                          NUMBER 13-17-00475-CR

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


BENITO MARTINEZ,                                                             Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                     On appeal from the 36th District Court
                        of San Patricio County, Texas.


                                       OPINION

          Before Justices Rodriguez, Contreras, and Benavides
                      Opinion by Justice Contreras

       Appellant Benito Martinez appeals the revocation of his community supervision for

his failure to pay multiple community supervision fees. By three issues, Martinez argues:

(1) the sentence imposed was a violation of article I, section 18 of the Texas Constitution;

(2) the trial court abused its discretion when it found the alleged violations true; and (3)
the sentence imposed by the trial court was cruel and unusual. Because we conclude

that the State failed to carry its burden to prove Martinez had the ability to pay and did

not, we reverse and remand.

                                         I.   BACKGROUND

        In 2011, Martinez was indicted for bail jumping and failure to appear, a third-degree

felony. See TEX. PENAL CODE ANN. § 38.10(f) (West, Westlaw through 2017 1st C.S.). He

filed an affidavit of indigence and swore he had no cash, no credit, no income, no real

estate, no car, and that he paid no rent, utilities, or other monthly bills. The trial court

found Martinez indigent, appointed counsel, and, after a jury trial, Martinez was found

guilty of the offense.

        Martinez elected to have the judge assess punishment, and he was sentenced to

five years’ incarceration, with the sentence suspended for five years of community

supervision. The initial conditions of Martinez’s supervision required him to pay: a $60

statutory monthly fee, see TEX. CODE CRIM. PROC. ANN. art. 42A.652 (West, Westlaw

through 2017 1st C.S.) (providing that “a judge who grants community supervision to a

defendant shall set a fee of not less than $25 and not more than $60 to be paid each

month”); $250 for court costs and attorney’s fees, at a rate of $50 per month1; and $50

for crime stoppers fees, at a rate of $10 per month. Martinez was also required to submit

to two urinalyses (UA) per month and pay $7.50 for each to the supervision department.

Martinez was placed on community supervision on August 15, 2011.

A.      Procedural History




        1 Martinez petitioned for an “Extension for Payment Agreement,” which the trial court granted, and
it provided the repayment terms for the $250 in court costs.

                                                    2
       During Martinez’s time on community supervision, the trial court ruled on four

motions to revoke his supervision. The first motion the trial court ruled on was an

amended motion filed by the State on January 20, 2016. Martinez filed an affidavit of

indigence and stated he had three dependent children aged 7, 10, and 13. He further

stated in the affidavit that he earned unemployment benefits of $520 per month and had

monthly expenses of: $300 for utilities, $640 for child support, $200 for groceries, $66 for

phone services, and $640 for probation fees. Martinez was found to be indigent and had

counsel appointed.

       Martinez pleaded true to the allegations that he failed to report, pay court costs,

pay the monthly statutory supervisory fee, and submit to UAs. The trial court found the

allegations to be true and extended Martinez’s supervision term by one year, sentenced

him to thirty days in jail, and ordered him to perform 160 hours of community service. The

trial court also added conditions to Martinez’s supervision and required him to: submit to

a psychological evaluation and pay a $50 fee; participate in the cognitive track program

in the continuing care phase of the Coastal Bend Regional Intermediate Sanction Facility

(CBRISF); participate in the reintegration/employment phase four of the cognitive track

and pay $10-18 per day or 25% of his gross income to CBRISF for room and board while

residing there; and submit to a period of sixty days of home confinement and pay a fee of

$3.75 per day for each day on global positioning system monitoring.

       Three months later, on May 12, 2016, the State filed its next motion to revoke and

alleged Martinez used offensive language on two occasions against an individual at

CBRISF. Martinez filed a copy of his earlier affidavit of indigence, was found indigent,

and had counsel appointed. The trial court sentenced Martinez to thirty days in jail,



                                             3
ordered him to participate in two additional programs, and continued him on community

supervision.2

        The State filed its third motion to revoke on February 16, 2017. It alleged that

Martinez violated his supervision conditions by testing positive for alcohol in a UA and

failing to pay multiple fees associated with his supervision. Martinez filed another affidavit

of indigence, was found indigent, and had counsel appointed. The State, however,

moved to dismiss this motion, and the trial court granted the dismissal on March 24, 2017.

The trial court also amended appellant’s conditions of supervision and required him to

participate in two additional programs, observe curfew hours, and pay restitution to the

supervision officer of San Patricio County of $44 for confirmation costs.3

        The final motion to revoke, which is at issue in this appeal, was an amended motion

filed by the State on August 7, 2017. In this amended motion to revoke, the State alleged

Martinez violated his supervision conditions by failing to pay:

        (1) the statutory monthly fee of $60 from February 2015 through June of 2017,

being in arrears a total of $4,170;

        (2) the crime stoppers fee of $50, at a rate of $10 per month, from September 2011

through June of 2017;




         2 The record does not reflect whether the trial court found both allegations of offensive language to

be true, or just one. At the August 11, 2017 revocation hearing, the trial court noted: “There’s no specific
finding on that order that says what she found to be true or not true but she certainly imposed a sanction
and you can’t impose a sanction without having a true finding and it appears to be reflected and of course
the court reporter is not reflected.” The trial court’s docket sheet states: “Allegation true.” The record also
does not reflect whether Martinez pleaded true or not true as to these alleged violations.

         3 “The judge of the court having jurisdiction of the case may, at any time during the period of

community supervision, modify the conditions of community supervision.” TEX. CODE CRIM. PROC. ANN. art.
42A.051(b) (West, Westlaw through 2017 1st C.S.); see Simon v. State, 442 S.W.3d 581, 584 (Tex. App.—
San Antonio 2014, no pet.); see also TEX. CODE CRIM. PROC. ANN. art. 42A.301 (listing the basic
discretionary conditions of community supervision a judge may impose).

                                                      4
        (3) the psychological evaluation fee of $50 from February 2016;

        (4) $790 in room and board fees from his stay in CBRISF from July 2016;

        (5) $7.50 per urinalysis from August 2011 through June 2017, totaling $432.50;

and

        (6) $60 per month for court costs, totaling $1,035.4

        Martinez again filed an affidavit of indigence in which he stated he had no monthly

income or monthly expenses and that he had three dependent children. He was found

indigent and had counsel appointed.

B.      Revocation Hearing

        The hearing on the State’s amended motion to revoke took place on August 11,

2017. By the time of the hearing, Martinez had been on community supervision for six

years, and he had made a single payment of $30 to the community supervision

department and a payment of $200 to the district clerk for court costs.5 Martinez pleaded

not true as to all the allegations made by the State. At the hearing, the trial court heard

testimony from Martinez’s supervision officer, Rosie Franco, and from Martinez.

        Franco testified that Martinez participated in the programs required by the

conditions of his supervision and reported to her twice a month. According to Franco, as

of the time of the hearing, she was not aware of Martinez having any money or income to

pay any fees or of him having any bank accounts, stocks, or bonds.

        The trial court then asked of Franco:



        4 Originally, the court assessed court costs of $250. It is unclear from the record what caused this

discrepancy.
        5   Martinez’s supervision officer testified that the $30 payment was made to the supervision
department on June 12, 2012, but she did not provide a date for when the $200 payment was made to the
district clerk.

                                                     5
[The Court]:        Has he been employed since 2012 even one time?

[Franco]:           Yes, he has, Your Honor.

[The Court]:        Would you please elocute as to when he was
                    employed, where he was employed and what he
                    reported he was receiving?

[Franco]:           Just looking at November 7th of 2012 he was
                    employed with Gulf Marine Fabricators. If I skip over
                    to February of 2013, he was unemployed.
                    Unemployed October 2013, August 1st 2016 he was
                    employed with Torres Trucking Company.

[The Court]:        What did he do and what did he make?

[Franco]:           Actually, when I saw him he hadn’t received a pay
                    check yet.

[The Court]:        Did he tell you what he was going to make?

[Franco]:           No, he did not.

[The Court]:        And then after August 2016 what do you have in your
                    chronos?

[Franco]:           I have a report September 2016 where he told me he
                    was employed Voice in Pine [sic], $1,300 a week.
                    September 30th, same location, $560 per week.
                    October 2016, INP North America, $1,200.

[The Court]:        Per week?

[Franco]:           Per month. November 9th, the same thing, it was $300
                    a week. Then November 30th he reported he was
                    unemployed. December 2016 he was unemployed,
                    January 2017 he was unemployed. 26th of January
                    2017 unemployed. In March he was unemployed and
                    then in April 25th 2017 Torres Trucking Company,
                    $250. In May 12th 2017 he was unemployed. In May
                    23rd 2017 he was unemployed but he was receiving
                    $250 every two weeks of unemployment benefits.
                    June 13th, 2017 he reports that he received $260 every
                    two weeks of unemployment. June 27th 2017 zero
                    income, does not report unemployment since then.

Martinez took the stand and testified he lacked the ability to make the payments.


                                      6
[Defense counsel]:       Why have you had the inability to pay?

[Martinez]:              Because probation—I have to see them twice a
                         month and then they won’t allow me to see them
                         after working hours.

[Defense counsel]:       I’m not talking about reporting, I’m talking about
                         financials; do you have the financial money to
                         pay?

[Martinez]:              No, sir.

[Defense counsel]:       Have you been steadily employed?

[Martinez]:              No.

[Defense counsel]:       So you’ve been unemployed for periods but you
                         have been employed?

[Martinez]:              Yes, sir.

[Defense counsel]:       And with the money that you were employed,
                         what were you doing with the money when you
                         were employed?

[Martinez]:              Just paying bills and paying my debts that I owe.

[Defense counsel]:       So you had obligations as well; is that correct?

[Martinez]:              Yes, sir.

[Defense counsel]:       So you had to pay utilities and rent?

[Martinez]:              Yes, sir.

[Defense counsel]:       First of all, do you have any savings or anything
                         like that?

[Martinez]:              No, sir.

The State then cross-examined Martinez:

[State]:                 How do you survive without money; what are
                         you doing?

[Martinez]:              My aunt, I just stay at home.

[State]:                 You just stay at home; do you have any
                         disabilities?
                                     7
[Martinez]:   No, sir, I mean [I] go apply and stuff.

[State]:      You don’t have any disabilities?

[Martinez]:   No, sir.

[State]:      When was the last time you looked for a job?

[Martinez]:   Actually, I got orientation today.

[State]:      When was the last time—before this when was
              the last time you looked for a job?

[Martinez]:   November whenever they let me go, probation,
              they didn’t want to see me after certain hours so
              they let me go from my job. That was the last
              time.

[State]:      If the Judge were to extend you, do you really
              have any desire to pay this money?

[Martinez]:   Yes, sir, why not? As long as probation works
              with me.

[State]:      Well, let’s put it this way; you’ve had jobs, right?
              And you didn’t pay?

[Martinez]:   Yeah, because I kept getting let go or laid off.

[State]:      But you never paid. You had an opportunity to
              pay but you didn’t, right?

[Martinez]:   Yes, sir.

[State]:      Why didn’t you pay?

[Martinez]:   Because probation, they don’t want to work with
              me and I had to report three times a month and
              what job is going to let you go and miss three
              days out of the month? So this has been going
              on and I keep telling my probation officer and
              then not only that, I don’t have my driver’s
              license so I can’t just drive anywhere. I have to
              get a cab or pay money out of my pocket and
              then I have told her to let me get my driver’s
              license by going to these drug classes and this

                          8
                                         DUI class that I had to do in order to get it back
                                         and she wouldn’t allow me to do it so that I could
                                         function right in society.

          The trial court found true the allegation that Martinez failed to pay the statutory

monthly fee for August, September, October, and November 2016 and April, May, and

June 2017—the months when Martinez was employed or received unemployment. The

court reasoned: “Without other evidence from the community supervision or from the

defendant specifying the days he may or may not have been employed, the other

allegations I cannot make a true finding as to paragraph number one.” The trial court also

found true the allegations that Martinez failed to pay: the crime stoppers fee and the UA

fee for the same months (August, September, October, and November 2016 and April,

May, and June 2017); the psychological evaluation fee for February 2016; and the room

and board fees for July 2016. The trial court stated “I find [the psychological evaluation

fee and the room and board fees allegations] to be true as [Martinez] has been employed

and has had earnings since February of 2016 on various dates[,] so I find true as to that.”

The trial court did not make a finding as to the State’s allegation for failure to pay court

costs.6

          The trial court revoked Martinez’s community supervision and sentenced him to

three years in the Institutional Division of the Texas Department of Criminal Justice. This

appeal followed.




          6The court also stated that any previous findings of true of Martinez’s failure to pay fees for any
months alleged in previous motions “carried over” and continued to be true. However, the trial court could
only revoke Martinez’s supervision for violations alleged in the underlying amended motion to revoke and
not for violations that had been previously alleged by the State in other motions. See Tapia v. State, 462
S.W.3d 29, 39–40 (Tex. Crim. App. 2015); Rogers v. State, 640 S.W.2d 248, 251 (Tex. Crim. App. 1981)
(en banc). Accordingly, we will only consider the violations found true by the trial court which were alleged
in the State’s amended motion to revoke.

                                                     9
                              II.   SUFFICIENCY OF THE EVIDENCE

       By his second issue, which we address first, Martinez argues there was insufficient

evidence to show he had the ability to pay the fees.

A.     Standard of Review

       We review a trial court’s order revoking community supervision for an abuse of

discretion. Carreon v. State, 548 S.W.3d 71, 77 (Tex. App.—Corpus Christi 2018, no

pet.) (citing Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)).                 In a

revocation proceeding, the State must prove by a preponderance of the evidence that the

defendant violated a condition of community supervision as alleged in the motion to

revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993) (en banc); see

Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). The preponderance

of the evidence standard is met when the greater weight of the credible evidence before

the trial court supports a reasonable belief that a condition of community supervision has

been violated. Rickels, 202 S.W.3d at 763–64; Scamardo v. State, 517 S.W.2d 293, 298

(Tex. Crim. App. 1974). The trial court abuses its discretion in revoking community

supervision if, as to every ground alleged, the State fails to meet its burden of proof.

Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984) (en banc).

       In making this determination, we examine the evidence in the light most favorable

to the trial court’s findings to determine whether it could make the findings that were

returned. See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality

op.) (detailing the legal sufficiency standard for reviewing a jury’s verdict); Garrett v. State,

619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); see also Jackson v. Virginia,

443 U.S. 307, 319 (1979). The trial judge is the trier of fact and the arbiter of the credibility



                                               10
of the testimony during a hearing on a motion to revoke supervision. See Montgomery v.

State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012); Diaz v. State, 516 S.W.2d 154, 156

(Tex. Crim. App. 1974). When we are faced with a record supporting contradicting

inferences, we must presume that the factfinder resolved any such conflict in favor of its

findings, even if it is not explicitly stated in the record. See Montgomery, 369 S.W.3d at

192.

B.     Applicable Law

       “Over the last twenty [plus] years, three sources of legal authority—the federal

Constitution as interpreted by the Supreme Court precedent; Texas statutes; and Texas

common law—have addressed the permissibility of revocation or incarceration when a

defendant is unable to pay amounts due under community supervision.” Gipson v. State,

383 S.W.3d 152, 156 (Tex. Crim. App. 2012) (“Gipson I”).

       Federal constitutional law “sets forth a mandatory judicial directive that requires

the trial court to (1) inquire as to a defendant’s ability to pay and (2) consider alternatives

to imprisonment if it finds that a defendant is unable to pay.” Id. (citing Bearden v.

Georgia, 461 U.S. 660, 672 (1983)). “[I]f the probationer has made all reasonable bona

fide efforts to pay . . . and yet cannot do so through no fault of his own, it is fundamentally

unfair to revoke community supervision automatically without considering whether

adequate alternative methods of punishing the probationer are available to meet the

State’s interest in punishment and deterrence.” Bearden, 461 U.S. 660–61; Gipson I, 383

S.W.3d at 156–57 (noting that “Bearden does not categorically prohibit incarceration of

indigent defendants”). This is because revocation of community supervision for failure to

pay when a defendant is unable to pay denies due process of law. Bearden, 461 U.S. at



                                              11
665; Stanfield v. State, 718 S.W.2d 734, 735 n.2 (Tex. Crim. App. 1986) (en banc) (op.

on reh’g); Greathouse v. State, 33 S.W.3d 455, 459 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref’d).

       Texas, on the other hand, has an “ability-to-pay statute,” which governs the burden

of proof in the revocation of community supervision when the only violations alleged are

for failure to pay court costs, community supervision fees, or attorney fees.7 See TEX.

CODE CRIM. PROC. ANN. art. 42A.751(i) (West, Westlaw through 2017 1st C.S.); Gipson I,

383 S.W.3d at 157–58; see also Rusk v. State, 440 S.W.3d 694, 705 (Tex. App.—

Texarkana 2013, no pet.) (noting that revocation is not the only option available to the

trial court upon a finding that a condition of supervision has been violated and that only a

willful failure to pay fees can support a revocation). Between 1977 and 2007, the statute

provided for an affirmative defense, with the burden of proof to be carried by the

defendant, not the State. Gipson I, 383 S.W.3d at 158 (citing former TEX. CODE CRIM.

PROC. ANN. art. 42.12 § 8(c), Act of May 28, 1977, 65th Leg., R.S., ch. 342 (S.B. 23) §§ 1,

2, effective Aug. 29, 1977). In 2007, however, the legislature amended the statute to

place the burden of proof on the State to prove, by a preponderance of the evidence, that

a defendant had the ability to pay and did not pay any of court costs, community




       7   The ability-to-pay statute states:

       In a community supervision 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. ANN. art. 42A.751(i) (West, Westlaw through 2017 1st C.S.) (emphasis added).


                                                   12
supervision fees, or attorney fees.8 See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i);

Rusk, 440 S.W.3d at 702; Thomas v. State, 379 S.W.3d 436, 441 (Tex. App.—Amarillo

[Panel Op.] 2012, no pet.).

        Finally, before the codification of the ability-to-pay affirmative defense in 1977,

Texas common law required the State, when revoking a defendant’s supervision for a

failure to pay, to prove that the defendant had the ability to pay and intentionally did not

pay. Gipson I, 383 S.W.3d at 158; see, e.g., Herrington v. State, 534 S.W.2d 331, 334–

35 (Tex. Crim. App. 1976); Denton v. State, 511 S.W.2d 311, 312–13 (Tex. Crim. App.

1974); Szczeck v. State, 490 S.W.2d 576, 577 (Tex. Crim. App. 1973); McKnight v. State,

409 S.W.2d 858, 859–60 (Tex. Crim. App. 1966). The continued viability of the Texas

common law, though, remains unclear, as it may have been superseded by the 1977

codification of the ability-to-pay statute. See Gipson v. State, 428 S.W.3d 107, 117 (Tex.

Crim. App. 2014) (Johnson, J., concurring) (“Gipson II”); Gipson I, 383 S.W.3d at 158–

59. In Gipson I, Gipson’s community supervision was revoked for his failure to pay “fees,”

which included “a court-ordered fine; court costs; and fees for supervision, pre-sentence

investigation, and Crime Stoppers.” 383 S.W.3d at 153. The Texas Court of Criminal

Appeals remanded the case and instructed the Beaumont court to consider whether the

Texas ability-to-pay statute covered fines, and, if not, whether the common law applied

to the alleged violation for failure to pay fines. Id. at 158. On remand, the Beaumont


        8  Prior to 2007, the ability-to-pay affirmative defense as articulated in the statute also applied to
restitution and fines, but those references were deleted with the 2007 changes. See Lively v. State, 338
S.W.3d 140, 143–44 (Tex. App.—Texarkana 2011, no pet.). Currently, the code of criminal procedure
provides for six factors a court must consider when revoking a defendant’s supervision for failure to pay
restitution. See TEX. CODE CRIM. PRO. ANN. art. 42.037(h) (West, Westlaw through 2017 1st C.S.); see,
e.g., Carreon v. State, 548 S.W.3d 71, 77 (Tex. App.—Corpus Christi 2018, no pet.). However, there is no
analogous statutory provision applicable to the revocation of community supervision for failure to pay a fine.
See Gipson v. State, 428 S.W.3d 107, 108–09 (Tex. Crim. App. 2014) (“Gipson II”); Gipson v. State, 383
S.W.3d 152, 158–59 (Tex. Crim. App. 2012) (“Gipson I”).

                                                     13
court did not address whether the common law applied, and we have found no other

decision addressing whether the Texas common law applies to monetary obligations not

covered by the current Texas statutes, such as court-imposed fines. See Gipson v. State,

395 S.W.3d 910, 914–15 (Tex. App.—Beaumont 2013), rev’d, 428 S.W.3d 107, 108–09

(Tex. Crim. App. 2014).

       Between 1977 and 2007, some decisions by the court of criminal appeals

interpreted the codification as disposing of the common-law requirement that the State

prove that a defendant’s failure to pay was intentional or willful. Gipson I, 383 S.W.3d at

158 (citing Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. [Panel Op.] 1979)

(explaining that 1977 amendment made inability to pay an affirmative defense and holding

that, because “there was a complete failure to prove the affirmative defense of inability to

pay by a preponderance of the evidence[, it] was not an abuse of discretion to revoke

appellant’s probation”); Hill v. State, 719 S.W.2d 199, 201–02 (Tex. Crim. App. 1986) (en

banc)). At least one major and notable decision since, however, concluded that the 1977

codification did not dispose of that common-law requirement. See id. (citing Stanfield,

718 S.W.2d at 737–38 (concluding that, although the legislature had made inability to pay

an affirmative defense, “the State still has the burden of proving an alleged failure to pay

fees, costs, and the like was intentional”)).

C.     Analysis

       1.     No Federal Constitutional argument presented

       The court of criminal appeals concluded that Bearden does not place an

evidentiary burden on the State.      Id. at 156–57 (citing Bearden, 461 U.S. 668–69).

Instead, Bearden imposes a judicial directive on the trial judge to “(1) inquire as to a



                                                14
defendant’s ability to pay and (2) consider alternatives to imprisonment if it finds that a

defendant is unable to pay.” Id. at 156.

        Here, Martinez argues that the State presented insufficient evidence to show he

had the ability to pay. Martinez, therefore, raises an evidentiary challenge only, and he

does not present any argument citing to or based on Bearden and its mandatory judicial

directive. Accordingly, we will not address Bearden and any application it may or may

not have on the present case.9             See Gipson II, 428 S.W.3d at 110–11 (Alcala, J.,

concurring) (concluding that appellant’s “sufficiency-of-the-evidence challenge under the

ability-to-pay statute may be addressed on appeal, but his complaint under the federal

Constitution may not” because it had been forfeited); see also TEX. R. APP. P. 33, 47.1.

        2.      The unpaid fees are covered by the ability-to-pay statute

        Both parties argue on appeal that all the unpaid fees are covered by article

42A.751(i) of the Texas Code of Criminal Procedure—the ability-to-pay statute.10 See

TEX. CODE CRIM. PROC. ANN. art. 42A.751(i). In the amended motion to revoke, the

violations alleged by the State only involved Martinez’s failure to pay fees, and all the fees

were included and imposed in the conditions of his supervision. In addition to the statutory




         9 When community supervision is revoked for a failure to pay supervision fees, the outcome of a

defendant’s appeal “could be entirely different depending on whether the case is analyzed under the Texas
statute or the federal Constitution.” Gipson II, 428 S.W.3d at 111 (Alcala and Cochran, JJ., concurring).
        10 Effective January 1, 2017, the legislature repealed article 42.12 of the Texas Code of Criminal
Procedure and enacted Chapter 42A, as part of a non-substantive revision of community supervision laws.
See Act of May 26, 2015, 84th Leg., R.S. ch. 770 §§ 1.01, 3.01, 4.01–.02 (codified at chapter 42A of the
Texas Code of Criminal Procedure); Lombardo v. State, 524 S.W.3d 808, 812 (Tex. App.—Houston [14th
Dist.] 2017, no pet.). The ability-to-pay statute, previously found in section 21(c) of article 42.12, is now
codified in article 42A.751(i). See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i); Gipson II, 428 S.W.3d at
108.


                                                    15
monthly fee, Martinez was found to have intentionally not paid: a crime stoppers fee,

room and board fees for his stay at CBRISF, UA fees, and a psychological evaluation fee.

       In Gipson II, the court of criminal appeals concluded that fines were not covered

by the ability-to-pay statute, despite the language in the statute that stated it applied to a

defendant’s failure to pay “appointed counsel [fees], community supervision fees, or court

costs.” 428 S.W.3d at 109. The court’s reasoning for this conclusion was two-fold: (1)

the statute makes no mention of fines, and the legislature could have easily included it;

and (2) “fees and [court] costs serve a remedial function by compensating the State for

various costs associated with the criminal justice system.” Id. In other words, fines, unlike

court costs or supervision fees, are imposed as a form of punishment, like incarceration,

and are not remedial in nature. Id.; see Armstrong v. State, 340 S.W.3d 759, 767 (Tex.

Crim. App. 2011) (distinguishing fines from court costs and noting that “[f]ines are

punitive, and they are intended to be part of the convicted defendant’s sentence”); Weir

v. State, 278 S.W.3d 364, 366–67 (Tex. Crim. App. 2009) (same). The court concluded

“[i]t was not absurd for the legislature to distinguish between punitive and remedial

monetary sanctions for the purpose of determining whether the State has the burden to

show the defendant’s ability to pay.” Gipson II, 428 S.W.3d at 109.

       The court of criminal appeals, however, left open the question of whether the

ability-to-pay statute applies to fees like some of those before us. See id. at 112 n.1

(Johnson, J., concurring); Gipson I, 383 S.W.3d at 158–159 & n.3 (“The question remains

whether the statute includes only those payments specifically enumerated or whether it

applies to a fine and fees for Crime Stoppers and pre-sentence investigation.”). Thus,

the first question we must answer is whether the board and room fees, the psychological



                                             16
evaluation fee, the UA fees, and the crime stoppers fee are “community supervision fees”

as stated in the ability-to-pay statute. See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i).

      Statutory construction is a question of law. Ramos v. State, 303 S.W.3d 302, 307

(Tex. Crim. App. 2009) (citing Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App.

2008)). “We construe a statute in accordance with its literal text unless the language of

the statute is ambiguous or the plain meaning of the language leads to absurd results that

the legislature could not have intended.” Gipson II, 428 S.W.3d at 108 (citing to Boykin

v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (en banc)); see Faulk v. State, 608

S.W.2d 625, 630 (Tex. Crim. App. 1980) (en banc).

      Article 42A.652 of the Texas Code of Criminal Procedure provides for a “monthly

fee” a judge must impose on a defendant when placing him on community supervision.

TEX. CODE CRIM. PRO. ANN. art. 42A.652.         This article is titled “monthly fee,” not

“community supervision fee.” Id. Likewise, the body of article 42A.652 does not explicitly

reference this fee as a “community supervision fee,” but rather as a “monthly fee.” Id.

      Looking at the literal and plain language of the ability-to-pay statute, we conclude

that “community supervision fees” means the monthly fee required by statute and other

fees imposed through the conditions of community supervision as part of a defendant’s

supervision. See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i); Gipson II, 428 S.W.3d at

112 n.1 (Johnson, J. concurring); Gipson I, 383 S.W.3d at 158–159 & n.3. Here, all the

fees in question assessed against Martinez serve a “remedial function by compensating

the State for various costs associated with the criminal justice system,” as do the other

items covered by the ability-to-pay statute: court costs and attorney’s fees. Gipson II,

428 S.W.3d at 109; see TEX. CODE CRIM. PROC. ANN. art. 42A.751(i); Weir, 278 S.W.3d at



                                           17
366 (stating that court costs are intended as “nonpunitive recoupment of the costs of

judicial resources expended in connection with the trial of the case”); see also Armstrong,

340 S.W.3d at 767. The fees that Martinez failed to pay were also all imposed in the

conditions of his supervision.

       Moreover, if we were to read the language in the ability-to-pay statute to cover only

the monthly fee imposed on a defendant who is placed on community supervision, it would

lead to an absurd result, as there is no apparent reason for the legislature to prescribe

differing burdens of proof for violations of similar remedial monetary sanctions, each of

which compensate the State for its expenses. Cf. Gipson II, 428 S.W.3d at 109. This is

a logical conclusion supported by the court of criminal appeals’ differentiation of fines from

community supervision fees, court costs, and the costs of legal services, as stated in

Gipson II. Id. at 108–09 (noting that “fines are different from fees and costs because fines

are imposed as punishment, like incarceration”); see also TEX. CODE CRIM. PROC. ANN.

art. 42A.001(1) (West, Westlaw through 2017 1st C.S.) (defining “community supervision”

and noting it suspends a defendant’s imprisonment and fine); id. art. 42A.751(i); Gipson

II, 428 S.W.3d at 110 (Alcala and Cochran, JJ., concurring) (“As also noted by the

majority, because fines are punitive, they are characteristically different from the types of

expenses listed in the ability-to-pay statute that are directed at recouping the expenses

of the trial court in the prosecution of a defendant.”); Gipson I, 383 S.W.3d at 153.

       Furthermore, the legislature’s use of “community supervision fees” in the ability-to-

pay statute, instead of “monthly fee,” supports the conclusion that the statute is meant to

cover more than just the monthly fee a defendant is required to pay while on supervision.

This conclusion is also supported by the definition of “community supervision” in the code



                                             18
of criminal procedure, which states community supervision is “a continuum of programs

and sanctions, with conditions imposed by the court . . . .” See TEX. CODE CRIM. PROC.

ANN. art. 42A.001. Therefore, we conclude that the “community supervision fees” in the

ability-to-pay statute applies to any and all fees imposed on a defendant, as conditions of

community supervision, which serve a remedial purpose of compensating the State for

costs associated with the defendant’s prosecution and community supervision.

Accordingly, we conclude that all the fees Martinez failed to pay are covered by the ability-

to-pay statute.

       3.      The State failed to carry its evidentiary burden

       Having concluded that all the fees are covered by the ability-to-pay statute, we

now review the sufficiency of the evidence underlying the revocation of Martinez’s

supervision.      As mentioned above, the State had the burden of proving by a

preponderance of the evidence that Martinez had the ability to pay and did not pay. The

trial court found true the allegations for failure to pay the monthly statutory fee, the crime

stoppers fee, and the UA fee, but only for the months for which there was evidence that

Martinez had a source of income: August, September, October, and November of 2016

and April, May, and June of 2017. Franco testified appellant had an income of $1,200

per month during September, October, and November of 2016 and $500 per month during

April, May, and June of 2017. The court stated that it also found true the alleged non-

payment of the psychological fee from February 2016, and of the CBRISF room and board

fees from July 2016, because appellant had earned income since those fees had been

incurred—i.e., during the months testified to by Franco. It is undisputed that Martinez did

not make payments for those months.



                                             19
       To consider a defendant’s ability to pay, a trial court may consider evidence of the

likely range of income, as well as likely living expenses or other liabilities, such as child

support orders. See Mathis v. State, 424 S.W.3d 89, 95 (Tex. Crim. App. 2014); Denton,

511 S.W.2d at 312–13; Pool v. State, 471 S.W.2d 863, 864 (Tex. Crim. App. 1971); see

also Thomas v. State, No. 07-14-00334-CR, 2016 WL 1072492, at *5 (Tex. App.—

Amarillo Mar. 16, 2016, no pet.) (mem. op., not designated for publication) (“Generally

speaking, cases concerning [a defendant’s ability to pay] turn on whether the State proved

a defendant’s ability to pay in terms of his income and expenses.”). When evidence that

the probationer is unable to pay is not refuted by the State, and the trial court revokes

community supervision, it is an abuse of discretion. See Denton, 511 S.W.2d at 312–13;

Matthews v. State, 478 S.W.2d 943, 944 (Tex. Crim. App. 1972); McKnight, 409 S.W.2d

at 859–60; Pool, 471 S.W.2d at 864. Proof of merely the failure to pay court costs or

supervision fees is not sufficient; the State must show that the defendant could have paid

and that his failure to do so was willful. See Szczeck v. State, 490 S.W.2d 576, 577 (Tex.

Crim. App. 1973); Matthews, 478 S.W.2d at 944; Pool, 471 S.W.2d at 864.

       In the case at hand, the State provided evidence, through Franco’s testimony, that

Martinez had a source of income for two periods between 2012 and August of 2017.

Franco, however, did not testify that Martinez had the ability to make payments during the

months for which the trial court found the allegations to be true; she only testified Martinez

had a source of income. Martinez testified that he was unable to pay the fees, despite

wanting to do so, because he had other bills and debts, including rent and utilities. The

burden was on the State to prove Martinez could make payments, yet the State did not

refute in any way Martinez’s claim that his expenses kept him from being able to pay his



                                             20
supervision fees. The State did not seek clarification or question Martinez about any of

his monthly expenses, obligations, or possible dependents. See Mathis, 424 S.W.3d at

95. In other words, a source of income is just one component of a defendant’s ability to

pay, and the State did not show how Martinez had the ability to pay based on the income

he received.

       Finally, we note that the State asked Martinez: “You had an opportunity to pay but

you didn’t, right?”, and Martinez answered “Yes.” However, an opportunity to pay is not

the same as the ability to pay; Martinez had the opportunity to pay because he had a

source of income, but he may not have had the ability to pay during that period when he

had the opportunity to do so because of bills and other expenses. This is especially true

in a case, such as this one, where the evidence at the hearing established that Martinez

had no bank accounts and had been unemployed for long periods of time before and after

the short periods of time when he had a source of income. Martinez’s testimony alluded

at this. The State asked Martinez: “Well, let’s put it this way; you’ve had jobs, right? And

you didn’t pay?”, and Martinez answered “Yeah, because I kept getting let go or laid off.”

       Viewing the evidence in the light most favorable to the trial court’s ruling, see

Brooks, 323 S.W.3d at 899, we cannot conclude that evidence of a source of income,

without more, equates to an ability to pay. See Mathis, 424 S.W.3d at 95; Denton, 511

S.W.2d at 312–13; Matthews, 478 S.W.2d at 944; Pool, 471 S.W.2d at 864; cf. Lombardo

v. State, 524 S.W.3d 808, 813–15 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

(affirming revocation of supervision for failure to pay restitution and noting that the trial

court correctly concluded defendant had the ability to pay due to serious discrepancies

between defendant’s contentions and the evidence); Greathouse, 33 S.W.3d at 459



                                             21
(noting that testimony indicated what appellant’s living expenses were and concluding

that the State rebutted the affirmative defense of inability to pay by showing that appellant

had disposable income after subtracting rent, utilities, health insurance, and other

necessary bills). Therefore, the trial court could not have found that Martinez had the

ability to pay for any of the months alleged in the State’s motion to revoke. Accordingly,

we conclude that the trial court abused its discretion when it revoked Martinez’s

community supervision.

        We sustain Martinez’s second issue.11

                                          III.    CONCLUSION

        We reverse the trial court’s judgment and remand the case to the trial court for

further proceedings consistent with this opinion.

                                                                          DORI CONTRERAS
                                                                          Justice

Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of November, 2018.




         Because we find Martinez’s second issue dispositive, we need not reach his first and third issues.
        11

See TEX. R. APP. P. 47.1.

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