Latora Brimzy v. the State of Texas

Reversed and Remanded and Majority and Concurring Opinions filed March
28, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00631-CR

LATORA BRIMZY, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1604631

MAJORITY OPINION

In this opinion, we address an issue of first impression in our court and an
issue on which other courts of appeals have split. Specifically, we address whether
Texas Code of Criminal Procedure article 42A.751(i) requires the State in a
community supervision revocation hearing to prove that the defendant was able to
pay a supervision fee when failure to pay such fee was the sole ground found by
the trial court in support of revocation regardless of whether the State alleged other
grounds. For the reasons stated herein, we join the other courts of appeals that have
held that the State is required to prove the defendant’s ability to pay whenever
failure to pay a supervision fee was the sole ground supporting revocation.
Moreover, because the State did not prove ability to pay in this case, we reverse the
trial court’s order revoking appellant’s community supervision and adjudicating
appellant’s guilt and remand the case to the trial court for further proceedings
consistent with this opinion.

Background

Appellant Latora Brimzy was originally charged with aggravated assault on
a family member. Pursuant to an agreement with the State, she pleaded guilty to
the lesser offense of misdemeanor assault on a family member and received one
year deferred adjudication community supervision. The trial court subsequently
extended the community supervision period by one year.

The State filed a motion to adjudicate guilt alleging a total of eight violations
of appellant’s conditions for community supervision, including that she failed to
pay her monthly supervision fee and was $660 in arrears, had committed a new
offense, and had failed to participate in anger management training. Appellant
pleaded not true to each of the allegations. At the start of the hearing on the
motion, the State abandoned the new offense allegation and proceeded on the
remaining seven grounds.

At the conclusion of the hearing, the trial court stated, “I find by a
preponderance of the evidence that the State has proven at least some of these
allegations in this matter.” In the order granting revocation, however, the trial court
specifically listed only appellant’s failure to pay her supervision fees as grounds
for revocation. When a discrepancy exists between the trial court’s oral
pronouncement and its written order regarding the grounds supporting revocation
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of community supervision, the written order controls. See, e.g., Coffey v. State, 979
S.W.2d 326, 328 (Tex. Crim. App. 1998); Simon v. State, No. 14-18-00978-CR,
2020 WL 1528107, at *5 (Tex. App.—Houston [14th Dist.] Mar. 31, 2020, no pet.)
(mem. op.) (not designated for publication). The trial court adjudicated appellant’s
guilt and sentenced her to one year in jail.

In two issues, appellant contends that the trial court (1) abused its discretion
by revoking her community supervision in the absence of evidence (as required by
article 42A.751(i)) establishing that she had the ability to pay the supervision fees,
and (2) violated the Fourteenth Amendment to the United States Constitution when
it ordered her incarcerated for failing to pay the fees without inquiring into her
ability to pay the fees. U.S. Const. amend. XIV; Tex. Code Crim. Proc. art.
42A.751(i).

Discussion

I. Standards of Review

We review a trial court’s decision to revoke community supervision for an
abuse of discretion. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App.
2013). The trial court has discretion to revoke community supervision when a
preponderance of the evidence supports at least one of the alleged violations of the
conditions of community supervision. Leonard v. State, 385 S.W.3d 570, 576 (Tex.
Crim. App. 2012). We view the evidence in the light most favorable to the trial
court’s order. Guerrero v. State, 554 S.W.3d 268, 273–74 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). The trial court is the sole trier of fact and determines
the credibility of witnesses and the weight to be given to their testimony in
revocation hearings. Id. The trial court abuses its discretion in issuing a revocation
order when the State fails to meet its burden of proving by a preponderance of the
evidence that appellant violated a condition. Cardona v. State, 665 S.W.2d 492,
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493–94 (Tex. Crim. App. 1984).

In construing a statute, as we are required to do in this case, we give effect to
its literal text unless the meaning of the statute is ambiguous or the plain meaning
would lead to absurd results that the legislature could not have intended. Chiarini
v. State, 442 S.W.3d 318, 320 (Tex. Crim. App. 2014). If the statute is ambiguous
or its plain meaning would lead to absurd results, we may consider extratextual
factors, including legislative history, the object sought to be obtained, common law
or former statutory provisions, and the consequences of a particular construction.
Id.

II. Governing Law

Three sources of Texas law have addressed the permissibility of revocation
when a defendant is unable to pay amounts due as a result of an imposition of
community supervision or probation—the United States Constitution, Texas
statutes, and Texas common law. Gipson v. State, 383 S.W.3d 152, 156 (Tex.
Crim. App. 2012). Regarding the first source, according to the United States
Supreme Court, revocation of community supervision for failure to pay a monetary
requirement when a defendant is unable to pay, without considering other
alternatives to imprisonment, denies due process of law. See Bearden v. Georgia,
461 U.S. 660, 665, 672 (1983) (referencing specifically fines and restitution); see
also Jones v. Governor of Fla., 950 F.3d 795, 800, 819 (11th Cir. 2020) (reading
Bearden as applying to all legal financial obligations imposed as conditions);
United States v. Parks, 89 F.3d 570, 572 (9th Cir. 1996) (reading Bearden as
applying to costs); Alexander v. Johnson, 742 F.2d 117, 124 (4th Cir. 1984)
(reading Bearden as applying to “any monetary requirement of [a defendant’s]
probation or restitution”). Thus, before revocation based on a failure to pay, a court
must (1) inquire as to a defendant’s ability to pay and (2) consider alternatives to

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imprisonment if it finds that a defendant is unable to pay a monetary requirement
imposed as a condition of probation. See Bearden, 461 U.S. at 672. Although
appellant raises a Bearden challenge in her second issue, she failed to preserve this
issue by raising it in the court below. See Cazarez v. State, 606 S.W.3d 549, 560–
61 (Tex. App.—Houston [1st Dist.] 2020, no pet.); Lombardo v. State, 524 S.W.3d
808, 813 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Gipson v.
State, 428 S.W.3d 107, 110–11 (Tex. Crim. App. 2014) (Alcala, J., concurring);
see generally Anderson v. State, 301 S.W.3d 276, 279–80 (Tex. Crim. App. 2009)
(explaining that constitutional due process rights may be forfeited if not preserved
by objection in the trial court).

Regarding the third source, it is unclear whether the Texas common law
requirement that the State must show a defendant was able to pay and her failure to
do so was intentional survived the passage of relevant statutes. See Gipson, 428
S.W.3d at 117 & n.8; Martinez v. State, 563 S.W.3d 503, 512 (Tex. App.—Corpus
Christi 2018, no pet.). Regardless, appellant did not raise a common law complaint
below and does not raise one in this appeal, so we will not address the issue. See
Tex. R. App. P. 33.1(a); 38.1(f), (i).

The second source, and the one squarely at issue here, is Texas Code of
Criminal Procedure article 42A.751(i), which provides,

In a revocation hearing at which it is alleged only that the defendant
violated the conditions of community supervision by failing to pay
community supervision fees or court costs or by failing to pay the
costs of legal services[], 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 judge.
Tex. Code Crim. Proc. art. 42A.751(i).

For our purposes, it is most important to note that the statute states that it

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applies when a failure to pay is the only violation alleged for revocation, which
brings us to the question on which courts of appeals have split—does the statute
apply when the State raised other grounds for revocation beyond a failure to pay in
its motion and at the hearing but the trial court only affirmatively found a failure to
pay as grounds for revocation? Because this issue effectively challenges the
sufficiency of the evidence to support the revocation of community supervision, it
did not have to be preserved in the trial court. See, e.g., Gipson, 428 S.W.3d at 110
(citing Bryant v. State, 391 S.W.3d 86, 93 (Tex. Crim. App. 2012), and Gipson v.
State, 395 S.W.3d 910, 914–15 (Tex. App.—Beaumont 2013), rev’d on other
grounds, 428 S.W.3d 107)).

III. A Little History

As indicated above, before passage of relevant legislation in 1977, Texas
common law clearly required the State to prove that a defendant had the ability to
pay monetary requirements for community supervision and that the failure to do so
was intentional. See Gipson, 428 S.W.3d at 117 & n.8; Martinez, 563 S.W.3d at
512; see also Jones v. State, 589 S.W.2d 419, 420 (Tex. Crim. App. 1979) (“Until
recently, it was necessary for the State to prove, when revoking probation for
failure to pay fees, that the probationer had the ability to make the payments and
that his failure to make them was intentional.”). That changed in 1977 with the
passage of amendments to Code of Criminal Procedure article 42.12, which
transformed the inability to pay certain monetary requirements into an affirmative
defense that the defendant had to raise and prove by a preponderance of the
evidence. Tex. Code Crim. Proc. art. 42.12, 8(c) (repealed, see now Tex. Code
Crim. Proc. art. 42A.751(i)). In thus flipping the burden on ability to pay from the
State to the defendant, the legislature stated that the affirmative defense applied
“[i]n a probation revocation hearing at which it is alleged only that the probationer

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violated the conditions of probation by failing to pay.” Id. (emphasis added).1

When a defendant subsequently challenged the revocation of his probation
in Stanfield v. State, the question arose as to whether the defendant or the State had
the burden regarding whether the defendant had the ability to pay his monthly
probation fees. The State had alleged, and the trial court found, two grounds for
revocation, but as stated above, article 42.12, section 8(c) stated that it applied
“[i]n a probation revocation hearing at which it is alleged only that the probationer
failed to pay.” The court of appeals held that because the State asserted two
grounds for revocation and not just the failure to pay, article 42.12, section 8(c) did
not apply and the common law rule required the State to prove defendant’s ability
to pay. Stanfield v. State, 638 S.W.2d 127, 129 (Tex. App.—Fort Worth 1982).
The Court of Criminal Appeals, however, reversed, holding instead that the statute
applied despite its use of the word “only” and the defendant therefore had the
burden to prove his inability to pay as an affirmative defense. Stanfield v. State,
718 S.W.2d 734, 735 (Tex. Crim. App. 1986). Calling on grammatical reference
works and legislative history, the Court deemed the court of appeals’ interpretation
of the statute an “irrational construction” that would lead to “quirky
circumstances” that the Court did not believe the legislature would have intended.
Id. at 736–37. The Court further noted that the word “only” is “an often misused
adverb” that is subject to several potential meanings, including “at the very least.”
Id. at 736 n.3, 737. The Court concluded that the statute applied whether or not
another ground for revocation is raised in addition to a failure to pay. Id. at 737.

1
The legislature actually passed two amendments to article 42.12 in 1977, one with the
word “only” and one without. Acts 1977, 65th Leg., ch. 342 § 2, effective Aug. 29, 1977; Acts
1977, 65th Leg., ch. 388 § 2, effective Aug. 29, 1977; see also Stanfield v. State, 718 S.W.2d
734, 735 (Tex. Crim. App. 1986); Jones, 589 S.W.2d at 420. Subsequently, in 1981, the
legislature combined the two versions, retaining the word “only.” Acts 1981, 67th Leg., ch. 538,
§ 2, effective June 12, 1981; see also Stanfield, 718 S.W.2d at 736 n.2.

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In 2007, along with other statutory changes not relevant here, the legislature
again amended article 42.12 to shift the burden of proof on ability to pay back to
the State. See Tex. Code Crim. Proc. 42.12 § 21(c) (repealed, see now Tex. Code
Crim. Proc. art. 42A.751(i)); Acts 2007, 80th Leg., R.S., ch. 604 (H.B. 312), § 1,
effective Sept. 1, 2007; Bryant v. State, 391 S.W.3d 86, 93 (Tex. Crim. App.
2012). As noted, this version would ultimately be recodified into the present
statutory scheme as article 42A.751(i), the provision at issue in this case, as part of
a non-substantive revision of community supervision laws. See Act of May 26,
2015, 84th Leg., R.S. ch. 770 §§ 1.01, 3.01, 4.01–.02; Martinez, 563 S.W.3d at 513
n.10.

In proposing the 2007 statutory change, the bill’s sponsor explained that the
amendment aimed to “conform[] the statute to the requirements of the Due Process
Clause as interpreted by the United States Supreme Court in Bearden v. Georgia.”
Senate Research Center, Bill Analysis, Tex. H.B. 312, 80th Leg., R.S. (May 5,
2007). The sponsor further explained that Bearden stood for the proposition that
nonpayment as a ground for revocation must “reflect an unwillingness of the
probationer to make efforts to pay, not inability,” and that the amendment “allows
consistency with current court opinions by providing that during a community
supervision revocation hearing, the state must prove by a preponderance of the
evidence that the defendant was able to pay but did not pay as ordered by the
judge.” Id.; see also House Research Organization, Bill Analysis, Tex. H.B. 312,
80th Leg., R.S. (Apr. 30, 2007) (describing intent of bill without suggesting it was
limited to when failure to pay was the only allegation).

IV. Other Courts

As mentioned, there is a split among the courts of appeals regarding whether
article 42A.751(i) requires the State in a community supervision revocation

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hearing to prove that the defendant was able to pay a supervision fee when failure
to pay such fee was the sole ground found by the trial court in support of
revocation but the State alleged other grounds for revocation. Most courts that have
addressed the issue have held that pursuant to article 42A.751(i), the State has the
burden to prove ability to pay under such circumstances. See, e.g., Scales v. State,
658 S.W.3d 366, 372–73 (Tex. App.—Corpus Christi 2022, no pet.) (holding that
interpreting the statute otherwise would lead to absurd results and consulting
legislative history in concluding that the legislature did not intend to allow the
State to avoid its burden simply by alleging additional grounds for revocation);
Brown v. State, 354 S.W.3d 518, 520 n.3 (Tex. App.—Fort Worth 2011, pet. ref’d)
(citing Stanfield and concluding that “[t]he legislature’s use of the word ‘only’ in
the statute is not intended to lift the requirement that the State prove that the
probationer was able to pay and did not pay as ordered by the judge when the State
includes additional allegations of nonmonetary community supervision
violations”); Lively v. State, 338 S.W.3d 140, 144–45 (Tex. App.—Texarkana
2011, no pet.) (citing legislative history and noting that article 42.037 already
requires courts to consider a defendant’s finances when revoking probation based
on nonpayment of reparations and restitution). At least one court has held in an
unpublished opinion that article 42A.751(i) does not require the State to prove
inability to pay unless failure to pay was the only ground for revocation raised by
the State. Rushing v. State, No. 12-21-00052-CR, 2022 WL 868715, at *3 (Tex.
App.—Tyler Mar. 23, 2022, no pet.) (mem. op., not designated for publication)
(asserting without analysis that the interpretation did not lead to an absurd result).2

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We further note that other courts, including our own, have stated generally in dicta that
article 42A.751(i) applies only when a defendant’s failure to pay fees or costs is the sole basis for
revocation alleged. See, e.g., Davis v. State, 591 S.W.3d 183, 193 (Tex. App.—Houston [1st
Dist.] 2019, no pet.); Beard v. State, No. 14-15-00606-CR, 2016 WL 4533414, at *5 (Tex.
App.—Houston [14th Dist.] Aug. 30, 2016, no pet.) (mem. op., not designated for publication)
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Additionally, a Court of Criminal Appeals justice has also questioned
whether the statute requires the State to prove inability to pay when failure to pay
was not the only ground for revocation alleged. See Gipson, 428 S.W.3d at 112–13
(Johnson, J., concurring). In doing so, Justice Johnson asserted that his
interpretation of the statute was not absurd because “[t]he state is permitted to drop
other allegations in exchange for a defendant’s plea of ‘true’ to the allegation that
he failed to make payments” and “[s]uch an agreement conserves . . . resources by
narrowing the scope of a hearing and benefits the defendant by limiting his
exposure to additional allegations.” Id. Justice Johnson does not explain, however,
why the existence of plea bargaining salvages his construction of the statute. If a
defendant agreed to plead true to an allegation that she failed to make payments,
there is no reason she could not also plead true or otherwise judicially admit that
the failure to pay was intentional and not due to an inability to pay, thus preserving
the ability to readily plea bargain even in light of the requirements of article
42A.751(i). Cf. Davis v. State, 591 S.W.3d 183, 193 (Tex. App.—Houston [1st
Dist.] 2019, no pet.).

V. Our Conclusion

Today, we join the courts of appeals that have squarely held that article
42A.751(i) requires the State to prove the defendant’s ability to pay whenever
failure to pay was the sole ground supporting revocation whether or not the State
alleged other grounds for revocation. See, e.g., Scales, 658 S.W.3d at 372–73;
Lively, 338 S.W.3d at 144–45. We come to this conclusion based primarily on the
Court of Criminal Appeals guidance in Stanfield, the legislative history of
amendments to the statute, and the fact that to interpret the statute otherwise would
lead to absurd results. See Stanfield, 718 S.W.2d 736–37; House Comm. On Crim.

(discussing predecessor statute).

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Juris., Bill Analysis, Tex. H.B. 312, 80th Leg., R.S. (2007). As discussed, the
legislature’s intent in amending the statute was to conform Texas statutory law to
the constitutional precedent set forth in Bearden, which held that revocation of
community supervision for failure to pay a monetary requirement when a
defendant is unable to pay, without considering other alternatives to imprisonment,
denies due process of law. 461 U.S. at 665, 672. We can discern no reason why the
legislature would want to restrict the statute to apply only when failure to pay was
the only ground alleged for revocation. If that were the legislative intent, it would
permit the State to avoid application of the statute by simply alleging an additional
ground, whether such additional ground had merit or not. Moreover, we presume
that the legislature was aware of the construction of the statute in Stanfield when it
subsequently flipped the burden on ability to pay costs to the State but effectively
did not change the manner in which the word “only” is used in the statute. See
Miller v. State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000). If the legislature
disagreed with the Stanfield interpretation, it would have chosen a different
wording.

VI. Sufficiency of the Evidence

Turning now to the sufficiency of the evidence in this case regarding
whether appellant had the ability to pay her community supervision fees, the
nonpayment of which was the only ground found by the trial court to support
revocation, we note that the State actually made no attempt to demonstrate her
ability to pay the fees. Indeed, other than the fact appellant filed a pauper’s oath,
was therefore appointed counsel, and was apparently in jail on another offense at
the time her community supervision was revoked, the record contains little
information regarding appellant’s finances. No evidence relevant to the issue was
offered during the revocation hearing.

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Because the evidence was insufficient to support the only ground that the
trial court found in support of revocation, the trial court abused its discretion in
revoking appellant’s community supervision. See Hacker, 389 S.W.3d at 865;
Leonard, 385 S.W.3d at 576. Accordingly, we sustain appellant’s first issue.

We reverse the trial court’s order revoking appellant’s community
supervision and adjudicating appellant’s guilt and remand the case to the trial court
for further proceedings consistent with this opinion.

/s/ Frances Bourliot
Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan.
(Christopher, C.J., concurring).
Publish — TEX. R. APP. P. 47.2(b).

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