James Wayne Irby v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-07-247 CR ____________________

JAMES WAYNE IRBY, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 02-04-02364-CR

---

MEMORANDUM OPINION

Appellant James Wayne Irby pled guilty to driving while intoxicated. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). The trial court assessed punishment at five years of confinement, then suspended imposition of sentence and placed Irby on community supervision for five years. ⁽¹⁾ On April 16, 2004, the State filed a motion to revoke Irby's community supervision, in which it alleged that Irby (1) failed to report to the Department of Community Supervision and Corrections, (2) failed to timely pay supervisory fees, (3) failed to perform community service restitution, (4) failed to pay for the pre-sentence investigation report, (5) failed to submit to "medical, chemical and/or any other tests or examinations[,]" (6) failed to complete the DWI-IP program, and (7) "failed to pay the required installments set forth in the Collection Agreement incorporated and made a part of the Court's Judgment in this cause for collection of the total amount due for Crimestoppers Fee, Court Costs, Court Appointed Attorney Fees and Fine[.]"

At the hearing on the State's motion to revoke Irby's community supervision, Irby pled "true" to each of the seven alleged violations of the terms of the community supervision order, and he stated on the record that he was doing so voluntarily. Irby then testified that he failed to report because his license was suspended, which caused him to lose his job, and that he ultimately ran out of money to pay for transportation. The trial court revoked Irby's community supervision and assessed punishment at five years of confinement, and Irby then filed this appeal, in which he raises two issues for our consideration.

In his first issue, Irby argues that his plea of "true" was involuntary and, therefore, could not serve as the basis for revoking his community supervision. Specifically, Irby asserts that his indigence prevented him from complying with the terms of his community supervision. Irby contends that because he raised the affirmative defense of inability to pay, the burden shifted to the State to prove that his refusal to pay was intentional.

In a revocation proceeding, the State must establish by a preponderance of the evidence that the defendant violated the conditions of the supervision order. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). If the State meets its burden of proof, it is within the trial court's discretion to revoke community supervision. Id. A plea of true to any one alleged violation is sufficient to support revocation of community supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979). On appeal, we review the trial court's decision to revoke community supervision for abuse of discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983).

As discussed above, the State raised seven grounds for revoking Irby's community supervision. Irby pled "true" orally and in a written stipulation to all seven alleged violations of the terms of his community supervision order, including four grounds which did not involve his failure to make required payments. Irby cites no authority to support the proposition that the affirmative defense of inability to pay applies to community supervision conditions that do not involve payment. In addition, Irby affirmatively stated on the record that he pled "true" voluntarily. Furthermore, Irby neither sought to withdraw his plea of "true" nor filed a motion for new trial, and the record does not support his allegation that his plea of true was involuntary. The trial court did not abuse its discretion by revoking Irby's community supervision. See id.; see also Cardona, 665 S.W.2d at 493. We overrule issue one.

In his second issue, Irby argues that his plea of true is supported by insufficient evidence under article 1.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). By its express terms, article 1.15 applies to pleas of guilty, not pleas of "true" in revocation proceedings. See id.; Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998); Esochea v. State, 139 S.W.3d 67, 77 (Tex. App.--Corpus Christi 2004, no pet.). In addition, as discussed above, Irby's plea of "true" is sufficient to support the trial court's decision to revoke his community supervision. See Cardona, 665 S.W.2d at 493; Moses, 590 S.W.2d at 470. We overrule issue two and affirm the trial court's judgment.

AFFIRMED.

STEVE McKEITHEN

Chief Justice

Submitted on July 18, 2008

Opinion Delivered July 30, 2008

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. Irby signed a stipulation of evidence in which he admitted he had two prior convictions for driving while intoxicated, which enhanced the charged offense to a third-degree felony. See Act of May 25, 2001, 77th Leg., R.S., ch. 648, section 1(b)(2), 2001 Tex. Gen. Laws 1213, 1214 (current version at Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2007)).