Burton, Kevin v. The State of Texas--Appeal from 272nd District Court of Brazos County

Affirmed and Memorandum Opinion filed March 13, 2003

Affirmedand Memorandum Opinion filed March 13, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00289-CR

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KEVIN BURTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 272nd District Court

Brazos  County, Texas

Trial Court Cause No. 20,875-272

M E M O R A N D U M O P I N I O N

This is an appeal from a revocation of probation. In two points of error, appellant complains (1) the evidence is insufficient to establish that appellant violated the terms and conditions of his probation and (2) the trial court erred in admitting evidence of appellant=s prior bad acts. We affirm.

Factual and Procedural Background

On March 12, 1992, appellant pleaded guilty to the felony offense of possession of a controlled substance and was sentenced to ten years=confinement (probated for eight years), a $500.00 fine, and 300 hours of community service. Over the course of appellant=s probation, the State filed several motions to revoke alleging failure to comply with various probation terms and conditions. The first two motions to revoke were dismissed after appellant=s conditions of probation were modified to extend his term of probation by one year. Appellant was also required to complete an additional eighty hours of community service at the rate of eight hours per month. The third motion to revoke probation, which forms the basis of this appeal, alleged that appellant failed to pay his fine, court costs, attorneys=fees and supervision fees and that he failed to perform the eighty hours of community service noted above. Following a hearing, the trial court found appellant had violated his probation and sentenced him to seven years= incarceration.

Standard of Review

An order revoking probation must be supported by a preponderance of the evidence. Scamardov. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). The greater weight of the credible evidence must create a reasonable belief that the defendant has violated a condition of his probation. Id. When the sufficiency of the evidence is challenged, the evidence is viewed in the light most favorable to the trial court=s findings. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Montoya v. State, 832 S.W.2d 138, 140 (Tex. App.CFort Worth 1992, no pet.). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. [Panel Op.] 1980). Appellate review of an order revoking probation is limited to a determination of whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. [Panel Op.] 1979).

Sufficiency of the Evidence

In his first point of error, appellant contends the trial court erred in revoking his probation because the State failed to prove the allegations in its motion to revoke. Specifically, he claims the State failed to prove that he did not complete his court-ordered community service and failed to prove that appellant had the ability to pay his fines and costs.

For the State to meet its burden in a revocation proceeding, proof by a preponderance of the evidence on any one of the alleged violations of the conditions of probation is sufficient. Rodriquez v. State, 2 S.W.3d 744, 746 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (citing Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980)). Thus when several violations are found by the trial court, the order revoking probation must be affirmed if the proof of any allegation is sufficient. Id.

Here, the order modifying the conditions of probation required appellant to A[p]erform 80 hours of community service in the Brazos CORPS Project, said community service shall be performed at a rate of eight hours per month, beginning in the month next following entry of this order.@ Appellant first asserts there is no evidence that he was ever referred to the Brazos CORPS Project. However, contrary to appellant=s assertion, the probation officer testified that appellant had not performed any of the 80 hours of community service ordered despite several Areferrals@having been made. He also stated that appellant offered no excuse or reason for failing to complete the hours. In fact, appellant admitted he had not completed his community service; his excuse was that he wanted to complete all of his service at one time. We find the record supports the trial court=s finding that appellant failed to comply with the terms of his probation.

In addition, we find the State proved by a preponderance of the evidence that appellant intentionally failed to pay his fines and court costs. Appellant contends that because he was unable to pay his fines, court costs, and probation fees, his failure to pay is not a valid ground for revoking his probation.

The inability to pay required costs is an Aaffirmative defense to revocation that the defendant must raise and prove by a preponderance of the evidence.@ Lee v. State, 952 S.W.2d 894, 901 (Tex. App.CDallas 1997, no pet.); see also Hill v. State, 719 S.W.2d 199, 201 (Tex. Crim. App. 1986). Once the appellant raises this defense, the State must prove the failure to pay these fines was intentional. Stanfield v. State, 718 S.W.2d 734, 738 (Tex. Crim. App. 1986). If the appellant has the ability to pay, but does not, there is a strong presumption that appellant=s failure to pay is intentional. Hill, 719 S.W.2d at 201. The appellate court views the evidence in the light most favorable to the verdict. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. [Panel Op.] 1979).

At the hearing, the probation officer testified that, although appellant was gainfully employed throughout the majority of the time he was on probation, he did not make the required monthly payments and was over $3,000.00 in arrears. In addition to gainful employment, the record also shows that appellant received worker=s compensation of approximately $160.00 a week after an on-the-job injury and still made little effort to pay his required fines and costs. Appellant testified that he Adid the best he could@ but had a family to support and could not make the required $50.00 monthly payments. We find the evidence was sufficient for the trial court to presume appellant=s failure to pay was intentional. Because there is sufficient evidence to support the trial court=s findings that appellant violated the terms and conditions of his probation, we overrule appellant=s first point of error.

Extraneous Offenses

Appellant=s second point of error states AThe trial court erred in considering irrelevant evidence and in punishing the appellant for general criminality.@ In essence, appellant complains that the trial court erred in admitting evidence of extraneous offenses. The purpose for a probation-revocation hearing is not to determine guilt or innocence. Duke v. State, 2 S.W.3d 512, 516 (Tex. App.CSan Antonio 1999, no pet.). Rather, the trial court is determining whether the defendant broke his or her promise with the court and, if so, the punishment to be assessed. Id. The law is clear that at a punishment hearing A[r]egardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant.@ Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon Supp. 2003). One purpose of this statute is for the factfinder to discover as much relevant information as possible about the defendant before assessing punishment. See Arthur v. State, 11 S.W.3d 386, 392 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). This article encourages Atruth in sentencing@ by opening the doors to all relevant evidence in the punishment phase. Peters v. State, 31 S.W.3d 704, 716B17 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d).

Here, appellant argues evidence regarding prior bad acts and evidence of any prior probation violations is irrelevant and should have been excluded. Appellant objected twice to the evidence, and both times the trial court admitted the evidence.[1] Because this information was admissible to assist the trial court in assessing an appropriate punishment, the trial court did not err by allowing the testimony in evidence.

Finally, appellant complains that the trial court erred in revoking his probation Aas an example to terrorize other probationers.@ In support of this assertion, appellant points to the following comments made by the trial court at the end of the hearing: ABut one thing you need to understand B or I hope I can try and make you understand, is that I have to consider not just your case, but I have to consider the picture painted on the broader canvas.@ However, appellant fails to include the trial court=s full comments. The trial court also stated, AAnd I recognize each case has to be taken on a case-by-case basis, but I=m looking at this file, and it=s a lengthy file. There is substantial history, substantial involvement with the Court previously.@ There is nothing about the judge=s comments that indicate he revoked appellant=s probation based upon anything other than the evidence introduced at the hearing.

In conclusion, having found the trial court did not err in overruling appellant=s objections to the evidence, and having found sufficient evidence to support the trial court=s findings that appellant violated the terms and conditions of his probation, we overrule appellant=s points of error and affirm the judgment of the trial court.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 13, 2003.

Panel consists of Chief Justice Brister, Justices Yates and Hudson.

Do Not Publish CTex. R. App. P. 47.2(b).

[1] Appellant first objected when the State asked the probation officer the purpose of modifying appellant=s probation. Second, the State asked the probation officer whether appellant admitted smoking $50.00 worth of crack cocaine after a fight with appellant=s wife.