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holding "the State need only show that the defendant did not pay"
Summary of this case from Lively v. StateOpinion
No. 10-09-00114-CR
Opinion delivered and filed April 21, 2010. DO NOT PUBLISH.
Appealed from the 220th District Court Bosque County, Texas, Trial Court No. 06-08-14013-BCCR. Affirmed.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS. (Chief Justice GRAY concurring with note)
(Chief Justice Gray concurs with the Court's judgment to the extent it affirms the trial court's judgment. A separate opinion will not issue. He notes, however, the discussion in regard to issue one is unnecessary to a disposition of this appeal and as such is dicta and thus he does not join the Court's opinion.)
MEMORANDUM OPINION
Matthew Charles Sherwood pleaded guilty to aggravated robbery and was placed on community supervision. The State later moved to revoke, alleging six violations of community supervision. Sherwood pleaded "true" to the State's allegations. The trial court revoked Sherwood's community supervision and sentenced him to twenty years in prison. On appeal, Sherwood contends that the trial court erred by revoking his community supervision because: (1) the State failed to show that he willfully failed to pay fines and costs; (2) the community supervision order was not specific enough; (3) the trial court erroneously relied on the assumption that guilt must be adjudicated; and (4) his sentence is cruel and unusual. We affirm.
Sherwood pleaded "not true" to one of the allegations, which the State waived.
PAYMENT OF FINES, FEES, AND COSTS
In point one, Sherwood contends that the trial court erred by revoking his community supervision for failure to pay court-ordered fines, fees, and costs because the State failed to establish that he willfully failed to pay. Article 42.12 § 21(c) of the Code of Criminal procedure addresses a defendant's inability to pay. The former version of this statute provided:In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay compensation paid to appointed counsel, community supervision fees, court costs, restitution, or reparations, the inability of the defendant to pay as ordered by the judge is an affirmative defense to revocation, which the defendant must prove by a preponderance of evidence.See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3740 (amended 2007) (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c) (Vernon Supp. 2009)). The current version of the statute provides:
In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay compensation paid to appointed counsel, community supervision fees, or court costs, the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge.TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c). Thus, inability to pay is no longer an affirmative defense and the statute no longer applies to restitution or reparations. See id.; see also Sierra v. State, No. 03-08-00664-CR, 2009 Tex. App. LEXIS 7172, at *8-9 (Tex. App.-Austin Aug. 26, 2009, no pet.) (not designated for publication). Because Sherwood's revocation hearing was held after the effective date of the amendment, we will apply the current version of the statute. See Act of May 17, 2007, 80th Leg., R.S., ch. 604, § 2, 2007 Tex. Gen. Laws 1162; see also Sierra, 2009 Tex. App. LEXIS 7172, at *8. Under the current statute, the State must prove that the defendant had the ability to pay and did not pay the court-ordered appointed counsel fees, community supervision fees, and/or court costs. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c); see also Sierra, 2009 Tex. App. LEXIS 7172, at *8; Hood v. State, No. 12-08-00366-CR, 2009 Tex. App. LEXIS 9695, at *4-5 (Tex. App.-Tyler Dec. 23, 2009, no pet.) (not designated for publication). With regard to court-ordered restitution and fines, the State need only show that the defendant did not pay. See Sierra, 2009 Tex. App. LEXIS 7172, at *8-9; see also Hood, 2009 Tex. App. LEXIS 9695, at *4 ("As the statute is presently written, the state must show a defendant's ability to pay only when it seeks to revoke community supervision for nonpayment of compensation to counsel, community supervision fees, and court costs."). The State alleged violations for failure to pay court costs, supervision fees, the assessed fine, and court appointed attorney's fees. Sherwood testified that he did not willingly or intentionally fail to pay, but was unable to pay. His inability to pay, however, is irrelevant to the failure to pay the court-ordered fine. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c); see also Sierra, 2009 Tex. App. LEXIS 7172, at *9. The State proved, through Sherwood's testimony admitting his failure to make any of the required payments, that he did not pay this fine. Under the current version of section 21(c), this is all the State needed to prove. See Sierra, 2009 Tex. App. LEXIS 7172, at *8-9; see also Hood, 2009 Tex. App. LEXIS 9695, at *4. Accordingly, Sherwood cannot "successfully challenge each finding on which the revocation is based." Harris v. State, 160 S.W.3d 621, 626 (Tex. App.-Waco 2005, pet. dism'd); see Leach v. State, 170 S.W.3d 669, 672 (Tex. App.-Fort Worth 2005, pet. ref'd). We need not address his argument regarding the State's remaining allegations. See Sierra, 2009 Tex. App. LEXIS 7172, at *9. We overrule point of error one.