


NUMBER 13-98-416-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
___________________________________________________________________


ERNESTO GONZALEZ CORPUS,					Appellant,


v.

THE STATE OF TEXAS,							Appellee.

___________________________________________________________________


On appeal from the 103rd District Court
of Cameron County, Texas.
___________________________________________________________________


O P I N I O N

Before Justices Hinojosa, Yañez and Rodriguez
Opinion by Justice Yañez

	This is an appeal from a trial court's decision to revoke probation
and find appellant, Ernesto Gonzalez Corpus, guilty of unauthorized use
of a motor vehicle.  Appellant raises two issues on appeal.  We affirm
the judgment of the trial court.

	On March 9, 1989, appellant pled guilty to theft of a vehicle valued
at $12,000 from his former employer, National Rental Car (National). 
Appellant wrecked the vehicle; it was engulfed in flames and totaled. 
Appellant was sentenced to eight years confinement probated over
eight years.  As one of the conditions of his probation, appellant was
ordered to pay $12,000 in monthly installments of $125.

	On January 11, 1993, the State filed a motion to revoke probation
alleging, among other things, that appellant had failed to pay restitution
and had failed to report to his community supervision officer for
fourteen consecutive months.  The trial court continued appellant's
probation with the added term that he participate in the probation
department's Intensive Supervision Program for one year.  On July 15,
1996, the State filed another motion to revoke probation, alleging failure
to pay restitution and failure to report to his community supervision
officer for seven months.  The trial court extended appellant's
community supervision by a year and ordered him back to the Intensive
Supervision Program.  On January 30, 1998, the State filed its third
motion to revoke probation, alleging only a failure to pay $11,961 of the
original $12,000 restitution order.  Basing its decision on appellant's
failure to pay all but a small portion of the $12,000 over a nine-year
period, the trial court revoked appellant's probation and sentenced him
to eight years confinement.  

	In his first issue on appeal, appellant argues that the trial court
abused its discretion in revoking his community supervision based on
a defense of inability to pay.  In reviewing a trial court's decision to
revoke probation, we must consider all the evidence in the light most
favorable to the decision and determine whether the trial court abused
its discretion, and whether any rational trier of fact could have found
that the defendant failed to prove his inability to pay by a
preponderance of the evidence.  Jackson v. State, 915 S.W.2d 104, 106
(Tex. App.--San Antonio 1996, no pet.).  Appellant asserts that the State
did not meet its burden to prove his failure to pay was intentional.  The
court of criminal appeals has ruled that when an appellant raises the
affirmative defense of an inability to pay costs required as a condition
of community supervision, the State is required to prove that the
appellant intentionally failed to make the payments required as a
condition of his community supervision.  See Tex. Code Crim. Proc. Ann.
art. 42.12, § 21(c) (Vernon Supp. 2000); Stanfield v. State, 781 S.W.2d
734, 738 (Tex. Crim. App. 1986).  Appellant raises the affirmative
defense of inability to pay for the first time on appeal.

	The First Court of Appeals and the Third Court of Appeals have
ruled that regardless of whether an appellant has raised the affirmative
defense of inability to make payments required as a condition of
probation before the trial court, the reviewing court must make an
inquiry into whether an appellant's failure to pay was intentional. 
Washington v. State, 731 S.W.2d 648, 650 (Tex. App.--Houston [1st
Dist.] 1987, no pet.); Ortega v. State, 860 S.W.2d 561, 567 (Tex. App.--Austin 1993, no pet.).  To ensure due process of law, we will also make
this analysis.

	At the January 30, 1998 hearing on the State's motion to revoke
appellant's community supervision, appellant's probation officer, JoAnn
Herrera, was the only witness to testify.  Herrera testified that appellant
was in arrears $11,961, and that although employed, he had refused to
pay.  She also testified that she, as well as appellant's previous
probation officers, had told appellant that he had to pay the restitution. 
Finally, Herrera testified that appellant had recently claimed that his
attorney recommended he not pay the restitution.  Appellant did not
testify.

	"A trial judge has broad discretion in determining whether to
revoke community supervision, and must be the sole judge of the
credibility of the witnesses before him."  Amezcua v. State, 975 S.W.2d
688, 691 (Tex. App.--San Antonio 1998, no pet.).  The testimony of the
community supervision officer regarding appellant's ability to pay and
his refusal to do so is sufficient evidence to show appellant's intent to
not pay the restitution required by his community supervision. 
Jimerson v. State, 957 S.W.2d 875, 878 (Tex. App.--Texarkana 1997,
no pet.); Jackson, 915 S.W.2d at 107.   

	Appellant further claims that we should consider "due process
considerations of fundamental fairness" because he was just "several
days shy of nine years of community service," and that the court should
consider "alternative measures of punishment."  We disagree.  It is only
when a probationer has made sufficient bona fide efforts to pay and has
been unable to do so that the court must consider whether means of
punishment other than revocation may be sufficient to serve the State's
purposes.  Bearden v. Georgia, 461 U.S. 660, 668-69 (1983); Dugan v.
State, 730 S.W.2d 15, 16 (Tex. App.--Texarkana 1987, pet. ref'd.).  The
only reason appellant's revocation was delayed is because of the
leniency afforded to him by the trial court.  Appellant was given a first
chance when he received community supervision instead of going
straight to prison.  The trial court generously gave appellant two more
chances, but still appellant intentionally did not fulfill the conditions of
his community supervision.  We overrule appellant's first issue.

	In his second issue, appellant contends the condition of
community supervision requiring restitution was vague, and questions
whether insurance companies can be awarded restitution, arguing that
National may be improperly profiting from the criminal system by
collecting insurance proceeds.  Although appellant's briefing is neither
concise nor clear, and does not organize a specific issue for our review
for every subsidiary question it raises, Tex. R. App. P. 38.1(e),(h), in the
interest of justice, we will nonetheless address appellant's arguments.

	The pertinent parts of appellant's Community Supervision
Judgment state:

(l)  Pay $12,000 restitution in equal monthly instalments of
$125.00 monthly each between the first and tenth day of
every month beginning in the month next following the entry
of this judgment and continuing until such restitution is paid
in full.


It continues:


	All payments required of Probationer by this judgment
shall be paid within the time specified at the Probation Office
to the Probation Officer for which Probationer shall receive
the Probation Officer's sequentially numbered receipt
evidencing payment.


Since the order informed appellant of how, when, where, how much,
and to whom he should pay, the condition was not vague and
ambiguous as appellant claims.

	We find appellant's argument that National stands to profit by
enforcement of the restitution order to be without merit.  We first note
that appellant has offered no evidence showing that National was or
will be compensated for its loss.  Moreover, although the current
version of the code of criminal procedure prohibits a court from ordering
restitution for a loss for which the victim has received or will receive
compensation,(1)  no such prohibition existed in 1989 when the trial
court ordered restitution as a condition of appellant's probation.  See
Act of May 27, 1993, 73rd Leg., R.S., ch. 806, §7, 1993 Tex. Gen. Laws
3211.  Accordingly, under the law in effect at the time the order was
imposed, the trial court was not limited by the requirements of article
42.037(f) in ordering restitution.  We overrule appellant's second issue.

	We AFFIRM the decision of the trial court.



									_____________________

									LINDA REYNA YAÑEZ

									Justice


Publish.

Tex. R. App. P. 47.3.


Opinion delivered and filed this

the 27th day of July, 2000.





1. Tex. Code Crim. Proc. Ann. art. 42.037(f)(1) (Vernon Supp.
2000).

