Opinion
No. 10-00-279-CR.
Opinion delivered and filed July 30, 2003. DO NOT PUBLISH.
From the 82nd District Court, Falls County, Texas, Trial Court # 6898.
Walter M. Reaves, Attorney at Law, West, Texas, for Appellant. Kathryn J. Gilliam, Falls County District Attorney, Marlin, Texas, for Appellee.
Before Chief Justice Davis, Justice Vance, and Justice Gray
MEMORANDUM OPINION
James Riley Shook appeals the revocation of his community supervision for theft by check of property valued at $1,500 or more but less than $20,000. He claims in five points that the court abused its discretion by revoking his community supervision because: (1) the State failed to prove that he intentionally violated a protective order; (2) he did not "refuse" to provide a urine sample but rather asked that a doctor collect the specimen; (3) the court had previously given him an additional 90 days to secure employment and begin paying his financial obligations under the community supervision order; (4) his failure to pay was not intentional; (5) the State failed to prove the amount of his monthly payments and the due date for those payments; and (6) the court improperly delegated to the community supervision department the responsibility for determining the amount of his monthly payments and the due date for those payments. The revocation motion alleges that Shook had violated the conditions of his community supervision by:
(1) committing the offense of violation of a protective order on or about May 2, 2000;(2) failing to submit a urine specimen on or about May 2, 2000;
(3) failing to pay a community supervision fee of $40 per month;
(4) failing to pay the $50 contribution to the Crime Stoppers fund; and
(5) failing to pay restitution.After a hearing, the court found each of these allegations true, revoked Shook's community supervision, and imposed the original sentence of two years' confinement in a state jail facility. Shook contends in his fifth point that the trial court improperly delegated to the community supervision officer the responsibility for determining the amount of his monthly payments and the due date for those payments. However, he did not raise this objection at trial. Thus, he has not preserved this issue for our review. See Tex.R.App.P. 33.1(a)(1); Speth v. State, 6 S.W.3d 530, 534-35 (Tex.Crim.App. 1999). Accordingly, we overrule his fifth point. Shook argues in his third and fourth points respectively that the court abused its discretion by revoking his community supervision because the court had previously given him an additional 90 days to secure employment and begin making payments; because his failure to pay was not intentional; and because the State failed to prove the amount of his monthly payments and the due date for those payments. The court conducted the revocation hearing in July 2000. At the commencement of the hearing, Shook's counsel advised the court:
[W]e are not disputing the fact that he is in arrears on some of his financial obligations, Your Honor. We don't know exactly what those amounts are. We're prepared to stipulate to those amounts as reflected in the — by the probation department's records. . . . I believe we can stipulate to the violations alleged as far as being financial inability — the failure to pay certain monies and the amounts, we're willing to stipulate to that if that's helpful.Shook's community supervision officer Sarah Antis testified that he was delinquent on his financial obligations as of May 2000 as follows: (1) $300 for supervision fees; (2) $50 for a one-time payment to the Crime Stoppers fund; and (3) $1,872 for restitution. On cross-examination, Antis stated that the judge had summoned several defendants (including Shook) for a "discussion" or "hearing" regarding the fact that they were behind on the financial obligations imposed by their respective community supervision orders. She recalled that this occurred in November or December of 1999. Apparently, the judge informed Shook that he had 90 days from that point to secure employment. Shook worked for the United States Census Bureau from February 28 to March 23 of 2000. He received net pay of $1,298 during that period. Antis testified that Shook also worked other odd jobs during his community supervision. Shook testified in his own defense. He stated that he had experienced "some financial difficult[ies]" and had filed bankruptcy about six to eight months before the hearing. He testified that the judge had informed him during the prior "hearing" that he had 90 days to secure employment and begin making his payments. Thereafter, he got a job with a Mr. Cones running a scraper and made a payment the next day. He testified that he is capable of working and would seek another job and make the required payments if the court chose to continue his community supervision. Shook stated on cross-examination that he owns 210 acres of land where his home is situated. Apparently, this property secures a note with the FHA. An appraiser from the Falls County Appraisal District testified that Shook's property is worth about $500 per acre. She did not know whether any of his property is encumbered. At the conclusion of the hearing, Shook's counsel argued in part, "We don't dispute some of these allegations. He has not fulfilled all of his financial obligations to this Court. He has He has not complied with the terms of his probation in that respect." We review a revocation order under an abuse-of-discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984); Quisenberry v. State, 88 S.W.3d 745, 749 (Tex.App.-Waco 2002, pet. ref'd). The State must prove by a preponderance of the evidence that the defendant violated a condition of his community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993); Quisenberry, 88 S.W.3d at 749. If the State fails to meet this burden, the trial court abuses its discretion by revoking a community supervision order. Cardona, 665 S.W.2d at 493-94; Quisenberry, 88 S.W.3d at 749. If the State alleges that the defendant has failed to satisfy the financial obligations of his community supervision, the defendant may raise the affirmative defense of inability to pay. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2003); Stanfield v. State, 718 S.W.2d 734, 737 (Tex.Crim.App. 1986); Quisenberry, 88 S.W.3d at 749; Maxey v. State, 49 S.W.3d 582, 584 (Tex.App.-Waco 2001, pet. ref'd). The defendant must prove this affirmative defense by a preponderance of the evidence. Id. The State may overcome this affirmative defense by proving that the defendant's failure to pay was intentional. Stanfield, 718 S.W.2d at 738; Quisenberry, 88 S.W.3d at 750; Maxey, 49 S.W.3d at 584. Shook contends in his fourth point that the court abused its discretion by revoking his community supervision because the State failed to prove the amount he was required to pay each month and the due date for his monthly payments. However, the Court of Criminal Appeals has held that, if the community supervision order appears in the record, "formal proof of the . . . order . . . is not required in a . . . revocation hearing." Cobb, 851 S.W.2d at 874. Instead, the State must prove: (1) that the defendant is the same person whom the court placed on community supervision; and (2) that the defendant has violated a condition of community supervision as alleged in the revocation motion. Id. The community supervision order is included in the record in Shook's case. Thus, formal proof of the order was unnecessary in the revocation hearing. Id. To establish that the defendant has violated a particular condition of community supervision, the State would most logically begin by offering some evidence (testimonial or otherwise) to establish the particulars of the condition at issue. From the beginning however, Shook did not dispute that he had failed to satisfy his financial obligations as alleged in the revocation motion. He personally testified that he had not complied with these requirements. Under these circumstances, we hold that the State need not prove-up the conditions of community supervision which the defendant concedes he has violated. Accordingly, we overrule Shook's fourth point. Shook argues in his third point that the court abused its discretion by revoking his community supervision for failing to satisfy his financial obligations after giving him a 90-day "extension" to comply. He contends that this 90-day period had not elapsed at the time the State sought to revoke his community supervision. The only testimony in the record is that the judge had granted this "extension" in November or December of 1999, which was at least seven months (over 200 days) before the revocation hearing and at least four months (over 120 days) before he was arrested on a separate charge. Shook suggests in his brief that the prior "hearing" occurred sometime in February 2000 because he took his position with the Census Bureau that month. However, his own testimony belies this suggestion. Shook testified on direct examination that he took a job with a Mr. Cones running a scraper after the judge granted the extension. Shook also avers in his third point that his failure to pay was not intentional. He contends in his brief that he had difficulty obtaining employment. However, he provided no testimony to support this assertion. Shook testified that he suffers from bipolar disorder. He named the medications he takes for this condition. He did not, however, testify in any manner that this condition inhibited his ability to work. On cross-examination, he stated that he is able to work a full-time job. He offered no explanation for why he had failed to secure regular employment during the term of his community supervision. Shook failed to establish by a preponderance of the evidence that he was unable to obtain employment and satisfy the financial obligations of his community supervision. His testimony that he is capable of working a full-time job provides a strong inference that his failure to pay was intentional. See Stanfield, 718 S.W.2d at 738; Maxey, 49 S.W.3d at 584. Under these circumstances, we cannot conclude that the court abused its discretion by revoking Shook's community supervision for failing to satisfy the financial obligations imposed by the community supervision order. Thus, we overrule his third point. A court does not abuse its discretion in revoking community supervision if a single violation is shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. [Panel Op.] 1980); Pierce v. State, 67 S.W.3d 374, 377 (Tex.App.-Waco 2001, pet. ref'd); Maxey, 49 S.W.3d at 584. Accordingly, we need not address the remainder of Shook's points. See Pierce, 67 S.W.3d at 377-78; Maxey, 49 S.W.3d at 585. We affirm the judgment. Affirmed
Shook's third point states, "The trial court abused its discretion in revoking Appellant's probation based on the failure to pay his crime stoppers fee and court costs where there was no evidence that Appellant wilfully refused to comply, and the court had only recently given him 90 days to find a job and catch up on his payments." We have divided this point into items (3) and (4) in the listing of the points raised.
The clerk's record contains no docket entry indicating a "hearing" of this nature.
The following excerpt from Shook's cross-examination contains the entirety of the evidence on this matter:
Q: Could you have sold any of your land or any of that 200 acres to pay off these obligations, these hot checks that you wrote to local merchants?
A: No. It's tied up . . . with the FHA.