Diana Lynn Kemp v. State ( 2005 )

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00104-CR

______________________________

DIANA LYNN KEMP, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 276th Judicial District Court

Marion County, Texas

Trial Court No. F11450



Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Diana Lynn Kemp appeals from the revocation of her community supervision. She was convicted of aggravated assault May 9, 1995, by a jury. The jury assessed a ten-year sentence and a $10,000.00 fine, but recommended Kemp be placed on community supervision. The trial court suspended imposition of the sentence and placed Kemp on community supervision for ten years. The conditions of community supervision included a requirement to pay $191.50 in court costs, a $10,000.00 fine, and $16,028.50 in restitution. Kemp was allowed to pay the total $26,220.00 over the ten-year term at $218.50 per month, plus $40.00 per month in supervision fees.

            The State moved to revoke, alleging that Kemp had failed to report to her community supervision officer (by mail) in thirty-five separate months and that she was in arrears on supervision fees, payments on court costs, the fine, and restitution. At the hearing, the court found that the allegations concerning her failure to report were not true and found that the allegations concerning her failure to pay were true. The trial court then revoked her community supervision and sentenced her to ten years' imprisonment.

            We note at this point that the written judgment of revocation does not accurately reflect the court's pronouncement at the hearing—stating that the court found all allegations true. It is also erroneous because it states Kemp pled true to the second allegation, which is incorrect. Where there is a variation between the oral pronouncement of sentence and the written memorialization of that sentence, the oral pronouncement of sentence controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). We hereby order the judgment reformed to accurately reflect the oral pronouncements of the court.

            We now turn to Kemp's contentions. We review an order revoking community supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). At a revocation hearing, the State bears the burden of proving, by a preponderance of the evidence, that the defendant violated the terms and conditions of his or her community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Proof of any one of the alleged violations of the conditions of community supervision is sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). At a revocation hearing, the trial court is the sole judge of the credibility of the witnesses and of the weight to be given their testimony; and, on appeal, the evidence must be viewed in the light most favorable to the trial court's ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981).

            The focus of this contention lies in Kemp's alleged inability to make payments. Inability to make court-ordered payments is an affirmative defense to revocation of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2004–2005); Stafford v. State, 63 S.W.3d 502, 508 (Tex. App.—Texarkana 2001, pet. ref'd). The affirmative defense must be proven by a preponderance of the evidence. Stanfield v. State, 718 S.W.2d 734, 737 (Tex. Crim. App. 1986). The defendant has the burden of producing evidence and the ultimate burden of persuasion on the issue of inability to pay. Id. The State still has the burden to prove the failure to pay was intentional. Id. at 738. However, when the party has the ability to pay but does not, he or she leaves a fact-finder with a strong inference that the failure is intentional. Id.; Maxey v. State, 49 S.W.3d 582, 584 (Tex. App.—Waco 2001, pet. ref'd).

            Nevertheless, when evidence that the person on community supervision is unable to pay fees, court costs, fines, or restitution is not refuted by the State and the trial court revokes community supervision, it is an abuse of discretion. Quisenberry v. State, 88 S.W.3d 745, 749 (Tex. App.—Waco 2002, pet. ref'd).

            Kemp's payment history report from the community supervision offices of Marion County shows she had paid a total of $3,763.50 to the State, which the State allocated to pay court fees, dividing the remainder between community supervision fees and restitution. For substantial periods of time, Kemp made no payments or paid amounts well below the amount set out in the judgment.

            Kemp testified that, when placed on community supervision May 9, 1995, she was earning between $4.10 and $4.35 per hour (approximately $700.00 per month). She moved to Houston and received assistance from the Harris County Social Services, which helped her pay utilities. At that point, however, she was making payments of $150.00 or more to the State.

            Several months later, in 1995, Kemp suffered a stroke and developed a skin condition. As a result, it was determined she was disabled, and in 1997 she began receiving supplemental security income (SSI) benefits. Between mid-1996 and late 1997, she had no income, relying on friends and family to provide her needs. Kemp's first SSI check covered the time between her claimed date of disability in July 1996 and the date of approval, which was some eighteen months later, in December 1997. That first check was for a lump sum of between $6,000.00 and $7,000.00. She used the entirety of that money to make a partial payment on back taxes on her father's home, which was where she was living at the time and which was in danger of foreclosure by Harris County. She was receiving approximately $500.00 per month in SSI payments.

            In 2003, Kemp moved in with her mother, who was also on Social Security, and Kemp's SSI payments were accordingly lowered to $319.00 per month. She returned to Marion County at the State's request to discuss her failures to pay, and at some point, her mother told the community supervision officer by telephone that she would refinance the house to help make Kemp's payments. Instead, when the house was refinanced, Kemp's mother and sister split the proceeds and refused to give Kemp any portion of the money. The house was in the names of her mother and sister, and the evidence showed that Kemp had no right to any portion of the funds.

            To summarize: for the first several months of her community supervision, Kemp was employed as a home healthcare worker at minimum wage and made substantial monthly payments, although never paying the full amount due in any given month. For the remainder of the first year, she continued to make payments, although—as later acknowledged by the Social Security system—she was disabled at the time. For eighteen months, Kemp lived off the largesse of her family and friends. She then received a lump-sum check for the amount due for those months, which she used as partial payment on a tax lien on the house in which she was living. Between December 1997 and June 2003, she was paid a disability payment of $500.00 per month by SSI. At some point during that time, she moved into her own apartment and was required to pay her own bills and car insurance. However, in 2003, she moved in with her mother (who had suffered a stroke and whose husband had committed suicide), to provide home care for her, and Kemp's SSI payment was reduced to $319.00 per month. There was no testimony about whether Kemp had any money in bank accounts.

            There is no dispute concerning the amounts of money available to Kemp or when they were available. The State did not rebut any portion of her testimony. Thus, the only question is whether Kemp's situation constitutes an inability to pay.

            In its argument to the court, the State did not attempt to address Kemp's income situation, but focused on the lump-sum payment she received from SSI as showing that she had at one point had a substantial sum in her hands—but did not see fit to use any portion of it toward payment of her own obligations. After receiving the lump-sum payment in December 1997, Kemp clearly had the ability to pay the $218.50 per month installment payments. According to the records, she paid a total of $390.00 from June 1997 through September 1999.

            The standard of review with regard to the affirmative defense of inability to pay is whether, after examining all the evidence concerning the affirmative defense, a rational trier of fact could have found that the defendant failed to prove his or her defense by a preponderance of the evidence. Hill v. State, 719 S.W.2d 199, 201 (Tex. Crim. App. 1986); Jones v. State, 112 S.W.3d 266, 269 (Tex. App.—Corpus Christi 2003, no pet.); Arterberry v. State, 800 S.W.2d 580, 581 (Tex. App.—Tyler 1990, no pet.).

            The record shows that Kemp, for short times during the nine years, made payments of over one-half of the monthly requirement and that she made a single payment or $1,000.00 shortly before the motion to revoke was filed. Otherwise, she made no more than minimal payments toward any of the court-ordered monetary conditions. Further, although she did receive a lump-sum payment of between $6,000.00 and $7,000.00, she directed no portion of that amount toward her obligations. We recognize that Kemp had received no income for the previous eighteen months and that the payment was to cover that time period. Had evidence been available to show she used that money to repay loans required to support herself while waiting that year and a half for her disability check, we would be confronted with a different situation. That, however, is not what is shown by this record.

            We find that Kemp did not meet her burden to establish she was unable to pay. See Reyes v. State, 752 S.W.2d 591, 592 (Tex. App.—Corpus Christi 1987, no pet.). Thus, the trial court did not abuse its discretion by revoking her community supervision. We overrule her contention of error.

            As reformed, the trial court's judgment is affirmed.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          December 6, 2004

Date Decided:             January 11, 2005

Do Not Publish

. But, confusingly, Appellant's name is different in each of the three trial court judgments. In cause number 06-05-00251-CR--this case--the judgment refers to Appellant as Marvin Omar Espinal Zelaya, a/k/a Marvin Omar Espinal, and we refer to him as Espinal throughout this opinion. In cause number 06-05-00252-CR, the judgment refers to Appellant as Marvin Omar Espinal Zelaya, a/k/a Zelaya Marvin-Omar Espinal and we refer to him as Zelaya throughout that opinion. In cause number 06-05-00253-CR, the judgment refers to Appellant as Marvin Omar Espinal Zelaya, and we refer to him as Zelaya throughout that opinion.
2. This case was transferred to this Court by order of the Texas Supreme Court's docket equalization program.
3. See our opinions in cause numbers 06-05-00252-CR and 06-05-00253-CR.
4. Portions of Espinal's statement, in which he admitted participating in at least the three robberies for which he was on trial, were admitted into evidence during guilt/innocence. It appears the excerpts read during punishment were excluded at guilt/innocence by agreement of the parties.
5. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
6. Badillo was fluent in Spanish and acted as translator in the interview.
7. Failure to object in a timely and specific manner forfeits complaints about the admissibility of evidence. Unless the right involved is an absolute systemic one or one requiring an affirmative waiver, an objection must be presented to preserve error. See Saldano, 70 S.W.3d at 888; Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993).
8. When read his Miranda rights and presented a waiver-of-rights form to sign, Zervos signed the form. When the officer said that he had been told Zervos wanted to speak with the officer, Zervos said, "Nah, I just want to know what kind of trouble I'm in, that's all." Zervos, 15 S.W.3d at 154. Reviewing all of Zervos' comments (including those available on video tape), this Court held that, while some of his comments may have been ambiguous, it was "clear that Zervos intended to waive his rights and give the statement." Id.
9. See Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (standard of review for legal sufficiency).
10. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004) (standard of proof for analysis of factual sufficiency).
11. Even if we found Espinal had adequately briefed this issue, we refer again to the evidence summarized above. The evidence, viewed in a neutral light, is not too weak to support the finding of guilt beyond a reasonable doubt; nor is there evidence contrary to the verdict strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)).