Bryant v. State

• Decision Date: 24 October 2012
• Docket Number: No. PD–0049–12.,PD–0049–12.
• Parties: Robert BRYANT, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

391 S.W.3d 86

Robert BRYANT, Appellant

v.The STATE of Texas.

No. PD–0049–12.

Court of Criminal Appeals of Texas.

Oct. 24, 2012.

Raymond K. Fivecoat, Midland, for Robert Bryant.

Stacey Goldstein, Asst. State Prosecuting Attorney, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, PRICE, WOMACK, KEASLER, HERVEY, and COCHRAN, J. J., joined.

In its petition for discretionary review, the State challenges the court of appeals's judgment in favor of appellant, Robert Bryant. See Bryant v. State, No. 11–10–00145–CR, 2011 WL 4506118, 2011 Tex.App. LEXIS 7835 (Tex.App.-Eastland Sept. 29, 2011) (not designated for publication), rehearing denied by, opinion withdrawn by, substitute opinion at355 S.W.3d 926 (Tex.App.-Eastland 2011). The court of appeals held that the trial court abused its discretion by revoking appellant's deferred-adjudication community supervision for failure to pay restitution and that appellant preserved this issue for appeal. Bryant, 355 S.W.3d at 932. The court of appeals applied former Texas Code of Criminal Procedure article 42.037(h), hereinafter called the “former restitution statute,” which required that, “[i]n determining whether to revoke probation,” ¹ a trial court “shall” consider five factors pertaining to a defendant's financial circumstances.²See former Tex.Code Crim. Proc. Ann. art. 42.037(h) (West 2000). We conclude that the court of appeals properly determined that appellant preserved his challenge and that the abuse-of-discretion standard of review applied to the trial court's decision to revoke community supervision, including its consideration of the defendant's financial circumstances. We, however, conclude that, by revoking appellant's deferred adjudication and placing appellant on regular community supervision with the continued opportunity to fulfill the restitution obligation, the trial court did not abuse its discretion. Because the court of appeals erred by reversing the trial court's decision, we reverse the judgment of the court of appeals and render a judgment affirming the judgment of the trial court.

I. Background

A. Proceedings in Trial Court

Appellant was charged with misapplication of trust funds and received ten years' deferred-adjudication community supervision, a condition of which was payment of nearly $200,000 restitution.³ Shortly beforethe expiration of appellant's supervision period, the State filed a motion to revoke, alleging only that appellant had failed to pay the full amount of restitution ordered. The remaining balance was approximately $164,000. Appellant pled not true.

The trial court held a hearing, at which the sole issue was appellant's ability to make the restitution payments. After introducing considerable evidence of appellant's financial straits, appellant's attorney argued that appellant had complied with all of the conditions of his community supervision, except for paying restitution that he was financially unable to pay. Amidst the exchange between the trial judge and the parties, the judge made the following comment: “If it were fees owed to probation, there would not be a problem. But this is restitution to a victim. That's the Court's problem, that I can't waive.” Defense counsel responded, “It's not a waiver, because the judgment is there.” The trial court adjudicated appellant's guilt and sentenced him to regular community supervision under the term of two years' confinement, probated for seven years. The Court's order expressly stated that this sentence was “an alternative to imprisonment” and was intended to serve “the ends of justice and the best interest of both the public and the defendant.” The order also reduced appellant's monthly minimum restitution payments and waived other court costs and fees.

B. Proceedings On Appeal

On direct appeal, the court of appeals rejected appellant's sufficiency challenge premised on a violation of his federal constitutional due-process rights, but reversed the trial court's judgment on the grounds that the trial court had abused its discretion in revoking his community supervision under the former restitution statute. Bryant, 355 S.W.3d at 931–33.

In finding the evidence sufficient, the court was unpersuaded by appellant's argument that the federal Constitution prohibits revocation of community supervision when a person is financially unable to make community-supervision payments, including restitution. See id. at 931. It explained that applicable Supreme Court precedent, Bearden v. Georgia, holds that imprisonment of a person who is unable to make court-ordered payments violates his constitutional rights to due process and equal protection only when the trial court failed to consider the efficacy of alternatives to imprisonment. See id. at 930–31 (discussing Bearden v. Georgia, 461 U.S. 660, 673, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)). The court of appeals concluded that the trial court did not run afoul of Bearden in revoking appellant's deferred-adjudication community supervision because the trial court sentenced appellant to straight community supervision as an alternative to imprisonment. Id. at 931. The court noted that Bearden “imposes limits on revocation punishment where the probationer lacks the ability to pay, but makes no suggestion that such a revocation is impermissible.” Id. (citing Bearden, 461 U.S. at 672, 103 S.Ct. 2064).

The court of appeals sustained appellant's second issue, in which he argued that, under Texas statutory law, the trial court abused its discretion by revoking his community supervision because the evidence did not show that appellant was able to make the unpaid restitution payments. Id. at 932. In reaching its decision, the court of appeals applied the former restitution statute rather than article 42.12 § 21(c) of the Texas Code of Criminal Procedure, which appellant had argued applied. Id. at 931;compare former Tex.Code Crim. Proc. Ann. art. 42.037(h) (West 2000), withTex.Code Crim. Proc. art. 42.12 § 21(c). Article 42.12 § 21(c), hereinafter called the “ability-to-pay statute,” requires the State, in a revocation hearing, to prove by a preponderance of the evidence that the defendant was able to pay, and did not pay, compensation paid to appointed counsel, community-supervision fees, or court costs as ordered by the judge.⁴SeeTex.Code Crim. Proc. art. 42.12 § 21(c). Appellant acknowledged that the ability-to-pay statute mentions only revocations based on failure to make these specified payments, but suggested that it should be interpreted as also including revocations based on failure to pay restitution. Appellant argued that, although the statute does not specifically mention restitution, “there is a constitutional imperative that the defendant is not deprived of his liberty due to poverty” and, therefore, that it was necessary to construe the statute as requiring the State to prove that the defendant was able to pay restitution and did not. In support, he cited Tate v. Short, 401 U.S. 395, 397–98, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), in which the Supreme Court held that “imprisonment [of an indigent] for nonpayment constitutes ... unconstitutional discrimination.”

Agreeing with the State that the ability-to-pay statute does not govern restitution, the court of appeals determined that the restitution statute is the law applicable when a defendant challenges revocation based on failure to pay restitution. Bryant, 355 S.W.3d at 931. The court of appeals, however, determined that the trial court had failed to comply with the former restitution statute. See id. at 932. The court held that the trial court had abused its discretion by revoking appellant's community supervision “without giving due consideration to the factors that, pursuant to the [former restitution statute], it ‘shall consider.’ ” Id. The court of appeals observed that “[n]othing in the record reflects that [appellant] failed to pay or that he had the ability to pay more than the $300 per month that he faithfully paid every month for almost ten years.” ⁵Id. Citing the trial court's comment that it could not “waive” restitution, the court of appeals determined that the trial court failed to give “appropriate consideration” to the five factors listed in the former restitution statute. Id.

On motion for rehearing, the State argued that appellant had failed to preserve a restitution-statute claim because he did not advance that legal theory at the hearing. The court of appeals granted the State's motion and issued a new opinion, holding that appellant had preserved the issue. Id. at 931. The court of appeals explained that, although he did not use “magic words” or specifically cite the former restitution statute, appellant's evidence and arguments were sufficiently straightforward to communicate to the court that revocation was improper because he was financially unable to make restitution payments. Id. at 932. The court concluded that appellant had preserved the issue and maintained its judgment reversing the revocation order. Id. at 932–33.

In its petition for discretionary review, the State raises two issues: (1) appellant failed to preserve the restitution-statute issue by failing to expressly refer to that statute during the revocation hearing, and (2) if that issue was preserved, the trial court, by considering his financial circumstances in compliance with that statute, did not abuse its discretion in revoking appellant's community supervision.⁶

II. Preservation of Error

In its first issue, the State argues that, at the revocation hearing, appellant raised only a “general defensive argument” against revocation based on his inability to pay, which “does not constitute an objection.” The State explains that appellant was not specific enough to put the trial judge on notice of an alleged violation of the former restitution statute because his evidence and arguments about inability to...