                                                                                ACCEPTED
                                                                            06-15-00077-CR
                                                                 SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       9/14/2015 4:00:02 PM
                                                                           DEBBIE AUTREY
                                                                                     CLERK

                      No. 06-15-00077-CR

                           IN THE                          FILED IN
                                                    6th COURT OF APPEALS
                                                      TEXARKANA, TEXAS
                SIXTH COURT OF APPEALS              9/15/2015 8:03:00 AM
                                                        DEBBIE AUTREY
                                                            Clerk
                         at Texarkana

                            ______

ANTHONY SCOTT ROPER, Appellant V. THE STATE OF TEXAS,

                           Appellee

                            ______

       Appealed from the 276th Judicial District Court of

                      Titus County, Texas

                           No. 16,480



                     APPELLEE’S BRIEF


                             David Colley
                             Texas Bar No. 24007027
                             Titus County Assistant District Attorney
                             P.O. Box 249
                             Mt. Pleasant, TX 75456
                             Phone: (903) 577-6726
                             Fax: (903) 577-6729
                             Email: adacolley@hotmail.com

                             ATTORNEY FOR APPELLEE
                             The State of Texas
                    IDENTITY OF PARTIES & COUNSEL

       The State of Texas, Appellee, adopts Appellant’s list of parties and counsel

with the exception of Appellee’s counsel, designated below:

       Appellee, The State of Texas, is represented by:

       David Colley, Assistant District Attorney
       Titus County Courthouse, Annex
       100 West 1st
       P.O. Box 249
       Mt. Pleasant, TX 75456
       Phone: (903) 577-6726
       Fax: (903) 577-6729
       Attorney for State of Texas
       Email: adacolley@hotmail.com

       In this brief, Appellee will be referred to as “the State.” ANTHONY

SCOTT ROPER will be referred to as “Roper” or “Appellant.”

       The Statement of Facts in the Reporter’s Record will be referred to as “RR.”

“CR” will designate references to the Clerk’s Record.




Appellee’s Brief                                                       Page 2 of 34
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL..................................................................2

TABLE OF CONTENTS...........................................................................................3

INDEX OF AUTHORITIES......................................................................................5

STATEMENT OF THE CASE..................................................................................7

STATEMENT REGARDING ORAL ARGUMENT................................................7

ISSUES PRESENTED...............................................................................................8

STATEMENT OF FACTS........................................................................................9

SUMMARY OF THE ARGUMENT......................................................................14

ARGUMENT...........................................................................................................16

         STANDARD OF REVIEW.................................................................16

         Issue 1:          The Trial Court did not err is denying Roper’s
                           Motion to Transfer the adjudication hearing to the
                           76th DistrictCourt..........................................................17

         Issue 2:          The Due-Diligence Defense of Article 42.12 section 24
                           of the Texas Code of Criminal Procedure does not
                           apply to revocations occurring within the term of
                           probation or in situations where the warrant on the
                           motion to revoke/adjudicate was promptly served...20

                  2.A. THE 42.12 SEC. 24 DUE-DILIGENCE
                       DEFENSE DOES NOT APPLY TO
                       REVOCATIONS WHICH ARE CONCLUDED
                       DURING THE DEFENDANT’S TERM OF
                       PROBATION.......................................................20

Appellee’s Brief                                                                                   Page 3 of 34
                  2.B. THE PROBATION OFFICER ATTEMPTED TO
                       CONTACT ROPER WHEN ROPER DID NOT
                       REPORT...............................................................23

                  2.C. ANY LACK-OF-DUE-DILIGENCE DEFENSE IS
                       NOT AVAILABLE FOR THE FAILURE TO
                       PAY ALLEGATIONS.........................................25

         Issue 3:           The Trial Court did not abuse its discretion by
                            finding that Roper failed to pay court-ordered fines
                            and/or that he was able to pay court costs and fees..27

                  3.A. THE STATE DOES NOT HAVE THE BURDEN
                       TO SHOW A DEFENDANT’S ABILITY TO
                       PAY FINES AND RESTITUTION.....................27

                  3.B. ROPER HAD THE ABILITY TO PAY..............28

         CONCLUSION...................................................................................31

PRAYER..................................................................................................................33

CERTIFICATE OF COMPLIANCE.......................................................................33

CERTIFICATE OF SERVICE................................................................................34




Appellee’s Brief                                                                                       Page 4 of 34
                                    INDEX OF AUTHORITIES

                                                     CASES

1.     Bearden v. Georgia, 461 U.S. 660 (1983)....................................................29

2.     Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984).........................16

3.     Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993)..............................16

4.     Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999)........................20

5.     Davila v. State, 651 S.W.2d 797 (Tex. Crim. App. 1983)......................17, 18

6.     Garcia v. State, 387 S.W.3d 20 (Tex. Crim. App. 2012)...........16, 20, 25, 26

7.     Gipson v. State, 428 S.W.3d 107 (Tex. Crim. App. 2014)...........................27

8.     Lively v. State, 338 S.W.3d 140 (Tex. App.—Texarkana
       2011, no pet.)...........................................................................................16, 29

9.     Mattias v. State, 731 S.W.2d 936 (Tex. Crim. App. 1987)...........................16

10.    Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002).....................20, 21

11.    Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)...........................16

12.    Rodriguez v. State, 804 S.W.2d 516 (Tex. Crim. App. 1991)......................20

13.    Thomas v. State, 379 S.W.3d 436 (Tex. App.—Amarillo
       2012, no pet.).................................................................................................16

14.    Wheat v. State, 165 S.W.3d 802 (Tex. App.—Texarkana
       2005, pet. dism’d)..........................................................................................20

15.    Wise v. State, 477 S.W.2d 578 (Tex. Crim. App. 1972)...............................18



Appellee’s Brief                                                                                     Page 5 of 34
                                    STATUTES AND CODES

1.     Tex. Code Crim. Proc. art. 42.12 sec. 5(b)....................................................16

2.     Tex. Code Crim. Proc. art 42.12 sec. 10(a)...................................................17

3.     Tex. Code Crim. Proc. art. 42.12 sec. 21(c)......................................15, 27, 29

4.     Tex. Code Crim. Proc. art 42.12 sec. 24.......................3, 8, 14, 20, 21, 22, 25

5.     Tex. Gov’t Code sec. 24.178(d)..............................................................18, 19

6.     Tex. R. App. P. 9.4(i)(3)................................................................................33

                                          CONSTITUTION

1.     Tex. Const. art. V sec. 11..............................................................................18




Appellee’s Brief                                                                                Page 6 of 34
                         STATEMENT OF THE CASE

       Roper appeals the Trial Court’s grant of the State’s Motion to Adjudicate.

CR 47. He was placed on deferred adjudication for five (5) years on September 7,

2010 for the offense of Failure to Register as a Sex Offender. CR 18 - 19. On April

24, 2015 the State’s Motion to Adjudicate was heard. RR V 1 P 1. The Trial Court

proceeded to adjudication and sentenced Roper to three (3) years confinement in

the Texas Department of Criminal Justice. CR 53 - 55.



                   STATEMENT REGARDING ORAL ARGUMENT

       The State waives oral argument.




Appellee’s Brief                                                       Page 7 of 34
                     ISSUE PRESENTED FOR REVIEW

       Issue 1:    The Trial Court did not err is denying Roper’s Motion to

                   Transfer the adjudication hearing to the 76th District Court.

       Issue 2:    The Due-Diligence Defense of Article 42.12 section 24

                   of the Texas Code of Criminal Procedure does not

                   apply to revocations occurring within the term of

                   probation or in situations where the warrant on the

                   motion to revoke/adjudicate was promptly served.

       Issue 3:    The Trial Court did not abuse its discretion by

                   finding that Roper failed to pay court-ordered fines

                   and/or that he was able to pay court costs and fees.




Appellee’s Brief                                                     Page 8 of 34
                            STATEMENT OF FACTS

       Anthony Scott Roper was placed on deferred adjudication on September 7,

2010 for the offense of Failure to Register as a Sex Offender. CR 18 - 20. The

order was entered by the then presiding judge of the 76th Judicial District, Jimmy

L. White. CR 18 - 19. The term of deferred adjudication was five years. CR 18.

Among other conditions of community supervision, Roper was required to report

to his probation officer each month and pay costs, fines and fees. CR 27 - 30. On

January 21, 2015, within the term of probation, the State filed its motion to

adjudicate the unadjudicated offense. CR 31 - 33. That same day the court issued a

capias for Roper’s arrest. CR 34. Roper was arrested on the warrant on January 30,

2015. CR 36. The State’s motion alleged that Roper violated the conditions of his

probation by failing to report to his probation officer for the months of March,

April and September of 2013 and by failing to pay court-ordered fees and

probation service fees from February, 2013 through January, 2015, when the

motion was filed. CR 31 - 33. The hearing on the State’s motion to adjudicate was

held on April 24, 2015. CR 63. Judge Robert Rolston of the 267th Judicial District

presided over the hearing on the State’s motion to adjudicate. RR V 1 P 1.

       Roper filed a Motion to Transfer the adjudication hearing to the 76th Judicial

District. CR 45 - 46. Judge Rolston denied Roper’s motion. CR 49. In doing so, he


Appellee’s Brief                                                        Page 9 of 34
said, “. . . I think it’s pretty well common knowledge . . . that Judge Woodson and

I have concurrent jurisdiction. We had jurisdiction on all cases. We handle each

other’s cases, handle the same criminal cases, and so I find that . . . your motion

will be denied.” RR V 1 P 5 L 3 - 9. The Trial Court found the allegations true and

sentenced Roper to three years confinement. CR 53 - 55.

       In the hearing on the motion to adjudicate Roper’s deferred adjudication, the

State called Rance Hockaday as its witness. RR V 1 P 8 L 1 - 12. Hockaday is a

community supervision officer for Titus County, who supervises the sex offender

case load and who supervised Anthony Roper. RR V 1 P 8 L 13 - P 9 L 7.

Hockaday testified that Roper was currently on probation and was required to

report monthly and to pay certain fees monthly among other conditions of

probation. RR V 1 P 9 L 15 - 22; V 1 P 10 L 1 - 5. Hockaday further testified that

Roper did not report to the probation department in March, April or September of

2013. RR V 1 P 9 L 23 - 25. Nor did Roper pay the court-ordered thirty-two

dollars ($32.00) a month or the sixty dollars ($60.00) a month for probation

service fees for the months of February, March, April, May, June, July, August,

September, October, November, December of 2013; January, February, March,

April, May, June, July, August, September, October, November, December of

2014; and January of 2015. RR V 1 P 10 L 1 - 14. Hockaday testified that Roper


Appellee’s Brief                                                         Page 10 of 34
had not been employed for a little over two years, and at the last home visit

Hockaday found Roper looking as if he had just woken up at 2:30 or 3:00 in the

afternoon. RR V 1 P 10 L 21 - P 11 L 5. That last home visit was in December of

2014. RR V 1 P 11 L 3 - 11.

       On cross-examination Hockaday testified that he did not make a home visit

to Roper in March or April of 2013 but did contact him in May. RR V 1 P 12 L 5 -

15. Hockaday visited Roper’s residence in October of 2013 after Roper did not

report in September. RR V 1 P 12 L 16 - P 13 L 2. After the first two months that

Roper did not report, Hockaday went to find him. RR V 1 P 18 L 10 - 12.

Hockaday did not recall Roper giving any excuse for not reporting other than,

perhaps, that he did not have a ride; Roper said nothing at that time about thinking

that he was excused from reporting. RR V 1 P 18 L 3 - 14. Hockaday conducted

home visits for Roper “just about every month.” RR V 1 P 14 L 24 - P 15 L 1.

       Hockaday testified that once Roper quit his job he did not have any income.

RR V 1 P 16 L 14 - 15. Roper’s excuse for not having a job was that his criminal

history and COPD made it difficult for him to find a job. RR V 1 P 15 L 9 - 13.

However, Roper never showed any proof or medical verification of a COPD

diagnosis. RR V 1 P 15 L 14 - 19. About ninety-five percent (95%) of Hockaday’s

sex-offender case load is employed. RR V 1 P 16 L 22 - 25. Roper had been


Appellee’s Brief                                                        Page 11 of 34
employed at Pilgrim’s for quite a while but was fired for getting into an argument

with another employee. RR V 1 P 19 L 9 - 12. He then worked at Big Tex Trailers

for a few months. RR V 1 P 19 L 9 - 12. He quit the job at Big Tex. RR V 1 P 19 L

3 - 6. In Hockaday’s opinion, Roper was not looking very hard for a job. RR V 1 P

19 L 16 - 24.

       Roper testified in his defense. RR V 1 P 20 L 24. He testified that in

February, 2013, Hockaday told him to report by phone and in March he called and

left a message. RR V 1 P 22 L 2 - 4. In April, Roper called the probation

department and spoke to Hockaday by telephone and Hockaday “chewed [him]

out” for not reporting. RR V 1 P 22 L 4 - 15.

       Regarding his employment, Roper testified that he quit working at Big Tex

because he thought he would be hired back at Pilgrim’s, that he would be hired on

once he filled out an application. RR V 1 P 23 L 11 - 15. According to Roper, after

he quit working at Big Tex and went to Pilgrim’s he discovered they no longer

hired sex offenders. RR V 1 P 23 L 15 - 20. Roper had worked at Pilgrim’s

previously, for five years, with them knowing of his criminal history. RR V 1 P 23

L 21 - P 24 L 1. Roper testified that he went to the Texas Workforce Commission

and that he tried to find jobs. RR V 1 P 24 L 22 - 25. The only specific

employment he testified to trying to obtain was at Priefert’s and by asking a local


Appellee’s Brief                                                        Page 12 of 34
attorney for employment based upon his experience in the prison law library. RR

V 1 P 25 L 11 - 20, V 1 P 28 L 15 - 19.

       On cross-examination, Roper admitted that he quit the Big Tex job before

he even had another job. RR V 1 P 31 L 23 - 24. He also confirmed that in April of

2013, Hockaday made contact with him through another probationer whom he

worked with at Big Tex, by telling him that Hockaday had asked about him. RR V

1 P 31 L 7 - 13. It was after that message was related to Roper that he called

Hockaday. RR V 1 P 31 L 11 - 13.

       On rebuttal, Hockaday testified that he made home visits for Roper in

March and April of 2013 but that Roper was not present. RR V 1 P 34 L 21 - P 35

L 2.




Appellee’s Brief                                                        Page 13 of 34
                          SUMMARY OF ARGUMENT

       Issue 1: By statute, the 76th and 276th Judicial District Courts have

concurrent jurisdiction. Likewise, district courts in multiple-court counties have

been allowed to preside over the revocation of community supervisions that the

other courts have ordered. The 276th Judicial District did not err by refusing to

transfer the hearing on the motion to adjudicate against Roper to the 76th Judicial

District.

       Issue 2: The Due-Diligence Defense of Article 42.12 section 24 of the

Texas Code of Criminal Procedure relates to the diligence of the State to serve a

capias that has been issued and only on the conditions of failure to report and

failure to remain within a certain location. Roper’s argument attempts to equate

the requirement to go to the defendant’s residence to serve the capias to

performing a home visit during the term of probation for the month that the

probationer failed to report. Such an interpretation is incorrect. The Due-Diligence

Defense does not apply to Roper’s situation either because he was revoked during

the term of his probation or because there are no allegations that the State failed to

diligently execute the capias. Nevertheless, the evidence shows that the probation

department continued to make home visits each month after the months Roper

failed to report. The Trial Court would not have abused its discretion in finding


Appellee’s Brief                                                         Page 14 of 34
that Roper failed to prove the affirmative defense.

       Issue 3: While Article 42.12 section 21(c) of the Texas Code of Criminal

Procedure requires the State to prove that a defendant has the ability to pay before

a court can revoke his probation for failure to pay court costs, supervision fees and

other fees, that does not apply to fines and restitution. Part of what Roper failed to

pay was his fine. In that regard, the State did not have to prove his ability to pay.

Nevertheless, due to the facts that Roper paid no rent, had no bills, had worked

before but quit his last job, the Trial Court would not have abused its discretion in

finding that Roper had the ability to pay but failed to make bona fide efforts to

seek employment or otherwise obtain the funds to pay.




Appellee’s Brief                                                          Page 15 of 34
                                   ARGUMENT

STANDARD OF REVIEW

       The adjudication of guilt on a deferred adjudication is reviewed for abuse of

discretion. Tex. Code Crim. Proc. art. 42.12 sec. 5(b); Thomas v. State, 379

S.W.3d 436,442 (Tex. App.—Amarillo 2012, no pet.). See Rickels v. State, 202

S.W.3d 759, 763 (Tex. Crim. App. 2006). The State must show by a

preponderance of the evidence that the defendant violated a term of community

supervision alleged in its motion to proceed to adjudication. See Cobb v. State,

851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The evidence is viewed is the light

most favorable to the ruling of the trial court. Cardona v. State, 665 S.W.2d 492,

493 (Tex. Crim. App. 1984). The trial court is the sole judge of the witnesses, their

credibility and the weight to be given to their testimony and may accept or reject

any or all of a witness’s testimony. Lively v. State, 338 S.W.3d 140, 145-46 (Tex.

App.—Texarkana 2011, no pet.), citing Mattias v. State, 731 S.W.2d 936, 940

(Tex. Crim. App. 1987). If a single ground of the revocation is supported by a

preponderance of the evidence, then the trial court did not abuse its discretion. See

Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Lively, 338 S.W.3d at

142.




Appellee’s Brief                                                        Page 16 of 34
       Issue 1:     The Trial Court did not err is denying Roper’s Motion to
                    Transfer the adjudication hearing to the 76th District Court.

       Roper moved for transfer of the adjudication hearing to the 76th Judicial

District because Judge Rolston was not the judge of the court where Roper entered

his plea originally. CR 45. For his motion, he relied upon Article 42.12 section

10(a) of the Texas Code of Criminal Procedure, which reads, in relevant part, as

follows:

       Sec. 10.(a) Only the court in which the defendant was tried may grant

       community supervision, impose conditions, revoke the community

       supervision, or discharge the defendant, unless the judge has

       transferred jurisdiction of the case to another court with the latter’s

       consent.

       The Trial Court denied Roper’s motion. CR 49. In doing so, the Trial Court

commented that he and Judge Woodson have concurrent jurisdiction on all cases

and routinely handle the same criminal cases. RR V 1 P 5 L 3 - 9.

       In Davila v. State, the defendant was placed on probation by the 72nd

District Court. 651 S.W.2d 797, 798 (Tex. Crim. App. 1983). The motion to

revoke his probation was heard by the 237th District Court. Id. An order

transferring the case to the 237th District Court was dated the day of trial of the

motion to revoke but not filed until a week-and-a-half later. Id. at 799. The Court

Appellee’s Brief                                                          Page 17 of 34
held that even if the transfer order was not valid, the judges could exchange

benches as allowed by Article V, section 11 of the Texas Constitution, which

provides for district judges to exchange districts or hold courts for each other

when they deem it expedient. Id. The Court further noted that for a district court to

preside over a case in place of another court, no order or docket sheet entry

showing the reason for the exchange of the benches is necessary. Id.

       In Wise v. State, the defendant was placed on probation by the judge of the

30th Judicial District and revoked by the judge of the 89th Judicial District, both of

Wichita County. 477 S.W.2d 578, 579-80 (Tex. Crim. App. 1972). Relying on a

letter in the record from the presiding judge of the administrative district which

indicated that the district judges of Wichita County were assigned to each other’s

cases, the Court held that, for practical purposes, the regular judge of the 89th

Judicial District was the regular judge of the 30th Judicial District as well. Id. at

580.

       The concurrent jurisdiction between the 76th and 276th Judicial District

Courts is confirmed in the statutes creating the courts. Section 24.178(d) of the

Texas Government Code states as follows:

       (d) In Camp, Morris, and Titus counties, the 76th District Court has

       concurrent jurisdiction with the 276th District Court. The judges of the


Appellee’s Brief                                                           Page 18 of 34
       courts may transfer any case to be tried in Camp County, Morris

       County, or Titus County with the consent of the court to which the

       case is being transferred. Each judge may sit in the other court

       without transferring the case.

It is this concurrent jurisdiction that was exercised when Judge Rolston presided

over the motion to adjudicate, which was originally ordered in the 76th Judicial

District by Judge White. The statute provides for the flexibility that is necessary

for the timely resolution of cases in counties, like Titus County, where the District

Judges share jurisdiction and are responsible for multiple counties. The Trial

Court did not err in denying Roper’s Motion to Transfer.




Appellee’s Brief                                                          Page 19 of 34
       Issue 2:    The Due-Diligence Defense of Article 42.12 section 24
                   of the Texas Code of Criminal Procedure does not
                   apply to revocations occurring within the term of
                   probation or in situations where the warrant on the
                   motion to revoke/adjudicate was promptly served.

2.A. THE 42.12 SEC. 24 DUE-DILIGENCE DEFENSE DOES NOT APPLY TO

       REVOCATIONS WHICH ARE CONCLUDED DURING THE

       DEFENDANT’S TERM OF PROBATION.

       In 2003, the Legislature limited the due diligence defense for revocations.

See Wheat v. State, 165 S.W.3d 802, 805 (Tex. App.—Texarkana 2005, pet.

dism’d). Before the amendments, a trial court did not have jurisdiction to revoke a

community supervision unless the motion was filed and the capias issued before

the community supervision expired and the State exercised diligence in having the

revocation hearing. Peacock v. State, 77 S.W.3d 285, 287-88 (Tex. Crim. App.

2002). The State’s failure to execute the capias with due diligence was a defense.

Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Once the

defendant raised the issue, the State would have the burden to prove diligence.

Rodriguez v. State, 804 S.W.2d 516, 517-18 (Tex. Crim. App. 1991). This

common-law requirement that the State diligently pursue the prosecution of a

motion to revoke community supervision has been replaced by Article 42.12

Section 24 of the Texas Code of Criminal Procedure (hereinafter referred to as the


Appellee’s Brief                                                       Page 20 of 34
“Due-Diligence Defense”). Garcia v. State, 387 S.W.3d 20, 20-21 (Tex. Crim.

App. 2012).

       The common-law defense dealt with the court’s continuing jurisdiction. See

Peacock v. State, 77 S.W.3d 285, 288-89 (Tex. Crim. App. 2002) overruling

recognized by Garcia v. State, 387 S.W.3d 20 (Tex. Crim. App. 2012). It required

that the State show that the court retained jurisdiction to revoke a defendant’s

community supervision when the term of probation had expired. See Garcia, 387

S.W.3d at 22. The codification of the defense limited what existed at common law.

See Garcia, 387 S.W.3d at 25. It did not create a new defense, or expand the old

one, based on whether or not the probation department conducted monthly home

visits during the probation term. The affirmative defense of Article 42.12 Section

24 of the Texas Code of Criminal Procedure is not applicable as a defense to a

revocation when that revocation occurs during the term of probation.

       If it is too broad to conclude that the Due-Diligence Defense is not

applicable in any revocation occurring before the expiration of the term of

probation, at the very least it is only applicable to the efforts made to execute the

issued capias on the motion to revoke. The statute states, “. . . supervision officer,

peace officer, or other officer with the power of arrest under a warrant issued by

a judge for that alleged violation failed to contact or attempt to contact the


Appellee’s Brief                                                          Page 21 of 34
defendant in person at the defendant’s last known residence address or last known

employment address, . . .” Tex. Code Crim. Proc. art 42.12 sec. 24. The plain

language of the statute addresses the State’s diligence in executing the warrant

which had been issued for a motion to revoke probation based on the ground of

failure to report. It does not require a probation officer to attempt to contact the

probationer to inquire as to why he did not report. It includes peace officers and

others with the power to arrest under the warrant issued. See id. For the Due-

Diligence Defense statute to require a peace officer to make a home visit during

the term of probation is nonsensical. Roper’s argument assumes that the Due-

Diligence defense prevents a revocation on these allegations if the probation

officer fails to conduct a home visit on the month that the probationer missed

reporting. Roper’s argument is misplaced in that regard. The Due-Diligence

Defense of Article 42.12 section 24 of the Texas Code of Criminal Procedure is

not applicable to the adjudication of Roper’s deferred because there are no

allegations, or evidence to support a claim, that the State failed to diligently pursue

execution of the capias issued for Roper’s arrest.




Appellee’s Brief                                                          Page 22 of 34
2.B. THE PROBATION OFFICER ATTEMPTED TO CONTACT ROPER

       WHEN ROPER DID NOT REPORT.

       Even if Article 42.12 Section 24 of the Texas Code of Criminal Procedure

applies as Roper argues, there is evidence to support a finding that Roper’s

probation officer did make visits to Roper’s residence. Probation officer, Rance

Hockaday testified on cross-examination as follows:

       Q: What happened on March of 2013?

       A: He failed to report.

       Q: Did you contact him then?

       A: I do not believe I attempted a home visit when he did not report, no, sir.

       Q: What about April?

       A: March or April, no, sir. I did contact him then in May.

       Q: So it was not until May of ‘13 that you tried to contact him?

       A: Yes, sir.

       Q: Then again in September of 2013, you stated that he failed to report?

       A: Yes.

       Q: What are the circumstances of that?

       A: He just did not report that month.

       Q: Did you contact him?


Appellee’s Brief                                                          Page 23 of 34
       A: Not that month. I did the following month and got him in.

       Q: How did you contact him then?

       A: I believe I went by his house. His apartment.

       Q: The following month, you’re referring to October?

       A: Yes, sir.

       ...

       Q: How many times do you think you went by to see if Anthony way home?

       A: I did a home visit just about every month on him.

       ...

       A: The first two months that he didn’t report, I never heard from him those

two months. Then I went out to find him. . . .

       ...

       Q. . . . Did you go do like it says in Section 24 of the Community

Supervision part of the Code? Did you go out there and look at him and tell him

we need to reschedule you---

       A. Not to his job. I did go by his house, but apparently he was working, and

the home visits I did, he was not available for those two months.

       ...

       Q. Did you go more than once to his house? . . .


Appellee’s Brief                                                       Page 24 of 34
       A. I went each month.

       Q. I mean for one month. You said you went by his house when you knew

he was at work?

       A. I went by his house. I left a card on the door.

RR V 1 P 12 L 5 - P 13 L 2, V 1 P 14 L 24 - P 15 L 1, V 1 P 18 L 10 - 12, V 1 P

34 L 21 - P 35 L 2, V 1 P 35 L 15 - 20.

       There is some evidence that probation officer Rance Hockaday did attempt

to contact, and did contact, Roper at his home at a time after the months he failed

to report. If that was all the statute required then Roper failed to prove the defense.



2.C. ANY LACK-OF-DUE-DILIGENCE DEFENSE IS NOT AVAILABLE

       FOR THE FAILURE TO PAY ALLEGATIONS.

       If the Court were to find that the due diligence statute applies as Roper

argues, it does not apply to the failure to pay allegations. The defense in Section

24 of Article 42.12 of the Texas Code of Criminal Procedure does not apply to

revocations based on allegations other than failure to report and failure to remain

within a specified place. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App.

2012). Even if the defendant proved the due diligence affirmative defense, the trial

court’s order adjudicating guilt may still be affirmed if it could have found by a


Appellee’s Brief                                                         Page 25 of 34
preponderance of the evidence that Roper violated the terms of his deferred

adjudication by failing to pay as he was ordered and as is argued below. See id.




Appellee’s Brief                                                      Page 26 of 34
       Issue 3:    The Trial Court did not abuse its discretion by
                   finding that Roper failed to pay court-ordered fines
                   and/or that he was able to pay court costs and fees.

3.A. THE STATE DOES NOT HAVE THE BURDEN TO SHOW A

       DEFENDANT’S ABILITY TO PAY FINES AND RESTITUTION.

       Section 21(c) of Article 42.12 of the Texas Code of Criminal Procedure

requires the State to prove that the defendant was able to pay and did not pay as

ordered by the court in order to revoke a probation based on failure to pay

attorney’s fees, community supervision fees and court costs. This requirement

does not apply to fines and restitution. Gipson v. State, 428 S.W.3d 107, 108-09

(Tex. Crim. App. 2014). Fines were included in the amount Roper failed to pay.

CR 40 - 41.

       When Roper was placed on deferred adjudication he was assessed a fine of

$1500. CR 18 - 19. He was ordered to pay that fine as a condition of his probation.

CR 27 - 30. The $32.00 per month, which Roper was ordered to pay, included the

fine. CR 28. Roper failed to pay the $32.00 per month as ordered. RR V 1 P 10 L 1

- 14. As it was included in the $32.00 per month, Roper necessarily failed to pay

the $1500 fine as ordered. The State was not required to prove Roper’s ability to

pay the court-ordered fine. See id. Regardless of his ability, the Trial Court could

have found that Roper failed to pay the fine as ordered and adjudicated his


Appellee’s Brief                                                        Page 27 of 34
deferred adjudication on that ground.



3.B. ROPER HAD THE ABILITY TO PAY.

       In a revocation of community supervision for failure to pay court-ordered

attorney fees, 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 so

pay. Tex. Code Crim. Proc. art. 42.12 sec 21(c). The evidence before the trial court

is that at various times Roper worked for Priefert Manufacturing, Pilgrim’s Pride

and Big Tex Trailers. RR V 1 P 19 L 3 - 12; P 28 L 16 - 18. He had a criminal

history when he worked at Pilgrim’s. RR V 1 P 23 L 21 - 24. He quit the job at Big

Tex. RR V 1 P 19 L 6. Though he said he thought he had a job ready at Pilgrim’s

before he quit Big Tex, he had not even filled out an application at Pilgrim’s. RR

V 1 P 23 L 11 - 15. Of Hockaday’s sex offender case load, about ninety-five

percent of them are employed. RR V 1 P 16 L 22 - 25. Roper lived at a friend’s

apartment; the friend paid for Roper’s food and did not charge him rent. RR V 1 P

26 L 5 - 7. The last home visit Hockaday made on Roper, Hockaday found him

asleep at 2:30 in the afternoon. RR V 1 P 19 L 13 - 15. In Hockaday’s opinion,

Roper was not really looking for a job. RR V 1 P 19 L 17 - 19. Based on these

facts, the Trial Court could have found that Roper had the ability to work and to


Appellee’s Brief                                                       Page 28 of 34
pay but did not make a bona fide effort to do so. See Lively v. State, 338 S.W.3d

140, 146 (Tex. App.—Texarkana 2011, no pet.)(affirming trial court’s revocation

on allegations of failure to pay fines, restitution and court costs when the trial

court could have found that Lively failed to make a bona fide effort to acquire

resources to pay or find employment).

       In Lively v. State, the Court considered whether the defendant’s failure to

pay restitution and court-ordered fines was willful. 338 S.W.3d 140, 145-46

(applying Bearden v. Georgia, 461 U.S. 660 (1983), even though not specifically

included as part of the State’s burden of proof under Article 42.12 section 21(c) of

the Texas Code of Criminal Procedure and holding that the trial court must

consider if the probationer willfully refused to pay or failed to make sufficient

efforts to obtain resources to pay fines and restitution). The Court found that the

trial court could have rejected the defendant’s testimony that he did not have the

ability to pay, especially in light of his ability to pay a large sum previously and

that he lived in low-income housing. Id. at 146. The trial court could have found

that the defendant failed to make real efforts to acquire the resources to pay

because he did not seek employment in his field of experience or elsewhere. Id.

       In Roper’s case, the Trial Court could have disbelieved Roper’s testimony

that he could not find employment. He had been employed at several places. He


Appellee’s Brief                                                          Page 29 of 34
quit his latest job. While he testified that he quit Big Tex because he thought he

was going back to work at Pilgrim’s, he had not even put in an application at

Pilgrim’s. He did not have to pay for rent or food and the last time Hockaday made

a home visit, it appeared Roper was asleep at 2:30 in the afternoon. The Trial

Court could have found that Roper had the ability to pay but failed to seek

employment or make a bona fide effort to acquire resources to pay.




Appellee’s Brief                                                        Page 30 of 34
CONCLUSION

       The Trial Court did not err in denying Roper’s motion to transfer the

hearing of the State’s Motion to Adjudicate. By statute, the 76th and 276th Judicial

Districts have concurrent jurisdiction and can hear each other’s cases.

       Roper failed to report to the probation department for the months of March,

April and September of 2013. The Due-Diligence Defense applies to the State’s

efforts in serving the capias issued for those violations. It does not require the

probation department to make a home visit on the probationer on the month he

does not report. Nevertheless, the probation department did make home visits to

Roper’s residence throughout the term of probation, including on months after the

months Roper failed to report.

       Part of what Roper failed to pay as a condition of his probation was fines.

The State does not have to prove Roper’s ability to pay fines as it does court costs,

probation fees and attorney’s fees. Still, the Trial Court could have found that

Roper had the ability to pay and did not appear to be making bona fide efforts to

obtain employment or otherwise acquire the proceeds in order to pay.

       The Trial Court did not abuse its discretion in adjudicating the guilt of

Anthony Roper. Based on the evidence before it, it could have found by a

preponderance of the evidence that Anthony Roper violated one or more of the


Appellee’s Brief                                                          Page 31 of 34
conditions of his probation. The Trial Court’s judgment should be affirmed.




Appellee’s Brief                                                     Page 32 of 34
                                      PRAYER

       The State, therefore, prays that this Court affirm the trial court’s judgment.

                                        Respectfully submitted,

                                        The State of Texas
                                        Titus County District Attorney
                                        P.O. Box 249
                                        Mt. Pleasant, TX 75456
                                        Phone: (903) 577-6726
                                        Fax: (903) 577-6729


                                        By: /s/ David Colley
                                        David Colley
                                        State Bar No. 24007027
                                        Assistant District Attorney




                       CERTIFICATE OF COMPLIANCE

       Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, I

hereby certify that, according to the computer program word count, Appellee’s

Brief contains 5,787 words. The brief is written in 14-point Times New Roman.


                                        /s/ David Colley
                                        David Colley




Appellee’s Brief                                                         Page 33 of 34
                         CERTIFICATE OF SERVICE

       This is to certify that on September 14 , 2015, a true and correct copy of

the above and foregoing document was served on all counsel of record as

indicated below:

Mac Cobb
Attorney-at-Law
P.O. Box 1134
Mt. Pleasant, Texas 75456
Email: maccobblaw@yahoo.com
VIA EMAIL
                                       /s/ David Colley
                                       David Colley




Appellee’s Brief                                                       Page 34 of 34
