







 
 IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1470-11


RAIMOND KEVON GIPSON, Appellant

v.


THE STATE OF TEXAS

 



ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS

JEFFERSON  COUNTY



 Alcala, J., delivered the opinion of a unanimous Court.

O P I N I O N


 Does a plea of true to failure to pay "fees" as required under conditions of community
supervision waive or forfeit a claim that the defendant was unable to make those payments? 
Arguing that the answer is "yes," the State's petition for discretionary review challenges the
court of appeals's judgment in favor of appellant, Raimond Kevon Gipson. See Gipson v.
State, 347 S.W.3d 893, 897 (Tex. App.Beaumont 2011).  Appellant pled true to the failure-to-pay allegation without raising any argument or evidence that he was unable to pay and,
on appeal, makes that argument for the first time.  Without addressing whether his argument
was preserved, the court of appeals determined that there was no evidence that appellant had
willfully refused to make the community-supervision payments and held that the trial court
abused its discretion by revoking his community supervision. The State argues, however, that
a court of appeals may not reverse on the merits of a claim without first determining that it
has been preserved for appeal.  We agree.  Because the court of appeals found the evidence
insufficient to support revocation without addressing the State's procedural argument, we
remand the case to that court.
I.  Background
 A.  Revocation Hearing
	The trial court revoked appellant's community supervision on the basis of appellant's
plea of true to the failure-to-pay allegation alone. The State's motion to revoke proceeded
on the sole allegation that appellant had "failed to pay court assessed fees as directed by the
Court," to which he pled true.  Those "fees" included a court-ordered fine; court costs; and
fees for supervision, pre-sentence investigation, and Crime Stoppers.  He signed a stipulation
of evidence acknowledging that he had violated the terms and conditions of his community
supervision by failing to make these payments. Neither the motion to revoke nor the
stipulation of evidence mentioned appellant's financial ability to pay the amounts due. 
Similarly, during the hearing on the motion to revoke, the parties stood mute regarding
appellant's financial ability to pay the amounts due.  Finding the failure-to-pay allegation
true, the trial court revoked appellant's community supervision and sentenced him to eight
years' imprisonment for his underlying conviction of felony assault.   B.   The Court of Appeals
	On direct appeal, appellant raised two issues.  In his first issue, he urged that the trial
court erred in revoking his community supervision because, when a trial court revokes a
defendant's community supervision solely for failure to make required payments, Texas Code
of Criminal Procedure art. 42.12 § 21(c) requires that the State have proven that a defendant
was able to pay and did not, and no evidence showed that appellant was able to pay the
amounts due. (1) See Tex. Code Crim. Proc. art. 42.12 § 21(c).  We refer to this provision as
the "ability-to-pay statute." See id.  He asserted that this statute applies to all of the unpaid
amounts, including those not specifically listed in it. See id. He also challenged the State's
contention that his plea of true satisfied the State's burden of proof.  He argued that, although
he pled true to the allegation, the State's motion to revoke did not allege that he was able to
pay, and, therefore, his plea of true does not constitute evidence that he was able to pay. 
 	In his second issue, he argued that the trial court "committed constitutional error" in
failing to inquire as to appellant's reasons for not having paid.  In support, he cited Bearden
v. Georgia, which held that, "in a revocation proceeding for failure to pay a fine," the
Fourteenth Amendment requires that "a sentencing court must inquire into the reasons for
the failure to pay." 461 U.S. 660, 672 (1983). 
	Addressing appellant's issues together, the State responded that a defendant's plea of
true precludes him from challenging the sufficiency of the evidence to support the trial
court's revocation order and that a plea of true, standing alone, supports revocation of
community supervision. The State explained that, "in the absence of some challenge by
Appellant at the time of the hearing," the State may rely on appellant's plea of true to support
any requirements under the ability-to-pay statute and Bearden. See id. at 672. 
	Sustaining appellant's first issue and not reaching his second, the court of appeals
reversed the trial court's judgment. Gipson, 347 S.W.3d at 897. Interpreting appellant's first
issue "as a challenge to the sufficiency of the evidence," the court of appeals acknowledged
that a plea of true is "generally sufficient to support" revocation. Id. at 896-97 (citing Cole
v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979). The court stated, however, that
"Bearden requires that to revoke community supervision and impose imprisonment, 'it must
be shown that the probationer willfully refused to pay or make sufficient bona fide efforts
to do so.'" Id. at 896 (quoting Lively v. State, 338 S.W.3d 140, 146 (Tex. App.--Texarkana
2011, no pet.)). The court observed that, because the motion to revoke alleged only failure
to make the required payments, appellant's plea of true to that allegation did not satisfy the
State's evidentiary burden under the ability-to-pay statute to prove that appellant was able
to pay. Id. at 897.  
	Although it acknowledged that the ability-to-pay statute explicitly includes only the
failure to pay fees for appointed counsel, community supervision, and court costs, the court
of appeals determined that the statute must be interpreted as also applying to failure to make
other payments due under community supervision in order to comply with Bearden's
constitutional requirements. Id. at 896-97. The court determined that it was obligated to
implement this due-process requirement because courts must presume that the Legislature
intended for statutes to comply with the constitutions of this State and the United States. Id. 
Based on its interpretation of the ability-to-pay statute, the court determined that the State
was required to prove a willful failure to pay, despite appellant's plea of true. Id. It concluded
that the record contained no evidence that appellant had willfully refused to pay and that the
trial court, therefore, had erred in revoking appellant's community supervision on that basis.
Id. at 897.
	The State filed a motion for rehearing, contending that the court of appeals had erred
by deciding the merits of appellant's sufficiency challenge without first addressing the
State's procedural argument. The State asserted that, because appellant had pled true to the
allegation that formed the basis of revocation, any potential error was not preserved for
appeal. Without opinion, the court of appeals denied the State's motion.
 C.  Parties' Arguments on Discretionary Review
 In its petition for discretionary review, the State reurges its direct-appeal arguments. (2)
The State contends that a defendant waives any evidence-insufficiency issue when he pleads
true to revocation allegations because no evidentiary hearing is required under those
circumstances or in the procedurally similar punishment-enhancement context. See Mitchell
v. State, 482 S.W.2d 221, 222-23 (Tex. Crim. App. 1972) (hearing not "mandatory" when
defendant pleads true to revocation allegations); Bryant v. State, 187 S.W.3d 397, 402 (Tex.
Crim. App. 2005) (stipulation to element of enhancement paragraph "barred" sufficiency
challenge). The State alternatively contends that, even if appellant did not waive the
sufficiency issue, his plea of true alone is sufficient evidence to support revocation. See
Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984) ("[A] plea of 'true' does
constitute evidence and sufficient proof to support the enhancement allegation."). 
	Appellant responds by also reurging his direct-appeal arguments.  He claims that the
State had the burden to prove that his failure to pay fees was willful despite his plea of true
and that, because the motion to revoke did not allege that he was able to pay the fees, his plea
of true does not constitute evidence of his ability to pay.
II.  Analysis
 A. Pleas of True Alone Have Generally Permitted Revocations of Community  
    Supervision 

	This Court has held that a defendant who states that he does not desire to contest a
motion to revoke may not complain, on appeal, of a trial court's failure to hear evidence on
the motion. See Mitchell, 482 S.W.2d at 222-23; Cole, 578 S.W.2d at128 ("[S]ufficiency of
the evidence could not be challenged in the face of a plea of true"). However, these holdings
pre-dated Marin v. State, in which we explained that certain requirements and prohibitions
are absolute and that certain rights must be implemented unless expressly waived. 851
S.W.2d 275, 279 (Tex. Crim. App. 1993). These holdings also pre-dated enactment of the
ability-to-pay statute. See Tex. Code Crim. Proc. art. 42.12 § 21(c). 
 In Menefee v. State, we were confronted with the similar issue of whether "the
appellant procedurally defaulted his [Texas Code of Criminal Procedure] Article 1.15
sufficiency claim because he made no complaint about" any evidentiary deficiency at trial. 
287 S.W.3d 9, 18 (Tex. Crim. App. 2009). "Because issues of error preservation are systemic
in first-tier review courts," we remanded the question to the court of appeals to decide the
question within the Marin framework. Id.; see also, e.g., Patterson v. State, 204 S.W.3d 852,
857 (Tex. App.Corpus Christi 2006, pet. ref'd) (deciding appellant's accomplice-witness-corroboration sufficiency challenge under Texas Code of Criminal Procedure art. 38.14 not
subject to default under Marin framework). 
 As in Menefee, we must remand the State's procedural arguments to the court of
appeals to determine whether, by pleading true to an allegation that he failed to pay and by
failing to assert his inability to pay, a defendant waives or forfeits a claim that he is unable
to pay. See Menefee, 287 S.W.3d at 18.  Although the court of appeals failed to address the
State's procedural arguments, it did analyze the ability-to-pay statute and federal
constitutional requirements in its sufficiency analysis. We, therefore, must evaluate that
analysis to the extent that it may impact this case on remand. 
	B.  Law Applicable to a Defendant's Failure to Pay Fees Due Under Community 
	     Supervision

	Over the last twenty years, three sources of legal authoritythe federal Constitution
as interpreted by 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.  Analysis of the State's procedural argument may
depend on which of these sources governs the substantive issue. Because we disagree with
portions of the court of appeals's substantive analysis, and because that analysis may impact
its procedural analysis on remand, we discuss the applicable substantive law.   
  	1. Federal-Constitutional Law
	Contrary to the court of appeals's conclusion, Bearden does not place an evidentiary
burden on the State. Rather, it sets forth a mandatory judicial directive that requires a 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. Bearden, 461 U.S. at 672. The
Court stated, 
[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing
court must inquire into the reasons for the failure to pay. If the probationer
willfully refused to pay or failed to make sufficient bona fide efforts legally to
acquire the resources to pay, the court may revoke probation and sentence the
defendant to imprisonment within the authorized range of its sentencing
authority. If the probationer could not pay despite sufficient bona fide efforts
to acquire the resources to do so, the court must consider alternative measures
of punishment other than imprisonment.  Only if alternative measures are not
adequate to meet the State's interests in punishment and deterrence may the
court imprison a probationer who has made sufficient bona fide efforts to pay. 
						
Id. (emphasis added). The Court held that, when a defendant "has made all reasonable efforts
to pay the fine or restitution, and yet cannot do so through no fault of his own, it is
fundamentally unfair to revoke probation automatically without considering whether
adequate alternative methods of punishing the defendant are available." Id. at 668-69.   
	The Supreme Court reasoned that it could be unconstitutional to deprive a defendant
of his liberty when he was unable to pay. Id. at 672-73.  Noting that "[d]ue process and equal
protection principles converge in the Court's analysis," it concluded that, "[b]y sentencing
petitioner to imprisonment simply because he could not pay the fine, without considering the
reasons for the inability to pay or the propriety of reducing the fine or extending the time for
payments or making alternative orders, the court automatically turned a fine into a prison
sentence" in violation of the Fourteenth Amendment. Id. at 665, 674.
	Appellant raised a Bearden violation by his second issue, contending that the trial
court "committed constitutional error" by failing to inquire into the reasons for his failure to
pay, but the court of appeals did not reach that issue. See Gipson, 347 S.W.3d at 897 n.2. 
The court of appeals, however, discussed Bearden in its analysis of appellant's first issue,
in which he challenged the sufficiency of the evidence to support revocation, and applied it
as the sufficiency standard of review: "Bearden requires that to revoke community
supervision and impose imprisonment, 'it must be shown that the probationer willfully
refused to pay or make sufficient bona fide efforts to do so[,]' and '[w]e will review the
sufficiency of the evidence with this as the standard.'" Gipson, 347 S.W.3d at 896 (quoting
Lively, 338 S.W.3d at 146). 
	We do not read Bearden so broadly for two reasons. First, as discussed, Bearden
prescribes a mandatory judicial directive, not a prosecutorial evidentiary burden. Bearden,
461 U.S. at 668-69, 672. Second, Bearden does not categorically prohibit incarceration of
indigent defendants as the court of appeals suggests; rather, it permits incarceration when
"alternative measures are not adequate to meet the State's interests in punishment and
deterrence." Id.  By misreading Bearden as imposing an evidentiary burden on the State, the
court of appeals erred in applying it as the standard for reviewing appellant's sufficiency
claim. On remand, therefore, Bearden will be inapplicable to analysis of appellant's first
issue. Only if the court of appeals reaches appellant's second issue must it analyze Bearden. 
In that event, it must address the State's procedural argument that, although Bearden requires
consideration of a defendant's financial circumstances when he is sentenced to
imprisonment, appellant's plea of true dispenses with that requirement. 
 2.  Texas Statutory Law
	At least a part of appellant's sufficiency claim is governed by the ability-to-pay
statute, which requires the State to prove, at a revocation hearing, that a defendant was able
to pay and failed to pay certain fees. Tex. Code Crim. Proc. art. 42.12 § 21(c). This statute
expressly applies to fees for appointed counsel, community supervision, and court costs. Id.
The trial court revoked appellant's community supervision, not only for failure to make those
payments explicitly listed in the statute, but also for failure to pay a fine and fees for Crime
Stoppers and pre-sentence investigation, which are not specifically listed in the statute. See
id.  The court of appeals determined that the statute applied to all of the amounts unpaid by
appellant because the legislative history of the statute revealed that the Legislature intended
that it conform to the due-process requirements set forth in Bearden. Id. As discussed,
however, the court of appeals erred in construing the due-process requirement described in
Bearden as an evidence-sufficiency requirement. See Gipson, 347 S.W.3d at 896. Because
the court of appeals misapplied Bearden in its analysis of the ability-to-pay statute, we
remand this case so that the court may consider, in light of this opinion, whether the ability-to-pay statute applies to appellant's unpaid amounts that are not explicitly listed in the statute.
	If the ability-to-pay statute does not apply to all of the amounts for which appellant's
community supervision was revoked, then the court of appeals must consider whether
common law would apply to those amounts not statutorily enumerated and, in either event,
whether a plea of true waives or forfeits appellant's sufficiency challenge.
 3. Texas Common Law
  	In the event that the court of appeals determines that the ability-to-pay statute does not
apply to all of the unpaid amounts, the court may need to determine whether Texas common
law would apply to the remaining unpaid amounts to which the statute does not apply.
	Applicable common law has varied over the past fifty years. Prior to the 1977
codification of the law pertaining to revocation proceedings involving failure to make
required payments, this Court, in reviewing a sufficiency challenge to revocation based on
failure to pay, routinely held that the evidence must show (1) that a defendant was able to pay
and (2) that he had acted intentionally. See Whitehead v. State, 556 S.W.2d 802, 805 (Tex.
Crim. App. 1977) ("[A]bsent a showing of a probationer's ability to make the restitution
payments, and that his failure was intentional, it is an abuse of discretion for a court to revoke
probation on this failure to make payments."); see also McKnight v. State, 409 S.W.2d 858,
859-860 (Tex. Crim. App. 1966) (enforcing these common-law requirements); Taylor v.
State, 353 S.W.2d 422, 424 (Tex. Crim. App. 1962) (same).
	In 1977 and continuing until 2007, the Legislature made inability to pay an affirmative
defense to revocation. See former Tex. Code Crim. Proc. 42.12 § 8(c), Act of May 28,
1977, 65th Leg., R.S., ch. 342 (S.B. 32), §§ 1, 2, effective August 29, 1977. Some of this
Court's decisions during that period 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. See Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 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[, i]t 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). At least one
decision, however, held that the codification did not dispose of that common-law
requirement. See Stanfield v. State, 718 S.W.2d 734, 737-38 (Tex. Crim. App. 1986) (holding
that, although 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."). (3)
	If the ability-to-pay statute does not pertain to revocation for fines and fees for Crime
Stoppers and pre-sentence investigation, then the court of appeals must (1) consider whether
the common-law requirement has been statutorily superseded or whether it would still apply
to those payments and (2) decide how that determination would impact the question of
whether appellant's sufficiency claim is procedurally barred. Because the requirements under
the ability-to-pay statute may differ from those under common law, resolution of the State's
procedural arguments may depend upon which applies. For example, the ability-to-pay
statute dictates what the State must show at a "hearing" at which only failure to pay is
alleged. Tex. Code Crim. Proc. art. 42.12 § 21(c).  The court of appeals did not discuss
whether appellant's plea of true and stipulation to the allegation would constitute a "hearing"
so as to trigger the evidentiary requirements of  the ability-to-pay statute. By contrast, under
common law, the analysis appears to have turned on whether evidence of a defendant's
ability to pay was introduced rather than on whether a "hearing" was held. See, e.g., Jones,
589 S.W.2d at 421. 
	We agree with the State that the court of appeals's opinion fails to address the State's
procedural challenge regarding preservation of appellant's sufficiency claim. A court of
appeals must hand down a written opinion "that addresses every issue raised and necessary
to final disposition of the appeal." Tex. R. App. P. 47.1; Keehn v. State, 233 S.W.3d 348, 349
(Tex. Crim. App. 2007) (per curiam).  "[I]ssues of error preservation are systemic in first-tier
review courts"; such issues "must be reviewed by the courts of appeals regardless of whether
the issue is raised by the parties." Menefee, 287 S.W.3d at 18; Haley v. State, 173 S.W.3d
510, 515 (Tex. Crim. App. 2005). An appellate court "may not reverse a judgment of
conviction without first addressing any issue of error preservation." Meadoux v. State, 325
S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010). Because the court of appeals did not address
the State's procedural questions before reversing the case on insufficiency grounds, we
sustain the State's sole issue and reverse the judgment of the court of appeals.
Conclusion
	The court of appeals erred in failing to address the State's procedural arguments
before reversing the trial court's judgment revoking appellant's community supervision on
sufficiency grounds. We reverse the judgment of the court of appeals and remand the case
for proceedings consistent with this opinion.  

Delivered: November 14, 2012
Publish
1.   	In relevant part, the 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
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. art. 42.12 § 21(c).
2. 	The State's sole issue in its petition for discretionary review asks,

Does a defendant's plea of true to the State's allegations in a motion to revoke
community supervision that the defendant failed to pay the court-assessed fine, costs,
and fees relieve the State and the trial court of the requirement to establish that no
payment was made despite the ability to do so, the failure to pay was willful, and no
bona fide effort to pay was made before supervision can be revoked?

The State explains that "[a]ppellant's plea of true not only served to prove what the State alleged but
also constituted a waiver."
3.  In Stanfield, this Court commented that the 1977 amendment that made inability to pay an
affirmative defense "may be constitutionally questionable in light of [Bearden]."  Stanfield v. State,
718 S.W.2d 734, 735 n.2 (Tex. Crim. App. 1986) (referring to Bearden v. Georgia, 461 U.S. 660,
672 (1983)). Regardless of whether the Legislature intended that its 1977 amendment supersede the
common-law requirement that the State prove intentional failure to pay, we conclude that the 2007
amendment dispensed with that requirement with respect to the payments listed in the statute
because, by its plain language, the ability-to-pay statute requires only that the State demonstrate, by
a preponderance of the evidence, that the defendant was able to pay and did not.  See Tex. Code
Crim. Proc. art. 42.12 § 21(c).  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. 
