Quisenberry v. State

• Decision Date: 21 August 2002
• Docket Number: No. 10-01-066-CR.,10-01-066-CR.
• Citation: 88 S.W.3d 745
• Parties: George Thomas QUISENBERRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 745

88 S.W.3d 745

George Thomas QUISENBERRY, Appellant, v. The STATE of Texas, Appellee.

No. 10-01-066-CR.

Court of Appeals of Texas, Waco.

August 21, 2002.

Rehearing Overruled September 18, 2002.

COPYRIGHT MATERIAL OMITTED

Daniel W. Hurley, Aaron Ray Clements, Hurley, Reyes & Guinn, Lubbock, for appellant.

Bill R. Turner, Brazos County Dist. Atty., Margaret Lalk, Brazos County Asst. Dist. Atty., Bryan, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

BILL VANCE, Justice.

George Thomas Quisenberry appeals the trial court's order revoking his community supervision for failing to pay restitution. He raises two issues for our review, and finding that the court abused its discretion in deciding to revoke, we will reverse the judgment.

BACKGROUND

In 1988, Quisenberry was self-employed as a cattle broker purchasing livestock from ranchers and then selling them at auction barns expecting to realize a profit from the sale. Linda and Wayne Wilson own a small cattle ranch in Brazos County. Within a two to three week period, Quisenberry bought approximately $118,000 worth of cattle from the Wilsons, paying by check. He sold the cattle to third parties at auction barns in Floydada, Texas, before the Wilsons learned that the checks had been returned for insufficient funds. In all, Quisenberry made three separate purchases of cattle from the Wilsons using checks that "bounced."

In May 1990, Quisenberry pled guilty to a three-count indictment charging felony theft by check. TEX. PEN.CODE ANN. §§ 31.03, 31.06 (Vernon Supp.2002). The trial court sentenced him to ten years' confinement, but suspended imposition of that punishment and placed Quisenberry on community supervision for ten years.¹ A condition of community supervision was to pay restitution in the amount of $118,660.32. He was required to make a $20,000 payment by November 8, 1991, and a final payment of the remaining balance by May 8, 1993.²

On May 29, 1990, at the State's request, the trial court modified the three orders setting the conditions to reflect the amount of restitution to be paid in each count: count 1), $34,317.04; count 2), $42,538.36; and count 3), $41,804.92. The court ordered Quisenberry to pay the entire amount of restitution in two payments of approximately $59,000 each, the first payment due November 1991 and the second to be paid in May 1993. The payment terms were modified again in June of 1993 because, according to the assistant district attorney, this payment schedule "became impossible." After a hearing on the issue of how to structure the payments, the court modified the conditions of community supervision in each count. The revision ordered Quisenberry to make monthly payments "between the first and tenth of the month," beginning in July of 1993, in the amounts of $400 for count 1, $532 for count 2, and $523 for count 3, a total of $1,455 per month.

Almost seven years later, in May 2000, the Brazos County District Attorney's office filed motions to revoke Quisenberry's community supervision on the ground that he had failed to make the required monthly payments. Quisenberry pled "not true" to the allegation and asserted the affirmative defense of inability to pay. TEX.CODE CRIM. PROC. ANN. art. 42.12 § 21(c) (Vernon Supp.2002) ("In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay . . . restitution, or reparations, the inability of the defendant to pay as ordered by the judge is an affirmative defense to revocation, which the defendant must prove by a preponderance of evidence.").

After a hearing on October 20, 2000, which was continued on December 19, the trial court found the allegations to be true, revoked community supervision on each count, and announced his intention to impose "shock" probation so that the probationary period could be extended for another ten years. Id. art. 42.12 § 6(a). Quisenberry then brought this appeal. His first issue is that the trial court did not have jurisdiction because the capias or warrant was not issued before the expiration date of his probationary period. His second issue is that the trial court abused its discretion by revoking community supervision when the evidence shows that he did not have the ability to pay.

ISSUE (1): LACK OF JURISDICTION

Quisenberry first contends the trial court lacked jurisdiction to revoke his community supervision. Quisenberry and the State agree that a trial court's jurisdiction extends beyond the probationary period when: (1) the State's motion to revoke is properly filed before the expiration of the probationary period; and (2) a capias is issued before the expiration of the probationary period. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex.Crim.App.1999); Beaty v. State, 49 S.W.3d 606, 607 (Tex. App.-Beaumont 2001, pet. ref'd).

Quisenberry's probationary period expired on May 8, 2000. The State filed motions to revoke his probation on May 2. A capias was issued on May 5 for each count. Quisenberry was arrested on May 11. Each capias was issued before the expiration of his probationary period. Therefore, the two jurisdictional-extending prerequisites were satisfied before the expiration date of his probationary term. Rodriguez v. State, 804 S.W.2d 516, 517 (Tex.Crim.App.1991). Accordingly, the trial court had jurisdiction over the revocation proceedings; we overrule issue one. Id.

ISSUE (2): INABILITY-TO-PAY DEFENSE

STANDARD OF REVIEW

We review an order revoking community supervision by determining whether the court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984). If the State fails to meet its burden of proof, the trial court abuses its discretion in issuing a revocation order. Greathouse v. State, 33 S.W.3d 455, 458 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Here, the State moved to revoke Quisenberry's community supervision on the ground that he failed to pay restitution as ordered. When evidence that the probationer is unable to pay fees, court costs, fines, or restitution is not refuted by the State and the trial court revokes probation, it is an abuse of discretion. Id. at 459 (citing Basaldua v. State, 558 S.W.2d 2, 7 (Tex.Crim.App.1977), and Pool v. State, 471 S.W.2d 863, 863 (Tex. Crim.App.1971)).

APPLICABLE LAW

A trial court has broad discretion in imposing conditions of community supervision. The conditions, however, must be reasonable, and must be designed to "protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant." TEX.CODE CRIM. PROC. ANN. art. 42.12 § 11(a) (Vernon Supp.2002); Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App.1999). If restitution is ordered, the restitution amount set must be just. See Martin v. State, 874 S.W.2d 674, 676 (Tex.Crim.App.1994). The trial court must "consider the ability of the defendant to make the payments" in ordering restitution. TEX.CODE GRIM. PROC. ANN. art. 42.12 § 11(b) (Vernon Supp.2002).

Once granted, community supervision should not be arbitrarily withdrawn by the trial court; the court is not authorized to revoke community supervision absent a showing that the probationer has violated a condition imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim.App.1987). In a revocation proceeding, the State must prove the allegations of the motion to revoke by a preponderance of the evidence. Jenkins v. State, 740 S.W.2d 435, 437 (Tex.Crim.App.1987). As noted, failure to pay restitution due to the inability to pay is an affirmative defense for a defendant to raise and prove by a preponderance of the evidence. TEX.CODE GRIM. PROC. ANN. art. 42.12 § 21(c); Maxey v. State, 49 S.W.3d 582, 584 (Tex.App.-Waco 2001, pet. ref d) (citing Stanfield v. State, 718 S.W.2d 734, 737 (Tex.Crim.App. 1986)). Once the issue of inability to pay is raised, the burden of proof shifts to the State to prove that the defendant's failure to pay was intentional. Stanfield, 718 S.W.2d at 738; Stafford v. State, 63 S.W.3d 502, 508 (Tex.App.-Texarkana 2001, pet. ref'd). The Code of Criminal Procedure provides that when the ground for revocation is failure to pay restitution as required, the trial court "shall consider" these factors when deciding whether to revoke:

(1) the defendant's employment status;

(2) the defendant's earning ability;

(3) the defendant's financial resources;

(4) the willfulness of the defendant's failure to pay; and

(5) any other special circumstances that may affect the defendant's ability to pay.

TEX.CODE CRIM. PROC. ANN. art. 42.037(h) (Vernon Supp.2002).

APPLICATION

The State's Case-in-Chief

Brad Scott, a Brazos County community supervision officer, was the State's only witness at the revocation hearing. Scott reviewed the history of the restitution orders. According to Scott, in 1993 the court ordered Quisenberry to pay $1,455 a month so that restitution to the Wilsons could be paid in full in the seven years remaining on his community supervision period.

Scott testified that Quisenberry had paid $12,125 in restitution to the Wilsons during his ten-year probationary period. He said Quisenberry had never made a full payment of $1,455. In addition, he said that Quisenberry stopped making payments altogether in June 1999. According to Scott, Quisenberry was notified of delinquencies in his payments through "request response" letters, which were form letters that were sent to the out-of-county community supervision officer who was monitoring Quisenberry, to let that officer know of the delinquency. Scott stated that Quisenberry would respond to these letters by making a less-than-full payment and "apologizing for being late, saying he would make-up and pay more." A "payment record" was admitted into evidence, showing the amounts and dates of Quisenberry's payments as applied to the restitution due on each count.

Scott testified that...