Armstrong v. State

• Decision Date: 12 May 2004
• Docket Number: No. 06-03-00083-CR.,06-03-00083-CR.
• Citation: 134 S.W.3d 860
• Parties: Wesley Carl ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

134 S.W.3d 860

Wesley Carl ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.

No. 06-03-00083-CR.

Court of Appeals of Texas, Texarkana.

Submitted April 22, 2004.

Decided May 12, 2004.

Judy Hodgkiss, George L. Preston, Paris, TX, for appellant.

Cynthia L. Braddy, Asst. County Atty., Mark S. Burtner, Lamar County District Atty., Paris, TX, for State.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Wesley Carl Armstrong asks us to reverse the revocation of his community supervision¹ principally because of his asserted lack of mental capacity. In eight points of error, Armstrong contends (1) the trial court abused its discretion by revoking community supervision because the affirmative defense of insanity was proved by a preponderance of the evidence; (2) the trial court violated his due process rights and abused its discretion by revoking community supervision for failure to pay various fees, court costs, fines, and restitution because he did not have the ability to pay, and the State did not prove that the failure to pay was intentional; (3) the trial court violated his due process rights and abused its discretion by revoking community supervision because the terms of supervision with respect to the report date and treatment requirements were vague or ambiguous; and (4) the conviction for which he was placed on community supervision should be set aside because he was insane at the time the original offense was committed or incompetent at the time he pled guilty. We affirm.

Standard of Review

The decision whether to revoke community supervision rests within the discretion of the trial court. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984); In re T.R.S., 115 S.W.3d 318, 320 (Tex.App.-Texarkana 2003, no pet.). As the sole trier of fact, the trial court determines the credibility of the witnesses, accepting or rejecting any or all of the witnesses' testimony. T.R.S., 115 S.W.3d at 321 (citing Mattias v. State, 731 S.W.2d 936, 940 (Tex.Crim. App.1987); Jones v. State, 787 S.W.2d 96, 97 (Tex.App.-Houston [1st Dist.] 1990, pet. ref d)). The court's discretion, however, is not absolute and does not authorize the revocation of community supervision without evidence of a violation of one of the conditions imposed. T.R.S., 115 S.W.3d at 320 (citing DeGay v. State, 741 S.W.2d 445, 449 (Tex.Crim.App.1987); Scamardo v. State, 517 S.W.2d 293, 297 (Tex.Crim.App.1974)). That is, the State must prove, by a preponderance of the evidence, that the conditions of supervision were violated. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993); Cardona, 665 S.W.2d at 493. "This standard is met," and revocation should be affirmed, "when the greater weight of the credible evidence creates a reasonable belief the defendant violated a condition of his or her [community supervision] as . . . alleged." T.R.S., 115 S.W.3d at 321 (citing Martin v. State, 623 S.W.2d 391, 393 n. 5 (Tex.Crim. App.1981); Allbright v. State, 13 S.W.3d 817, 819 (Tex.App.-Fort Worth 2000, pet. ref'd); Stevens v. State, 900 S.W.2d 348, 351 (Tex.App.-Texarkana 1995, pet. ref'd)).

Insanity Defense

In his first point of error, Armstrong contends the trial court abused its discretion by revoking community supervision because he proved the affirmative defense of insanity by a preponderance of the evidence. He argues that, because he was insane and unable to make reasonable decisions, he should not be held responsible for failing to comply with the requirements of community supervision. The defense of insanity, however, has not been recognized in Texas as generally available in revocation proceedings.²

In support of the argument that he is entitled to mount an insanity defense at a revocation hearing, Armstrong relies on Section 8.01 of the Texas Penal Code and Casey v. State, 519 S.W.2d 859 (Tex.Crim. App.1975). See TEX. PEN. CODE ANN. § 8.01 (Vernon 2003). Although the Casey court did entertain an appellant's argument that he established the affirmative defense of insanity, Casey does not apply to this case because, unlike the present case, the State applied to revoke Casey's community supervision only because he allegedly committed a new criminal offense. Id. at 860-61. Here, the State alleges Armstrong violated the terms of his community supervision with only noncriminal violations, including (1) failure to report;

(2) failure to pay court costs, fees, and restitution; and (3) failure to comply with all treatment recommended by the Texas Department of Mental Health and Mental Retardation.

Although no Texas cases directly address the availability of an insanity defense at a revocation hearing, the Texas Court of Criminal Appeals has stated that, during a proceeding to revoke community supervision, "a defendant need not be afforded the full range of constitutional and statutory protections available at a criminal trial." Davenport v. State, 574 S.W.2d 73, 75 (Tex.Crim.App.1978) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). "At such a proceeding, guilt or innocence is not at issue, and the trial court is not concerned with determining the defendant's original criminal culpability. `The question at a revocation hearing is whether the appellant broke the contract he made with the court after the determination of his guilt.'" Davenport, 574 S.W.2d at 75 (quoting Kelly v. State, 483 S.W.2d 467, 469 (Tex.Crim.App.1972) ("It should be remembered that a defendant is not entitled to probation as a matter of right; granting probation is entirely within the trial court's discretion.")).

Federal courts that have addressed the issue have determined the insanity defense is not available in revocation proceedings. In United States v. Brown, 899 F.2d 189 (2d Cir.1990), for example, the Second Circuit Court of Appeals took a position similar to the position taken in Davenport, noting that revocation proceedings are distinguished from criminal prosecutions because the probationer already stands convicted of a crime and is, for that reason, not afforded "the full panoply of procedural safeguards associated with a criminal trial." Id. at 192 (quoting Black v. Romano, 471 U.S. 606, 613, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)).

In many revocation hearings, it is irrelevant whether a probationer can be held criminally responsible for his conduct. Because many of the routinely imposed conditions of probation do not, if violated, constitute criminal offenses, a judge considering probation revocation often has no occasion to determine criminality or offense elements such as criminal intent. Moreover, the fact that the probationer violated a condition may be sufficient proof that probation is not serving the purpose for which it was granted. For example, the probationer who fails to keep his probation officer informed of his residence may be found no longer to merit probation, whether his omission results from willfulness, carelessness, or impaired mental capacity.

Id. at 193 (citations omitted and emphasis added). The State's motion to revoke community supervision did not allege Armstrong committed a criminal offense for which the insanity defense was available, but alleged noncriminal violations only. For this reason, we overrule this point of error because it is irrelevant whether Armstrong could be held criminally responsible for his conduct in violating the terms of his community supervision.

Even if an insanity defense could be viable for noncriminal violations, Armstrong's point of error would fail. On this record, we could not conclude the trial court abused its discretion in revoking Armstrong's community supervision.

There is conflicting expert testimony in the record, and the fact-finder is entitled to disbelieve a witness.

[A] few of the many obstacles faced by an accused in relying upon the defense of insanity in a revocation hearing [include]:

1. Such a defense must be established by the appellant by a preponderance of the evidence; and, he is presumed to be sane. Casey v. State, 519 S.W.2d 859, 861 (Tex.Cr.App.1975).

2. It is not necessary for the State to present expert medical evidence that a defendant is sane to refute defense experts. Graham v. State, 566 S.W.2d 941, 950 (Tex.Cr.App.1978).

. . . .

4. The State need establish the violation only by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293, 297-298 (Tex.Cr.App.1974). n3

5. The only question legitimately before this appellate court in the review of the probation revocation is whether or not the trial court abused its discretion. Isabell v. State, 494 S.W.2d 572, 573-574 (Tex.Cr.App.1973).

6. The trial judge is the sole trier of the facts, the credibility of the witnesses and the weight to be given to the testimony. Diaz v. State, 516 S.W.2d 154, 156 (Tex.Cr.App.1974).

Jackson v. State, 628 S.W.2d 120, 121-22 (Tex.App.-Beaumont 1981, no pet.) (footnotes omitted).

Inability to Pay

In his second and third points of error, Armstrong argues that, because he was unable to pay and the State did not prove that the failure to pay was intentional, the trial court violated his due process rights and abused its discretion by revoking community supervision for failure to pay various fees, court costs, fines, and restitution. Both the record and Armstrong's own brief, however, indicate that the affirmative defense of inability to pay was never presented to the trial court. Instead, Armstrong argues the failure to pay could not have been intentional in light of expert testimony indicating he was incompetent and incapable of making rational decisions. Nevertheless, the State's evidence reasonably supports the conclusion that Armstrong understood the terms of community supervision at the time of the hearing, but failed to meet his financial obligations by consciously choosing to stop taking his medications and to remain at home rather than seek employment.³ Because the trial court could easily have...