Pennington v. State, No. 2-93-534-CR
| Court | Court of Appeals of Texas |
| Writing for the Court | RICHARDS |
| Citation | 902 S.W.2d 752 |
| Parties | Adlai PENNINGTON aka Adlai Wayne Pennington, Appellant, v. The STATE of Texas, State. |
| Docket Number | No. 2-93-534-CR |
| Decision Date | 13 July 1995 |
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v.
The STATE of Texas, State.
Fort Worth.
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Robert Ford, Fort Worth, for appellant on appeal only.
Tim Curry, Criminal Dist. Atty., Betty Marshall and Charles M. Mallin, Asst. Chiefs of Appellate Section, M. Jason Ankele, Charles Brandenberg, and Larry Thompson, Assts., Fort Worth, for appellee.
Before DAY, DAUPHINOT and RICHARDS, JJ.
RICHARDS, Justice.
Adlai Pennington appeals from his conviction for securing the execution of a document by deception. The jury assessed punishment of a two-year sentence probated for two years and a $10,000 fine. As a condition of probation, the trial court set restitution in the amount of $144,680.31, to be paid in monthly installments of $6,580 over the two-year probationary period.
Pennington's only point of error on appeal asserts the trial court erred in setting the restitution amount by failing to consider Pennington's ability to make the restitution payments. We conclude the trial court did not err because the record reflects that the court complied with article 42.12, section 11(b) of the Texas Code of Criminal Procedure. We affirm the judgment of the trial court.
Pennington argues the trial court failed to comply with article 42.12, section 11(b) of the Texas Code of Criminal Procedure in setting the amount of the monthly installment payments. Article 42.12, section 11(b) of the Texas Code of Criminal Procedure (Vernon Supp.1992) was amended, effective in 1990, to include the following language: "The court shall consider the ability of the probationer to make payments in ordering the probationer to make payments under this article."
Pennington avers that article 42.12, section 11(b) of the Texas Code of Criminal Procedure mandates that a probationer pay restitution according to his means. Pennington points out his monthly net income of $3,352 was exceeded by his expenses of $3,544, even
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before including the monthly restitution of $6,580 imposed by the court. We disagree with Pennington's interpretation of what is required by article 42.12, section 11(b) of the Texas Code of Criminal Procedure.The starting point for statutory analysis is the text of the statutory provision at issue. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Our duty is to attempt to discern the legislative intent or purpose of the statute by, if reasonably possible, giving effect to the plain meaning of the statute's language. See id. at 785-86. The language of article 42.12, section 11(b) of the Texas Code of Criminal Procedure is unambiguous. 1 It requires the trial court to "consider" the probationer's ability to make the payments ordered by the court. The language does not mandate that the payments be within the financial means of the probationers.
The Houston Fourteenth District Court of Appeals addressed a similar issue in Rumph v. State, 687 S.W.2d 489 (Tex.App.--Houston [14th Dist.] 1985, no pet.). In Rumph, the appellant was found...
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Ex parte Gonzales, 72,606
...a probationer's ability to make such payments ordered by the court. Tex.Code Crim.Proc.Ann. art. 42.12, § 11(b); Pennington v. State, 902 S.W.2d 752, 754 (Tex.App.--Fort Worth 1995, pet. ref'd). Article 43.03 provides that if a defendant sentenced to pay a fine or costs defaults in payment,......
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Green v. The State Of Tex., 03-09-00718-CR
...equal protection violation for imposition of fine he could not pay until he was imprisoned for failure to pay); Pennington v. State, 902 S.W.2d 752, 754 (Tex. App.—Fort Worth 1995, pet. refd) (citing Rumph v. State, 687 S.W.2d 489, 495 (Tex. App.—Houston [14th Dist.] 1985, no pet.) (holding......
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Damron v. State, No. 2-08-399-CR (Tex. App. 3/18/2010), 2-08-399-CR.
...court "considered" the defendant's ability to make the payments, as required by section 11(b) of article 42.12. Pennington v. State, 902 S.W.2d 752, 753-55 (Tex. App.-Fort Worth 1995, pet. ref'd). This case differs from Pennington because section 13(d), unlike section 11(b), affirmatively r......