Davis v. State

• Decision Date: 15 October 2019
• Docket Number: NO. 01-18-00519-CR,01-18-00519-CR
• Citation: 591 S.W.3d 183
• Parties: Lashun DAVIS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

591 S.W.3d 183

Lashun DAVIS, Appellant

v.The STATE of Texas, Appellee

NO. 01-18-00519-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued October 15, 2019

Alexander Bunin, Chief Public Defender, Harris County, Texas, Nicholas Mensch, 1201 Franklin, 13^th Floor, Houston, Texas 77002, for Appellant.

Kim Ogg, District Attorney, Harris County, Texas, Tiffany Larsen, 500 Jefferson Street, Ste. 600, Houston, Texas 77002, for Appellee.

Panel consists of Justices Kelly, Hightower, and Countiss.

Peter Kelly, Justice

In 2008, Lashun Davis pleaded guilty to theft, a third-degree felony. See TEX. PENAL CODE §§ 31.03(a), 31.03(e)(5). The trial court deferred adjudication and placed her on community supervision for ten years. In February 2018, the State filed a motion to adjudicate guilt based on her failure to pay supervision fees and failure to pay restitution. The trial court granted the motion, adjudicated Davis guilty, revoked supervision, and sentenced her to five years' imprisonment.

We hold that the trial court abused its discretion in revoking Davis's probation for failure to pay fees and restitution. We vacate the trial court's judgment adjudicating Davis's guilt, revoking her community supervision, and sentencing her to confinement, and render judgment discharging her from supervision.

Background

In 2008, Davis was indicted for stealing 550 cellular phones over the course of a year from her employer, Cricket Communications. In March 2008, Davis pleaded guilty without an agreed punishment recommendation. The court deferred adjudication and placed Davis on community supervision for ten years. The initial conditions of Davis's supervision required her to pay: a $20 monthly fee for supervision, a $209 fine at a rate of $5 per month, a $5 monthly laboratory fee during supervision, and restitution of $92,952.08 at a rate of $745.43 monthly plus an initial payment of $5,000. She was also required to submit to random drug testing and perform 160 hours of community service at a rate of 8 hours per month.

A. Procedural History

On March 4, 2010, the State filed a motion to adjudicate guilt based on Davis's failure to report to her probation officer from March 2009 through March 2010, failure to complete community service, and failure to pay fees or restitution. The motion was dismissed in June 2010, and the terms of Davis's supervision were amended, including increasing the restitution amount from $745.73 per month to $943 per month beginning August 2010. In 2012, the terms of supervision were amended again. The court waived delinquent laboratory and supervision fees, reduced the amount of community service hours, and ordered Davis to serve 45 days in Harris County jail beginning April 5, 2012.

On February 2, 2018, the State filed another motion to adjudicate guilt, which is at issue in this appeal. In the motion, the State alleged Davis violated her supervision conditions by failing to pay:

• The $20 monthly supervision fee, resulting in $940 in arrears as of January 2018

• The $5 monthly laboratory fee, accruing $230 in arrears as of January 2018

• $943 per month restitution, resulting in $76,528 in arrears as of January 2018.

B. Adjudication Hearing

The hearing on the State's motion to adjudicate guilt took place on May 3, 2018. Davis pleaded true to the allegations. The State did not call any witnesses and rested after admitting one piece of evidence: the State's motion to adjudicate guilt. The trial court heard testimony from Davis, her probation officer, and her mother.

1. Davis's Testimony

Davis testified that she was 38 years old, single, and had lived with her mother and stepfather for 20 years. She graduated from high school and attended college but did not graduate. She was fired from her job for the 2008 theft offense. Following her conviction, she worked at her aunt's daycare as a caregiver for $7.55 per hour from 2008 to 2011. From 2011 to 2015, she worked as a delivery dispatcher for $8 per hour. In 2015, she participated in the City of Houston Reentry Program, attending classes during the day, and applying to jobs through staffing agencies. She was hired temporarily at Lone Star Fasteners as a data entry clerk where she earned $10 per hour. At the time of the hearing, she had worked at the company for two years, and she had been promoted to purchasing agent, earning $39,000 a year. She had recently interviewed for a promotion that would include an increase in salary. She testified that she applied to numerous part-time jobs to supplement her income, had been interviewed, and was never hired.

Davis testified that she had been on probation for ten years, never tested positive for drugs, and completed the community service hours required for her probation. She testified that she was charged with driving with an invalid license in 2010.¹ She explained that her license was invalid because she could not afford full insurance coverage. She said she had not been charged with any other criminal conduct or received any speeding tickets.

Davis testified about her medical conditions and medical expenses. In 2013, she was diagnosed with Graves' disease. The condition gave her a high heart rate and made her sensitive to heat. She had a goiter in her neck that blocked 30% of her trachea. During her probation, she had it surgically removed along with part of her thyroid. Though she applied for assistance from Harris County, she had to pay $1,000 out of pocket for the surgery. She also had an operation to remove a mass under her right arm and some breast tissue. At the time of the hearing, Davis remained under the care of a physician, requiring monthly laboratory work to check her thyroid levels and daily medications that cost between $100 and $120 monthly.

Davis also testified that she was in a car accident with a drunk driver in 2013. The other driver was uninsured, and at the time, she only had liability insurance because she could not afford uninsured, underinsured, or collision coverage.

Davis testified that she declined her mother's offer to pay restitution after the last revocation hearing because she felt the debt was her responsibility and her mother would have had to take a loan from her retirement account to pay it. If allowed to stay on probation, Davis planned to pay off the remainder of the restitution by seeking part-time employment and accepting assistance from her father.

On cross-examination, the State asked Davis about her cellphone expenses and Davis responded that her bill was $100 in a previous month. The State asked if she knew that her probation cost county taxpayers. The State hypothesized that it would cost the taxpayers $36,000, based on a rate of $10 per day, to keep her on probation for ten years. Davis agreed that that was twice what she had paid back to Cricket Communications.

On redirect, Davis affirmed that she wanted to pay restitution and that she had been unable to pay it back. She explained that for the first seven to eight years of probation she did not have a job that paid well. She only recently obtained a job where she felt she could be in a financially secure place to make payments. She asked the court to allow her to remain on probation so that she had the opportunity to pay back money she owed.

2. Probation Officer's Testimony

Michelle Scott, Harris County Adult Probation Officer, testified that she had been Davis's probation officer for two years. They met regularly, and Davis never had any positive drug tests. She testified that Davis was ordered to pay a large amount monthly in restitution and was unable to make the payments. She had provided Davis with job listings to support her effort to find additional income. According to Scott, Davis made payments throughout her supervision, with fewer than 12 months passing between payments. She confirmed that Davis had medical issues and that she was a good probationer who was making an effort to better herself.

3. Vanessa Davis Alexander's Testimony

The court heard testimony from Davis's mother, Vanessa Davis Alexander. She testified that after Davis's last court hearing, she offered to help pay the restitution, but Davis declined. She agreed to help Davis should the court grant her continued probation.

The trial court found true the allegations that Davis failed to pay fees and restitution. The court granted the State's motion to adjudicate, revoked Davis's community supervision, and sentenced her to five years in the Texas Department of Criminal Justice. This appeal followed.

Appellate Issues

Davis contends that the trial court abused its discretion when it revoked her community supervision for failure to pay supervision fees and failure to pay restitution. We agree.

Because we hold that the trial court abused its discretion in revoking community supervision based on each of the State's alleged violations, we do not reach Davis's constitutional arguments.

Standard of Review

When reviewing an order revoking community supervision, the sole question before this court is whether the trial court abused its discretion. Hacker v. State , 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) (citing Rickels v. State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) ). "The central issue to be determined in reviewing a trial court's exercise of discretion in a [community supervision] revocation is whether the defendant was afforded due process of law." DeGay v. State , 741 S.W.2d 445, 450 (Tex. Crim. App. 1987).

There are three limits to a trial court's discretion to revoke supervision: (1) the State must prove at least one violation of the terms and conditions of community supervision (2) an appellate court will review the trial court's decision for an abuse of discretion; and (3) federal due process requires that a trial court consider alternatives to imprisonment before incarcerating an indigent defendant who is unable to pay amounts due under community supervision. Lombardo v. State , 524 S.W.3d 808, 812 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

The State has the...