I respectfully dissent. I would reverse and render a dismissal of order modifying disposition on the basis that the trial court abused its discretion in revoking probation because the record shows that appellant was unable to pay.
At the time the child was placed on probation, she was fourteen years of age. Approximately a year later, the State filed a Petition for Hearing to Modify Disposition (revoke probation). The sole basis pled by the State to revoke her probation was that she had failed to pay the restitution. Prior to the hearing, the child admitted that she had not paid but pled the affirmative defense of inability to pay.
The State’s only evidence was the testimony of a probation officer who testified that he became acquainted with the child about three months before the revocation hearing. Regarding restitution, he said:
“Q. (District Attorney) Okay. To your knowledge has this restitution been paid?
A. No, sir.
Q. Have you made attempts to counsel with her and to have this amount paid while she was under your supervision?
A. Yes, sir.
Q. Were you successful in getting any of that restitution paid?
A. No, sir.”
Over the child’s objection, the State was then allowed to present testimony about other “referrals” concerning the child. These “referrals” were acts of misconduct and/or alleged violations of law. These were not only outside the pleadings but there also was no showing that she had been tried on any of these “referrals.” Therefore, they could not and should not be directly or indirectly used to justify her revocation. See Pickett v. State, 542 S.W.2d 868, 870 (Tex.Cr.App.1976).
Thereafter the child’s mother testified that appellant had a baby by cesarean section on August 1982, that the baby was continuously sick requiring hospitalization months at a time, and that her child (appellant) returned to school after the child was born. (One of the conditions of probation was that she attend school.) She testified further that it had been, difficult for appellant to get a job and care for her baby.
After hearing the argument of counsel, the trial court revoked the child’s probation and committed her to the Texas Youth Council. The trial court did not make an oral pronouncement that it had found beyond a reasonable doubt that the child had violated the terms of her probation nor did the order which is the subject of this appeal address this matter.
Finding-Beyond A Reasonable Doubt
In the second point of error, appellant asserts that it was error for the trial court not to make this finding.
Tex.Fam.Code § 54.05 provides in part:
⅝ * * * * *
(d) A hearing to modify disposition shall be held on the petition of the child and his parent, guardian, guardian ad litem, or attorney, or on the petition of the state, a probation officer, or the court itself. Reasonable notice of a hearing to modify disposition shall be given to all parties. When the petition to modify is filed under Section 51.03(a)(2) of this *770code, the court must hold an adjudication hearing and make an affirmative finding prior to considering any written reports under Subsection (e) of this section, (emphasis added.)
(f) A disposition based on a finding that the child engaged in delinquent conduct may be modified so as to commit the child to the Texas Youth Council if the court after a hearing to modify disposition finds beyond a reasonable doubt that the child violated a reasonable and lawful order of the court.
The order in our case recites:
and the Court having heard the evidence offered by the State of Texas and having considered the same finds that within the period of said probation the child violated the terms and conditions thereof in the following particulars, to-wit: That Probationer M_H_has failed to pay restitution in the amount of $811.35 as ordered, and currently owes the full amount of $811.35 on said restitution. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the probation heretofore, granted to the child in this cause be and the same is hereby revoked; that the finding of delinquent conduct heretofore made in this cause be and the same hereby is made a final finding; and that said M-H-be and hereby is committed to the care, custody, and control of the Texas Youth Council.
Compare this order with the orders in Re: R.A.B., 525 S.W.2d 892, 897 (Tex.Civ.App.—Corpus Christi 1975, no writ), and A_Y_ v. State, 554 S.W.2d 805, 806 (Tex.Civ.App.—San Antonio 1977, no writ). In both of these cases, the orders recited that the court found beyond a reasonable doubt that appellant has violated the terms of probation. It is true that the Waco Court in Finch v. State, 506 S.W.2d 749 (Tex.Civ.App.—Waco 1974, no writ) said “There is no requirement that the words ‘finds beyond a reasonable doubt’ be incorporated into the judgment.” However, I disagree with the majority and with Finch. In my opinion, the record must in some manner affirmatively show that the trial court made this finding. Since it did not, the order is deficient. If this was all there was to the case, the appeal should be abated to allow the trial court to correct the deficiency, but in this instance a reversal is required because of the error asserted in appellant’s last (sixth) point of error.
Defense-Inability to Pay
Appellant’s sixth point of error reads: “The Honorable Trial Court abused its discretion in modifying appellant’s disposition due to insufficient evidence of appellant’s ability to pay and willful refusal to do so.”
TEX.CODE CRIM.PROC.ANN. art. 42.12 § 8(c) (Vernon Supp.1982) provides:
In a probation revocation hearing at which it is alleged only the probationer violated the conditions of probation by failing to pay ... restitution, ... the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of the evidence.
The majority acknowledges the above provision but states: “[W]e find that the State established beyond a reasonable doubt that the appellant had failed to pay restitution.” This finding misses the point. The point is not whether she failed to pay but whether she willfully failed to pay. Our focus then is on her ability to pay in light of the nonpayment.
In Jones v. State, 589 S.W.2d 419, 421 (Tex.Cr.App.—1979), the Court of Criminal Appeals in affirming a revocation for failing to make restitution, wrote:
There was ample evidence from appellant’s own testimony that he had the financial resources to have paid, or made some partial payment or at least made a good faith gesture toward paying the $50 a month that was a condition of his probation. At any rate, there was a complete failure to prove the affirmative defense of inability to pay by a preponderance of the evidence.
*771Jones at 421. In Stanfield v. State, 638 S.W.2d 127, 130 (Tex.App.—Fort Worth 1982 d.r. granted), the court of appeals stated that if probation is to be revoked on the ground that the probationer failed to pay, the State must prove that (a) the probationer had ability to pay and (b) his failure was intentional.1
Let us examine the proof the majority finds sufficient to support the revocation, and, therefore the implied finding that though appellant was able, she refused to pay. It was uncontroverted that appellant was an unemployed fifteen year old student whose baby required constant medical attention. Her mother testified that appellant had difficulty in getting a job. The State did not in any way rebut this evidence. Based on this evidence, I would hold that the child met her burden and proved by a preponderance of the evidence her inability to pay. The burden of proof shifted to the State to prove that her non-payment was willful. This they failed to do.
In closing, the majority states that “it is within the trial court’s discretion to disbelieve the defendant’s witnesses and find the defendant’s excuse for nonpayment to be without merit.” This discretion is not absolute. I am of the opinion that the trial court abused its discretion.
. It should be noted that under Tex.Fam.Code Ann. § 54.041 (Vernon Supp.1982), the trial court could have ordered the child’s parents to make restitution. It did not do so. Therefore, the child should not be penalized for the choices made by her parents regarding the restitution.