Wike v. State, 01-86-0273-CR

• Decision Date: 12 February 1987
• Docket Number: No. 01-86-0273-CR,01-86-0273-CR
• Citation: 725 S.W.2d 465
• Parties: Warfield Raymond WIKE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 465

725 S.W.2d 465

Warfield Raymond WIKE, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-0273-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 12, 1987.

James M. Brooks, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Bill Adkins Camp, Jeff Ross, Harris County Asst. Dist. Attys., Houston, for appellee.

Before JACK SMITH, DUGGAN and COHEN, JJ.

OPINION

COHEN, Justice.

This is an appeal from the trial court's order revoking appellant's probation and sentencing him to ten years imprisonment for indecency with a child.

Appellant's two points of error contend that the trial court erred in revoking his probation because the evidence was insufficient to prove that he had the ability to pay, and intentionally failed to pay, his supervisory fees.

Appellant was placed on probation on February 10, 1984. The terms of his probation required that he pay a $15.00 supervisory fee each month, beginning March 12, 1984, and that he pay a $300.00 fine and $46.00 in court costs in monthly installments of $35.00. Sheryl Cook, probation liason officer for the 263rd District Court, testified that appellant made payments in March, April, and June of 1984, and that "two or three payments were made timely."

On August 2, 1984, a motion to revoke appellant's probation was filed. It alleged that, among other things, appellant was delinquent in paying his supervisory fees and fines. Appellant was arrested, apparently shortly thereafter, and remained in custody until April 24, 1985, when he was released on a $1,000.00 personal recognizance bond. Appellant's bond resulted from an agreement that he become current in the required probation payments. On June 27, 1985, appellant made an $80.00 payment, and was told, by Cook, that, unless he paid the remaining $426.00 by July, his probation would be revoked.

On July 26, 1985, appellant paid the $426.00. Cook then told him that the $426.00 he paid did not include his July supervisory fee, but that he would be allowed to make the July payment when he reported to his probation officer in August. On the same day, Cook assigned appellant to a new probation officer, Dee Dee Burg, who was located at a new office at Greenbriar and O.S.T. Cook testified that she gave appellant a map to the new office, and that the map contained instructions indicating that payments could only be accepted if made by cashiers check or money order. She also testified that she did not read the instructions to appellant, and that she did not know if he had read them. Appellant testified that he did not read them. Prior to this time, appellant had reported to a probation officer, and paid his fees, at the downtown office. He testified that he mailed the first payment, and that he paid the others personally, in cash, when he met with his probation officer.

The motion to revoke probation was dismissed on July 30, 1985.

On August 14, 1985, appellant reported to Burg, as required. Cook testified that Burg's notes of the meeting recited:

Defendant reports no arrest or violation. Reports residence and employment outside Harris County. Issued an appropriate travel permit, reviewed conditions of probation and expectations, with defendant. Defendant reports having appointment at Baylor Sex Offender on November 5, 1985. Discussed fees, defendant presented copies of past check stubs, defendant appeared cooperative, but having many questions. [N]ext office visit September 12th. (emphasis added.)

Appellant testified that, on August 14, 1985, he attempted to make a $30.00 cash payment, but that the cashier refused to accept it, and told him that he could only pay by cashier's check or money order. He testified that he discussed it with Burg, and that she told him to get a money order, add $15.00 for the following month, and make a $45.00 payment (for July, August, and September) when he reported on September 12, 1985.

Cook testified that Burg's notes for September 12, 1985, said, "I have a notation of a phone call from defendant to his probation officer that he is hitchhiking into town from Alvin. States he's trying to keep appointment but not sure when he will arrive."

Appellant testified that on September 12, 1985, his employer agreed to let him leave work at 3:00 p.m., in order to meet with his probation officer. His employer told him that if he had to leave any earlier, not to bother to return to work, because he would no longer have a job. Appellant testified that he had to hitchhike because he did not have a car or a driver's license, and because he had not been able to find anyone to give him a ride.

Appellant testified that he called Burg several times to let her know how far he had gotten, and that the last time he spoke to her was at 6:20 p.m., from Fuqua and Telephone Road. Appellant testified that she asked him if he would be at the office by 7:00 p.m., because she would only be there until then, and appellant said he would try. Burg told him to call her at the next possible convenient time. At 6:55 p.m., appellant called from Park Place and Telephone, but did not talk to Burg because there was no answer. He continued to call every few minutes until 7:15 p.m., and then walked back to Alvin. Appellant was arrested on September 14, 1985, at 8:30 a.m. on an unrelated charge that was later dismissed.

On October 28, 1985, while appellant was still incarcerated on the unrelated charge, the present motion to revoke probation was filed. It alleged that appellant had committed an aggravated sexual assault, and had "not made a payment [of his supervisory fee] for the months of August and September 1985 as directed by the court and is presently $45 in arrears." On April 3, 1986, at the hearing on the motion to revoke, the State abandoned the first paragraph and proceeded solely on the second paragraph.

Appellant testified that, on September 12, 1985, he had a money order for $45 made out to the Harris County Adult Probation Department, and that, between his arrest on September 14, 1985, and the hearing on April 3, 1986, he had made several attempts to make the $45 payment; specifically, (1) that he asked Edward McGinty to pick up his paycheck, to cash it, and to send him the money; (2) that he asked McGinty to go to his residence, a trailer owned by his employer and located behind the nursery where he worked, and to bring him his pocket calendar, because the money order was inside the pocket calendar; (3) that he asked John Bowman, a friend named Glenda, his parents, his grandparents, and several other friends to borrow the money, to cash his check, or to bring him the money order; (4) that he asked his employer, Mr. Boden, to send him the pocket calendar from the trailer, but that Mr. Boden told him that he did not know what was in the trailer because he had let other people move into the trailer; and (5) that he tried to ask Mr. Abera and several other people, but that they refused his collect calls from the jail.

On cross-examination, appellant testified that Glenda could not help him because she was not allowed to use the car; that McGinty would not help, because he said he did not want to get involved and did not want to go on Boden's property; that none of his family lived in Houston and that his grandparents were disabled; that he bought the money order at the Kroger store in Alvin; that McGinty had seen the money order; and that, while he was in jail, neither Burg nor Cook had contacted him regarding the payment.

It was undisputed that appellant was aware that he was required to make $15.00 monthly supervisory payments, that he did not make the payments for July, August, and September 1985, and that he was employed earning approximately $525.00 per month in July and August of 1985.

The trial court found that appellant "failed to pay a supervisory fee for the months of August and September 1985," revoked appellant's probation, and sentenced him to ten years confinement. This finding was the sole basis for the revocation of probation.

The State is required to prove that appellant's failure to pay his supervisory fees was intentional. Stanfield v. State, 718 S.W.2d 734, 738 (Tex.Crim.App.1986)....