                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-10-00490-CR


DEMARKOUS CLAY                                                         APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                      ----------

                                    OPINION

                                      ----------

      Appellant Demarkous Clay challenges the trial court’s decision to proceed

to adjudication of the offense of burglary of a habitation and the resulting ten-year

sentence. Appellant argues that the trial court abused its discretion by admitting

records from Louisiana concerning his community supervision, that the

admission of those records violated his Sixth Amendment right to confrontation,

and that the trial court erred by refusing to recognize his economic defense to his

failure to pay restitution of $275 per month. We affirm.
                                Background Facts

      In 2007, a Denton County grand jury indicted appellant for burglary of a

habitation.1 In 2008, appellant pled guilty, and the trial court placed him on ten

years’ deferred adjudication community supervision.         The order of deferred

adjudication contained many conditions, including that appellant report monthly in

person to his community supervision officer, pay $32,000 in restitution at the rate

of $275 per month, complete a ―drug/alcohol evaluation through an agency which

offers such services‖ within thirty days of the order, and participate in a theft

diversion class at the direction of his community supervision officer.

      In 2010, the State filed a motion to proceed with adjudication of appellant’s

guilt, alleging that appellant had violated each of the conditions described above,

among others.    Appellant retained counsel.     At the contested hearing, Rhett

Wallace, an employee of the Denton County probation department, testified that

in February 2008, appellant received a copy of his community supervision

conditions and that, on the same day, he requested that his community

supervision be transferred to Louisiana, and it was. Wallace then testified to

appellant’s failure to meet some of the conditions of his community supervision.

Much of Wallace’s testimony was based on information that had been generated

by Louisiana officials and later sent to Denton County. Appellant objected that

Wallace’s testimony was based on hearsay; in response, the State offered the


      1
       See Tex. Penal Code Ann. § 30.02(a)(1) (West 2011).


                                          2
raw records from Louisiana that purport to be community supervision records

relating to appellant, and the State asserted the business records exception as

the basis for admission.2      Appellant argued that although Wallace was a

custodian of probation records for Denton County, the Louisiana documents were

inadmissible as hearsay because Wallace had no knowledge as to how the

documents were generated and could not confirm the trustworthiness or reliability

of the records. The trial court overruled appellant’s objection and admitted the

exhibit containing the Louisiana records ―as a business record and a government

record.‖3

      At the end of the contested revocation hearing, the trial court found that

appellant had violated each of the conditions of his community supervision

described above.       The court, therefore, revoked appellant’s community

supervision, adjudicated him guilty of burglary of a habitation, and sentenced him

to ten years’ confinement. Appellant brought this appeal.

                   The Forfeiture of Appellant’s Complaints

      In three issues, appellant contests the trial court’s decision to revoke his

community supervision and adjudicate him guilty. Appellant’s first two issues

depend on the correctness of the trial court’s admission of the Louisiana records.


      2
       See Tex. R. Evid. 803(6).
      3
        The first issue of appellant’s brief focuses on rule of evidence 803(6); the
brief does not directly discuss whether the Louisiana records were admissible as
public records and reports under rule 803(8). See Tex. R. Evid. 803(8).


                                         3
      As we explained in Cherry v. State,

      We review an order revoking community supervision under an
      abuse-of-discretion standard. In a revocation proceeding, the State
      must prove by a preponderance of the evidence that the defendant
      is the same individual who is named in the judgment and order of
      probation, and then must prove that the defendant violated a term of
      probation as alleged in the motion to revoke.

             In a community supervision revocation hearing, the trial judge
      is the sole trier of fact and determines the credibility of the witnesses
      and the weight to be given their testimony. We review the evidence
      in the light most favorable to the trial court’s ruling. If the State fails
      to meet its burden of proof, the trial court abuses its discretion in
      revoking the community supervision.

215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref’d) (citations omitted).

―Proof by a preponderance of the evidence of any one of the alleged violations of

the conditions of community supervision is sufficient to support a revocation

order.‖ Cantu v. State, 339 S.W.3d 688, 691–92 (Tex. App.—Fort Worth 2011,

no pet.).

      Appellant contends that the trial court abused its discretion by revoking his

community supervision because the revocation was based on information

contained in the Louisiana records, which appellant asserts were inadmissible.

To preserve a complaint for our review, however, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280

S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Further, the trial court must have

ruled on the request, objection, or motion, either expressly or implicitly, or the


                                           4
complaining party must have objected to the trial court’s refusal to rule. Tex. R.

App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.

2004). A reviewing court should not address the merits of an issue that has not

been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.

2009). Preservation of error is a systemic requirement that this court should

review on its own motion. Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App.

2007).

      Appellant objected to the admissibility of the Louisiana records, and as part

of that objection, appellant’s counsel had a lengthy exchange with the trial court

concerning whether the records were excepted from hearsay under rule of

evidence 803(6). We have no doubt that this objection met the requirements of

making the trial court aware of appellant’s complaint and sufficiently explaining

the basis for it.   See Ford, 305 S.W.3d at 533.         But before and after the

exchange, appellant did not object to many of the State’s questions, and much of

Wallace’s testimony, concerning the contents of the records.          For example,

before the exchange, Wallace testified without objection, from information

contained in the records, that appellant had reported to community supervision in

Louisiana and that he had violated condition (b) of his community supervision,

which required him to avoid the use of illegal narcotics, barbiturates, or controlled

substances. After the exchange, Wallace testified on direct examination, based

on data in the records, that appellant had tested positive for cocaine in June

2009, that he had failed to report to the Louisiana probation department during


                                          5
several months from 2008 through 2010, and that he had not completed an

alcohol evaluation or a theft diversion class.4 Wallace also testified about some

facts contained in the Louisiana records on cross-examination by appellant’s

counsel.

      With exceptions that do not apply here, to preserve error, a party must

continue to object each time the objectionable evidence is offered.5 Martinez v.

State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819

S.W.2d 854, 858 (Tex. Crim. App. 1991)); Fuentes v. State, 991 S.W.2d 267, 273

(Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). A trial court’s erroneous

admission of evidence will not require reversal when other such evidence was

received without objection, either before or after the complained-of ruling. Leday

v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (explaining that Texas


      4
        Appellant testified later in the hearing in an attempt to explain or excuse
these facts. For example, he stated that when he took two drug tests on the
same day in June 2009, one was positive and the other was negative. He also
testified that he asked his Louisiana probation officer about the drug and alcohol
evaluation and that the officer set the class for a time that appellant was working.
Appellant does not contest, however, that the facts revealed through Wallace’s
testimony are sufficient to support the trial court’s revocation decision under the
preponderance of the evidence standard; he contends only that evidence of the
facts should not have been admitted.
      5
       For example, ―it is settled that when a pre-trial motion to suppress
evidence is overruled, the accused need not subsequently object to the
admission of the same evidence at trial in order to preserve error.‖ Fuller v.
State, 827 S.W.2d 919, 930 (Tex. Crim. App. 1992) (emphasis added), cert.
denied, 509 U.S. 922 (1993); see Williams v. State, 834 S.W.2d 502, 507 (Tex.
App.—Fort Worth 1992, pet. ref’d). Appellant did not seek to suppress evidence
associated with the Louisiana records prior to the trial court’s revocation hearing.


                                         6
applies the ―futility rule,‖ meaning that despite a trial court’s ruling that evidence

is admissible, a party must keep making futile objections on pain of waiver). This

rule applies whether the other evidence was introduced by the defendant or the

State. Id.

       The Texarkana Court of Appeals analyzed an error preservation issue

similar to the one presented in this case in Perry v. State, 957 S.W.2d 894 (Tex.

App.—Texarkana 1997, pet. ref’d). During Perry’s trial for criminal nonsupport,

the trial court admitted, over Perry’s hearsay objection, an exhibit containing a

summary of child support that had accrued and payments that were due. Id. at

896.    An employee of the attorney general’s office then testified, without

objection, that the summary showed that Perry was $16,650 in arrears. Id. The

Texarkana court held that the testimony about the exhibit after its admission

forfeited any alleged error, explaining,

       A party desiring to complain about particular evidence must object
       each time that evidence is offered, or the objection is waived.
       Although Perry objected to the admission of the calculation summary
       report when it was offered by the State, he did not object when the
       witness testified about the contents of the report. Thus, he did not
       preserve error.

Id. (citations omitted).

       Our own court recently reached the same conclusion under similar facts.

See Sikes v. State, No. 02-10-00029-CR, 2011 WL 4711998 (Tex. App.—Fort

Worth Oct. 6, 2011, no pet.) (Dauphinot, J.) (mem. op., not designated for

publication). Sikes argued that a trial court abused its discretion by admitting a



                                           7
letter that he wrote to his father; Sikes claimed that the letter was hearsay and

was not relevant. Id. at *6. At trial, Sikes had objected to the admission of the

letter, but when a witness later read the contents of the letter to a jury, Sikes

failed to object again.   Id.   We noted that Sikes had ―neither requested nor

received a running objection to the evidence,‖ and held,

            To preserve error, a party must continue to object each time
      the objectionable evidence is offered. A trial court’s erroneous
      admission of evidence will not require reversal when other such
      evidence was received without objection, either before or after the
      complained-of ruling. This rule applies whether the other evidence
      was introduced by the defendant or the State. Consequently, . . .
      [Sikes] forfeited any error in the admission of the letter . . . .

Id.

      Thus, because Wallace provided testimony about the Louisiana records

without objection before and after appellant’s objection to the admission of the

records and because appellant failed to obtain a running objection,6 we conclude

that he forfeited his objection to the records’ admission.7   See Martinez, 98

S.W.3d at 193; Perry, 957 S.W.2d at 896; see also Ratliff v. State, 320 S.W.3d


      6
      A running objection would have, of course, relieved the trial court of the
burden of ―defense counsel jumping up and down like a Jack-in-the-Box at each
mention of the documents complained of.‖ See Dissenting Op. at 8.
      7
        We note that appellant did not argue in the trial court that his Sixth
Amendment right to be confronted with the witnesses against him had been
violated by admission of the Louisiana records. For this reason as well, he
forfeited that complaint. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim.
App. 2005) (―An objection on hearsay does not preserve error on Confrontation
Clause grounds.‖); Robinson v. State, 310 S.W.3d 574, 577–78 (Tex. App.—Fort
Worth 2010, no pet.).


                                         8
857, 861 (Tex. App.—Fort Worth 2010, pet. ref’d) (―If the defendant waits until

the State offers the evidence at trial, the objection to the evidence must be made

before a witness gives substantial testimony about it.‖); Mai v. State, 189 S.W.3d

316, 324 (Tex. App.—Fort Worth 2006, pet. ref’d) (―We hold that Appellant failed

to preserve error . . . by not repeating the objection again each time the State

asked Officer Richie to read from or refer to the transcript.‖). Based on the facts

contained in those documents and Wallace’s unobjected-to testimony about

them, we hold that the trial court did not abuse its discretion by revoking

appellant’s community supervision and adjudicating him guilty. See Cherry, 215

S.W.3d at 919. We overrule appellant’s first two issues.

      Because the State’s exhibit and Wallace’s testimony support several

violations of appellant’s community supervision, and because only one violation

is sufficient to support the trial court’s revocation decision, we need not address

appellant’s third issue, in which he contends that revocation on the ground that

he failed to pay restitution when not having sufficient ability to do so was

improper. See Tex. R. App. P. 47.1; Moore v. State, 605 S.W.2d 924, 926 (Tex.

Crim. App. [Panel Op.] 1980).




                                         9
                                  Conclusion

      Having overruled appellant’s dispositive issues, we affirm the trial court’s

judgment.




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: February 16, 2012




                                        10
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-10-00490-CR


DEMARKOUS CLAY                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                      ----------

                            DISSENTING OPINION

                                      ----------

      Clearly,   the   Louisiana records      and   testimony about    them   were

inadmissible, and the trial court abused its discretion by admitting the records

and testimony into evidence. Without those records and testimony about them,

the State failed to sustain its burden of proof.      Consequently, the trial court

abused its discretion by adjudicating Appellant’s guilt. I would, therefore, reverse

the trial court’s judgment and remand this case to the trial court.
      The majority, however, holds that Appellant forfeited error by not objecting

to each and every reference to the complained-of documents. I must respectfully

dissent from the majority opinion because I believe the majority places form over

substance.

      At the adjudication hearing, Rhett Wallace of the Denton County

Community Supervision and Corrections Department (DCCSCD) testified that

Appellant’s community supervision had been transferred to Louisiana at

Appellant’s request.   Wallace then testified about Appellant’s failure to meet

some of the conditions of his community supervision.

      Much of Wallace’s testimony was based on information purported to have

been sent to his department from the Interstate Commission for Adult Offender

Supervision (ICAOS); the information purported to be information that ICAOS

had received from the State of Louisiana.     Appellant objected that Wallace’s

testimony was based on hearsay; in response, the State offered the raw records,

purportedly from Louisiana, that purport to be community supervision records

relating to Appellant and asserted the business records exception as the basis

for admission. The records contain no affidavit from the custodian of the records,

and Wallace, who testified that he was the DCCSCD custodian of records and

that he received the records from Louisiana, was unable to testify who had made

the record entries, whether the person had personal knowledge of the contents of

the entries, whether the entries were made at or near the time of the events




                                        2
recorded, or indeed anything about how the records were made or the source of

the information.

      Appellant argued below that although Wallace was the custodian of

records for DCCSCD, some of the information in the file purportedly had been

provided by Iberia Parish in Louisiana, and Wallace had no knowledge as to the

trustworthiness or reliability of that information.   The trial court overruled the

objection and admitted the records in the file ―as a business record and a

government record.‖

      In order to be admissible as a business record, there must be evidence

that the ―memorandum, report, record, or data compilation, in any form, of acts,

events, conditions, opinions, or diagnoses, [was] made at or near the time by, or

from information transmitted by, a person with knowledge‖ and ―kept in the

course of a regularly conducted business activity‖ when it was ―the regular

practice of that business activity to make the memorandum, report, record, or

data compilation, all as shown by the testimony of the custodian or other qualified

witness, or by affidavit that complies with Rule 902(10) [of the rules of

evidence].‖1

      The documents were also admitted as a public record.             Rule 803(8)

provides an exception to the hearsay rule for public records and reports, that is,

      [r]ecords, reports, statements, or data compilations, in any form, of
      public offices or agencies setting forth:

      1
       Tex. R. Evid. 803(6).


                                         3
      (A) the activities of the office or agency;

      (B) matters observed pursuant to duty imposed by law as to which
      matters there was a duty to report, excluding in criminal cases
      matters observed by police officers and other law enforcement
      personnel; or

      (C) in civil cases as to any party and in criminal cases as against the
      state, factual findings resulting from an investigation made pursuant
      to authority granted by law;

      unless the sources of information or other circumstances indicate
      lack of trustworthiness.2

      Before a public record can be admitted as an exception under the hearsay

rule, the party offering the document must show that it is authentic.3 A document

is considered authentic if a sponsoring witness is competent to vouch for its

authenticity and vouches for its authenticity, or if the document meets the

requirements of self-authentication in rule 902 of the rules of evidence.4 As our

sister court in Dallas explained, albeit in an unreported case,

             Benavides did not, and could not, testify that he or any
      probation officer had any knowledge on how Heine prepared the
      letter or whether she had personal knowledge of the events she
      recorded in the letter. Moreover, because a government office
      collects a letter in its files does not give the letter sufficient ―indicia of
      reliability‖ for purposes of admissibility under the business record

      2
       Tex. R. Evid. 803(8).
      3
        Tex. R. Evid. 901(a); Porter v. Tex. Dep’t of Pub. Safety, 712 S.W.2d 263,
265 (Tex. App.—San Antonio 1986, no writ); see also Henderson v. Heyer–
Schulte Corp., 600 S.W.2d 844, 850 (Tex. App.—Houston [1st Dist.] 1980, writ
ref’d n.r.e.) (holding trial court properly excluded document that witness could not
identify or authenticate).
      4
      Tex. R. Evid. 902; Castro v. Sebesta, 808 S.W.2d 189, 195 (Tex. App.—
Houston [1st Dist.] 1991, no writ) (op. on reh’g).

                                            4
      exception to the hearsay rule.        Because the State did         not
      authenticate the Heine letter as a business record exception to     the
      hearsay rule and no evidence established the reliability             or
      trustworthiness of the facts described in the letter, we conclude   the
      letter was inadmissible hearsay.5

      The documents in question in the case now before this court did not satisfy

the requirement of reliability to meet either the business record exception or the

public record exception. The documents were neither authenticated nor self-

authenticating.   No clerk or any other person had certified them as public

documents. They were just a stack of papers that nobody could or did vouch for,

except to say that they had been received and were part of the Denton County

file. Anyone can place any kind of letterhead on anything, but having some

anonymous person designate a piece of paper as a public document does not

convert it into a public document.

      Because the State laid no predicate to show the reliability of the

documents purportedly from Louisiana, the trial court abused its discretion by

admitting them, whether as business records or government documents.

      Appellant’s objections to the documents purporting to come from Louisiana

and to the testimony about those documents take up fifteen pages in the

reporter’s record. The majority calls this waiver, perhaps because Appellant did

      5
       Estrada v. State, Nos. 05-96-00752-CR, 05-96-00753-CR, 1999 WL
521683, at *7 (Tex. App.—Dallas July 23, 1999, pet ref’d as untimely filed) (op.
on reh’g) (not designated for publication) (citations omitted from excerpt, but
relying on former rule of criminal evidence 803(6); Porter v. State, 578 S.W.2d
742, 746 (Tex. Crim. App. 1979); and Philpot v. State, 897 S.W.2d 848, 852
(Tex. App.—Dallas 1995, pet. ref’d)).


                                        5
not use the magic word ―suppression.‖ As we are all aware, a defendant is not

required to continue to object to evidence objected to in a motion to suppress

that is overruled.6

      The purpose of an objection is merely to call to the trial court’s attention

the reason a document, a piece of evidence, or testimony is not admissible. As

the Texas Court of Criminal Appeals has repeatedly stated,

             To properly preserve an issue concerning the admission of
      evidence for appeal, ―a party’s objection must inform the trial court
      why or on what basis the otherwise admissible evidence should be
      excluded.‖ However, a party need not spout ―magic words‖ or recite
      a specific statute to make a valid objection. References to a rule,
      statute, or specific case help to clarify an objection that might
      otherwise be obscure, but an objection is not defective merely
      because it does not cite a rule, statute, or specific case. As this
      Court stated in Lankston v. State,

             Straightforward communication in plain English will
             always suffice. . . . [A]ll a party has to do to avoid the
             forfeiture of a complaint on appeal is to let the trial judge
             know what he wants, why he thinks himself entitled to it,
             and to do so clearly enough for the judge to understand
             him at a time when the trial court is in a proper position
             to do something about it.

              The objection must merely be sufficiently clear to provide the
      trial judge and opposing counsel an opportunity to address and, if
      necessary, correct the purported error. In making this determination,
      Lankston states that an appellate court should consider the context
      in which the complaint was made and the parties’ understanding of
      the complaint at the time.7

      6
      Fuller v. State, 827 S.W.2d 919, 930 (Tex. Crim. App. 1992), cert. denied,
509 U.S. 922 (1993).
      7
       Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (citations
omitted).


                                          6
      We have before us a revocation hearing based on a set of documents

purporting to have come from a probation department in Louisiana. Revocations

are heard by a trial court and never by a jury. Although Appellant never used the

magic word ―suppress,‖ he clearly, and at length, objected to the admission of the

documents and to any testimony about the documents and their contents. Once

the trial court overruled Appellant’s objections, the documents were in evidence.

Once the trial court ruled that Wallace would be allowed to testify from those

documents, he was going to be allowed to testify from the documents. This is

not a case in which the appellant stated that he had no objection either to the

documents or to the testimony. Nor is this a case in which the State offered the

same evidence through a different source.

      The majority suggests that Appellant should have filed a pretrial or pre-

hearing motion to suppress.     A motion to suppress is merely a specialized

objection that allows a defendant in a criminal case to object to the admission of

evidence either pretrial or during trial, to have his objection heard outside the

presence of the jury, and to preserve his complaint without having to object

before the jury.8 It also affords opposing counsel an opportunity to remove the

objection or supply other evidence.9


      8
        Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (op. on
reh’g) (citing Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977) (op.
on reh’g)); Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977).
      9
       Zillender, 557 S.W.2d at 517.


                                        7
      Of course, a motion to suppress may be offered in the form of a written

motion filed pretrial or during trial, or it may be made orally in the form of an

objection heard outside the presence of the jury. But a community supervision

revocation hearing has no jury. Does the majority suggest that when there is no

jury only a pretrial motion to suppress will preserve a defendant’s objection to

evidence?   Does the majority really suggest that either the trial court or the

prosecutor was not aware of Appellant’s complaint? Does the majority really

suggest that any trial court hearing a motion to revoke community supervision

must be burdened by defense counsel jumping up and down like a Jack-in-the-

Box at each mention of the documents complained of by the only witness to

testify for the State, the very same witness whose testimony had been objected

to by the defendant during the fifteen pages of objection?

      After the trial court overruled Appellant’s objections, Wallace testified from

the objected-to documents that while in Louisiana, Appellant had tested positive

for cocaine in violation of the conditions of his community supervision and had

failed to report for two months in 2008, for all of 2009 except June (when he

tested positive for cocaine), and for the two months in 2010 prior to the State’s

filing the motion to proceed to adjudication. Wallace also testified that Appellant

had failed to complete his drug and alcohol evaluation and his theft diversion

class while in Louisiana. Again, his testimony was based on the objected-to

documents and not on his personal knowledge or records that he or anyone else

present could vouch for.

                                         8
      When evidence is improperly admitted, a defendant does not waive his

objection to that testimony, curing its improper admission, by seeking to meet,

destroy, or explain the improperly admitted evidence by introducing rebutting

evidence.10 Appellant testified in an attempt to explain what had happened in

Louisiana.   Appellant testified that when he tested positive for cocaine, he

immediately requested and received another test, which came back negative.

      Appellant was also required to maintain employment and to report to his

community supervision officer as other conditions of community supervision.

Reporting, given his work schedule, would have caused him to lose his job in

violation of the conditions of community supervision.            Maintaining his

employment caused him to fail to report. Specifically, for the period he failed to

report, Appellant testified that he worked on an offshore drilling rig for long

stretches at a time, and when not working offshore, he worked twelve-hour shifts

from 6 a.m. to 6 p.m. He testified that the Louisiana officials scheduled his

reporting time for noon but that his community supervision officer knew that he

would not be reporting during that time. Appellant stated that on other occasions

when he did not report but was not at work, his community supervision officer

completed home visits instead.        Appellant also testified that his community

supervision officer was later fired for improprieties.



      10
      Leday v. State, 983 S.W.2d 713, 719 (Tex. Crim. App. 1998) (citing
Thomas v. State, 572 S.W.2d 507, 512 (Tex. Crim. App. 1978)).


                                          9
      Other than Appellant’s attempt to meet, destroy, or explain the evidence

from Louisiana by introducing rebutting evidence, no admissible evidence

supported the trial court’s ruling on the State’s motion to proceed to adjudication.

      The State argues that the evidence was sufficient to prove the allegation

that Appellant failed to make restitution because those records were within the

knowledge of Wallace. The State alleged that Appellant violated the term of

community supervision that ordered him to

      [p]ay restitution in the amount of $32,000.00 as determined by the
      [DCCSCD]; said amount of restitution or property due (to be
      delivered to the [DCCSCD] for transfer to the victim or other person
      OR to be made directly to the victim or other person) in installments
      of $275.00 per month, beginning on or before the 20th day of March,
      2008, and a like payment on the same day of each month thereafter
      until fully paid.

The State alleged in its motion to adjudicate Appellant’s guilt that Appellant

      [v]iolated said term and condition in that he failed to pay $275.00
      toward payment of his restitution on or before the 20th day of June
      2008, October 2008; March 2009, June 2009, September 2009,
      October 2009, November 2009, December 2009; January 2010, and
      February 2010.

      The record reflects that although Appellant made no payment in June

2008, he paid $225 in July 2008 and made two payments in August 2008. He

paid $325 in September 2008. The record is silent as to October 2008 and

shows a $200 payment in November 2008. The record shows that Appellant

paid $275 in January 2009 and $470 in February 2009 but made no payment in

March. He paid $275 in April 2009, $175 in May 2009, nothing in June 2009,




                                         10
$250 in July 2009, $275 in August 2009, nothing in September 2009, and $100 in

October 2009. He made no further payment until April 2010 when he paid $650.

      Appellant testified that he had been unable to make some of his payments

because he had been out of work and because he was making low wages and

supporting      his   dependents.    The     testimony   regarding   inability   was

uncontroverted.

      The State argues that an inability to pay, while still relevant to the State’s

allegations of nonpayment of supervision fees and court costs, is immaterial to

the State’s allegation regarding restitution, citing an unpublished Austin Court of

Appeals case.11       The State bases its argument on the fact that the Texas

Legislature omitted restitution and fines from article 42.12, section 21(c) of the

Texas Code of Criminal Procedure.12 Revoking the community supervision of

any defendant for failure to comply with an impossible condition of community

supervision cannot withstand scrutiny through the lens of due process and equal

protection.13     Although the legislature has not enumerated impossibility of

compliance as a defense to revocation, due process and equal protection

demand it. Failure to comply with a requirement that a defendant on community

supervision report to a nonexistent place or do an act on a nonexistent date
      11
      See Sierra v. State, No. 03-09-00664-CR, 2009 WL 2902706, at *3 (Tex.
App.—Austin Aug. 26, 2009, no pet.) (mem. op., not designated for publication).
      12
        Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (West Supp. 2011).
      13
       See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 19; Tex. Code
Crim. Proc. Ann. art. 1.04 (West 2005).


                                        11
cannot, alone, justify revocation. A better reasoned approach is that voiced by

the Texas Court of Criminal Appeals in Ex parte Gonzales:

       [A]t a minimum, a trial court may not order a defendant confined for
       failure to repay the costs of his legal defense pursuant to art.
       26.05(e) unless the court considers the defendant’s ability to make
       the payment. The trial court’s power to order reimbursement should
       be limited to the extent a defendant is reasonably able to do so. See
       art. 26.05(e) (stating ―the court shall order the defendant to pay the
       amount that it finds the defendant is able to pay‖).14

       Although ability to comply is not explicitly to be considered pursuant to

article 42.12, the underlying constitutional principles discussed by the Gonzales

court still apply.

       Here, Appellant testified without contradiction that he had been without

work and that when he did work, he earned about $800 per month. He testified

that he was supporting his dependents, as required by the conditions of his

community supervision.

       I agree with the State that when failure to pay is not the only ground

alleged for revocation, the State does not bear the burden of proving ability to

pay absent a claim of inability to pay. But when, as here, the defendant on

community supervision raises inability to pay as his defense to failure to pay and

offers some proof, the State must prove ability to pay. The State did not sustain

this burden, especially in light of the State’s willingness to accept late payments




       14
         Ex parte Gonzales, 945 S.W.2d 830, 834 (Tex. Crim. App. 1997).


                                        12
and Appellant’s testimony that his Louisiana community supervision officer told

him to pay what he could.

      Because admissible evidence did not otherwise satisfy the State’s burden

of proof, I would hold harmful the trial court’s error in admitting the documents

purporting to come from the Louisiana community supervision department and

the testimony about them and further hold that the trial court abused its discretion

by adjudicating Appellant’s guilt.    I would therefore reverse the trial court’s

judgment and remand this case to the trial court. Because the majority does not,

I respectfully dissent.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PUBLISH

DELIVERED: February 16, 2012




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