Bowen v. State, 2-82-224-CR

• Decision Date: 06 April 1983
• Docket Number: No. 2-82-224-CR,2-82-224-CR
• Citation: 649 S.W.2d 384
• Parties: Sharon BOWEN, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 384

649 S.W.2d 384

Sharon BOWEN, Appellant, v. The STATE of Texas, State.

No. 2-82-224-CR.

Court of Appeals of Texas,

Fort Worth.

April 6, 1983.

Law Offices of Art Brender and Art Brender, Fort Worth, for appellant.

Tim Curry, Dist. Atty. and George Gallagher, Asst. Dist. Atty., Fort Worth, for State.

Before ASHWORTH, BURDOCK and SPURLOCK, JJ.

OPINION

SPURLOCK, Justice.

This is an appeal from a probation revocation proceeding. Sharon Bowen was placed on probation for ten (10) years for theft over $200.00 but less than $10,000.00. The State filed a petition for revocation alleging a new offense and failure to pay court costs, probation fees, and restitution. Prior to trial, the State waived the paragraph alleging the commission of a new offense and proceeded to trial on the remaining allegations. Bowen pled "not true" to these allegations. Upon hearing evidence, the trial court held that she had violated the conditions of her probation and revoked it. The court also reduced her sentence to two years.

We affirm.

Bowen advanced four grounds of error. The first and second attack the sufficiency of the evidence to show that Bowen's failure to pay her probation fees, court costs, and restitution was intentional. The third ground asserts that V.A.C.C.P. art. 42.12, § 8(c) is unconstitutional as a violation of the fifth and fourteenth amendments because it presumes that she has the ability to pay the court costs, probation fees, and restitution. The fourth ground asserts that V.A.C.C.P. art. 42.12, § 8(c) is a violation of her right not to incriminate herself because she would have to take the stand to prove inability to pay and, having done so, would be subject to cross-examination on any other charge or charges then made or pending against her.

The record reveals that the only witness in this trial was Bowen's probation officer who testified that she had reported regularly but had failed to pay her fees for the months of November, 1981 and January, 1982. There was no evidence presented to show that her failure to pay was intentional.

We hold that such proof is not necessary under these facts. The State waived the allegation of a new offense and proceeded to trial solely on the failure to pay fees. Therefore, Bowen's inability to pay was an affirmative defense to revocation which she was required to prove by a preponderance of the evidence. V.A.C.C.P. art. 42.12, § 8(c). As she failed to raise this affirmative defense, the State was not required to prove that she had the ability to pay and intentionally failed. Jones v. State, 589 S.W.2d 419 (Tex.Cr.App.1979).

Stanfield v. State, 638 S.W.2d 127 (Tex.App.--Fort Worth 1982), relied on by Bowen is not on point. In that case, the State alleged failure to pay fees and the commission of a new offense. As revocation was not sought solely on the probationer's failure to pay, the statute was inapplicable and the State was required to prove that the probationer had the ability to pay and intentionally failed. In the instant case, the State proceeded to trial solely on the allegation of Bowen's failure to pay fees, and it was not an abuse of discretion for the court to revoke probation on this ground alone. Grounds of error one and two are overruled. See Watts v. State, 645 S.W.2d 461 (Tex.Cr.App.1983).

Bowen's third ground of error asserts that the affirmative defense created by V.A.C.C.P. art. 42.12, § 8(c) violates her rights to due process and equal protection by presuming that she has the ability to pay the court costs, probation supervision fees, and restitution required by her probation.

The granting of a probation creates a contractual relationship between the court and the probationer. The court extends clemency to the probationer if he will keep and perform certain requirements and conditions, the violation of which will authorize the revocation of the probation. Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978). Probation revocation hearings are not criminal trials. They are administrative proceedings, supervised by the court, adversarial in nature, and a means of protecting society and rehabilitating law breakers. The result of such a hearing is not a conviction, but rather a finding...