Raimond Kevon Gipson A/K/A Raimond Gipson v. State , 2013 Tex. App. LEXIS 2489 ( 2013 )


Menu:
  •                                        In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ____________________
    NO. 09-11-00032-CR
    ____________________
    RAIMOND KEVON GIPSON A/K/A RAIMOND GIPSON, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    __________________________________________________________________
    On Appeal from the 252nd District Court
    Jefferson County, Texas
    Trial Cause No. 08-02932
    __________________________________________________________________
    OPINION
    A jury convicted Raimond Kevon Gipson a/k/a Raimond Gipson of assault
    on a family member. The trial court sentenced Gipson to ten years in prison, but
    suspended imposition of sentence and placed Gipson on community supervision
    for ten years. The State subsequently filed a motion to revoke Gipson’s community
    supervision on three grounds, including an allegation that Gipson had failed to pay
    court-assessed fees. Gipson pleaded “true” to the alleged failure to pay, but
    pleaded “not true” to the State’s other allegations. The trial court found that Gipson
    1
    violated his community supervision, revoked Gipson’s community supervision,
    and sentenced Gipson to eight years in prison. We reverse the trial court’s
    judgment and remand for further proceedings consistent with this opinion.
    Gipson appealed the trial court’s revocation of his community supervision.
    Gipson v. State, 
    347 S.W.3d 893
    (Tex. App.—Beaumont 2011), rev’d, 
    383 S.W.3d 152
    (Tex. Crim. App. 2012). On original submission, Gipson argued that the trial
    court abused its discretion and committed constitutional error by revoking his
    community supervision for failure to pay court-assessed fees. 
    Id. at 894.
    We
    construed Gipson’s argument as a sufficiency challenge and held as follows:
    Although a plea of true is generally sufficient to support a judgment
    revoking community supervision, when the sole basis for revocation is
    failure to pay court-ordered fines and fees, there must be evidence of
    willful refusal to pay or failure to make sufficient bona fide efforts to
    pay. As previously discussed, in the case at bar, no evidence was
    presented concerning whether Gipson willfully refused to pay or to
    make sufficient bona fide efforts to pay. Therefore, the trial court
    abused its discretion by revoking Gipson’s community supervision
    based solely upon his plea of true to the allegation that he failed to pay
    court-assessed fees.
    
    Id. at 896-97
    (internal citations omitted). We did not address Gipson’s argument
    that the trial court had committed constitutional error. 
    Id. at 897
    n.2.
    The Court of Criminal Appeals reversed our decision, noting that Gipson
    had raised his inability-to-pay argument for the first time on appeal. Gipson v.
    State, 
    383 S.W.3d 152
    , 153 (Tex. Crim. App. 2012). The Court explained that an
    2
    appellate court cannot reverse a judgment of conviction without first addressing
    preservation issues. 
    Id. at 159.
    Because we did not address error preservation on
    original submission, the Court of Criminal Appeals remanded the case for further
    proceedings. 
    Id. On remand,
    we must first consider whether Gipson preserved his
    issues for appellate review. See 
    id. at 156.
    If Gipson’s issues are preserved, we will
    then address the merits of his complaints. 
    Id. at 158-59.
    Revocation Based on Fees and Fines
    Sufficiency issues cannot be forfeited and need not be preserved for appeal.
    See Mayer v. State, 
    309 S.W.3d 552
    , 556 (Tex. Crim. App. 2010); see also Rankin
    v. State, 
    46 S.W.3d 899
    , 901 (Tex. Crim. App. 2001); see also Rusk v. State, ___
    S.W.3d ___, No. 06-12-00099-CR, 2013 Tex. App. LEXIS 1274, at *16 (Tex.
    App.—Texarkana Feb. 12, 2013, no pet. h.) (not yet released for publication). A
    plea of “true” does not constitute an intentional relinquishment because admission
    to failure to pay as ordered is not an admission to willfully failing to pay. Rusk,
    2013 Tex. App. LEXIS 1274, at **19-20. Thus, Gipson may raise his sufficiency
    issues for the first time on appeal.
    3
    In issue one, Gipson challenges the revocation of his community supervision
    for failure to pay court-ordered fees and fines.1 Condition 26 of the community
    supervision order required Gipson to pay a $500 fine, supervision fees, court costs,
    a PSI fee, a $50 Crime Stoppers fee, and $1,000 in attorney’s fees. The allegation
    to which Gipson pleaded “true” stated that Gipson “has failed to pay court assessed
    fees as directed by the Court and as of November 29, 2010 was $1,589.00 in
    arrears, in violation of Condition (26) of Defendant’s Community Supervision
    order.” Gipson contends that the trial court abused its discretion by revoking his
    community supervision based solely on his plea of “true” to the failure to pay
    court-assessed fees, absent evidence that he was able to pay and did not do so.
    Generally, a defendant cannot challenge a revocation finding to which he
    pleaded “true.” See Cole v. State, 
    578 S.W.2d 127
    , 128 (Tex. Crim. App. 1979).
    When the State alleges only that the defendant violated the conditions of
    community supervision by failing to pay appointed attorney’s fees, 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 trial
    court. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (West Supp. 2012). The
    1
    Bearden v. Georgia, 
    461 U.S. 660
    , 
    103 S. Ct. 2064
    , 
    76 L. Ed. 2d 221
    (1983)
    is inapplicable to Gipson’s first issue. See Gipson v. State, 
    383 S.W.3d 152
    , 157
    (Tex. Crim. App. 2012).
    4
    statute expressly applies to attorney’s fees, community supervision fees, and court
    costs. See 
    id. PSI and
    Crime Stoppers fees are often assessed as court costs; thus,
    we conclude these costs may be included within the statute’s purview. See 
    id. art. 42.12,
    § 9; see also Tex. Code Crim. Proc. Ann. art. 37.073 (West Supp. 2012);
    Tex. Code Crim. Proc. Ann. art. 42.152 (West 2006).
    Although, in general, article 42.12 applies to fees and costs, and not fines,
    section 11(b) lists the payment of fines along with fees and costs as permissible
    requirements of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, §
    11(b). It further requires the sentencing court to “… consider the ability of the
    defendant to make payments in ordering the defendant to make payments under
    this article.” 
    Id. While this
    statute applies directly to the sentencing of a defendant
    to community supervision, it gives some guidance to appellate courts. Also, prior
    to the enactment of the statute, the common law generally required the state to
    prove that a defendant had willfully failed to pay court-ordered fees, restitution,
    and other costs. See Whitehead v. State, 
    556 S.W.2d 802
    , 805 (Tex. Crim. App.
    1977); McKnight v. State, 
    409 S.W.2d 858
    , 859-60 (Tex. Crim. App. 1966); Taylor
    v. State, 
    172 Tex. Crim. 45
    , 
    353 S.W.2d 422
    , 424 (1962) (op. on reh’g). These
    cases make clear that, at common law, the state had the burden of showing that a
    defendant had the ability to pay court-ordered costs and willfully failed to do so.
    5
    Although we can find no cases directly on point, it seems logical that the Court of
    Criminal Appeals, following its precedent that applies to fees, would treat the
    failure to pay a fine authorized by the Legislature, i.e. by the same way it has
    treated other fees that are authorized by the Legislature, requiring the state to show
    that a defendant was able to pay and acted intentionally in not doing so.
    In this case, the record is devoid of evidence showing that Gipson’s failure
    to pay attorney’s fees, community supervision fees, or court costs, including PSI
    and Crime Stoppers fees, was willful. See Tex. Code Crim. Proc. Ann. art. 42.12, §
    21(c). Nor does the record show that Gipson intentionally failed to pay his fine.
    We conclude that the trial court abused its discretion by revoking Gipson’s
    community supervision for failure to pay court-assessed fines and fees. Assuming,
    without deciding, that a harm analysis is required, revocation of Gipson’s
    community supervision affected Gipson’s substantial rights by subjecting Gipson
    to a prison sentence rather than continued community supervision. See Tex. R.
    App. P. 44.2(b) (No constitutional errors that do not affect substantial rights must
    be disregarded.); see also Rusk, 2013 Tex. App. LEXIS 1274, at *21 n.15. For
    these reasons, we sustain Gipson’s first issue.
    6
    Constitutional Claim
    In issue two, Gipson contends that the trial court committed constitutional
    error by revoking his community supervision based solely on his plea of “true” to
    the failure to pay court-assessed fees without first inquiring about the reasons for
    Gipson’s failure to pay. Gipson maintains that the trial court’s decision to impose a
    prison sentence resulted in a denial of due process.
    When the State alleges that a defendant failed to pay court-assessed fees, a
    trial court must inquire as to a defendant’s ability to pay and consider alternatives
    to imprisonment if it finds that a defendant is unable to pay. 
    Gipson, 383 S.W.3d at 156
    (citing Bearden v. Georgia, 
    461 U.S. 660
    , 672, 
    103 S. Ct. 2064
    , 
    76 L. Ed. 2d 221
    (1983)). It may be unconstitutional to deprive a defendant of his liberty when
    he is unable to pay. 
    Id. at 157.
    Unlike the ability-to-pay statute and the common
    law, Bearden does not impose an evidentiary burden on the State. 
    Id. Thus, Gipson’s
    second issue concerns the procedures utilized by the trial court when
    revoking Gipson’s community supervision and is not a question of evidentiary
    sufficiency.
    We first note that Gipson’s plea of “true” did not expressly waive a Bearden
    violation. Waivers of constitutional rights must be voluntary, knowing, intelligent
    acts “‘done with sufficient awareness of the relevant circumstances and likely
    7
    consequences.’” Rusk, 2013 Tex. App. LEXIS 1274, at *24 (quoting Brady v.
    United States, 
    397 U.S. 742
    , 748, 
    90 S. Ct. 1463
    , 
    25 L. Ed. 2d 747
    (1970)). A failure
    to pay fees violates community supervision, but only a willful failure to pay fees
    supports revocation. 
    Id. Gipson pleaded
    “true” to violating the terms of his
    community supervision by failing to pay court-ordered fines and fees, but this plea
    was neither an admission of willfulness nor a waiver of the trial court’s duty to
    comply with Bearden. See 
    id. Whether Gipson
    implicitly waived his constitutional claim is analyzed under
    the framework of Marin v. State, 
    851 S.W.2d 275
    , 279 (Tex. Crim. App. 1993). In
    Marin, the Court of Criminal Appeals identified three categories of rights. 
    Id. at 279.
    First, absolute requirements and prohibitions are not forfeitable. 
    Id. These rights
    must be observed even without a party’s request and cannot lawfully be
    avoided even with a party’s consent. 
    Id. at 280.
    “[A]ny party entitled to appeal is
    authorized to complain that an absolute requirement or prohibition was violated,
    and the merits of his complaint on appeal are not affected by the existence of a
    waiver or a forfeiture at trial.” 
    Id. Second, rights
    of litigants which must be
    implemented by the system unless expressly waived are not forfeitable. 
    Id. A party
    is never deemed to have given up a waivable right unless done plainly, freely, and
    intelligently, sometimes in writing and always on the record. 
    Id. The party
    is not
    8
    required to make a request at trial for the implementation of such rights because
    the trial court has an independent duty to implement them absent an effective
    waiver. 
    Id. The trial
    court’s failure to implement them is an error which may be
    urged for the first time on appeal. 
    Id. Third, rights
    of litigants which are to be
    implemented upon request are subject to the Texas law of procedural default. 
    Id. at 279.
    Generally, complaints concerning procedural due process are not preserved
    for appeal if the appellant did not make a due process objection at the time of
    revocation. Rogers v. State, 
    640 S.W.2d 248
    , 263-64 (Tex. Crim. App. 1982)
    (second op. on reh’g); see Tex. R. App. P. 33.1(a). The preservation rule “ensures
    that trial courts are provided an opportunity to correct their own mistakes at the
    most convenient and appropriate time--when the mistakes are alleged to have been
    made.” Hull v. State, 
    67 S.W.3d 215
    , 217 (Tex. Crim. App. 2002). Even
    “constitutional rights, including those that implicate a defendant’s due process
    rights, may be forfeited for purposes of appellate review unless properly
    preserved.” Anderson v. State, 
    301 S.W.3d 276
    , 280 (Tex. Crim. App. 2009).
    We consider the right identified by the Supreme Court in Bearden—to have
    the court inquire as to the defendant’s ability to pay—the type of procedural due
    process right that must be brought to the trial court’s attention. The record does not
    9
    indicate that Gipson complained to the trial court that revocation of his community
    supervision and imposition of a prison sentence would violate due process.
    Accordingly, Gipson’s second issue is not preserved for appellate review and is
    overruled. See Tex. R. App. P. 33.1(a); see also 
    Hull, 67 S.W.3d at 217
    ; 
    Rogers, 640 S.W.2d at 263-64
    . Having sustained Gipson’s first issue, we reverse the trial
    court’s judgment revoking Gipson’s community supervision and remand the case
    to the trial court for further proceedings consistent with this opinion.
    REVERSED AND REMANDED.
    ______________________________
    STEVE McKEITHEN
    Chief Justice
    Submitted on January 3, 2013
    Opinion Delivered March 13, 2013
    Publish
    Before McKeithen, C.J., Kreger and Horton, JJ.
    10