Rusk v. State

• Decision Date: 12 February 2013
• Docket Number: No. 06–12–00099–CR.,06–12–00099–CR.
• Citation: 440 S.W.3d 694
• Parties: Graylin RUSK, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

440 S.W.3d 694

Graylin RUSK, Appellant

v.The STATE of Texas, Appellee.

No. 06–12–00099–CR.

Court of Appeals of Texas, Texarkana.

Submitted: Jan. 23, 2013.

Decided: Feb. 12, 2013.

T.W. Davidson, Tyler, for Appellant.

Michael Jimerson, Rusk County Dist. Atty., Richard Kennedy, Asst. Dist. Atty., Henderson, for Appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

Graylin Rusk has appealed the action of the trial court's revocation of his community supervision. Rusk had been placed on community supervision in Rusk County as a result of a plea agreement after he had been charged with leaving the scene of an accident in which someone had received serious bodily injury. Under that plea agreement (entered July 12, 2011), Rusk's five-year sentence had been suspended and Rusk had been placed on community supervision for five years. On March 23, 2012, the State filed a motion to revoke the community supervision, alleging that Rusk had violated the terms of community supervision (1) by committing the offense of aggravated assault, Tex. Penal Code Ann. § 22.02 (West 2011), (2) by committing the offense of resisting arrest, search, or transportation, Tex. Penal Code Ann. § 38.03 (West 2011), and (3) by failing to pay his community supervision fees and attorney's fees.

At the plea hearing, Rusk entered a plea of “true” to the charge of having failed to pay the community supervision fees and the attorney's fees, but entered a plea of “not true” to charges that he had committed either of the offenses mentioned above. The State abandoned the two criminal offenses as causes for the revocation of Rusk's community supervision and proceeded solely on its allegations that Rusk had failed to pay the supervision and attorney's fees. Acknowledging the parties had not reached a plea agreement concerning the revocation, the State requested Rusk's community supervision be revoked and the five-year prison sentence imposed.

Rusk responded that he lacked the ability to pay the fees and claimed it to be unconstitutional under both the United States and Texas Constitutions to revoke community supervision based solely on poverty. The State's response, in its entirety, was as follows:

Judge, there's no evidence before the Court of his inability to pay. There's what Mr. Davidson said, but there's no evidence of it, nothing to rely upon. He bargained for 5. He's done very little while on probation. It's time to be revoked and go on.

Neither side presented any evidence concerning Rusk's ability to pay the fees he was ordered to pay as conditions of his community supervision, and the record contains no discussion of alternatives to imprisonment. On appeal, Rusk argues that the revocation of his community supervision based solely on his failure to pay the fees violates the United States Constitution.¹

The standard of review for a trial court's decision to revoke community supervision is to ascertain whether there has been an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006) ; In re T.R.S., 115 S.W.3d 318, 320 (Tex.App.-Texarkana 2003, no pet.). A trial court abuses its discretion if its decision lies outside the zone of reasonable disagreement. Layton v. State, 280 S.W.3d 235, 240 (Tex.Crim.App.2009) ; Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990).

Some thirty years ago, the United States Supreme Court ruled a trial court must first make an inquiry into the ability of the defendant to pay fees ordered to have been paid before revoking based upon the failure to pay; the absence of such an inquiry heralds a violation of the Due Process and the Equal Protection Clauses of the United States Constitution. Bearden v. Georgia, 461 U.S. 660, 672–73, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In Bearden, the State had originally listed two grounds for revocation of probation: (1) that Bearden had committed burglary and (2) that he had not paid a fine and restitution he had been ordered to pay as conditions of probation. However, the burglary grounds were abandoned and the State proceeded solely on Bearden's failure to pay the fine or make the restitution. Id. at 663 n. 2, 103 S.Ct. 2064. Those fact circumstances are quite similar to those found in this case. The Court in Bearden noted that “if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.” Id. at 667–68. Bearden recognized only two exceptions to this general rule: (1) when “probationer has willfully refused to pay the fine or restitution when he has the means to pay,”² or (2) “[o]nly if the sentencing court determines that alternatives to imprisonment are not adequate in a particular situation to meet the State's interest in punishment and deterrence may the State imprison a probationer who has made sufficient bona fide efforts to pay.”³ The Court then summarized its ruling as follows:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

Id. at 672–73, 103 S.Ct. 2064.

The Texas Court of Criminal Appeals has recently provided some additional guidance concerning Bearden in its case of Gipson v. State, 383 S.W.3d 152, 159 (Tex.Crim.App.2012), wherein a decision of the Beaumont Court of Appeals employed an evidentiary sufficiency examination to a Bearden inquiry. In that case, the Texas Court of Criminal Appeals concluded that Bearden “prescribes a mandatory judicial directive, not a prosecutorial evidentiary burden.” Id. at 157. Remanding the case for reconsideration by the Beaumont court, the Texas Court of Criminal Appeals instructed that the court of appeals should first examine whether any violation of the Texas “ability-to-pay statute,” Tex.Code Crim. Proc. Ann. art. 42.12, § 21(c) (West Supp.2012), had occurred and whether any complaint regarding such a violation had been preserved for appellate review. Gipson, 383 S.W.3d at 157. Noting, but not deciding, that the ability-to-pay statute may not apply to all of the fees at issue, the court instructed that should the Beaumont court determine that the ability-to-pay statute is inapplicable, it must then consider whether there was any preserved error regarding a violation of Texas common law. Id. at 158. The Texas Court of Criminal Appeals directed that the Beaumont court consider the application of Constitutional issues in Bearden only after addressing both of these sufficiency issues. Id. at 157–58.

It is notable that Gipson differs from this case in that the appellant in Gipson raised two issues on appeal. The first issue raised sufficiency of the evidence and the second issue alleged the trial court “committed constitutional error.” Id. at 154. In contrast, Rusk's sole⁴ issue on appeal is:

Did the Trial Court, During the Defendant/Appellant's Motion to Revoke Hearing, Incorrectly Interpret or Apply Current Law and Thereby Impermissibly Revoke the Defendant/Appellant's Community Supervision (Probation) and Sentence Mr. Rusk to Five Years?

It should be noted that Rusk does not explicitly raise the Texas ability-to-pay statute. The State raises a counterpoint arguing that if there was error, Rusk had waived it when he entered his plea of “true.” Because of (1) the explicit instructions in Gipson to consider the ability-to-pay statute before addressing any constitutional issues, (2) the broad language of Rusk's issue as it is worded, and (3) the general rule that statutory violations should be addressed before addressing any constitutional arguments,⁵ we will address the Texas ability-to-pay statute⁶ as well as any violation of Bearden.

(1) The Plea of “True” Did Not Effect a Waiver of the Rights Under the Ability–to–Pay Statute

At the revocation hearing, the State argued there was “no evidence before the Court of [Rusk's] inability to pay,” leading one to conclude that the State may have believed this issue was an affirmative defense on which the defendant had the burden of proof. At one time, this would have been correct. From 1977 until 2007, the inability to pay probation fees was an affirmative defense to revocation. See Gipson, 383 S.W.3d at 158. The current statute, though, places the burden of proof on the State:

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 compensation paid to appointed counsel, community supervision fees, or court costs, the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge. The court may order a community supervision and corrections department to obtain information pertaining to the factors listed under Article 42.037(h) of this code and include that information in the report required under Section 9(a) of this article or a separate report, as the court directs.

Tex.Code Crim. Proc. Ann. art. 42.12, § 21(c) (emphasis added).⁷ The record fails to contain any...