                                  NO. 07-11-00431-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                    AUGUST 22, 2012


                           JOHNIE RAY THOMAS, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


              FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                   NO. 13,408-C; HONORABLE ANA ESTEVEZ, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                        OPINION


       Appellant, Johnie Ray Thomas, appeals the decision of the trial court to

adjudicate him guilty of the offense of credit card abuse. 1 We affirm.


                            Factual and Procedural Background


       Appellant entered into a plea bargain with the State on March 18, 2002. In

exchange for his plea of guilty to the indicted offense of credit card abuse, appellant

was placed on deferred adjudication for five years and ordered, among other things, to


       1
           See TEX. PENAL CODE ANN. § 32.31(b)(1)(A) (West 2011).
pay restitution. At the time of entry of the plea, the total amount of restitution was not

known to the State.     Subsequently, on August 23, 2002, the trial court entered a

supplemental order amending conditions of probation.           The supplemental order

provided that the total restitution ordered was $61,663.71.             Additionally, the

supplemental order extended appellant’s probation for five years. Appellant indicated

his agreement with the supplemental order by signing it.


      The State filed its first motion to proceed with adjudication on March 11, 2003.

This motion was dismissed on the State’s motion. On August 16, 2005, the State filed

its second motion to adjudicate. The State alleged that appellant had failed to pay

supervision fees and restitution. The State and appellant then entered into another

supplemental order which corrected the amount of restitution ordered. The corrected

amount of restitution ordered was $48,124.71.       Appellant was ordered to pay the

restitution in monthly installments of $780.00. Again, appellant acknowledged the new

terms and conditions by signing the second supplemental order.


      On May 3, 2011, the State filed its third, and final, motion to adjudicate appellant

guilty of credit card abuse. The allegations against appellant were that he failed to pay

his supervision fees and failed to pay restitution. The trial court conducted a hearing on

the State’s motion to proceed on September 27, 2011. The trial court took the matter

under advisement and, on October 10, 2011, granted the State’s motion and

adjudicated appellant guilty of credit card abuse. The trial court sentenced appellant to

confinement in a State Jail Facility (SJF) for two years but suspended the confinement

and placed appellant on community supervision probation for a period of five years.

                                            2
The trial court ordered that the restitution previously ordered to be paid while appellant

was on community supervision. The five-year community supervision was ordered to

be served after appellant had completed his twelve-year sentence arising out of a

different motion to proceed.


       Through four issues, appellant complains that the trial court committed reversible

error. First, appellant argues that he was denied due process because the amount of

restitution was not set forth at the time of his original plea. Second, appellant appears

to argue that the plea was involuntarily made because appellant did not know the

amount of restitution to which he was agreeing. Third, appellant contends that the trial

court was prejudiced against him and that this bias denied him a fair hearing. Finally,

appellant contends that the State failed to overcome his contention that he did not pay

the restitution because of an inability to pay. We disagree with appellant and will affirm

the judgment of the trial court.


                      Vagueness of Restitution and Involuntary Plea


       In his first issue, appellant’s brief appears to make three separate arguments;

however, upon closer reading, appellant contends that the trial court’s original

community supervision order regarding restitution was vague and that, as a result of the

vagueness, appellant’s plea was involuntarily made. We will first address the question

of whether the trial court’s order was vague.




                                            3
Standard of Review


       We review a trial court’s order regarding restitution under an abuse of discretion

standard. See Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. 1980).


Vagueness of Restitution Order


       The first part of appellant’s first issue makes a global challenge to the restitution

order as being vague. Our interpretation of appellant’s issue is that he is challenging

the appropriateness of the trial court’s restitution order.


       The Texas Code of Criminal Procedure provides that the trial court shall resolve

any disputes as to the proper amount or type of restitution ordered. TEX. CODE CRIM.

PROC. ANN. art. 42.037(k) (West Supp. 2011); 2 Idowu v. State, 73 S.W.3d 918, 920 n.5

(Tex.Crim.App. 2002).      This requirement leads to the conclusion that an appellant

wishing to complain about the appropriateness of a trial court’s restitution order must do

so in the trial court and must do so explicitly. Idowu, 73 S.W.3d at 921.


       The record before this Court demonstrates that the trial court explicitly

admonished appellant that the total restitution figure was unknown on the date of the

initial plea of guilty. In the discussion, the trial court advised appellant that the probation

department would ascertain the total amount of restitution and, if appellant was not in

agreement with the figure, a restitution hearing would be held.                Subsequently,

appellant’s trial counsel again pointed out that there was no set restitution amount

agreed upon at the time of the plea. Appellant acknowledged that fact on the record.

       2
        Further reference to the Texas Code of Criminal Procedure Annotated will be by
reference to “art.” or “article.”
                                              4
Subsequently, trial counsel reiterated that the agreement was to let the probation

department come up with the restitution figure with the understanding that, if the amount

did not seem correct to appellant, a restitution hearing could be conducted. Again,

appellant agreed that was the arrangement. At a later date, the trial court entered a

supplemental order amending the terms and conditions of community supervision that

provided for the total amount of restitution ordered in this case. Again, appellant agreed

to the amended order as evidenced by his signature on the amended order. Further,

the record contains no request for a restitution hearing.


       The issue of the appropriateness of restitution did not arise until after appellant’s

deferred offense was adjudicated. Appellant now attempts to assert that the vagueness

of the term regarding restitution requires that this Court reverse the trial court’s

adjudication of appellant.


       By waiting until the direct appeal of his adjudication appellant has failed to

properly preserve the question regarding the vagueness of the restitution ordered by the

trial court. See TEX. R. APP. P. 33.1; Idowu, 73 S.W.3d at 921.


Voluntariness of Plea


       Within this first issue, appellant also contends that his plea was involuntarily

made because he did not know what he was agreeing to regarding restitution. As

demonstrated above, the record does not support appellant’s contention. The trial court

fully admonished appellant regarding the restitution requirement and provided appellant

with an opportunity to request a hearing on restitution.        The record supports the

proposition that appellant entered his plea voluntarily. Further, appellant cannot wait
                                             5
until direct appeal of his adjudication to raise the issue of the voluntariness of the plea.

See TEX. R. APP. P. 33.1; Mendez v. State, 138 S.W.3d 334, 339 n.5 (Tex.Crim.App.

2004) (en banc).


         Having addressed appellant’s contentions within his first issue, we overrule the

issue.


                                   Prejudgment of Case


         By his next issue, appellant seems to complain that a notation on the docket

sheet made by a visiting judge resulted in the trial court prejudging him at the

adjudication hearing. The record reflects that, after appellant was originally placed on

deferred adjudication community supervision, the State filed a motion to adjudicate

appellant guilty in both the original credit card abuse case and in a sexual assault case

for which appellant was also on deferred adjudication community supervision. 3


         Both cases were subject to a State’s motion to adjudicate. The hearing was

presided over by a visiting judge. When the trial court called the cases for trial, the

State announced that the motion to adjudicate on the credit card case was being

dismissed and appellant would be entering a plea of true to the allegations in the motion

to adjudicate the sexual assault case. The trial court admonished appellant regarding

the consequences of entering a plea of true, to which admonishments appellant stated

he understood the consequences. The State then made its recommendation as to


         3
        The appeal of appellant’s final adjudication in the sexual assault case was the
subject of this Court’s opinion dismissing the appeal for want of jurisdiction. Thomas v.
State, No. 07-11-00460, 2012 Tex. App. LEXIS 335, at *2 (Tex.App.—Amarillo Jan. 13,
2012, no pet.) (mem. op., not designated for publication.)
                                             6
punishment to the trial court. After a lengthy discussion regarding the plea of true, the

trial court accepted the plea of true. The trial court then advised appellant that any

violation of the extension agreement would lead to a revocation of his community

supervision.   Further, the trial court stated that there would be “[z]ero tolerance”

regarding any further violations of the terms and conditions of probation. The trial court

then made a notation on the docket sheet that “[Appellant] warned that any future

violations could result in full 20 year sentence.         ZERO Tolerance.” Appellant’s

community supervision was then extended.


       At the hearing on the final motions to adjudicate appellant, the trial court was

admonishing appellant on both cases and, while admonishing appellant regarding the

motion to adjudicate appellant guilty of the sexual assault case, made the following

comment, “And then after a motion was filed in 2006, it was noted: ‘[Appellant] was

warned that any future violations could result in full 20-year sentence.’”


       Based upon the forgoing portions of the record, appellant contends that his due

process rights were violated because the trial court that adjudicated him guilty of the

credit card abuse offense prejudged his case based upon what appellant terms as an

“advisory opinion” issued by the visiting judge.


       The record further reflects that, at the time the visiting judge made his comments

and the notation on the docket sheet, appellant made no objection to the entry or the

statement. Additionally, at the time of the hearing that resulted in his adjudication of

guilt on the credit card abuse case, again appellant made no objection, nor did appellant

request the trial court recuse or otherwise excuse itself from hearing this matter due to

                                             7
any prejudice or bias against appellant. The matter was not mentioned again during the

proceedings. Now, for the first time, appellant contends that the docket notation and the

reading of the docket notation indicate that the trial court prejudged his case.


Preservation


       Our law requires that in order to present a complaint for appellate review, the

record must demonstrate that an objection be lodged or the trial court be otherwise

informed about appellant’s objection to the proceedings. See TEX. R. APP. P. 33.1.

Failure to preserve a complaint pursuant to the Texas Rules of Appellate Procedure

results in forfeiture of that complaint. Mendez, 138 S.W.3d at 341-42. Since there was

no objection and the trial court was not otherwise informed, there is nothing preserved

for appeal. Id. at 342.


       Accordingly, appellant’s issue is overruled.


                    Denial of Due Process-Sufficiency of the Evidence


       By his final issue, appellant contends that he was denied due process of law

when the trial court decided to adjudicate him guilty for failure to pay restitution.

Appellant couches his contention in terms of the State’s failure to rebut his affirmative

defense of an inability to pay.       However, the statutory reference that underpins

appellant’s argument is erroneous. Appellant cites the Court to article 42.12 section

21(c) for the proposition that once a probationer raises his inability to pay restitution, the

burden then shifts to the State to prove that the failure to pay was intentional. See Act

of May 8, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3740

                                              8
(amended 2007). However, the current version of the statute provides that when the

State’s alleged grounds for revocation are failure to pay court-ordered fees, court costs

or supervision fees, the State must prove by a preponderance of the evidence that the

probationer had the ability to pay and did not pay as ordered by the trial court. See art.

42.12 § 21(c) (West Supp. 2011). It is noteworthy for purposes of our analysis that the

amended statute does not include any reference to fines and restitution.          We will

analyze appellant’s contention under the applicable version of the statute.


      In reviewing the application of the current statute, some of our sister courts have

applied what must be termed a strict liability approach to the application of the amended

statute. See Sherwood v. State, No. 10-09-00114-CR, 2010 Tex. App. LEXIS 3010, at

*3–4 (Tex.App.—Waco Apr. 21, 2010, pet. ref’d) (mem. op., not designated for

publication), Hood v. State, No. 12-08-00366-CR, 2009 Tex. App. LEXIS 9695, at *4–5

(Tex.App.—Tyler Dec. 23, 2009, no pet.) (mem. op., not designated for publication),

Sierra v. State, No. 03-08-00664-CR, 2009 Tex. App. LEXIS 7172, at *8–9 (Tex.App.—

Austin Aug. 26, 2009, no pet.) (mem. op., not designated for publication.) Collectively,

these cases have held that since the amended statute removed restitution from the

statute, there was no burden on the State, other than to prove the payments were not

made. See Sherwood, 2010 Tex. App. LEXIS 3010, at *3–4; Hood, 2009 Tex. App.

LEXIS 9695, at *4–5; Sierra, 2009 Tex. App. LEXIS 7172, at *8–9.


      Two other intermediate courts of appeals have reviewed this issue and

concluded differently.   First, the Texarkana Court reviewed the application of the

amended statute in Lively v. State, 338 S.W.140 (Tex.App.—Texarkana 2011, no pet.).

                                            9
In Lively, the court held that under the United States Supreme Court case of Bearden v.

Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the trial court must

examine the reasons a probationer did not make the required payments. Id. at 144.

Further, if the failure to pay was due to a willful refusal of the probationer to pay or a

lack of bona fide effort to pay, then the trial court may revoke the probation. Id. The

Lively court then reviewed the evidence before it, concluded that there was sufficient

evidence that appellant willfully refused to pay, and therefore affirmed the trial court’s

decision to revoke the community supervision. Id. at 146.


       The Eastland Court reviewed a revocation of community supervision in Bryant v.

State, 355 S.W.3d 926 (Tex.App.—Eastland 2011, pet granted). In Bryant, the court

held that because the trial court did not incarcerate the probationer and instead,

converted the deferred adjudication into straight probation, that the trial court had met

the requirements of Bearden by seeking an alternative punishment to incarceration. Id.

at 931. However, the court in Bryant ultimately reversed the revocation because the

trial court did not consider the factors listed in article 42.037(h) while considering the

revocation of the appellant’s probation. Id. at 932.


Standard of Review


       When reviewing the adjudication of guilt on the original charge of an appellant

under an order of deferred adjudication, the review process is the same as that for a

revocation of community supervision.      See Antwine v. State, 268 S.W.3d 634, 636

(Tex.App.—Eastland 2008, pet. ref’d). We review a trial court’s decision to revoke a

probationer’s community supervision for abuse of discretion.       Rickels v. State, 202

                                            10
S.W.3d 759, 763 (Tex.Crim.App. 2006).            In a proceeding to revoke community

supervision, the burden of proof is on the State to show by a preponderance of the

evidence that the defendant violated a term and condition of community supervision as

alleged in the motion to revoke.         See Cobb v. State, 851 S.W.2d 871, 873

(Tex.Crim.App. 1993).


       When the standard of review is abuse of discretion, the record must simply

contain some evidence to support the decision made by the trial court. See Herald v.

State, 67 S.W.3d 292, 293 (Tex.App.–Amarillo 2001, no pet.); Becker v. State, 33

S.W.3d 64, 66-67 (Tex.App.–El Paso 2000, no pet.); Brumbalow v. State, 933 S.W.2d

298, 300 (Tex.App.–Waco 1996, pet. ref’d).         In determining the sufficiency of the

evidence, we view the evidence in the light most favorable to the trial court’s ruling. See

Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981). The trial judge is the trier

of fact and the arbiter of the credibility of the testimony during a hearing on a motion to

adjudicate. See id.


Analysis


       The evidence at the hearing on the motion to adjudicate clearly shows that

appellant did not make the restitution payments as ordered. The issue of whether

appellant’s failure was deliberate or willful was the contested issue. Further, the record

demonstrates that appellant filed nothing with the trial court prior to the motion to

adjudicate indicating he needed relief from the court’s order.


       After hearing the evidence, the trial court adjudicated appellant guilty but did not

order him incarcerated. Instead, the trial court sentenced appellant to two years in an
                                            11
SJF, but suspended the imposition of the incarceration and placed appellant on

probation for five years and ordered the balance of the restitution to be paid during that

term of probation. In this Court’s opinion, the trial court exercised the type of discretion

referred to in Bearden. The trial court determined that there was an alternative form of

punishment that was proper and not inadequate to meet the State’s concerns and gave

play to the burden the original restitution order had placed upon appellant.            See

Bearden, 461 U.S. at 672. Therefore, appellant was not denied due process of law.

See id.


       Likewise, we are of the opinion that the trial court considered the requirements

set forth in article 42.037(h) in determining whether to adjudicate appellant.          See

Bryant, 335 S.W.3d at 932. This is demonstrated in the record by two things. First, the

trial court heard considerable testimony about whether appellant’s failure to pay

restitution could be considered a willful act. Additionally, and in consideration of the

evidence heard, after the conclusion of the testimonial phase of the hearing, the trial

court took the matter under advisement for more than a week before announcing its

final decision.


       Accordingly, we find that the trial court did not abuse its discretion in adjudicating

appellant guilty of credit card abuse. See Rickels, 202 S.W.3d at 763. Appellant’s final

issue is overruled.




                                             12
                                       Conclusion


         Having overruled all of appellant’s issues, we affirm the judgment of the trial

court.




                                                       Mackey K. Hancock
                                                            Justice


Publish.




                                            13
