11th Court of Appeals
Eastland, Texas
Opinion
Samuel Benson
Appellant
Vs. No. 11-02-00103-CR B Appeal from Dallas County
State of Texas
Appellee
Samuel Benson appeals from the judgment revoking his community supervision. Appellant originally pleaded guilty to the offense of assault on a public servant. The trial court assessed appellant=s punishment at confinement for 10 years and a fine of $1,000, but the trial court suspended the imposition of the confinement and placed appellant on community supervision for 7 years. The State subsequently filed a motion to revoke appellant=s community supervision. After a hearing, the trial court revoked appellant=s community supervision and assessed punishment at confinement for 2 years. We modify and, as modified, affirm.
The trial court found that two of the allegations in the motion to revoke were Atrue.” Those allegations were that appellant had failed to make a $50 monetary contribution to Dallas Area Crime Stoppers, Inc. on or before May 1, 1999, and that he had failed to successfully complete a Salvation Army aftercare program.
Appellate review of an order revoking community supervision is limited to an abuse of the trial court=s discretion. In determining questions regarding sufficiency of the evidence, the burden of proof is by a preponderance of the evidence. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App.1984). The State is only required to prove one violation of the terms and conditions of community supervision to carry its burden of proof. Moses v. State, 590 S.W.2d 469 (Tex.Cr.App.1979).
The trial court, in its original Conditions of Probation Order dated January 14, 1999, ordered appellant to pay the Crime Stoppers fee on or before May 1, 1999. At the time of the revocation hearing, February 15, 2002, appellant had not paid the $50 fee. The inability of a defendant to pay court-ordered fees is an affirmative defense to revocation, which the defendant must prove by a preponderance of the evidence. TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 21(c) (Vernon Supp. 2003). The defendant bears the burden of producing evidence and the ultimate burden of persuasion on the issue of inability to pay. Stanfield v. State, 718 S.W.2d 734, 737 (Tex.Cr.App.1986). The State need not affirmatively demonstrate that the defendant had the financial ability to make the payments he failed to make. The State, however, still has the burden of proving that an alleged failure to pay an ordered fee was intentional. Stanfield v. State, supra at 738.
Appellant testified that he was unable to pay his probation fees when he was unemployed or incarcerated. He acknowledged that he was employed at times during his community supervision term and that he was able to make payments during that time. Appellant did not present any evidence that he was incarcerated or unemployed as of May 1, 1999, the date he was ordered to pay the $50 Crime Stoppers fee. Appellant=s general statement that he was paying when he could failed to satisfy his burden of proof. See Joseph v. State, 3 S.W.3d 627, 641-42 (Tex.App. - Houston [14th Dist.] 1999, no pet=n)(holding inability to pay Crime Stoppers fee not established where defendant presented no evidence that he was unable to pay the $50 fee by the date it was due); Jackson v. State, 915 S.W.2d 104, 107 (Tex.App. - San Antonio 1996, no pet=n)(holding defendant failed to prove inability to pay by preponderance of evidence where defendant established only that he may have been unemployed at certain times during the period of probation). The court in Stanfield stated that A[o]ne who has the ability to pay that which he is required to pay but does not, without more, leaves a factfinder with a strong inference that his failure is intentional.” Stanfield v. State, supra at 738. Here, the evidence indicates that appellant was working sporadically, and an inference of intentional nonpayment exists.
Appellant was ordered by the trial court as Aaftercare treatment@ to go to the Salvation Army for drug and alcohol treatment. Appellant was subsequently Aunsuccessfully@ discharged from treatment. Tina Calistan, a Dallas probation officer, was assigned to supervise appellant. Calistan, testifying from official probation department records, stated that appellant was discharged because he became disruptive in the program, affecting his and other clients= recovery, and that appellant began making threats to other clients and also the staff. Furthermore, appellant was given a breath analysis test that tested positive for alcohol. After being warned that he could have no more rule violations, appellant was 1 hour and 46 minutes late from a pass.
William Taylor, a licensed chemical dependency counselor working for the Salvation Army, testified that appellant was placed on Taylor=s case load for supervision. Taylor described the alcohol incident and a confrontation that appellant had had with another client over the use of a public telephone at the facility. Taylor testified that he thought appellant tested .052 on the breathalyzer test. Taylor stated that appellant=s explanation for the positive breathalyzer test was that he had been taking cough syrup.
Appellant testified that the telephone incident was not his fault and that he was being retaliated against by the case aid office because he had filed a grievance. He stated that the breathalyzer was not working properly and that he had taken some ARobitussin@ cough syrup before taking the breathalyzer test. Appellant stated that he was working a very positive program and that the Alevel-up@ sheet confirmed that staff members thought he was performing well. The trial court was not obligated to accept appellant=s version of the disputed facts. O=Leary v. State, 494 S.W.2d 841, 842 (Tex.Cr.App.1973).
The State recalled Taylor after appellant testified, and Taylor stated that all a person had to do to Alevel-up from a level one to a two” was Aobtain all your legal documents, your Social Security card, [and] apply for a Texas State ID or a driver=s license and birth certificate.” Taylor testified that, based on his knowledge of appellant, he was of the opinion that appellant was correctly Aunsuccessfully” discharged based on appellant=s behavior while he was at the Salvation Army.
We hold that the trial court did not abuse its discretion in revoking appellant=s community supervision.
We note that the judgment revoking community supervision recites that the trial court assessed a fine of $1,000. The reporter=s record reflects that the trial court sentenced appellant in open court to imprisonment for 2 years. The trial court did not assess a fine. Therefore, the judgment will be modified to reflect imprisonment for 2 years and no assessed fine.
The judgment of the trial court is modified and, as modified, affirmed.
AUSTIN McCLOUD
July 24, 2003 SENIOR JUSTICE
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
McCall, J., and McCloud, S.J.[1]
[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.