                                    NO. 07-00-0528-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                       JUNE 26, 2001

                          ______________________________


                           FRED ARTHUR JELLA, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

               NO. 40132-A; HONORABLE DAVID L. GLEASON, JUDGE

                          _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       This appeal arises from the revocation of appellant Fred Arthur Jella’s probation

for the failure to pay probation fees and restitution. Appellant challenges the sufficiency

of the evidence in a single point of error. Finding the trial court’s order is supported by the

record, we affirm.
       Appellant was indicted for the offense of tampering with a government record. He

pled guilty and was sentenced pursuant to a plea agreement to two years confinement,

probated for a period of four years. The conditions of his probation required him to pay

probation fees and restitution of $10,000, with minimum monthly payments of $300. In

February 2000, the State filed a motion to revoke probation, alleging appellant failed to

pay most of his probation fees for October 1999, through February 2000, and to make

restitution payments from August 1999, through February 2000.


       At a hearing on the motion convened April 13, 2000, the State presented evidence

of the conditions of appellant’s probation and his failure to make the payments as alleged.

Appellant testified that he was financially unable to make the payments. He testified that

his primary means of support was an auto mechanic shop he owned and participation in

a band. According to appellant, the shop was starting to become profitable but recent

expenses, including caring for his mother and daughter, had prevented him from making

the payments. He also stated he had sold his home and other property to make payments

under probation for another offense. At the conclusion of the April 13 proceeding,

appellant agreed to pay $500 per month to become current on his obligations.


       The hearing was reconvened September 21, 2000. The parties differed on the

amount appellant had paid, but agreed he had not paid anything in June, July, and

September of that year. Appellant testified that his business went “belly up,” his wife left,

taking what money he had saved, and his remaining money went toward providing for his



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daughter. Finally, appellant testified he had a job offer and if he was allowed to remain on

probation, he would be able to make payments. He also stated his band had an offer from

a record company if they could commit the time to go on tour. On cross-examination, the

State had appellant recount the statements made in the April 13 hearing that his business

and band would provide sufficient income to make the required payments and he

specifically agreed to payments of $500 per month. The State also pointed out that on

each of the numerous occasions when he had been arrested, he was able to obtain money

for bond by borrowing it or selling property.


       At the conclusion of the hearing, the court stated it found appellant had the ability

to make the payments and revoked his probation. Appellant now challenges that order

arguing the State failed to meet its burden to show that he intentionally failed to make

probation and restitution payments.


       In a proceeding to revoke probation, the burden of proof is on the State to show by

a preponderance of the evidence that the probationer has violated a condition of probation

as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.

1993). The trial judge is the sole trier of the facts, the credibility of the witnesses, and the

weight to be given the testimony. Lee v. State, 952 S.W.2d 894, 897 (Tex.App.--Dallas

1997, no pet.). In reviewing a motion to revoke, we are to review the evidence in the light

most favorable to the trial court’s order. Jackson v. State, 645 S.W.2d 303, 304 (Tex.Crim.

App. 1983). Determination of whether to revoke probation is a matter committed to the



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discretion of the trial court and will not be reversed absent an abuse of that discretion.

Hendley v. State, 783 S.W.2d 750, 752 (Tex.App.--Houston [1st Dist.] 1990, no pet.).

Article 42.12 of the Code of Criminal Procedure provides that inability to pay is an

affirmative defense when the grounds for revocation are the failure to make payments.

Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2001). The defendant has

the burden of proving the affirmative defense by a preponderance of the evidence.

Amezcua v. State, 975 S.W.2d 688, 689 (Tex.App.--San Antonio 1998, no pet.). If the

defendant proves his affirmative defense, the State must prove, by a preponderance of the

evidence, that the defendant’s failure to pay was intentional. Id.


       Appellant argues that because the State failed to present any evidence he was able

to make the payments, it did not meet its burden of showing the failure was intentional.

We find the record supports the trial court’s action because it could have found appellant

did not establish his affirmative defense. We do not agree with appellant’s position that

simply by presenting some testimony of his inability to pay, he established his affirmative

defense, thus shifting the burden to the State to show he had the ability to pay but

intentionally failed to do so.


       The focus of the State’s case was appellant’s credibility. It pointed out that when

appellant owed probation fees, he was always able to come up with money for bond, and

was able to fund his participation in a band. While appellant’s representation to the court

that he would make particular monthly payments was not incorporated in the terms of his



                                            4
probation, his failure to fulfill his promise to the court undermined his credibility. The trial

court’s comments at the conclusion of the hearing found appellant was not credible. We

cannot say the trial court abused its discretion in reaching this conclusion. That finding,

taken together with the evidence that he was able to produce money whenever he needed

to get out of jail, supports the trial court’s determination that appellant’s failure to pay was

intentional. We overrule appellant’s point of error and affirm the judgment of the trial court.



                                                   John T. Boyd
                                                    Chief Justice

Do not publish.




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