Opinion issued October 15, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00519-CR
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LASHUN DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1150018
OPINION
In 2008, Lashun Davis pleaded guilty to theft, a third-degree felony. See
TEX. PENAL CODE §§ 31.03(a), 31.03(e)(5). The trial court deferred adjudication
and placed her on community supervision for ten years. In February 2018, the State
filed a motion to adjudicate guilt based on her failure to pay supervision fees and
failure to pay restitution. The trial court granted the motion, adjudicated Davis
guilty, revoked supervision, and sentenced her to five years’ imprisonment.
We hold that the trial court abused its discretion in revoking Davis’s
probation for failure to pay fees and restitution. We vacate the trial court’s
judgment adjudicating Davis’s guilt, revoking her community supervision, and
sentencing her to confinement, and render judgment discharging her from
supervision.
Background
In 2008, Davis was indicted for stealing 550 cellular phones over the course
of a year from her employer, Cricket Communications. In March 2008, Davis
pleaded guilty without an agreed punishment recommendation. The court deferred
adjudication and placed Davis on community supervision for ten years. The initial
conditions of Davis’s supervision required her to pay: a $20 monthly fee for
supervision, a $209 fine at a rate of $5 per month, a $5 monthly laboratory fee
during supervision, and restitution of $92,952.08 at a rate of $745.43 monthly plus
an initial payment of $5,000. She was also required to submit to random drug
testing and perform 160 hours of community service at a rate of 8 hours per month.
A. Procedural History
On March 4, 2010, the State filed a motion to adjudicate guilt based on
Davis’s failure to report to her probation officer from March 2009 through March
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2010, failure to complete community service, and failure to pay fees or restitution.
The motion was dismissed in June 2010, and the terms of Davis’s supervision were
amended, including increasing the restitution amount from $745.73 per month to
$943 per month beginning August 2010. In 2012, the terms of supervision were
amended again. The court waived delinquent laboratory and supervision fees,
reduced the amount of community service hours, and ordered Davis to serve 45
days in Harris County jail beginning April 5, 2012.
On February 2, 2018, the State filed another motion to adjudicate guilt,
which is at issue in this appeal. In the motion, the State alleged Davis violated her
supervision conditions by failing to pay:
• The $20 monthly supervision fee, resulting in $940 in arrears as of
January 2018
• The $5 monthly laboratory fee, accruing $230 in arrears as of
January 2018
• $943 per month restitution, resulting in $76,528 in arrears as of
January 2018.
B. Adjudication Hearing
The hearing on the State’s motion to adjudicate guilt took place on May 3,
2018. Davis pleaded true to the allegations. The State did not call any witnesses
and rested after admitting one piece of evidence: the State’s motion to adjudicate
guilt. The trial court heard testimony from Davis, her probation officer, and her
mother.
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1. Davis’s Testimony
Davis testified that she was 38 years old, single, and had lived with her
mother and stepfather for 20 years. She graduated from high school and attended
college but did not graduate. She was fired from her job for the 2008 theft offense.
Following her conviction, she worked at her aunt’s daycare as a caregiver for $7.55
per hour from 2008 to 2011. From 2011 to 2015, she worked as a delivery
dispatcher for $8 per hour. In 2015, she participated in the City of Houston Reentry
Program, attending classes during the day, and applying to jobs through staffing
agencies. She was hired temporarily at Lone Star Fasteners as a data entry clerk
where she earned $10 per hour. At the time of the hearing, she had worked at the
company for two years, and she had been promoted to purchasing agent, earning
$39,000 a year. She had recently interviewed for a promotion that would include
an increase in salary. She testified that she applied to numerous part-time jobs to
supplement her income, had been interviewed, and was never hired.
Davis testified that she had been on probation for ten years, never tested
positive for drugs, and completed the community service hours required for her
probation. She testified that she was charged with driving with an invalid license in
2010. 1 She explained that her license was invalid because she could not afford full
1
The exact crime is not in the record.
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insurance coverage. She said she had not been charged with any other criminal
conduct or received any speeding tickets.
Davis testified about her medical conditions and medical expenses. In 2013,
she was diagnosed with Graves’ disease. The condition gave her a high heart rate
and made her sensitive to heat. She had a goiter in her neck that blocked 30% of
her trachea. During her probation, she had it surgically removed along with part of
her thyroid. Though she applied for assistance from Harris County, she had to pay
$1,000 out of pocket for the surgery. She also had an operation to remove a mass
under her right arm and some breast tissue. At the time of the hearing, Davis
remained under the care of a physician, requiring monthly laboratory work to
check her thyroid levels and daily medications that cost between $100 and $120
monthly.
Davis also testified that she was in a car accident with a drunk driver in
2013. The other driver was uninsured, and at the time, she only had liability
insurance because she could not afford uninsured, underinsured, or collision
coverage.
Davis testified that she declined her mother’s offer to pay restitution after
the last revocation hearing because she felt the debt was her responsibility and her
mother would have had to take a loan from her retirement account to pay it. If
allowed to stay on probation, Davis planned to pay off the remainder of the
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restitution by seeking part-time employment and accepting assistance from her
father.
On cross-examination, the State asked Davis about her cellphone expenses
and Davis responded that her bill was $100 in a previous month. The State asked if
she knew that her probation cost county taxpayers. The State hypothesized that it
would cost the taxpayers $36,000, based on a rate of $10 per day, to keep her on
probation for ten years. Davis agreed that that was twice what she had paid back to
Cricket Communications.
On redirect, Davis affirmed that she wanted to pay restitution and that she
had been unable to pay it back. She explained that for the first seven to eight years
of probation she did not have a job that paid well. She only recently obtained a job
where she felt she could be in a financially secure place to make payments. She
asked the court to allow her to remain on probation so that she had the opportunity
to pay back money she owed.
2. Probation Officer’s Testimony
Michelle Scott, Harris County Adult Probation Officer, testified that she had
been Davis’s probation officer for two years. They met regularly, and Davis never
had any positive drug tests. She testified that Davis was ordered to pay a large
amount monthly in restitution and was unable to make the payments. She had
provided Davis with job listings to support her effort to find additional income.
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According to Scott, Davis made payments throughout her supervision, with fewer
than 12 months passing between payments. She confirmed that Davis had medical
issues and that she was a good probationer who was making an effort to better
herself.
3. Vanessa Davis Alexander’s Testimony
The court heard testimony from Davis’s mother, Vanessa Davis Alexander.
She testified that after Davis’s last court hearing, she offered to help pay the
restitution, but Davis declined. She agreed to help Davis should the court grant her
continued probation.
The trial court found true the allegations that Davis failed to pay fees and
restitution. The court granted the State’s motion to adjudicate, revoked Davis’s
community supervision, and sentenced her to five years in the Texas Department
of Criminal Justice. This appeal followed.
Appellate Issues
Davis contends that the trial court abused its discretion when it revoked her
community supervision for failure to pay supervision fees and failure to pay
restitution. We agree.
Because we hold that the trial court abused its discretion in revoking
community supervision based on each of the State’s alleged violations, we do not
reach Davis’s constitutional arguments.
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Standard of Review
When reviewing an order revoking community supervision, the sole
question before this court is whether the trial court abused its discretion. Hacker v.
State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) (citing Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006)). “The central issue to be determined in
reviewing a trial court’s exercise of discretion in a [community supervision]
revocation is whether the defendant was afforded due process of law.” DeGay v.
State, 741 S.W.2d 445, 450 (Tex. Crim. App. 1987).
There are three limits to a trial court’s discretion to revoke supervision:
(1) the State must prove at least one violation of the terms and conditions of
community supervision (2) an appellate court will review the trial court’s decision
for an abuse of discretion; and (3) federal due process requires that a trial court
consider alternatives to imprisonment before incarcerating an indigent defendant
who is unable to pay amounts due under community supervision. Lombardo v.
State, 524 S.W.3d 808, 812 (Tex. App.—Houston [14th Dist.] 2017, no pet.)
The State has the burden to establish by a preponderance of the evidence that
appellant committed a violation of the terms and conditions of community
supervision. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The
standard is met when the greater weight of credible evidence before the trial court
supports a reasonable belief that a condition of community supervision has been
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violated. Rickels, 202 S.W.3d at 764 (quoting Scamardo v. State, 517 S.W.2d 293,
298 (Tex. Crim. App. 1974)). Only one sufficient ground is necessary to support a
trial court’s decision to revoke community supervision. Smith v. State, 268 S.W.3d
333, 342 (Tex. Crim. App. 2009); see also Garcia v. State, 387 S.W.3d 20, 26
(Tex. Crim. App. 2012) (stating proof of a single violation will support
revocation). The trial court abuses its discretion by revoking community
supervision if, as to every ground alleged, the State fails to meet its burden of
proof. Cardona, 665 S.W.2d at 494.
Failure to Pay Restitution
On appeal, Davis argues that the trial court abused its discretion when it
granted the State’s motion absent any evidence that her failure to pay was willful.
The State responds that Davis had more than sufficient earnings to afford her
court-ordered fees.2
A. Applicable Law
The statute concerning revocation for failure to pay restitution states:
If a defendant is placed on community supervision or is paroled or
released on mandatory supervision, the court or the parole panel shall
order the payment of restitution ordered under this article as a
condition of community supervision, parole, or mandatory
2
In its brief, the State relies on Davis’s affidavit of indigency, filed August 2018.
Because this document was not before the trial court at the May 2018 revocation
hearing, we do not consider it in reaching our decision. Whitehead v. State, 130
S.W.3d 866, 873 (Tex. Crim. App. 2004) (stating an appellate court’s review of
the record is generally limited to the evidence before the trial court at the time of
the trial court’s ruling).
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supervision. The court may revoke community supervision and the
parole panel may revoke parole or mandatory supervision if the
defendant fails to comply with the order. In determining whether to
revoke community supervision, parole, or mandatory supervision, the
court or parole panel shall consider:
(1) the defendant’s employment status;
(2) the defendant’s current and future earning ability;
(3) the defendant’s current and future financial resources;
(4) the willfulness of the defendant’s failure to pay;
(5) any other special circumstances that may affect the defendant’s
ability to pay; and
(6) the victim’s financial resources or ability to pay expenses
incurred by the victim as a result of the offense.
TEX. CODE CRIM. PROC. art. 42.037(h) (emphasis added). The trial court may
revoke community supervision if the defendant fails to comply with the order of
restitution and the court considers the six 42.037(h) elements. Bryant v. State, 391
S.W.3d 86, 93 (Tex. Crim. App. 2012) (explaining 42.037(h) is a mandatory
evidentiary provision). “[A]s long as a trial court considers the factors in its
decision whether to revoke a community supervision, a court is not required to
weigh the factors in any particular manner.” Id. The 42.037(h) elements should be
viewed on a case-by-case basis. Quisenberry v. State, 88 S.W.3d 745, 754 (Tex.
App.—Waco 2002, pet. ref’d). No element is necessary to justify revocation; no
element alone is sufficient to justify revocation. Id.
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B. Analysis
Applying the article 42.037(h) elements to the facts of this case, we find:
(1) The defendant’s employment status:
At the time of the hearing, Davis was employed as a purchasing agent. She
had worked at the same company for two years. Previously, she had been
employed at a daycare and as a dispatcher. She struggled to find additional part-
time employment. She consistently maintained employment and sought additional
income to be able to meet the obligation. But cf. Quisenberry, 88 S.W.3d at 754–55
(stating if a defendant is unemployed but has the ability to work the first element
will favor revocation).
This element weighs against revocation.
(2) The defendant’s current and future earning ability
Davis’s education included a high school diploma and some college. Though
she was employed throughout supervision, she earned barely above minimum
wage. From 2008 to 2011 she earned $7.55 an hour and from 2011 to 2015 she
earned $8 an hour. At the time of the hearing, she earned $39,000 per year and was
eligible for a promotion. The evidence showed that Davis continued to pursue
supplemental employment.
Davis showed initiative by taking advantage of the City of Houston Reentry
Program. Through the program, she was hired temporarily by her employer, and
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eventually she was offered full-time employment and promotions. The evidence
showed that Davis was not deliberately underemployed and worked to increase her
earning ability during probation. See Quisenberry, 88 S.W.3d at 755 (“If the
evidence shows that the defendant is deliberately underemployed, the second
factor, ‘earning ability,’ will favor revocation. . . .” ).
“[T]he amount and frequency of [the appellant’s] earnings compared to the
frequency of court-ordered restitution payments should be considered in
connection with the second factor.” Id. Davis was ordered to pay $92,952.08 in
restitution. From 2008 to 2010, she was ordered to pay $745.73 monthly.
Beginning August 2010, the rate increased to $943 monthly. She had paid
approximately $16,423.40 in restitution during the ten years of supervision, and
she was $76,528.68 in arrears as of January 30, 2018. Based on the hourly wages
Davis testified to, she earned approximately $15,000 to $17,000 a year or between
$1,250 and $1,415 a month in gross income before taxes from 2008 to 2015. Davis
was ordered to pay more than $700 monthly from 2008 to 2010 and $943 monthly
beginning in 2010. Thus, she was ordered to pay more than 50% of her gross
monthly income, without accounting for necessary expenses, toward restitution
alone.
In 2013, Davis suffered from health problems and was in a car accident. The
evidence showed she had extra medical expenses, including paying for surgery,
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ongoing medical care, and medications. At the time of the hearing, Davis remained
under the care of a doctor for her condition and required daily medications at an
extra expense. Despite medical problems, she continued to work.
The second element weighs against revocation. Davis was not deliberately
underemployed, and her ability to comply with the monthly payments was limited
by the fact that the frequency and amount of her restitution payments were a
substantial amount of her monthly income.
(3) The defendant’s current and future financial resources
There is no evidence that Davis refused to use her available financial
resources toward restitution. She testified that her credit rating prohibited her from
obtaining a loan, and she had no inherited property that could have been used to
pay the restitution. She worked to increase her earning capacity by participating in
the reentry program. She was doing well at her job and had been interviewed for a
promotion which would have increased her future salary.
The evidence showed that Davis’s mother had offered to help pay the
restitution by taking a loan against her retirement. See Quisenberry, 88 S.W.3d at
755 (“If a defendant . . . has the ability to borrow money but unreasonably fails to
employ that option, then the third factor will weigh in favor of revocation when
[the appellant] fails to pay.”). But Davis’s mother testified that Davis asked her not
to assist because repaying was her own responsibility. While Davis had the ability
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to borrow money, her mother did not have the money to give and would have taken
out an additional loan on her behalf. In light of the circumstances, it was
reasonable for Davis not borrow money from her mother. The evidence showed
that Davis recognized her obligation to pay restitution when she instructed her
mother not to take out a loan to pay it off. See id. (concluding that trial court
abused its discretion in revoking based in part on the defendant who “constantly
recognized his obligation to pay restitution”).
Davis concedes that this element is either neutral or “only slightly supports
revocation.”
(4) The willfulness of the defendant’s failure to pay
The evidence shows that Davis did not willfully fail to pay. She diligently
sought better employment. Despite meager earnings, she had paid more than
$16,000 in restitution over ten years. As described above, her court-ordered
payments were a substantial amount of her gross monthly income, without
accounting for any deductions or necessary living expenses. While Davis had an
opportunity to pay during her supervision, the evidence demonstrated that she had
little ability to pay. See Martinez v. State, 563 S.W.3d 503, 516 (Tex. App.—
Corpus Christi-Edinburg 2018, no pet.) (holding that evidence of a source of
income, without more, does not show ability to pay restitution because while
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defendant had opportunity to pay because he had a source of income, he may not
have had the ability to pay because of bills and other expenses).
The court heard testimony that she had taken advantage of the city’s reentry
program, and this program increased her stability by giving her a path to full-time
employment at a higher salary. The court also heard that Davis had been a good
probationer, aside from financial responsibilities. She was remorseful and wanted
to pay restitution.
This element weighs against revocation.
(5) Any other special circumstances that may affect the defendant’s
ability to pay
The trial court heard testimony that in 2013, Davis had surgery, requiring
$1,000 out of pocket costs. She suffered from Graves’ disease, which impacted her
physical health and required ongoing medical treatment monthly. In 2013, Davis
was hit by an uninsured drunk driver. Due to low income, she did not have
insurance against uninsured drivers. While there was no evidence of Davis’s
expenses from the wreck, it can be inferred that she suffered financially because
she did not have insurance for the accident.
The State’s only evidence to contradict Davis’s lack of resources was
testimony about her cellphone expenses. Davis testified that her bill was $100 per
month on a particular occasion, but that the amount had changed. This element
weighs against revocation.
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(6) The victim’s financial resources or ability to pay expenses incurred by
the victim as a result of the offense
There was no evidence of this element. We agree with the Corpus Christi
court that there must be “some evidence of each of the six factors enumerated in
article 42.037(h) for the trial court to consider.” Carreon v. State, 548 S.W.3d 71,
78 (Tex. App.—Corpus Christi-Edinburg 2018, no pet.) The court explained that
this reading is further supported by the “use of the conjunctive ‘and’ between the
fifth and sixth factors” which leads to the conclusion that there must be some
evidence of each of the six factors. Id. (citing Boykin v. State, 818 S.W.2d 782, 785
(Tex. Crim. App. 1991) (providing that we must focus our attention on the literal
text of the statute in question and attempt to discern the fair, objective meaning of
that text at the time of its enactment). “It would be absurd to think that the Texas
Legislature provided that trial courts ‘shall consider’ factors on which they might
be presented no evidence.” Id.
On this record, the trial court abused its discretion in finding that the balance
of the article 42.037(h) factors supported revocation because the record presented
by the State was insufficient. See Carreon, 548 S.W.3d at 79–80 (holding evidence
was legally insufficient where the State provided no evidence of the victim’s
financial resources). There was no evidence of the sixth element, and none of the
remaining elements weighed strongly in favor of revocation. The trial court abused
its discretion by revoking Davis’s supervision for failure to pay restitution.
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Failure to Pay Fees
In addition to challenging revocation based on failure to pay restitution,
Davis challenges the court’s order revoking her supervision based on failure to pay
fees.
Texas Code of Criminal Procedure Article 42A.751(i) provides:
In a revocation hearing at which it is alleged only that the
defendant violated the conditions of community supervision by
failing to pay community supervision fees or court costs or by
failing to pay the costs of legal services as described by Article
42A.301(11), 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. art. 42A.751(i.) Davis alleges that the State failed to meet
its burden to prove that she was able to pay the fees. By its language, the ability-to-
pay statute applies only when a defendant’s failure to pay fees or costs is the sole
basis for revocation. See Gipson v. State, 428 S.W.3d 107, 112–113 (Tex. Crim.
App. 2014) (“Gipson II”) (Johnson, J., concurring) (reading section 21(c) to apply
when the only violations alleged are failure to pay fees, not when the State also
alleged appellant committed another crime in violation of supervision); see also
Barerra v. State, No. 07-18-00098-CR, 2018 WL 4345313, at *2 (Tex. App.—
Amarillo Sep. 11, 2018, no pet.) (mem. op., not designated for publication).
Therefore, when there are multiple grounds for revocation, some of which are not
based on ability to pay, the State need not prove the defendant’s ability yet failure
17
to pay fees. See, e.g., Barerra, 2018 WL 4345313, at *2 (affirming revocation
without evidence of ability to pay because the defendant pleaded true to other
grounds that did not involve financial obligations); Johnson v. State, No. 07-19-
0031-CR, 2019 WL 2872292, at *4 (Tex. App.—Amarillo July 3, 2019, no pet.)
(mem. op., not designated for publication) (State alleged four violations, including
non-monetary violations, so did not need to prove that failure to pay fees was
willful); Stowe v. State, No. 13-18-00415-CR, 2019 WL 2622342, at *2 (Tex.
App.—Corpus Christi-Edinburg June 27, 2019, no pet.) (mem. op., not designated
for publication) (affirming revocation when defendant did not challenge all of the
bases for revocation, some of which did not involve ability to pay); Bush v. State,
No. 09-18-00414-CR, 2019 WL 2607592, at *2 (Tex. App.—Beaumont June 26,
2019, no pet.) (mem. op., not designated for publication) (affirming because ability
to pay only applies when it is the sole basis for revocation and defendant pleaded
true to other non-financial reasons for revocation).
Usually, a plea of true to any one of the alleged violations is sufficient to
support a trial court’s revocation order. Rusk v. State, 440 S.W.3d 694, 703 (Tex.
App.—Texarkana 2013, no pet.); see also Moore v. State, 11 S.W.3d 495, 498 n.1.
(Tex. App.—Houston [14th Dist.] 2000, no pet.) But this case presents a
circumstance in which the plea of “true” is not sufficient to waive all requirements
that evidence be presented. See id. Here, where all of the alleged violations were
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based on financial obligations and we have held that the trial court abused its
discretion in revoking on the only other allegation, we cannot affirm the revocation
for failure to pay supervision fees when the only evidence to support it is Davis’s
plea of true. See Rusk, 440 S.W.3d at 703. (“A defendant violates his community
supervision by failing to pay fees regardless of whether the failure to pay fees is
willful. The Texas ability-to-pay statute, though, only permits imprisonment when
the failure to pay fees was willful.”). As in Rusk, Davis’s plea of true to failure to
pay fees was only an admission that she did not pay the fees as ordered. Id. She did
not admit that she had done so willfully. Id. And no evidence in the record
demonstrates willfulness.
The State did not call witnesses or put on evidence related to Davis’s ability
to pay, and the evidence Davis presented showed that failure to pay both restitution
and fees was based on inability to do so rather than willful disregard of the
obligation. In these particular circumstances, we cannot affirm revocation based on
failure to pay fees. The trial court abused its discretion by revoking supervision on
this ground.
Due Process Challenge
Finally, Davis asserts that the trial court incarcerated her for failure to pay
supervision fees and restitution in violation of the state and federal constitutions
because the trial court failed to consider alternatives to imprisonment.
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Because we have held that the trial court abused its discretion by revoking
community supervision based on each of the State’s allegations, we need not reach
Davis’s constitutional claim. See TEX. R. APP. P. 47.1.
Conclusion
The judgment revoking Davis’s community supervision, adjudicating her
guilty, and sentencing her to confinement is vacated. Because Davis’s term of
community supervision has expired, we render judgment discharging Davis from
community supervision.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Publish. TEX. R. APP. P. 47.2(b).
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