Russell Todd Bright v. State ( 2000 )

NUMBER 13-99-019-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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RUSSELL TODD BRIGHT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 156th District Court of Bee County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Yañez

Opinion by Justice Yañez

This is an appeal from a revocation of community supervision. By three issues, appellant Russell Todd Bright contends the trial court abused its discretion in revoking his community supervision because: (1) there was no evidence he violated the terms of his community supervision by failing to pay court costs; (2) he proved his affirmative defense of inability to pay court costs, supervision fees, and restitution; and (3) he was denied effective assistance of counsel at his revocation hearing. We affirm.

On November 18, 1996, appellant pleaded nolo contendere to the offense of intoxication assault⁽¹⁾ and was placed on ten years community supervision.⁽²⁾ The conditions of community supervision included that he make monthly payments to his community supervision officer for restitution,⁽³⁾ a statutory supervisory fee, and court costs.⁽⁴⁾ The supervisory fee was forty dollars per month, with payments to begin January 1, 1997. Appellant was also required to submit to treatment at the Substance Abuse Felony Punishment Facility (SAFPF). He completed treatment at the facility in November 1997 and in December 1997, obtained employment as a construction worker, making twelve dollars per hour.

On May 1, 1998, he suffered a work-related injury and was unable to continue working. He began collecting workers' compensation benefits in June.⁽⁵⁾ On September 24, 1998, the State filed a motion to revoke community supervision, alleging appellant violated the terms of his community supervision by intentionally and knowingly failing to pay: (1) the supervisory fee for February, 1998 and April through December, 1998; (2) court costs of $1,379 at a rate of twenty-five dollars monthly for January through September 1998; and (3) restitution in the amount of $47,000 at the rate of four hundred dollars monthly for January through September 1998. At the time of filing of the motion, the State alleged appellant was in arrears $240 in supervisory fees, $225 in court costs, and $3,600 in restitution. Following a hearing on November 12, 1998, the court revoked appellant's community supervision and sentenced him to ten years of confinement in the Texas Department of Criminal Justice-Institutional Division. At the time of revocation, appellant had paid only $130 toward his court-ordered financial obligations. Of this amount, $120 was credited to fees and $10 toward court costs. The judgment based the revocation on appellant's failure to pay supervisory fees, court costs, and restitution.

In revocation proceedings, the trial court is the sole trier of facts, the judge of the credibility of the witnesses, and the weight to be given the testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Jackson v. State, 915 S.W.2d 104, 105 (Tex. App.--San Antonio 1996, no pet.). It is the trial court's duty to determine whether the allegations in the revocation motion are true. Langford v. State, 578 S.W.2d 737, 739 (Tex. Crim. App. 1979). The State's burden of proof in a revocation proceeding is by a preponderance of evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993); Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.--Corpus Christi 1997, no pet.). Probation may be revoked upon a finding that a defendant has violated the terms and conditions of community supervision. Herrera, 951 S.W.2d at 199. An appellate court is limited to reviewing whether the trial court abused its discretion in revoking community supervision. Id. The reviewing court must view the evidence presented at the revocation hearing in the light most favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). Proof of any one alleged violation is sufficient to support an order revoking probation. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980); Herrera, 951 S.W.2d at 199.

By his first issue, appellant contends there is no evidence he was required to pay court costs in the manner alleged in the State's motion. The conditions of appellant's community supervision reflect he was required to pay court costs in an amount "to be determined."⁽⁶⁾ The State concedes that the condition of community supervision requiring payment of court costs is too vague to be enforced. We sustain appellant's first issue.

By his second issue, appellant claims the trial court erred in revoking his community supervision because he was financially unable to pay the court-ordered fees, court costs, and restitution. Although it concedes appellant established inability to pay restitution at the rate ordered by the court, the State nonetheless argues appellant was financially able to pay the supervisory fee of $40 per month, and that his failure to do so was thus intentional.

Inability to pay costs, fees, or other monetary obligations imposed pursuant to community supervision is an affirmative defense to revocation based on failure to pay, which a defendant must raise and prove by a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2000); Hill v. State, 719 S.W.2d 199, 201 (Tex. Crim. App. 1986); Reyes v. State, 752 S.W.2d 591, 592 (Tex. App.--Corpus Christi 1987, no pet.). The State then has the burden of proving an alleged failure to pay was intentional. Stanfield v. State, 718 S.W.2d 734, 738 (Tex. Crim. App. 1986). However, the State has this burden even if a probationer fails to raise the issue of inability to pay as an affirmative defense. Ortega v. State, 860 S.W.2d 561, 567 (Tex. App.--Austin 1993, no pet.). Facts and circumstances attending a given act or omission may reveal intent. Stanfield, 718 S.W.2d at 738. One who has the ability to pay that which he is required to pay but does not, without more, leaves a factfinder with a strong inference that his failure to pay is intentional. Hill, 719 S.W.2d at 201. When the trial court finds that a defendant had the ability to pay and his failure was intentional, the reviewing court must view the evidence in the light most favorable to the ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979).

Appellant testified he was unable to work during his nine-month treatment for substance abuse. He testified that between mid-December 1997, when he began working, and March 1998, he earned approximately $4,648 in wages. He also testified his living expenses totaled $4,841 during this period. The record also reflects appellant received $5,034.96 in workers' compensation temporary income benefits between May 1, 1998, when he sustained a work-related injury, and October 4, 1998. He testified that during this period, his living expenses totaled $4,950.

A community supervision officer testified that over this entire period, appellant made only two payments, each in the amount of $65, toward his court-ordered obligations: one in January and a second in March 1998. The State alleged appellant intentionally failed to pay the supervisory fee in February 1998 and April through September 1998. Appellant also testified he had received approximately $2300 in loan and grant monies, which he used, in part, to enroll in college. In support of his contention that he was unable to pay his court-ordered obligations because his living expenses equaled or exceeded his income, appellant submitted a handwritten "budget" detailing his 1998 living expenses. Appellant provided no corroboration of his testimony concerning his living expenses. He submitted no receipts, canceled checks, bank records, or other documentation corroborating his assertion of inability to pay.

Where a defendant is alleged to have violated his community supervision by failing to pay court-ordered financial obligations, a trial court does not abuse its discretion in revoking community supervision where a defendant provides "mere assertions of inability" to pay, without corroboration or documentation in support of such claims. Amezcua v. State, 975 S.W.2d 688, 690 (Tex. App.--San Antonio 1998, no pet.) (citing Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979)).

When inability to pay is raised, the State has the ultimate burden of proving that failure to pay was intentional. Stanfield, 718 S.W.2d at 738. Appellate courts in Texas frequently look to whether the defendant made partial payments or a good faith gesture toward paying the debt. See Amezcua, 975 S.W.2d at 690-91; Duke v. State, 2 S.W.3d 512, 517 (Tex. App.--San Antonio 1999, no pet.). Although appellant made two partial payments, the trial court was allowed to consider circumstantial evidence to infer intent. See Amezcua, 975 S.W.2d at 690-91.

The State argues the trial court did not abuse its discretion in revoking appellant's community supervision on the basis of his failure to pay the $40 monthly supervisory fee. We agree. Considering the evidence that appellant was employed, and received workers' compensation benefits following his injury, and given appellant's failure to produce any evidence documenting his living expenses, we find the trial court did not abuse its discretion in determining that appellant failed to establish inability to pay the supervisory fee payments by a preponderance of the evidence. Moreover, because the evidence showed appellant had the ability to pay the monthly supervisory fee, but did not do so, the State established that appellant's failure to pay was intentional. We sustain appellant's second issue insofar as it relates to court costs and restitution, but overrule that portion of the issue relating to inability to pay the supervisory fee.

By his third issue, appellant contends he received ineffective assistance of counsel at the revocation hearing, based on his counsel's failure to object to "victim impact" testimony by James Edward Davis, the victim injured as a result of the accident. Appellant contends Davis testified before the court determined whether to continue community supervision, and before punishment was assessed and sentence pronounced, in violation of article 42.03 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 42.03 (Vernon Supp. 2000). Appellant argues his counsel should have objected to Davis's testimony, and that the failure to do so thus constitutes ineffective assistance of counsel.

Appellant contends the standard for evaluating a claim of ineffective assistance at the punishment phase of a non-capital trial is the standard established in Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). The Duffy standard asks "first whether counsel was reasonably likely to render effective assistance; and second, whether counsel reasonably rendered effective assistance." See Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992). However, the court of criminal appeals reexamined the proper standard to be applied to claims of ineffective assistance at the punishment phase in Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). In Hernandez, the court expressly overruled the application of the Duffy standard of review to these complaints and determined that the proper test to be applied is the now familiar two-prong test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). Hernandez, 988 S.W.2d at 772.

Under Strickland, a defendant seeking relief must demonstrate (1) that counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under prevailing professional norms, and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App. 1989); Lozada-Mendoza v. State, 951 S.W.2d 39, 42 (Tex. App.--Corpus Christi 1997, no pet.). A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). Whether this standard has been met is to be judged by "the totality of the representation." Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). An ineffectiveness claim cannot be demonstrated by isolating one portion of counsel's representation. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993). Our review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689; Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994).

The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). An allegation of ineffective assistance of counsel will be sustained only if it is firmly founded and if the record affirmatively demonstrates counsel's alleged ineffectiveness. Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex. Crim. App. 1980). In determining whether trial counsel rendered deficient performance, we employ a strong presumption that counsel's conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689; Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992).

We now address appellant's argument that his counsel was ineffective for failing to object to Davis's testimony because the testimony was in violation of article 42.03 of the code of criminal procedure.

Article 42.03, section 1(b) provides:

The court shall permit a victim, close relative of a deceased victim, or guardian of a victim, as defined by Article 56.01 of this code, to appear in person to present to the court and to the defendant a statement of the person's views about the offense, the defendant, and the effect of the offense on the victim. The victim, relative, or guardian may not direct questions to the defendant while making the statement. The court reporter may not transcribe the statement. The statement must be made:

(1) after punishment has been assessed and the court has determined whether or not to grant community supervision in the case; (2) after the court has announced the terms and conditions of the sentence; and (3) after sentence is pronounced.

Tex. Code Crim. Proc. Ann. art. 42.03, §1(b) (Vernon Supp. 2000).

The State argues that when Davis testified, punishment had already been assessed because appellant's ten-year sentence was "assessed" when appellant initially entered his plea. The State cites no authority in support of its interpretation of article 42.03 §1(b), and we decline to embrace it.

The record reflects that at the conclusion of the revocation hearing, the trial court found appellant violated the terms and conditions of his community supervision as alleged. Then, the trial court proceeded with the disposition phase of the hearing. Davis was allowed to testify during the disposition phase, before the court determined whether to continue appellant's community supervision, and before the court pronounced sentence. After the court determined that appellant violated the terms of his community supervision, it was not bound, as the State seems to suggest, to sentence him to ten years' confinement. Rather, the trial court could have continued or modified appellant's community supervision, see Tex. Code Crim. Proc. Ann. art. 42.12, § 22 (Vernon Supp. 2000), and had authority to "dispose of the case as if there had been no community supervision." See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a) (Vernon Supp. 2000). We conclude Davis's testimony⁽⁷⁾ occurred prior to the court's determination of whether to continue appellant's community supervision and prior to the pronouncement of sentence.

Appellant contends his counsel was ineffective because he failed to object to Davis's testimony. In judging the first prong of the Strickland test, we must determine whether, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. See Strickland, 466 U.S. at 690.

Here, Davis testified he would like appellant to be sentenced to the Texas Department of Corrections--Institutional Division, even though confinement would preclude appellant from paying the $47,000 owed Davis in restitution. Davis also testified he did not believe appellant had ever intended to pay restitution.

After examining the entire record, we conclude counsel could have reasonably believed that Davis's testimony was the kind of victim impact evidence permitted at the punishment phase. See Brown v. State, 875 S.W.2d 38, 40 (Tex. App.--Austin 1994, no pet.). A court may admit as a circumstance of the offense evidence of the victim's physical or emotional injury, so long as the fact finder may rationally attribute moral culpability to the accused for that injury. Id. Moreover, appellant testified that he felt "terrible" about the accident and that he had previously expressed to Davis that he was "very sorry" for his actions. A remorseful attitude was apparently part of appellant's strategy at the punishment phase. We do not find counsel's strategy in declining to object to Davis's testimony rendered his counsel ineffective.

Even if counsel's failure to object to Davis's testimony fell outside the range of reasonable professional assistance, we conclude no reasonable probability exists that the outcome would have been different had counsel objected. Bill Wilson, a community supervision officer, testified at the punishment phase that the State's recommendation was to sentence appellant to the Texas Department of Criminal Justice-Institutional Division. Wilson also testified that appellant was ineligible for placement in a community-based restitution center. In addition, appellant's pre-sentence investigation report was introduced into evidence. The report described appellant as a "repeat felony offender" with a "chemically dependent profile." The report noted appellant's "continued lack of compliance and continued substance abuse," and recommended that the court revoke appellant's community supervision and sentence him to prison. We conclude no reasonable probability exists that the outcome would have been different had appellant's counsel successfully objected to Davis's testimony. Appellant's argument fails the second prong of Strickland. We overrule appellant's third issue.

We AFFIRM the judgment of the trial court.

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LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

12th day of October, 2000.

1. See Tex. Pen. Code Ann. §49.07 (Vernon Supp. 2000). Appellant was the driver of an automobile, which veered off Highway 59 and crashed into a pickup truck parked at a gas station near Beeville, Texas. As a result of the impact, the owner of the pickup, James Edward Davis, suffered severe injuries, including the loss of part of one leg.

2. Although not challenged on appeal, we observe that the instrument denominated "Probation: Judgment - Plea of Guilty or Nolo Contendere - Probation" does not comply with the strict requirements for a judgment because it does not assess punishment. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1, subd.10 (Vernon Supp. 2000); Mendez v. State, 535 S.W.2d 365, 367 (Tex. Crim. App. 1976). The document states appellant "should be punished . . . to Community Supervision for a period of TEN (10) years. . . Therefore it is hereby ORDERED AND ADJUDGED that the imposition of sentence be suspended . . . and [appellant] is placed on probation beginning this date for a term of TEN (10) years. . ."

Judge Ronald M. Yeager, the judge who presided at appellant's revocation hearing and who, following revocation, sentenced him to ten years confinement, was also the judge who signed the "judgment" placing appellant on community supervision for ten years. At the conclusion of the revocation hearing, Judge Yeager stated, "I'm going to impose the original sentence of ten years . . . Mr. Bright, you having originally been found guilty . . . your original punishment assessed at ten years in the penitentiary and restitution in the amount of $47,000, with no fine . . ." In addition, the record contains a "Stipulation," (signed by appellant, appellant's counsel, the State, and Judge Yeager) wherein appellant stipulates that he is the same individual who was convicted of intoxication assault "on 12/12/96, in the 156th Judicial District Court of Bee County, Texas, and sentenced to serve a term of Ten years confinement in the Texas Department of Criminal Justice Institutional Division and a fine of $00.00. The imposition of said sentence as to confinement was suspended and I was placed on community supervision for a term of Ten years." We conclude that notwithstanding any failure of the judgment to comply with the strict requirements of article 42.01, the record contains sufficient evidence to establish that all parties viewed the judgment as imposing a sentence of ten years confinement.

Failure to adhere to the requirements of article 42.01 does not render a conviction void, but merely voidable. Porter v. State, 757 S.W.2d 889, 891(Tex. App.--Beaumont 1988, no pet.). A voidable judgment is not subject to collateral attack. See Prado v. State, 822 S.W.2d 819, 821 (Tex. App.--Eastland 1992, pet. ref'd); Porter, 757 S.W.2d at 891. Therefore, appellant cannot now complain that the judgment in a previous proceeding was voidable. Thus, although we may modify a trial court's judgment to correct errors in the judgment, see Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993), we see no need to do so in these circumstances.

3. The conditions specify that the total amount of restitution due is $47,000, with payments to begin January 1, 1997. However, the conditions do not specify the amount to be paid each month towards restitution.

4. The conditions order appellant to pay court costs in an amount "to be determined."

5. Appellant testified that beginning in June, he received approximately $283 per week in benefits. After a few weeks, the benefits were suspended for approximately six weeks. When benefit payments resumed in August, appellant received $212.74 per week in benefits.

6. Appellant notes that an examination of the record at the district clerk's office reflects a subsequent amendment of the conditions of community supervision, requiring payment of restitution at the rate of $400 monthly, beginning thirty days after appellant's discharge from the SAFPF. He also states there were no amendments requiring appellant to pay a particular amount of court costs, or that the costs be paid at $25 monthly, as the State's motion alleged. No amendments to the conditions of appellant's community supervision were included in the record before us.

7. Appellant assumes that Davis's testimony was victim impact testimony. Although we do not decide this issue, for purposes of this opinion, we accept appellant's assumption.