Anthony Scott Roper v. State

ACCEPTED
06-15-00077-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/14/2015 4:00:02 PM
DEBBIE AUTREY
CLERK
No. 06-15-00077-CR
IN THE FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
SIXTH COURT OF APPEALS 9/15/2015 8:03:00 AM
DEBBIE AUTREY
Clerk
at Texarkana
______
ANTHONY SCOTT ROPER, Appellant V. THE STATE OF TEXAS,
Appellee
______
Appealed from the 276th Judicial District Court of
Titus County, Texas
No. 16,480
APPELLEE’S BRIEF
David Colley
Texas Bar No. 24007027
Titus County Assistant District Attorney
P.O. Box 249
Mt. Pleasant, TX 75456
Phone: (903) 577-6726
Fax: (903) 577-6729
Email: adacolley@hotmail.com
ATTORNEY FOR APPELLEE
The State of Texas
IDENTITY OF PARTIES & COUNSEL
The State of Texas, Appellee, adopts Appellant’s list of parties and counsel
with the exception of Appellee’s counsel, designated below:
Appellee, The State of Texas, is represented by:
David Colley, Assistant District Attorney
Titus County Courthouse, Annex
100 West 1st
P.O. Box 249
Mt. Pleasant, TX 75456
Phone: (903) 577-6726
Fax: (903) 577-6729
Attorney for State of Texas
Email: adacolley@hotmail.com
In this brief, Appellee will be referred to as “the State.” ANTHONY
SCOTT ROPER will be referred to as “Roper” or “Appellant.”
The Statement of Facts in the Reporter’s Record will be referred to as “RR.”
“CR” will designate references to the Clerk’s Record.
Appellee’s Brief Page 2 of 34
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL..................................................................2
TABLE OF CONTENTS...........................................................................................3
INDEX OF AUTHORITIES......................................................................................5
STATEMENT OF THE CASE..................................................................................7
STATEMENT REGARDING ORAL ARGUMENT................................................7
ISSUES PRESENTED...............................................................................................8
STATEMENT OF FACTS........................................................................................9
SUMMARY OF THE ARGUMENT......................................................................14
ARGUMENT...........................................................................................................16
STANDARD OF REVIEW.................................................................16
Issue 1: The Trial Court did not err is denying Roper’s
Motion to Transfer the adjudication hearing to the
76th DistrictCourt..........................................................17
Issue 2: The Due-Diligence Defense of Article 42.12 section 24
of the Texas Code of Criminal Procedure does not
apply to revocations occurring within the term of
probation or in situations where the warrant on the
motion to revoke/adjudicate was promptly served...20
2.A. THE 42.12 SEC. 24 DUE-DILIGENCE
DEFENSE DOES NOT APPLY TO
REVOCATIONS WHICH ARE CONCLUDED
DURING THE DEFENDANT’S TERM OF
PROBATION.......................................................20
Appellee’s Brief Page 3 of 34
2.B. THE PROBATION OFFICER ATTEMPTED TO
CONTACT ROPER WHEN ROPER DID NOT
REPORT...............................................................23
2.C. ANY LACK-OF-DUE-DILIGENCE DEFENSE IS
NOT AVAILABLE FOR THE FAILURE TO
PAY ALLEGATIONS.........................................25
Issue 3: The Trial Court did not abuse its discretion by
finding that Roper failed to pay court-ordered fines
and/or that he was able to pay court costs and fees..27
3.A. THE STATE DOES NOT HAVE THE BURDEN
TO SHOW A DEFENDANT’S ABILITY TO
PAY FINES AND RESTITUTION.....................27
3.B. ROPER HAD THE ABILITY TO PAY..............28
CONCLUSION...................................................................................31
PRAYER..................................................................................................................33
CERTIFICATE OF COMPLIANCE.......................................................................33
CERTIFICATE OF SERVICE................................................................................34
Appellee’s Brief Page 4 of 34
INDEX OF AUTHORITIES
CASES
1. Bearden v. Georgia, 461 U.S. 660 (1983)....................................................29
2. Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984).........................16
3. Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993)..............................16
4. Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999)........................20
5. Davila v. State, 651 S.W.2d 797 (Tex. Crim. App. 1983)......................17, 18
6. Garcia v. State, 387 S.W.3d 20 (Tex. Crim. App. 2012)...........16, 20, 25, 26
7. Gipson v. State, 428 S.W.3d 107 (Tex. Crim. App. 2014)...........................27
8. Lively v. State, 338 S.W.3d 140 (Tex. App.—Texarkana
2011, no pet.)...........................................................................................16, 29
9. Mattias v. State, 731 S.W.2d 936 (Tex. Crim. App. 1987)...........................16
10. Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002).....................20, 21
11. Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)...........................16
12. Rodriguez v. State, 804 S.W.2d 516 (Tex. Crim. App. 1991)......................20
13. Thomas v. State, 379 S.W.3d 436 (Tex. App.—Amarillo
2012, no pet.).................................................................................................16
14. Wheat v. State, 165 S.W.3d 802 (Tex. App.—Texarkana
2005, pet. dism’d)..........................................................................................20
15. Wise v. State, 477 S.W.2d 578 (Tex. Crim. App. 1972)...............................18
Appellee’s Brief Page 5 of 34
STATUTES AND CODES
1. Tex. Code Crim. Proc. art. 42.12 sec. 5(b)....................................................16
2. Tex. Code Crim. Proc. art 42.12 sec. 10(a)...................................................17
3. Tex. Code Crim. Proc. art. 42.12 sec. 21(c)......................................15, 27, 29
4. Tex. Code Crim. Proc. art 42.12 sec. 24.......................3, 8, 14, 20, 21, 22, 25
5. Tex. Gov’t Code sec. 24.178(d)..............................................................18, 19
6. Tex. R. App. P. 9.4(i)(3)................................................................................33
CONSTITUTION
1. Tex. Const. art. V sec. 11..............................................................................18
Appellee’s Brief Page 6 of 34
STATEMENT OF THE CASE
Roper appeals the Trial Court’s grant of the State’s Motion to Adjudicate.
CR 47. He was placed on deferred adjudication for five (5) years on September 7,
2010 for the offense of Failure to Register as a Sex Offender. CR 18 - 19. On April
24, 2015 the State’s Motion to Adjudicate was heard. RR V 1 P. 1. The Trial Court
proceeded to adjudication and sentenced Roper to three (3) years confinement in
the Texas Department of Criminal Justice. CR 53 - 55.
STATEMENT REGARDING ORAL ARGUMENT
The State waives oral argument.
Appellee’s Brief Page 7 of 34
ISSUE PRESENTED FOR REVIEW
Issue 1: The Trial Court did not err is denying Roper’s Motion to
Transfer the adjudication hearing to the 76th District Court.
Issue 2: The Due-Diligence Defense of Article 42.12 section 24
of the Texas Code of Criminal Procedure does not
apply to revocations occurring within the term of
probation or in situations where the warrant on the
motion to revoke/adjudicate was promptly served.
Issue 3: The Trial Court did not abuse its discretion by
finding that Roper failed to pay court-ordered fines
and/or that he was able to pay court costs and fees.
Appellee’s Brief Page 8 of 34
STATEMENT OF FACTS
Anthony Scott Roper was placed on deferred adjudication on September 7,
2010 for the offense of Failure to Register as a Sex Offender. CR 18 - 20. The
order was entered by the then presiding judge of the 76th Judicial District, Jimmy
L. White. CR 18 - 19. The term of deferred adjudication was five years. CR 18.
Among other conditions of community supervision, Roper was required to report
to his probation officer each month and pay costs, fines and fees. CR 27 - 30. On
January 21, 2015, within the term of probation, the State filed its motion to
adjudicate the unadjudicated offense. CR 31 - 33. That same day the court issued a
capias for Roper’s arrest. CR 34. Roper was arrested on the warrant on January 30,
2015. CR 36. The State’s motion alleged that Roper violated the conditions of his
probation by failing to report to his probation officer for the months of March,
April and September of 2013 and by failing to pay court-ordered fees and
probation service fees from February, 2013 through January, 2015, when the
motion was filed. CR 31 - 33. The hearing on the State’s motion to adjudicate was
held on April 24, 2015. CR 63. Judge Robert Rolston of the 267th Judicial District
presided over the hearing on the State’s motion to adjudicate. RR V 1 P. 1.
Roper filed a Motion to Transfer the adjudication hearing to the 76th Judicial
District. CR 45 - 46. Judge Rolston denied Roper’s motion. CR 49. In doing so, he
Appellee’s Brief Page 9 of 34
said, “. . . I think it’s pretty well common knowledge . . . that Judge Woodson and
I have concurrent jurisdiction. We had jurisdiction on all cases. We handle each
other’s cases, handle the same criminal cases, and so I find that . . . your motion
will be denied.” RR V 1 P. 5 L 3 - 9. The Trial Court found the allegations true and
sentenced Roper to three years confinement. CR 53 - 55.
In the hearing on the motion to adjudicate Roper’s deferred adjudication, the
State called Rance Hockaday as its witness. RR V 1 P. 8 L 1 - 12. Hockaday is a
community supervision officer for Titus County, who supervises the sex offender
case load and who supervised Anthony Roper. RR V 1 P. 8 L 13 - P 9 L 7.
Hockaday testified that Roper was currently on probation and was required to
report monthly and to pay certain fees monthly among other conditions of
probation. RR V 1 P. 9 L 15 - 22; V 1 P. 10 L 1 - 5. Hockaday further testified that
Roper did not report to the probation department in March, April or September of
2013. RR V 1 P. 9 L 23 - 25. Nor did Roper pay the court-ordered thirty-two
dollars ($32.00) a month or the sixty dollars ($60.00) a month for probation
service fees for the months of February, March, April, May, June, July, August,
September, October, November, December of 2013; January, February, March,
April, May, June, July, August, September, October, November, December of
2014; and January of 2015. RR V 1 P. 10 L 1 - 14. Hockaday testified that Roper
Appellee’s Brief Page 10 of 34
had not been employed for a little over two years, and at the last home visit
Hockaday found Roper looking as if he had just woken up at 2:30 or 3:00 in the
afternoon. RR V 1 P. 10 L 21 - P 11 L 5. That last home visit was in December of
2014. RR V 1 P. 11 L 3 - 11.
On cross-examination Hockaday testified that he did not make a home visit
to Roper in March or April of 2013 but did contact him in May. RR V 1 P. 12 L 5 -
15. Hockaday visited Roper’s residence in October of 2013 after Roper did not
report in September. RR V 1 P. 12 L 16 - P 13 L 2. After the first two months that
Roper did not report, Hockaday went to find him. RR V 1 P. 18 L 10 - 12.
Hockaday did not recall Roper giving any excuse for not reporting other than,
perhaps, that he did not have a ride; Roper said nothing at that time about thinking
that he was excused from reporting. RR V 1 P. 18 L 3 - 14. Hockaday conducted
home visits for Roper “just about every month.” RR V 1 P. 14 L 24 - P 15 L 1.
Hockaday testified that once Roper quit his job he did not have any income.
RR V 1 P. 16 L 14 - 15. Roper’s excuse for not having a job was that his criminal
history and COPD made it difficult for him to find a job. RR V 1 P. 15 L 9 - 13.
However, Roper never showed any proof or medical verification of a COPD
diagnosis. RR V 1 P. 15 L 14 - 19. About ninety-five percent (95%) of Hockaday’s
sex-offender case load is employed. RR V 1 P. 16 L 22 - 25. Roper had been
Appellee’s Brief Page 11 of 34
employed at Pilgrim’s for quite a while but was fired for getting into an argument
with another employee. RR V 1 P. 19 L 9 - 12. He then worked at Big Tex Trailers
for a few months. RR V 1 P. 19 L 9 - 12. He quit the job at Big Tex. RR V 1 P. 19 L
3 - 6. In Hockaday’s opinion, Roper was not looking very hard for a job. RR V 1 P.
19 L 16 - 24.
Roper testified in his defense. RR V 1 P. 20 L 24. He testified that in
February, 2013, Hockaday told him to report by phone and in March he called and
left a message. RR V 1 P. 22 L 2 - 4. In April, Roper called the probation
department and spoke to Hockaday by telephone and Hockaday “chewed [him]
out” for not reporting. RR V 1 P. 22 L 4 - 15.
Regarding his employment, Roper testified that he quit working at Big Tex
because he thought he would be hired back at Pilgrim’s, that he would be hired on
once he filled out an application. RR V 1 P. 23 L 11 - 15. According to Roper, after
he quit working at Big Tex and went to Pilgrim’s he discovered they no longer
hired sex offenders. RR V 1 P. 23 L 15 - 20. Roper had worked at Pilgrim’s
previously, for five years, with them knowing of his criminal history. RR V 1 P. 23L 21 - P 24 L 1. Roper testified that he went to the Texas Workforce Commission
and that he tried to find jobs. RR V 1 P. 24 L 22 - 25. The only specific
employment he testified to trying to obtain was at Priefert’s and by asking a local
Appellee’s Brief Page 12 of 34
attorney for employment based upon his experience in the prison law library. RR
V 1 P. 25 L 11 - 20, V 1 P. 28 L 15 - 19.
On cross-examination, Roper admitted that he quit the Big Tex job before
he even had another job. RR V 1 P. 31 L 23 - 24. He also confirmed that in April of
2013, Hockaday made contact with him through another probationer whom he
worked with at Big Tex, by telling him that Hockaday had asked about him. RR V
1 P. 31 L 7 - 13. It was after that message was related to Roper that he called
Hockaday. RR V 1 P. 31 L 11 - 13.
On rebuttal, Hockaday testified that he made home visits for Roper in
March and April of 2013 but that Roper was not present. RR V 1 P. 34 L 21 - P 35
L 2.
Appellee’s Brief Page 13 of 34
SUMMARY OF ARGUMENT
Issue 1: By statute, the 76th and 276th Judicial District Courts have
concurrent jurisdiction. Likewise, district courts in multiple-court counties have
been allowed to preside over the revocation of community supervisions that the
other courts have ordered. The 276th Judicial District did not err by refusing to
transfer the hearing on the motion to adjudicate against Roper to the 76th Judicial
District.
Issue 2: The Due-Diligence Defense of Article 42.12 section 24 of the
Texas Code of Criminal Procedure relates to the diligence of the State to serve a
capias that has been issued and only on the conditions of failure to report and
failure to remain within a certain location. Roper’s argument attempts to equate
the requirement to go to the defendant’s residence to serve the capias to
performing a home visit during the term of probation for the month that the
probationer failed to report. Such an interpretation is incorrect. The Due-Diligence
Defense does not apply to Roper’s situation either because he was revoked during
the term of his probation or because there are no allegations that the State failed to
diligently execute the capias. Nevertheless, the evidence shows that the probation
department continued to make home visits each month after the months Roper
failed to report. The Trial Court would not have abused its discretion in finding
Appellee’s Brief Page 14 of 34
that Roper failed to prove the affirmative defense.
Issue 3: While Article 42.12 section 21(c) of the Texas Code of Criminal
Procedure requires the State to prove that a defendant has the ability to pay before
a court can revoke his probation for failure to pay court costs, supervision fees and
other fees, that does not apply to fines and restitution. Part of what Roper failed to
pay was his fine. In that regard, the State did not have to prove his ability to pay.
Nevertheless, due to the facts that Roper paid no rent, had no bills, had worked
before but quit his last job, the Trial Court would not have abused its discretion in
finding that Roper had the ability to pay but failed to make bona fide efforts to
seek employment or otherwise obtain the funds to pay.
Appellee’s Brief Page 15 of 34
ARGUMENT
STANDARD OF REVIEW
The adjudication of guilt on a deferred adjudication is reviewed for abuse of
discretion. Tex. Code Crim. Proc. art. 42.12 sec. 5(b); Thomas v. State, 379
S.W.3d 436,442 (Tex. App.—Amarillo 2012, no pet.). See Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006). The State must show by a
preponderance of the evidence that the defendant violated a term of community
supervision alleged in its motion to proceed to adjudication. See Cobb v. State,
851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The evidence is viewed is the light
most favorable to the ruling of the trial court. Cardona v. State, 665 S.W.2d 492,
493 (Tex. Crim. App. 1984). The trial court is the sole judge of the witnesses, their
credibility and the weight to be given to their testimony and may accept or reject
any or all of a witness’s testimony. Lively v. State, 338 S.W.3d 140, 145-46 (Tex.
App.—Texarkana 2011, no pet.), citing Mattias v. State, 731 S.W.2d 936, 940
(Tex. Crim. App. 1987). If a single ground of the revocation is supported by a
preponderance of the evidence, then the trial court did not abuse its discretion. See
Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Lively, 338 S.W.3d at
142.
Appellee’s Brief Page 16 of 34
Issue 1: The Trial Court did not err is denying Roper’s Motion to
Transfer the adjudication hearing to the 76th District Court.
Roper moved for transfer of the adjudication hearing to the 76th Judicial
District because Judge Rolston was not the judge of the court where Roper entered
his plea originally. CR 45. For his motion, he relied upon Article 42.12 section
10(a) of the Texas Code of Criminal Procedure, which reads, in relevant part, as
follows:
Sec. 10.(a) Only the court in which the defendant was tried may grant
community supervision, impose conditions, revoke the community
supervision, or discharge the defendant, unless the judge has
transferred jurisdiction of the case to another court with the latter’s
consent.
The Trial Court denied Roper’s motion. CR 49. In doing so, the Trial Court
commented that he and Judge Woodson have concurrent jurisdiction on all cases
and routinely handle the same criminal cases. RR V 1 P. 5 L 3 - 9.
In Davila v. State, the defendant was placed on probation by the 72nd
District Court. 651 S.W.2d 797, 798 (Tex. Crim. App. 1983). The motion to
revoke his probation was heard by the 237th District Court. Id. An order
transferring the case to the 237th District Court was dated the day of trial of the
motion to revoke but not filed until a week-and-a-half later. Id. at 799. The Court
Appellee’s Brief Page 17 of 34
held that even if the transfer order was not valid, the judges could exchange
benches as allowed by Article V, section 11 of the Texas Constitution, which
provides for district judges to exchange districts or hold courts for each other
when they deem it expedient. Id. The Court further noted that for a district court to
preside over a case in place of another court, no order or docket sheet entry
showing the reason for the exchange of the benches is necessary. Id.
In Wise v. State, the defendant was placed on probation by the judge of the
30th Judicial District and revoked by the judge of the 89th Judicial District, both of
Wichita County. 477 S.W.2d 578, 579-80 (Tex. Crim. App. 1972). Relying on a
letter in the record from the presiding judge of the administrative district which
indicated that the district judges of Wichita County were assigned to each other’s
cases, the Court held that, for practical purposes, the regular judge of the 89th
Judicial District was the regular judge of the 30th Judicial District as well. Id. at
580.
The concurrent jurisdiction between the 76th and 276th Judicial District
Courts is confirmed in the statutes creating the courts. Section 24.178(d) of the
Texas Government Code states as follows:
(d) In Camp, Morris, and Titus counties, the 76th District Court has
concurrent jurisdiction with the 276th District Court. The judges of the
Appellee’s Brief Page 18 of 34
courts may transfer any case to be tried in Camp County, Morris
County, or Titus County with the consent of the court to which the
case is being transferred. Each judge may sit in the other court
without transferring the case.
It is this concurrent jurisdiction that was exercised when Judge Rolston presided
over the motion to adjudicate, which was originally ordered in the 76th Judicial
District by Judge White. The statute provides for the flexibility that is necessary
for the timely resolution of cases in counties, like Titus County, where the District
Judges share jurisdiction and are responsible for multiple counties. The Trial
Court did not err in denying Roper’s Motion to Transfer.
Appellee’s Brief Page 19 of 34
Issue 2: The Due-Diligence Defense of Article 42.12 section 24
of the Texas Code of Criminal Procedure does not
apply to revocations occurring within the term of
probation or in situations where the warrant on the
motion to revoke/adjudicate was promptly served.
2.A. THE 42.12 SEC. 24 DUE-DILIGENCE DEFENSE DOES NOT APPLY TO
REVOCATIONS WHICH ARE CONCLUDED DURING THE
DEFENDANT’S TERM OF PROBATION.
In 2003, the Legislature limited the due diligence defense for revocations.
See Wheat v. State, 165 S.W.3d 802, 805 (Tex. App.—Texarkana 2005, pet.
dism’d). Before the amendments, a trial court did not have jurisdiction to revoke a
community supervision unless the motion was filed and the capias issued before
the community supervision expired and the State exercised diligence in having the
revocation hearing. Peacock v. State, 77 S.W.3d 285, 287-88 (Tex. Crim. App.
2002). The State’s failure to execute the capias with due diligence was a defense.
Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Once the
defendant raised the issue, the State would have the burden to prove diligence.
Rodriguez v. State, 804 S.W.2d 516, 517-18 (Tex. Crim. App. 1991). This
common-law requirement that the State diligently pursue the prosecution of a
motion to revoke community supervision has been replaced by Article 42.12
Section 24 of the Texas Code of Criminal Procedure (hereinafter referred to as the
Appellee’s Brief Page 20 of 34
“Due-Diligence Defense”). Garcia v. State, 387 S.W.3d 20, 20-21 (Tex. Crim.
App. 2012).
The common-law defense dealt with the court’s continuing jurisdiction. See
Peacock v. State, 77 S.W.3d 285, 288-89 (Tex. Crim. App. 2002) overruling
recognized by Garcia v. State, 387 S.W.3d 20 (Tex. Crim. App. 2012). It required
that the State show that the court retained jurisdiction to revoke a defendant’s
community supervision when the term of probation had expired. See Garcia, 387
S.W.3d at 22. The codification of the defense limited what existed at common law.
See Garcia, 387 S.W.3d at 25. It did not create a new defense, or expand the old
one, based on whether or not the probation department conducted monthly home
visits during the probation term. The affirmative defense of Article 42.12 Section
24 of the Texas Code of Criminal Procedure is not applicable as a defense to a
revocation when that revocation occurs during the term of probation.
If it is too broad to conclude that the Due-Diligence Defense is not
applicable in any revocation occurring before the expiration of the term of
probation, at the very least it is only applicable to the efforts made to execute the
issued capias on the motion to revoke. The statute states, “. . . supervision officer,
peace officer, or other officer with the power of arrest under a warrant issued by
a judge for that alleged violation failed to contact or attempt to contact the
Appellee’s Brief Page 21 of 34
defendant in person at the defendant’s last known residence address or last known
employment address, . . .” Tex. Code Crim. Proc. art 42.12 sec. 24. The plain
language of the statute addresses the State’s diligence in executing the warrant
which had been issued for a motion to revoke probation based on the ground of
failure to report. It does not require a probation officer to attempt to contact the
probationer to inquire as to why he did not report. It includes peace officers and
others with the power to arrest under the warrant issued. See id. For the Due-
Diligence Defense statute to require a peace officer to make a home visit during
the term of probation is nonsensical. Roper’s argument assumes that the Due-
Diligence defense prevents a revocation on these allegations if the probation
officer fails to conduct a home visit on the month that the probationer missed
reporting. Roper’s argument is misplaced in that regard. The Due-Diligence
Defense of Article 42.12 section 24 of the Texas Code of Criminal Procedure is
not applicable to the adjudication of Roper’s deferred because there are no
allegations, or evidence to support a claim, that the State failed to diligently pursue
execution of the capias issued for Roper’s arrest.
Appellee’s Brief Page 22 of 34
2.B. THE PROBATION OFFICER ATTEMPTED TO CONTACT ROPER
WHEN ROPER DID NOT REPORT.
Even if Article 42.12 Section 24 of the Texas Code of Criminal Procedure
applies as Roper argues, there is evidence to support a finding that Roper’s
probation officer did make visits to Roper’s residence. Probation officer, Rance
Hockaday testified on cross-examination as follows:
Q: What happened on March of 2013?
A: He failed to report.
Q: Did you contact him then?
A: I do not believe I attempted a home visit when he did not report, no, sir.
Q: What about April?
A: March or April, no, sir. I did contact him then in May.
Q: So it was not until May of ‘13 that you tried to contact him?
A: Yes, sir.
Q: Then again in September of 2013, you stated that he failed to report?
A: Yes.
Q: What are the circumstances of that?
A: He just did not report that month.
Q: Did you contact him?
Appellee’s Brief Page 23 of 34
A: Not that month. I did the following month and got him in.
Q: How did you contact him then?
A: I believe I went by his house. His apartment.
Q: The following month, you’re referring to October?
A: Yes, sir.
...
Q: How many times do you think you went by to see if Anthony way home?
A: I did a home visit just about every month on him.
...
A: The first two months that he didn’t report, I never heard from him those
two months. Then I went out to find him. . . .
...
Q. . . . Did you go do like it says in Section 24 of the Community
Supervision part of the Code? Did you go out there and look at him and tell him
we need to reschedule you---
A. Not to his job. I did go by his house, but apparently he was working, and
the home visits I did, he was not available for those two months.
...
Q. Did you go more than once to his house? . . .
Appellee’s Brief Page 24 of 34
A. I went each month.
Q. I mean for one month. You said you went by his house when you knew
he was at work?
A. I went by his house. I left a card on the door.
RR V 1 P. 12 L 5 - P 13 L 2, V 1 P. 14 L 24 - P 15 L 1, V 1 P. 18 L 10 - 12, V 1 P.
34 L 21 - P 35 L 2, V 1 P. 35 L 15 - 20.
There is some evidence that probation officer Rance Hockaday did attempt
to contact, and did contact, Roper at his home at a time after the months he failed
to report. If that was all the statute required then Roper failed to prove the defense.
2.C. ANY LACK-OF-DUE-DILIGENCE DEFENSE IS NOT AVAILABLE
FOR THE FAILURE TO PAY ALLEGATIONS.
If the Court were to find that the due diligence statute applies as Roper
argues, it does not apply to the failure to pay allegations. The defense in Section
24 of Article 42.12 of the Texas Code of Criminal Procedure does not apply to
revocations based on allegations other than failure to report and failure to remain
within a specified place. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App.
2012). Even if the defendant proved the due diligence affirmative defense, the trial
court’s order adjudicating guilt may still be affirmed if it could have found by a
Appellee’s Brief Page 25 of 34
preponderance of the evidence that Roper violated the terms of his deferred
adjudication by failing to pay as he was ordered and as is argued below. See id.
Appellee’s Brief Page 26 of 34
Issue 3: The Trial Court did not abuse its discretion by
finding that Roper failed to pay court-ordered fines
and/or that he was able to pay court costs and fees.
3.A. THE STATE DOES NOT HAVE THE BURDEN TO SHOW A
DEFENDANT’S ABILITY TO PAY FINES AND RESTITUTION.
Section 21(c) of Article 42.12 of the Texas Code of Criminal Procedure
requires the State to prove that the defendant was able to pay and did not pay as
ordered by the court in order to revoke a probation based on failure to pay
attorney’s fees, community supervision fees and court costs. This requirement
does not apply to fines and restitution. Gipson v. State, 428 S.W.3d 107, 108-09
(Tex. Crim. App. 2014). Fines were included in the amount Roper failed to pay.
CR 40 - 41.
When Roper was placed on deferred adjudication he was assessed a fine of
$1500. CR 18 - 19. He was ordered to pay that fine as a condition of his probation.
CR 27 - 30. The $32.00 per month, which Roper was ordered to pay, included the
fine. CR 28. Roper failed to pay the $32.00 per month as ordered. RR V 1 P. 10 L 1
- 14. As it was included in the $32.00 per month, Roper necessarily failed to pay
the $1500 fine as ordered. The State was not required to prove Roper’s ability to
pay the court-ordered fine. See id. Regardless of his ability, the Trial Court could
have found that Roper failed to pay the fine as ordered and adjudicated his
Appellee’s Brief Page 27 of 34
deferred adjudication on that ground.
3.B. ROPER HAD THE ABILITY TO PAY.
In a revocation of community supervision for failure to pay court-ordered
attorney 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 so
pay. Tex. Code Crim. Proc. art. 42.12 sec 21(c). The evidence before the trial court
is that at various times Roper worked for Priefert Manufacturing, Pilgrim’s Pride
and Big Tex Trailers. RR V 1 P. 19 L 3 - 12; P 28 L 16 - 18. He had a criminal
history when he worked at Pilgrim’s. RR V 1 P. 23 L 21 - 24. He quit the job at Big
Tex. RR V 1 P. 19 L 6. Though he said he thought he had a job ready at Pilgrim’s
before he quit Big Tex, he had not even filled out an application at Pilgrim’s. RR
V 1 P. 23 L 11 - 15. Of Hockaday’s sex offender case load, about ninety-five
percent of them are employed. RR V 1 P. 16 L 22 - 25. Roper lived at a friend’s
apartment; the friend paid for Roper’s food and did not charge him rent. RR V 1 P.
26 L 5 - 7. The last home visit Hockaday made on Roper, Hockaday found him
asleep at 2:30 in the afternoon. RR V 1 P. 19 L 13 - 15. In Hockaday’s opinion,
Roper was not really looking for a job. RR V 1 P. 19 L 17 - 19. Based on these
facts, the Trial Court could have found that Roper had the ability to work and to
Appellee’s Brief Page 28 of 34
pay but did not make a bona fide effort to do so. See Lively v. State, 338 S.W.3d
140, 146 (Tex. App.—Texarkana 2011, no pet.)(affirming trial court’s revocation
on allegations of failure to pay fines, restitution and court costs when the trial
court could have found that Lively failed to make a bona fide effort to acquire
resources to pay or find employment).
In Lively v. State, the Court considered whether the defendant’s failure to
pay restitution and court-ordered fines was willful. 338 S.W.3d 140, 145-46
(applying Bearden v. Georgia, 461 U.S. 660 (1983), even though not specifically
included as part of the State’s burden of proof under Article 42.12 section 21(c) of
the Texas Code of Criminal Procedure and holding that the trial court must
consider if the probationer willfully refused to pay or failed to make sufficient
efforts to obtain resources to pay fines and restitution). The Court found that the
trial court could have rejected the defendant’s testimony that he did not have the
ability to pay, especially in light of his ability to pay a large sum previously and
that he lived in low-income housing. Id. at 146. The trial court could have found
that the defendant failed to make real efforts to acquire the resources to pay
because he did not seek employment in his field of experience or elsewhere. Id.
In Roper’s case, the Trial Court could have disbelieved Roper’s testimony
that he could not find employment. He had been employed at several places. He
Appellee’s Brief Page 29 of 34
quit his latest job. While he testified that he quit Big Tex because he thought he
was going back to work at Pilgrim’s, he had not even put in an application at
Pilgrim’s. He did not have to pay for rent or food and the last time Hockaday made
a home visit, it appeared Roper was asleep at 2:30 in the afternoon. The Trial
Court could have found that Roper had the ability to pay but failed to seek
employment or make a bona fide effort to acquire resources to pay.
Appellee’s Brief Page 30 of 34
CONCLUSION
The Trial Court did not err in denying Roper’s motion to transfer the
hearing of the State’s Motion to Adjudicate. By statute, the 76th and 276th Judicial
Districts have concurrent jurisdiction and can hear each other’s cases.
Roper failed to report to the probation department for the months of March,
April and September of 2013. The Due-Diligence Defense applies to the State’s
efforts in serving the capias issued for those violations. It does not require the
probation department to make a home visit on the probationer on the month he
does not report. Nevertheless, the probation department did make home visits to
Roper’s residence throughout the term of probation, including on months after the
months Roper failed to report.
Part of what Roper failed to pay as a condition of his probation was fines.
The State does not have to prove Roper’s ability to pay fines as it does court costs,
probation fees and attorney’s fees. Still, the Trial Court could have found that
Roper had the ability to pay and did not appear to be making bona fide efforts to
obtain employment or otherwise acquire the proceeds in order to pay.
The Trial Court did not abuse its discretion in adjudicating the guilt of
Anthony Roper. Based on the evidence before it, it could have found by a
preponderance of the evidence that Anthony Roper violated one or more of the
Appellee’s Brief Page 31 of 34
conditions of his probation. The Trial Court’s judgment should be affirmed.
Appellee’s Brief Page 32 of 34
PRAYER
The State, therefore, prays that this Court affirm the trial court’s judgment.
Respectfully submitted,
The State of Texas
Titus County District Attorney
P.O. Box 249
Mt. Pleasant, TX 75456
Phone: (903) 577-6726
Fax: (903) 577-6729
By: /s/ David Colley
David Colley
State Bar No. 24007027
Assistant District Attorney
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, I
hereby certify that, according to the computer program word count, Appellee’s
Brief contains 5,787 words. The brief is written in 14-point Times New Roman.
/s/ David Colley
David Colley
Appellee’s Brief Page 33 of 34
CERTIFICATE OF SERVICE
This is to certify that on September 14 , 2015, a true and correct copy of
the above and foregoing document was served on all counsel of record as
indicated below:
Mac Cobb
Attorney-at-Law
P.O. Box 1134
Mt. Pleasant, Texas 75456
Email: maccobblaw@yahoo.com
VIA EMAIL
/s/ David Colley
David Colley
Appellee’s Brief Page 34 of 34