No. 10-96-134-CR, slip op. at 2 (Tex.App.-Waco June 18, 1997, no pet.) (not designated for publication). The trial court conducted the revocation hearing in this case before McCowen's probationary term expired. Accordingly, we overrule his second point. McCowen contends in his first point that the State relied solely on hearsay to establish that he had violated the terms of his probation. McCowen concedes that the State laid the proper predicate for the admission of his probation file under the business records exception to the hearsay rule. See Tex.R.Evid. 803(6). He notes, however, that the sponsoring witness could not identify all of those "persons with knowledge" who made entries in the file. Thus, he claims that admission of testimony about entries in the file amounts to the admission of double hearsay. Id. 805. The sponsoring witness for a business record need not be the person who created the record or even have personal knowledge of its contents. Perry v. State, 957 S.W.2d 894, 899 (Tex.App. Texarkana 1997, pet. ref'd); Desselles v. State, 934 S.W.2d 874, 876 (Tex.App.-Waco 1996, no pet.). Rather, the sponsoring witness must have knowledge of how the record was prepared. Id. McCowen's objection focuses on the sponsoring witness's testimony that an entry in the file indicates that McCowen was to report by mail while in a Dallas-based substance abuse treatment program. He contends that "[t]here was no way of knowing if Mr. McCowen was aware that he was to report by mail, because there is no one with personal knowledge to testify to that condition being made clear to Mr. McCowen." Rule 803(6) provides that a "report . . . in any form of acts [or] events" is not excluded by the hearsay rule if the proponent of the evidence otherwise establishes the predicate for the business records exception. Tex.R.Evid. 803(6). The State laid that predicate. Accordingly, the court properly overruled McCowen's hearsay objection. Thus, we overrule his first point. We affirm the judgment.
Actually, the 71st Legislature amended what became article 42.12, section 24 twice. See Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, sec. 24, 1989 Tex. Gen. Laws 3471, 3516-17; Act of May 29, 1989, 71st Leg., R.S., ch. 1195, § 10, 1989 Tex. Gen. Laws 4854, 4867. Both versions contain the "at any time during the period of probation" language. Id.