Opinion
No. 07-14-00334-CR
03-16-2016
JOHNIE RAY THOMAS, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court Randall County, Texas
Trial Court No. 15,556-C, Honorable Ana Estevez, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Johnie Ray Thomas, appeals the trial court's order adjudicating him guilty of the offense of sexual assault of a minor and sentencing him to twelve years' imprisonment. On appeal, he contends that the trial court's order violated a number of constitutional guarantees. He also contends that the evidence was insufficient to support the trial court's order because the State failed to prove that he had the ability to pay the fees he allegedly failed to pay. We will reverse and render.
Procedural History
This is a direct appeal from the order adjudicating appellant guilty in trial court cause number 15,556-C, in which appellant was alleged to have committed sexual assault of a minor. However, trial court cause number 13,408-C, an earlier case in which appellant pleaded guilty to having committed credit card abuse, is indirectly involved as well. We will summarize the procedural histories of both cases leading up to the hearing at which the trial court adjudicated appellant guilty of both offenses.
In November 2000, appellant was indicted in cause number 13,408-C, and in March 2002, appellant was placed on five years of deferred adjudication community supervision in that case. In August 2002, appellant's community supervision was extended and modified. In November 2003, the State moved to proceed to adjudication in cause number 13,408-C, alleging that appellant committed the offense of sexual assault of a minor, the offense for which he would be indicted weeks later and which serves as the substance of the case at bar. The trial court would dismiss that motion some time later on the State's own motion.
Later in November 2003, appellant was indicted for sexual assault of a minor, becoming trial court cause number 15,556-C. Appellant pleaded guilty to those allegations in March 2005 and was placed on seven years' deferred adjudication community supervision. The trial court also imposed a $1,000.00 fine and ordered that appellant pay supervision fees and complete a sex-offender treatment program.
In August 2006, the State moved to proceed to adjudication in both causes. In December 2006, the trial court entered an order amending conditions of appellant's community supervision in cause number 13,408-C, increasing his restitution payments to $780 per month. The ordered amount of restitution was corrected to $48,124.71. Appellant was also ordered to serve a sixty-day jail term in the Randall County Jail Work Release Program. With respect to cause number 15,556-C, the trial court extended the period of community supervision to ten years and also ordered the same sixty-day jail term as it ordered in cause number 13,408-C. In May 2007, appellant requested a modification of the terms of his community supervision that would permit him to work as a deejay in a bar. That request was denied.
In May 2011, the State again moved to proceed to adjudication in cause numbers 13,408-C and 15,556-C. The State alleged that, as to cause number 13,408-C, appellant failed to pay supervision fees and restitution. As to cause number 15,556-C, the State alleged the following: (1) failure to pay $10 urinalysis fee on or before August 28, 2005, (2) failure to pay $5 monthly sex offender fee used as a contribution to the Victim's Assistance Program for the months of January 2007 through March 2011 (totaling $255); (3) failure to attend and successfully complete a sex offender treatment program; (4) failure to pay $25 Crime Stoppers fee for the months of April and May 2005 (totaling $50); and (5) failure to pay $5 monthly delinquent sex offender publication fee for the months of January 2007 through January 2011 (totaling $250).
Again, the State's application to proceed to adjudication in both causes was heard jointly. After the hearing, the trial court found the State's allegations in 13,408-C to be true and adjudicated appellant guilty of the offense in 13,408-C. The trial court found paragraphs 1, 2, 4, and 5 to be true and adjudicated appellant guilty of the offense in 15,556-C but found paragraph 3—relating to completion of sex offender treatment program—to be not true. The trial court then sentenced appellant to two years in a state jail facility to be probated for five years and ordered restitution be paid in 13,408-C. In 15,556-C, the trial court sentenced appellant to twelve years in prison. The trial court ordered these sentences to run consecutively, the five-year probation period to begin at the end of his prison term.
Appellant timely appealed the trial court's order in cause number 13,408-C, and this Court affirmed the trial court's order adjudicating appellant guilty of credit card abuse. See Thomas v. State, 379 S.W.3d 436 (Tex. App.—Amarillo 2012, no pet.). Apparently as a result of some confusion regarding the cause numbers to be appealed, notice of appeal in the instant case was untimely filed and the purported appeal was dismissed for want of jurisdiction. See Thomas v. State, No. 07-11-00460-CR, 2012 Tex. App. LEXIS 335, at *2-3 (Tex. App.—Amarillo Jan. 13, 2012, no pet.) (mem. op., not desig. for publ.). The Texas Court of Criminal Appeals granted appellant an out-of-time appeal, which is now before us. See Ex parte Thomas, No. WR-78,190-02, 2014 Tex. Crim. App. Unpub. LEXIS 719, at *1-2 (Tex. Crim. App. Aug. 20, 2014) (per curiam) (not designated for publication).
Preliminary Concerns
On appeal, appellant makes several contentions regarding the propriety of the trial court's decision to adjudicate him guilty on the evidence presented to it. Included in his several contentions are a number of well-developed constitutional grounds challenging the order. In an attempt to avoid addressing constitutionally based contentions whenever possible, we will take appellant's contentions in a different sequence and address first his contentions regarding the sufficiency of the evidence to support the trial court's order adjudicating appellant guilty on the basis of the findings that appellant failed to make payments in cause number 15,556-C as ordered. "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Nguyen v. State, 359 S.W.3d 636, 645-46 (Tex. Crim. App. 2012) (citing Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct. 152, 89 L. Ed. 101 (1944); Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006); and Ex parte Salfen, 618 S.W.2d 766, 770 (Tex. Crim. App. 1981)).
Standard of Review
In a community supervision revocation proceeding, the burden of proof lies on the State to establish by a preponderance of the evidence that the defendant violated a condition of his community supervision. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State satisfies this burden when the "greater weight of the credible evidence" before the trial court "create[s] a reasonable belief that the defendant has violated a condition of his [community supervision]." See Rickels, 202 S.W.3d at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).
We review a trial court's decision to revoke deferred adjudication community supervision and proceed to an adjudication of guilt in the same manner as a decision to revoke ordinary community supervision: for abuse of discretion. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2015); Hacker, 389 S.W.3d at 865. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. See Tapia v. State, 462 S.W.3d 29, 41 n.14 (Tex. Crim. App. 2015). In conducting our review, we must bear in mind the trial court is the sole judge of the credibility of the witnesses and the weight to give their testimony. See Hacker, 389 S.W.3d at 865; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). We will conclude that the trial court did not abuse its discretion if the record shows proof by a preponderance of the evidence of any of the alleged violations of the community supervision terms. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).
Applicable Law
As this particular issue has been presented to us, our disposition will turn on whether the State had to—and whether it did—prove that appellant was able to pay the fees he was alleged to have failed to pay. The complicating factor in the procedural posture of the case in the State's sole non-monetary allegation that appellant failed to complete a sex-offender treatment program, an allegation the trial court found to be not true. The legal source of this allegation's impact is found in section 21(c) of article 42.12 of the Texas Code of Criminal Procedure, which provides in the version effective at the time of the adjudication hearing as follows:
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.Act of June 15, 2007, 80 Leg., R.S., ch. 604, 2007 Tex. Gen. Laws 1160 (amended 2013, 2015) (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c) (West Supp. 2015)) (emphasis added). Here, again, the State also alleged that appellant failed to complete a sex-offender treatment program. The trial court did not find that allegation to be true in support of revocation, but the issue remains whether the mere allegation of a violation other than a failure to pay will take the matter outside the scope of section 21(c). The State maintains that a plain reading of section 21(c) means that it was not required by article 42.12 to prove that appellant was able to pay. Appellant cites to the arguably "absurd results" of that reading, one that would permit the State to avoid having to prove ability to pay in any case by simply alleging a non-monetary based violation, whether it be a viable allegation or not. We must, then, determine whether the legislature's use of the term "only" in section 21(c) was designed to relieve the State of proving in a case such as this, in which a non-failure-to-pay allegation is made, that a defendant was able to but did not pay as ordered.
The factual source for the impact that this decision will have lies in the uncontroverted evidence that, because of Randall County's accounting system, any payments appellant made to the county would first be applied to the outstanding balance on his delinquent restitution payments in the earlier credit card abuse case, cause number 13,408-C. Effectively, appellant could not make payments in the instant case because his payments were diverted to his delinquent restitution payments in another case. As an accounting assistant from the Randall County Community Supervisions and Corrections Department testified, appellant "would have to get current on the restitution before anything would go to" the instant case. She explained that the payments appellant made were "just credited to the 13,408-C" case. We now turn to the first issue at hand: whether the State had the burden of proving that appellant had the ability to pay the ordered fees.
Faced with a case in which the State alleged one failure to pay and also commission of a new offense as grounds for adjudication, the Fort Worth Court evaluated the evidence under an earlier version of section 21(c), fully aware of the presence of the term "only" and noting as follows:
The legislature's use of the word "only" in the statute is not intended to lift the requirement that the State prove that the probationer was able to pay and did not pay as ordered by the judge when the State includes additional allegations of nonmonetary community supervision violations. See Stanfield v. State, 718 S.W.2d 734, 737 (Tex. Crim. App. 1986) [(en banc) (op. on reh'g)] (holding that such a construction "produces quirky consequences").Brown v. State, 354 S.W.3d 518, 520 n.3 (Tex. App.—Fort Worth 2011, pet. ref'd). Indeed, "nonpayment of fees must be intentional." See Stanfield, 718 S.W.2d at 736; but see Gipson v. State, 428 S.W.3d 107, 112-13 (Tex. Crim. App. 2014) (Johnson, J., concurring) (reading section 21(c) to apply when the only violations alleged are ones that center on failure to pay and noting that, in that case, the State also alleged offense of theft and failure to avoid contact with victim of probated offense; concluding that section 21(c) would not apply based on presence of those non-monetary allegations).
The majority opinion in Gipson appears to have concluded that section 21(c) could have applied to sufficiency of the evidence in that case even though, we learn through Judge Johnson's concurring opinion, the State had alleged a non-monetary violation as well, in the form of an allegation that appellant had committed theft. See Gipson, 428 S.W.3d at 108-09, 112-13. Ultimately, the Gipson majority concluded that fines, as alleged in that case, were not included in section 21(c)'s "certain types of fees and costs" and, therefore, were not included in the type of payments covered by section 21(c). See id. at 108-09. But it is noteworthy that the Gipson majority determined the question in terms of the type of fees and costs concerned rather than concluding that, because of the non-monetary allegation, the entire matter was outside the scope of section 21(c). By doing so, the majority, at least, intimated that section 21(c) would have applied had the allegations concerned the fees and costs within its scope. In the absence of a direct statement on this precise issue from the Texas Court of Criminal Appeals, we take the majority's approach in Gipson as some guidance on the matter. Guided by such authority and persuaded by our sister court's opinion in Brown, we will proceed to analyze the evidence having come to the conclusion that the State was required to show that appellant had the ability to pay as ordered but failed to do so.
Analysis
Appellant explained his situation: "It is not that I would not pay the money; but the more I give, as long as I was behind [in restitution in cause number 13,408-C], it would always go towards restitution first." He continued, explaining that he "would try to get them to put it toward some of the sex[-]offender fees, but they said they can't do that, it has to go straight to restitution." He found a way around the diversion with respect to one payment required in cause number 15,556-C:
And I was required to make a one-time payment to the Bridge of $50.00; and the way I was able to do that is, I did it online and it went directly to them. So probation had to recognize that. And that actually took care of that payment.The record reveals that appellant did consistently make payments, nearly every month of his probationary period. However, he sometimes made only partial payments when he was unable to make a full payment, leading him to fall into arrears on his restitution payments in the earlier case. The Randall County accounting assistant testified that appellant had paid "a total of $26,411.00" toward fees and restitution in cause number 13,408-C.
So, it seems clear that appellant did fall behind in restitution payments in cause number 13,408-C. And the State successfully applied to proceed to adjudication in that case, and appellant was convicted and sentenced in that case. The State's position would now permit the effect of his failure to pay in that case to bleed over into this case, make it impossible for him to make his payments in this case because payments are diverted to the earlier one, and permit the State to move to adjudicate based on appellant's failure to pay in this case.
We recognize that this is not the typical ability-to-pay case. Generally speaking, cases concerning this issue turn on whether the State proved a defendant's ability to pay in terms of his income and expenses. Here, there is an issue that goes beyond appellant's financial ability to pay; that is, we must look to whether appellant had the ability to pay in this case considering the county's accounting system. The record contains sometimes confused and sometimes vague evidence regarding appellant's income; it does not develop the amount of appellant's expenses. However, we do not pass on whether such evidence was sufficient to prove that appellant had the ability to pay. What is critical to our analysis is this evidence that, regardless of income or expenses, appellant made payments but was unable to pay his fees in the instant case due to the combined effect of the outstanding balance on his restitution in another case and the county's accounting system that diverted any payments he made in the instant case to the amount past due on restitution in that other case. As to the instant case, in and of itself, the record is clear that, although appellant attempted to make payments in this case, he was unable to make payments toward the amounts ordered to be paid in this case.
As an alternative argument to its position that section 21(c) did not apply to require it to prove that appellant had the ability to pay, the State contends that the evidence is sufficient to show that appellant could have made the ordered payments in both cases and, therefore, his purported inability to pay because of the accounting system must fail. In other words, it is appellant's own fault for failing to pay—though able to pay—restitution in the earlier case that created the county's need to divert payments made in this case to the earlier case. While we see that there is some logic to that argument in terms of personal responsibility, we think the proper scope of our inquiry is more limited here. We must assess whether appellant had the ability to make the payments in the instant case, without reference to whether he also had the ability to have made restitution payments in cause number 13,408-C. We need not address whether the evidence was sufficient to show whether appellant had the ability to pay the restitution payments ordered in cause number 13,408-C; the appeal from cause number 13,408-C is final and is not before us. Cause number 13,408-C's relevance to the instant case is limited to the fact that the outstanding restitution balance in that case made it impossible, under Randall County's accounting system, for appellant to make payments in the instant case. Put another way, regardless of the amount of money appellant made, he was not able to make payments in the instant case due to this case's unique relationship with cause number 13,408-C and in light of Randall County's accounting system which prevented payments made to be applied to the fees ordered in this case.
We conclude that, on this unique set of facts and circumstances, the State failed to carry its burden of proving that appellant had the ability to pay the fees as ordered in cause number 15,556-C. That being so, the trial court abused its discretion by adjudicating appellant guilty on the State's application alleging that he violated the terms of his community supervision for failing to pay ordered fees. Having so concluded, we do not address appellant's constitutional issues, as they are not necessary to the resolution of this appeal. See TEX. R. APP. P. 47.1; see also Nguyen, 359 S.W.3d at 645-46.
Conclusion
Having sustained appellant's point of error challenging the sufficiency of the evidence to support the trial court's order adjudicating him guilty of sexual assault of a minor and sentencing him to twelve years' imprisonment, we reverse the trial court's order adjudicating appellant guilty of and imposing sentence for said offense and render judgment that the State's application to proceed to adjudication in cause number 15,556-C be denied. See TEX. R. APP. P. 43.2(c), 43.3.
Mackey K. Hancock
Justice Do not publish.