                              NO. 12-08-00366-CR

                    IN THE COURT OF APPEALS

         TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

JAMES EDWARD HOOD,                         §             APPEAL FROM THE 7TH
APPELLANT

V.                                         §             JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                  §              SMITH COUNTY, TEXAS


                               MEMORANDUM OPINION
       James Edward Hood appeals his conviction for criminal nonsupport. In one issue,
Appellant argues that the trial court erred in revoking his community supervision and
sentencing him to state jail because the State did not prove that he had the ability to make
restitution payments. We affirm.


                                      BACKGROUND
       Appellant was charged with and pleaded guilty to the felony offense of criminal
nonsupport. In the original plea agreement, Appellant agreed to make a lump sum restitution
payment of $1,500 before the sentencing date, and the State agreed to recommend a suspended
sentence and a deferred adjudication. That agreement was modified, however, and Appellant
agreed to make the lump sum payment by July 24, 2008, which was after the date of
sentencing. The payment was to come from the settlement of a civil lawsuit. The trial court
accepted Appellant’s plea, and placed him on community supervision pursuant to the plea
agreement, but changed the date payment was due to July 27, 2008.
       Appellant did not make the July 27 payment. The State filed to revoke his community
supervision on August 1, 2008. A hearing was held on September 2, 2008. The State offered
evidence showing that Appellant had not made the July 27 payment and that he was more than
$40,000 in arrears in payments of court ordered child support. Appellant’s counsel did not ask
the trial court not to revoke Appellant’s community supervision. Instead, she stated that she
“expected” the court to do so and asked that the court place him back on community
supervision. The trial court found that Appellant had not made the July 27 payment, revoked
his suspended sentence, found him guilty as charged, and assessed his punishment at
confinement for two years in state jail. This appeal followed.


                 RESTITUTION AS A CONDITION OF COMMUNITY SUPERVISION
       In his sole issue, Appellant contends that the trial court was not permitted to revoke his
community supervision for his failure to pay restitution because the State failed to prove that he
had the ability to pay.
Standard of Review
       We review a trial court’s decision to revoke community supervision for an 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 a community supervision revocation proceeding, the state has the burden of proving a
violation of the terms of community supervision 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). The state
satisfies this standard when the greater weight of the credible evidence before the court, viewed
in a light most favorable to the ruling, creates a reasonable belief that a condition of community
supervision 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); Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim.
App. 1981).
Analysis
       Appellant argues that the State failed to meet its burden of proof, imposed by article
42.12, section 21(c) of the code of criminal procedure, to show that he had the ability to make
the restitution payment as ordered. We disagree.




                                                2
        Prior to 2007, a defendant could raise his inability to pay court costs, restitution, or
compensation to appointed counsel as an affirmative defense when the state sought to revoke a
suspended sentence for failure to pay those fees. 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) (Vernon Supp. 2009)). However, that part of
the statute was amended by the legislature in 2007.
        As relevant here, the legislature made two specific changes to the statute in 2007. First,
it changed the defendant’s “ability to pay” from an affirmative defense to something the state
must show. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 21(c). Second, the legislature
changed the kinds of fees that were covered by this section. As the statute is presently written,
the state must show a defendant’s ability to pay only when it seeks to revoke community
supervision for nonpayment of compensation to counsel, community supervision fees, and
court costs. Id. The statute does not apply to restitution or reparations, as the previous statute
did. 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 the revocation hearing in this
case was held after September 1, 2007, the amended section applies.
        Accordingly, viewing the evidence in the light most favorable to the trial court’s ruling,
we hold that the State satisfied its burden to prove by a preponderance of the evidence that
Appellant failed to pay restitution as ordered. Therefore, the trial court did not abuse its
discretion when it revoked Appellant’s suspended sentence.1 Accord 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). We overrule Appellant’s sole issue.


                                                      DISPOSITION
        Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.



        1
          Citing Bearden v. Georgia, 461 U.S. 660, 673, 103 S. Ct. 2064, 2073, 76 L. Ed. 2d 221 (1983) and
Basaldua v. State, 558 S.W.2d 2, 7 (Tex. Crim. App. 1977), Appellant argues that we should conclude that an
abuse of discretion occurred in this case because there was not evidence of his ability to pay restitution. We note
that Appellant did not argue in the trial court, and does not argue on appeal, that the trial court’s action was
unconstitutional. Therefore, and without addressing the conclusions Appellant draws from the facts, we must
follow the legislative determination that the ability to pay restitution need not be proven when the state seeks to
revoke a suspended sentence.



                                                        3
                                                                SAM GRIFFITH__
                                                                    Justice




Opinion delivered December 23, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                             (DO NOT PUBLISH)




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