
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00664-CR


Sergio Sierra, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. 9030515, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING


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

		The district court granted the State's motion to revoke Sergio Sierra's
community supervision, adjudicated him guilty of the offense of securing execution of a document
by deception, and sentenced him to five years' imprisonment.  In his sole point of error, Sierra asserts
that the district court abused its discretion in revoking his community supervision.  We will affirm
the district court's judgment.

BACKGROUND		At the time of the alleged offense, Sierra was a licensed attorney in the State of Texas. 
In November 2003, Sierra was indicted for aggravated securing execution of a document by
deception, first-degree felony; aggravated securing execution of a document by deception, third-degree felony; aggravated theft, first-degree felony; and two counts of aggravated theft, third-degree
felony.  The indictment alleged, in relevant part, that Sierra induced the victims to transfer funds to
him by misrepresenting that he had obtained a favorable court judgment that "presented an excellent
opportunity . . . to make a substantial return on [their] investment," when, in fact, Sierra had no
involvement in obtaining the judgment.
		In December 2005, Sierra pled guilty to the first-degree aggravated securing execution
of a document by deception count, and the State waived the remaining charges.  The district court
placed Sierra on deferred adjudication community supervision for five years.  The conditions of
Sierra's community supervision included restitution in the amount of $275,000, with monthly
payments of $6,000 until the total was paid. 
		On April 25, 2007, the State filed its first motion to proceed with an adjudication
of guilt.  The State alleged that Sierra violated the terms and conditions of his deferred adjudication
by, among other things, failing to pay restitution.  At the hearing on the motion to proceed
with adjudication, Sierra agreed to plead true to the allegation that he failed to pay restitution in
exchange for the district court agreeing to "hold off" on its ruling until after a subsequent hearing
scheduled for January 31, 2008.  Although there is no record of a January 31 hearing before us, on
February 4, 2008, the district court ordered that Sierra's community supervision be continued and
not revoked.  However, because Sierra had been delinquent in his restitution payments, the total
amount of restitution owed had increased.  Thus, the district court modified that condition of his
community supervision and ordered that he pay restitution in the amount of $243,265.39, with
monthly payments of $7,610.00 beginning in March 2008. 
		On June 3, 2008, the State filed another motion to proceed with an adjudication of
guilt.  In this motion, the State alleged that Sierra:

Failed to pay Community Supervision Fees and is delinquent $345.00;
 Failed to pay Court Costs and is delinquent $45.00;
 Failed to pay Restitution and is delinquent $22,830.00;
 Failed to pay Crime Stoppers and is delinquent $29.29; and 
 Failed to complete 300 Hours of Community Service Restitution.


At the hearing on this motion to adjudicate, Sierra pleaded not true to the State's allegations.  The
district court then proceeded to hear evidence from both the State and Sierra. (1)  At the conclusion of
the hearing, the district court found all of the State's allegations true and granted the motion to
adjudicate guilt.  The district court then sentenced Sierra to five years' imprisonment.  This appeal
followed.

STANDARD AND SCOPE OF REVIEW
		We review a trial court's decision to revoke probation for abuse of discretion.  Rickels
v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493
(Tex. Crim. App. 1984).  Abuse of discretion occurs "only when the trial judge's decision was so
clearly wrong as to lie outside the zone within which reasonable persons might disagree."  Cantu
v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). 
		In probation revocation proceedings, the State has the burden of proving a violation
of the terms of probation by a preponderance of the evidence.  Rickels, 202 S.W.3d at 763-64; Cobb
v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Willis v. State, 2 S.W.3d 397, 399
(Tex. App.--Austin 1999, no pet.).  The State satisfies this standard when the greater weight of the
credible evidence before the court creates a reasonable belief that a condition of probation has been
violated as alleged.  Rickels, 202 S.W.3d at 764; Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim.
App. 1983).  If the State fails to meet its burden of proof, the trial court abuses its discretion in
revoking community supervision.  Cardona, 665 S.W.2d at 493-94; Cherry v. State, 215 S.W.3d
917, 919 (Tex. App.--Fort Worth 2007, pet. ref'd).
		The trial court is the judge of the credibility of the witnesses and the weight to be
given their testimony.  Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Mauney
v. State, 107 S.W.3d 693, 695 (Tex. App.--Austin 2003, no pet.).  We view the evidence presented
in a revocation proceeding in the light most favorable to the trial court's ruling.  See Garrett,
619 S.W.2d at 174; Mauney, 107 S.W.3d at 695.  When more than one violation of the conditions
of community supervision is found by the trial court, the revocation order shall be affirmed if one
sufficient ground supports the court's order.  Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
1980); Leach v. State, 170 S.W.3d 669, 672 (Tex. App.--Fort Worth 2005, pet. ref'd).

ANALYSIS 
		One of the State's allegations was that Sierra failed to pay restitution as he had
been ordered.  At the hearing, the State presented evidence to support this allegation.  Angel Noble,
one of the probation officers assigned to Sierra's case, testified that, since June 2008, Sierra had
been delinquent on paying restitution in the amount of $22,830.  The total amount of restitution on
which Sierra had been delinquent, according to Noble, was $60,880.  Janie Ruiz, Sierra's primary
probation officer, similarly testified that Sierra was behind "about $61,000" on restitution.  At the
hearing, Sierra did not dispute that he was delinquent.  Instead, he presented evidence tending to
show that he was unable to pay restitution, or any of the other court-ordered payments that he had
failed to make, because of various financial difficulties he has experienced since his license to
practice law was suspended following his guilty plea.
		On appeal, Sierra again does not dispute that he failed to pay restitution.  Rather, he
argues that his inability to pay was an affirmative defense to the State's allegations of nonpayment. 
According to Sierra, the State failed to refute this evidence, and, therefore, the district court abused
its discretion by revoking his community supervision on that basis.  As support for his position,
Sierra appears to rely on the version of section 21(c) of the community supervision statute in effect
prior to September 1, 2007.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (West Supp. 2008). 
Prior to September 1, 2007, section 21(c) provided:

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, court costs,
restitution, or reparations, the inability of the defendant to pay as ordered by the
judge is an affirmative defense to revocation, which the defendant must prove by a
preponderance of evidence.


See Act of May 26, 1993, 73rd Leg., R.S., ch. 900, § 4.01, sec. 21(c), 1993 Tex. Gen. Laws 3586,
3740 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (West Supp.
2008)).  As the State points out, however, the legislature amended section 21(c) in 2007 to provide,
in relevant part:

	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. 


Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c).  The amendment applies to community supervision
revocation hearings "held on or after the effective date of this Act," which was September 1, 2007. 
See Act of June 15, 2007, 80th Leg., R.S., ch. 604, § 2, 2007 Tex. Gen. Laws 1160.  Because Sierra's
revocation hearing was held in October 2008, the current law applies. 
		Under the current statute, the inability to pay is no longer an affirmative defense
to nonpayment.  Instead, the State is now required to prove that the defendant "was able to pay
and did not pay."  See id.; see also McClain v. State, No. 04-07-00861-CR, 2008 Tex. App. LEXIS
7036, at *5-9 (Tex. App.--San Antonio Sept. 24, 2008, no pet.) (not designated for publication)
(applying current statute to State's allegations of nonpayment of court costs).  This change thus aids
Sierra with respect to the types of court-ordered payments covered by the statute.  However, the
2007 amendments also removed restitution from the class of payments covered by the statute. 
Consequently, Sierra's ability or inability to pay, while still relevant to the State's allegations of
nonpayment of community supervision fees and court costs, is immaterial to the State's allegation
regarding restitution.
		On this record, viewing the evidence in the light most favorable to the district court's
ruling, we conclude that the State satisfied its burden to prove by a preponderance of the evidence
that Sierra failed to pay restitution as ordered.  As this ground is sufficient to support the
district court's order revoking Sierra's community supervision, we need not address the State's other
allegations. 
		We overrule Sierra's sole point of error.

CONCLUSION
		We affirm the judgment of the district court. 


						____________________________________________
						Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed:   August 26, 2009
Do Not Publish
1.   The hearing took place on October 7 and October 20, 2008.  The State presented
its evidence on October 7.  After the State rested its case, defense counsel requested "some time
to get my witnesses here."  The district court granted the request, and the hearing was continued on
October 20.  The only witness to testify for the defense was Sierra.
