John Mark Duncan v. State ( 2005 )

Opinion issued February 17, 2005

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-04-00408-CR

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JOHN MARK DUNCAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 821433

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MEMORANDUM OPINION

          Appellant, John Mark Duncan, was convicted by a jury of aggravated sexual assault of a child and placed on community supervision for 10 years. Subsequently, the State filed a motion to revoke appellant’s community supervision, alleging that he failed to provide written verification of his attempts to secure employment and failed to pay fees and court costs. The trial court determined that appellant had violated the conditions of his community supervision as alleged by the State, revoked appellant’s community supervision, and sentenced him to five years in prison. In two issues, appellant asserts that the trial court abused its discretion because the evidence was insufficient to find that he had violated his community supervision. We affirm.

BACKGROUND

          The terms of appellant’s community supervision required him to present written verification of employment, including all attempts to secure employment, to his community supervision officer on each reporting date, to pay a $25 fee for DNA testing by January 1, 2004, and to begin making monthly payments toward the $367.25 assessed as a fine and court costs on February 1, 2004. Appellant was also ordered to make the following additional monthly payments beginning December 1, 2003: (1) $40 a month as a supervision fee, (2) $5 a month in lab fees, and (3) $5 a month to the Sexual Assault Program Fund.

          In its motion to revoke appellant’s community supervision, the State alleged six violations. The first alleged violation was that appellant failed to comply with the requirement that, on January 7, 2004, January 21, 2004, and February 5, 2004, he verify in writing his attempts to find a job. The remaining five alleged violations consisted of appellant’s failure to make any of the required payments resulting in a total arrearage of $200. Appellant and his community supervision officer, Leah Callis, were the only witnesses at the hearing.

                                                       DISCUSSION

          We review a trial court’s decision regarding community supervision revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial court’s order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). To revoke community supervision, the State must prove every element of at least one ground for revocation by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon Supp. 2004); Moore v. State, 11 S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The trial court holds very broad discretion over community supervision, its revocation, and its modification. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21. Considering the unique nature of the revocation hearing and the trial court’s broad discretion in the proceedings, the general standards for reviewing factual sufficiency do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref’d). If the greater weight of credible evidence creates a reasonable belief that appellant violated a condition of his or her probation, the trial court’s order of revocation does not constitute an abuse of its discretion. Id. (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).

          Appellant does not contest the allegations that he did not make the required payments. Instead, he argues the affirmative defense that he was unable to make the payments, which caused him to become $200 in arrears. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2004). It is appellant’s burden to prove this defense by a preponderance of the evidence. Id.; Greathouse v. State, 33 S.W.3d 455, 458 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The evidence appellant presented to attempt to prove his inability to pay was his statement that “I don’t have much money,” and his testimony that he was unemployed and couldn’t find a job because of his conviction. While this testimony is some evidence of financial hardship, there is no corroborating evidence to support his claims. See Amezcua v. State, 975 S.W.2d 688, 690 (Tex. App.—San Antonio 1998, no pet.) (citing Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979) for proposition that trial court doesn’t abuse discretion where defendant’s testimony is only evidence of inability to pay). Appellant’s claim is a mere assertion of inability to pay, and does not rise to the level of proof of inability to pay by a preponderance of the evidence because he did not provide any information on how “much money” he did have, what his expenses were, what his sources of income, if any, were, and what property or possessions he owned. Id. (noting that, without such corroborating evidence “we are left with mere assertions of inability”). Additionally, appellant admits that he had limited his job search to the construction and welding fields and received some financial assistance from family. On these facts, the trial court could have reasonably found that appellant failed to carry his burden to prove, by a preponderance of the evidence, the affirmative defense of inability to pay.

           As previously noted, the State is required to prove only one ground to prevail on its motion to revoke community supervision, so we need not address the issue of whether the State proved that appellant did not verify his attempts to secure employment. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21; Moore, 11 S.W.3d at 498. Examining the evidence in a light most favorable to the trial court’s order, we hold that the trial court did not abuse its discretion by revoking appellant’s community supervision.

                                                     CONCLUSION

          We affirm the judgment of the trial court.

                                                             Sam Nuchia

                                                             Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).