Opinion issued October 15, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00519-CR
                           ———————————
                          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


                                         2
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.
                                              4
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


                                            5
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.


                                         6
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


                                          8
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).
                                            9
      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.



                                           10
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


                                         11
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,


                                             12
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


                                         13
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




                                          14
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.
                                         15
          (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.
                                          16
                                 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


                                         18
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.


                                         19
      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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