“After holding that the evidence was legally and factually insufficient to support the trial court’s rejection of the defendant’s due-diligence affirmative defense, the Court of Appeals erred in failing to further address the issue of estoppel, even though the State raised the estoppel issue in the trial court, the trial court relied on the estoppel issue in proceeding to adjudicate the defendant’s guilt, and the State again raised the estoppel issue in the Court of Appeals.”
Martell was placed on deferred-adjudication probation. At his request, the judge gave him permission to live and work in Mexico, but he still had to report in El Paso. After a few months, Martell stopped reporting. The department attempted to contact him by letter and phone, to no avail. It did not contact him in person; it had no jurisdiction to enter Mexico for that purpose. The State moved to adjudicate. Shortly thereafter and long before Martell’s 4-year probation expired, a capias issued. Martell was not arrested until 15 years later. At the adjudication hearing, Martell argued the State failed to use due diligence in executing the capias, an affirmative defense codified in Tex. Code Crim. Proc. art. 42A.109. It applies if, among other things, “no …officer with the power of arrest under a warrant issued by a judge for that alleged violation contacted or attempted to contact the defendant in person” at his last known address. The trial court ruled it was unjust to allow Martell to use his permission to reside abroad “as a reason to bring up [that] due diligence was not done like it would have been done if he had been…in El Paso.” It adjudicated guilt and put Martell on straight probation for 10 years.
On appeal, Martell challenged the trial court’s rejection of the affirmative defense because no one attempted to contact him in Mexico in person. The State argued: (1) in-person contact would have been factually and legally impossible and the law does not require a futile act, and (2) “Martell was given a huge benefit” to reside in Mexico, conditioned on his reporting in El Paso and to hold the State failed to exercise due diligence would judicially sanction hiding beyond the reach of the law. The court of appeals held that rejection of the affirmative defense was not supported by the evidence. It explained that the State was asking the court to carve out an exception to the statute based on case-specific factual concerns. It ruled the State’s law-not-requiring-a-futile-act argument was inapposite.
The State argues that even if it did not use the term “estoppel” it consistently argued that Martell should not be allowed to rely on the benefit he received as a shield against adjudication. The State asks that the case be remanded to the court of appeals to address that argument since it was necessary to the final disposition of the appeal.