Martinez v. State
| Decision Date | 01 November 2018 |
| Docket Number | NUMBER 13-17-00475-CR |
| Citation | 563 S.W.3d 503 |
| Parties | Benito MARTINEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John Michael Lamerson, The Lamerson Law Firm, P.O. Box 241, Corpus Christi, TX 78403, for Appellant.
Samuel B. Smith Jr., District Attorney, Douglas H. Pettit, Assistant District Attorney, P.O. Box 1393, Sinton, TX 78387, for Appellee.
Before Justices Rodriguez, Contreras, and Benavides
Opinion by Justice Contreras
Appellant Benito Martinez appeals the revocation of his community supervision for his failure to pay multiple community supervision fees. By three issues, Martinez argues: (1) the sentence imposed was a violation of article I, section 18 of the Texas Constitution ; (2) the trial court abused its discretion when it found the alleged violations true; and (3) the sentence imposed by the trial court was cruel and unusual. Because we conclude that the State failed to carry its burden to prove Martinez had the ability to pay and did not, we reverse and remand.
In 2011, Martinez was indicted for bail jumping and failure to appear, a third-degree felony. See TEX. PENAL CODE ANN. § 38.10(f) (West, Westlaw through 2017 1st C.S.). He filed an affidavit of indigence and swore he had no cash, no credit, no income, no real estate, no car, and that he paid no rent, utilities, or other monthly bills. The trial court found Martinez indigent, appointed counsel, and, after a jury trial, Martinez was found guilty of the offense.
Martinez elected to have the judge assess punishment, and he was sentenced to five years' incarceration, with the sentence suspended for five years of community supervision. The initial conditions of Martinez’s supervision required him to pay: a $60 statutory monthly fee, see TEX. CODE CRIM. PROC. ANN. art. 42A.652 (West, Westlaw through 2017 1st C.S.) (providing that "a judge who grants community supervision to a defendant shall set a fee of not less than $25 and not more than $60 to be paid each month"); $250 for court costs and attorney’s fees, at a rate of $50 per month1 ; and $50 for crime stoppers fees, at a rate of $10 per month. Martinez was also required to submit to two urinalyses (UA) per month and pay $7.50 for each to the supervision department. Martinez was placed on community supervision on August 15, 2011.
During Martinez’s time on community supervision, the trial court ruled on four motions to revoke his supervision. The first motion the trial court ruled on was an amended motion filed by the State on January 20, 2016. Martinez filed an affidavit of indigence and stated he had three dependent children aged 7, 10, and 13. He further stated in the affidavit that he earned unemployment benefits of $520 per month and had monthly expenses of: $300 for utilities, $640 for child support, $200 for groceries, $66 for phone services, and $640 for probation fees. Martinez was found to be indigent and had counsel appointed.
Martinez pleaded true to the allegations that he failed to report, pay court costs, pay the monthly statutory supervisory fee, and submit to UAs. The trial court found the allegations to be true and extended Martinez’s supervision term by one year, sentenced him to thirty days in jail, and ordered him to perform 160 hours of community service. The trial court also added conditions to Martinez’s supervision and required him to: submit to a psychological evaluation and pay a $50 fee; participate in the cognitive track program in the continuing care phase of the Coastal Bend Regional Intermediate Sanction Facility (CBRISF); participate in the reintegration/employment phase four of the cognitive track and pay $10-18 per day or 25% of his gross income to CBRISF for room and board while residing there; and submit to a period of sixty days of home confinement and pay a fee of $3.75 per day for each day on global positioning system monitoring.
Three months later, on May 12, 2016, the State filed its next motion to revoke and alleged Martinez used offensive language on two occasions against an individual at CBRISF. Martinez filed a copy of his earlier affidavit of indigence, was found indigent, and had counsel appointed. The trial court sentenced Martinez to thirty days in jail, ordered him to participate in two additional programs, and continued him on community supervision.2
The State filed its third motion to revoke on February 16, 2017. It alleged that Martinez violated his supervision conditions by testing positive for alcohol in a UA and failing to pay multiple fees associated with his supervision. Martinez filed another affidavit of indigence, was found indigent, and had counsel appointed. The State, however, moved to dismiss this motion, and the trial court granted the dismissal on March 24, 2017. The trial court also amended appellant’s conditions of supervision and required him to participate in two additional programs, observe curfew hours, and pay restitution to the supervision officer of San Patricio County of $44 for confirmation costs.3
The final motion to revoke, which is at issue in this appeal, was an amended motion filed by the State on August 7, 2017. In this amended motion to revoke, the State alleged Martinez violated his supervision conditions by failing to pay:
Martinez again filed an affidavit of indigence in which he stated he had no monthly income or monthly expenses and that he had three dependent children. He was found indigent and had counsel appointed.
The hearing on the State’s amended motion to revoke took place on August 11, 2017. By the time of the hearing, Martinez had been on community supervision for six years, and he had made a single payment of $30 to the community supervision department and a payment of $200 to the district clerk for court costs.5 Martinez pleaded not true as to all the allegations made by the State. At the hearing, the trial court heard testimony from Martinez’s supervision officer, Rosie Franco, and from Martinez.
Franco testified that Martinez participated in the programs required by the conditions of his supervision and reported to her twice a month. According to Franco, as of the time of the hearing, she was not aware of Martinez having any money or income to pay any fees or of him having any bank accounts, stocks, or bonds.
The trial court then asked of Franco:
Martinez took the stand and testified he lacked the ability to make the payments.
The State then cross-examined Martinez:
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