                                       IN THE
                               TENTH COURT OF APPEALS

                                       No. 10-09-00114-CR

MATTHEW C. SHERWOOD,
                                                                       Appellant
    v.

THE STATE OF TEXAS,
                                                                       Appellee



                              From the 220th District Court
                                  Bosque County, Texas
                            Trial Court No. 06-08-14013-BCCR


                               MEMORANDUM OPINION


         Matthew Charles Sherwood pleaded guilty to aggravated robbery and was

placed on community supervision.               The State later moved to revoke, alleging six

violations of community supervision.                Sherwood pleaded “true” to the State’s

allegations.1 The trial court revoked Sherwood’s community supervision and sentenced

him to twenty years in prison. On appeal, Sherwood contends that the trial court erred

by revoking his community supervision because: (1) the State failed to show that he

1
         Sherwood pleaded “not true” to one of the allegations, which the State waived.
willfully failed to pay fines and costs; (2) the community supervision order was not

specific enough; (3) the trial court erroneously relied on the assumption that guilt must

be adjudicated; and (4) his sentence is cruel and unusual. We affirm.

                        PAYMENT OF FINES, FEES, AND COSTS

       In point one, Sherwood contends that the trial court erred by revoking his

community supervision for failure to pay court-ordered fines, fees, and costs because

the State failed to establish that he willfully failed to pay.

       Article 42.12 § 21(c) of the Code of Criminal procedure addresses a defendant’s

inability to pay. The former version of this statute provided:

       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 compensation paid to appointed counsel, community
       supervision fees, court costs, restitution, or reparations, the inability of the
       defendant to pay as ordered by the judge is an affirmative defense to
       revocation, which the defendant must prove by a preponderance of
       evidence.

See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3740

(amended 2007) (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c)

(Vernon Supp. 2009)). The current version of the statute provides:

       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 compensation paid to appointed counsel, community
       supervision fees, or court costs, 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. 42.12, § 21(c). Thus, inability to pay is no longer an

affirmative defense and the statute no longer applies to restitution or reparations. See




Sherwood v. State                                                                         Page 2
id.; see also Sierra v. State, No. 03-08-00664-CR, 2009 Tex. App. LEXIS 7172, at *8-9 (Tex.

App.—Austin Aug. 26, 2009, no pet.) (not designated for publication).               Because

Sherwood’s revocation hearing was held after the effective date of the amendment, we

will apply the current version of the statute. See Act of May 17, 2007, 80th Leg., R.S., ch.

604, § 2, 2007 Tex. Gen. Laws 1162; see also Sierra, 2009 Tex. App. LEXIS 7172, at *8.

       Under the current statute, the State must prove that the defendant had the ability

to pay and did not pay the court-ordered appointed counsel fees, community

supervision fees, and/or court costs. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c);

see also Sierra, 2009 Tex. App. LEXIS 7172, at *8; Hood v. State, No. 12-08-00366-CR, 2009

Tex. App. LEXIS 9695, at *4-5 (Tex. App.—Tyler Dec. 23, 2009, no pet.) (not designated

for publication). With regard to court-ordered restitution and fines, the State need only

show that the defendant did not pay. See Sierra, 2009 Tex. App. LEXIS 7172, at *8-9; see

also Hood, 2009 Tex. App. LEXIS 9695, at *4 (“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.”).

       The State alleged violations for failure to pay court costs, supervision fees, the

assessed fine, and court appointed attorney’s fees. Sherwood testified that he did not

willingly or intentionally fail to pay, but was unable to pay. His inability to pay,

however, is irrelevant to the failure to pay the court-ordered fine. See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 21(c); see also Sierra, 2009 Tex. App. LEXIS 7172, at *9. The State

proved, through Sherwood’s testimony admitting his failure to make any of the


Sherwood v. State                                                                        Page 3
required payments, that he did not pay this fine. Under the current version of section

21(c), this is all the State needed to prove. See Sierra, 2009 Tex. App. LEXIS 7172, at *8-9;

see also Hood, 2009 Tex. App. LEXIS 9695, at *4.                  Accordingly, Sherwood cannot

“successfully challenge each finding on which the revocation is based.” Harris v. State,

160 S.W.3d 621, 626 (Tex. App.—Waco 2005, pet. dism’d); see Leach v. State, 170 S.W.3d

669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d). We need not address his argument

regarding the State’s remaining allegations. See Sierra, 2009 Tex. App. LEXIS 7172, at *9.

We overrule point of error one.

                 SPECIFICITY OF COMMUNITY SUPERVISION ORDER

        In point two, Sherwood contends that the aftercare condition in the community

supervision order was not specific enough to be enforceable and was an improper

delegation of authority.2 The State argues that Sherwood failed to preserve this issue

for appellate review. We agree.

        “[B]y failing to object to the terms and conditions of probation at trial, a

defendant affirmatively waives any complaints he may have had.” Rickels v. State, 108

S.W.3d 900, 902 (Tex. Crim. App. 2003). The record does not show that Sherwood


2
        Condition twenty in the community supervision ordered states in pertinent part:

        [Y]ou shall serve a term of confinement and treatment in a Substance Abuse Felony
        Punishment Facility for not less than ninety days or more than twelve months. You shall
        comply with all rules and regulations of the facility, attend and successfully complete
        any treatment program, and remain in such facility until discharged by the Court. On
        release from the facility you shall fully and conscientiously participate in a drug or
        alcohol continuum of care treatment plan as developed by the Texas Commission on
        Alcohol and Drug Abuse.

The State alleged that Sherwood was “unsuccessfully discharged from aftercare for failure to attend.”



Sherwood v. State                                                                                 Page 4
objected to the complained-of condition in the community supervision order or that he

was not given a meaningful opportunity to do so. Point of error two is not preserved

for appellate review. See id.; see also Burton v. State, No. 10-03-00170-CR, 2004 Tex. App.

LEXIS 9080, at *1 (Tex. App.—Waco Oct. 13, 2004, no pet.) (not designated for

publication); Holt v. State, No. 13-08-00040-CR, 2008 Tex. App. LEXIS 7127, at *6-8 (Tex.

App.—Corpus Christi, Sept. 25, 2008, no pet.) (not designated for publication).

                               ADJUDICATION OF GUILT

       In point three, Sherwood contends that the trial court erroneously adjudicated

guilt by relying on his pleas of “true” to the State’s allegations. He cites Stevens v. State,

900 S.W.2d 348 (Tex. App.—Texarkana 1995, pet. ref’d) to support this position.

       In Stevens, the Texarkana Court reversed and remanded for imposition of an

appropriate sentence because “the court’s ruling reflects the court’s lack of

understanding of its ability to consider mitigating evidence and its power to then

impose sentence on Stevens for either the original or a shorter term at the revocation

hearing.”    Stevens, 900 S.W.2d at 350.      Stevens had been sentenced to ten years

community supervision and, after adjudicating guilt, the trial court stated, “I’m merely

revoking his probation” and sentenced Stevens to ten years in prison. Id. at 349-50.

       In this case, the trial court stated: “Based on your true plea to items two through

six the Court will find those are true and enter a finding that you are guilty of the

offense of aggravated robbery.” Sherwood contends that the case should be remanded

if the trial court believed it had no authority to continue deferred adjudication and

could only adjudicate guilt.


Sherwood v. State                                                                       Page 5
       We cannot say that the trial court believed it could only adjudicate guilt. At the

hearing, defense counsel questioned Sherwood about his ability to comply if

community supervision was reinstated. The defense argued that Sherwood should

receive the opportunity to comply with the terms of community supervision. Once

Sherwood pleaded “true” to the State’s allegations, the trial court was not required to

adjudicate guilt and revoke community supervision, but it was certainly authorized to

do so. See Leach, 170 S.W.3d at 672; see also Espinoza v. State, No. 02-08-00402-CR, 2009

Tex. App. LEXIS 5164, at *3-4 (Tex. App.—Fort Worth July 2, 2009, no pet.) (not

designated for publication) (“[W]hile the trial court was not required to adjudicate

Appellant, it certainly had the discretion to do so;” “once Appellant pleaded ‘true’ to

one of the alleged violations, the trial court had the discretion to revoke his community

supervision, proceed to adjudication, and sentence Appellant to a term of

confinement.”). We overrule point of error three.

                              DISPROPORTIONATE SENTENCE

       In point four, Sherwood argues that his sentence is cruel and unusual because it

is disproportionate to the underlying offense and violations of community supervision.

Sherwood did not present this issue at trial; thus, it is not preserved for appellate

review.3 See Steadman v. State, 160 S.W.3d 582, 586 (Tex. App.—Waco 2005, pet. ref’d);

see also Thompson v. State, 243 S.W.3d 774, 776 (Tex. App.—Fort Worth 2007, pet. ref’d).

       We affirm the trial court’s judgment.

3       We also note that Sherwood’s punishment is within the applicable punishment range. See TEX.
PEN. CODE ANN. § 29.03 (Vernon 2003); see also TEX. PEN. CODE ANN. § 12.32 (Vernon Supp. 2009); Ex parte
Reposa, No. AP-75,965, 2009 Tex. Crim. App. Unpub. LEXIS 725, at *41-43 (Tex. Crim. App. Oct. 28, 2009);
Gaines v. State, 479 S.W.2d 678, 679 (Tex. Crim. App. 1972).


Sherwood v. State                                                                                Page 6
                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed April 21, 2010
Do not publish
[CRPM]

*      (Chief Justice Gray concurs with the Court’s judgment to the extent it affirms the
trial court’s judgment. A separate opinion will not issue. He notes, however, the
discussion in regard to issue one is unnecessary to a disposition of this appeal and as
such is dicta and thus he does not join the Court’s opinion.)




Sherwood v. State                                                                  Page 7
