Lawanda Rushing v. the State of Texas

NO. 12-21-00052-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LAWANDA RUSHING, § APPEAL FROM THE 114TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Lawanda Rushing appeals the trial court’s judgment adjudicating her guilty of state jail
felony theft of property. In two issues, Appellant challenges the trial court’s revocation of her
community supervision based on her failure to pay restitution and community supervision fees.
In a third issue, she contends that we must correct a clerical error in the judgment. We modify
and affirm as modified.

BACKGROUND
Appellant was charged by indictment with theft of property valued at $1,500.00 or more
but less than $20,000.00. Pursuant to a plea bargain agreement in May 2012, she pleaded
“guilty,” and the trial court deferred a finding of guilt and placed her on community supervision
for a term of five years. Subsequently, the State filed a motion to proceed with an adjudication of
guilt based on allegations that Appellant failed to report monthly from May 2014 through
November 2015, failed to pay the $60.00 monthly supervision fee from May 2014 through
December 2015, and failed to pay restitution at the rate of $150.00 per month from May 2014
through November 2015.
After a hearing on the motion, the trial court found the failure to report allegation “not
true,” found the failure to pay allegations “true,” adjudicated Appellant “guilty,” and assessed
her punishment at confinement in a state jail facility for a term of twenty-four months. This
appeal followed.

PROPRIETY OF REVOCATION
In Appellant’s first issue, she argues that the trial court erred by revoking her community
supervision for failure to pay restitution without considering all the statutorily required factors.
In Appellant’s second issue, she argues that the court erred by revoking her community
supervision for failure to pay her community supervision fees without evidence that the failure
was willful.
Standard of Review and Applicable Law
In revocation cases, the state has the burden to establish by a preponderance of the
evidence that the terms and conditions of community supervision have been violated. Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The preponderance of the evidence standard
is met when the greater weight of the credible evidence supports a reasonable belief that the
defendant violated a condition of community supervision. Rickels v. State, 202 S.W.3d 759, 764
(Tex. Crim. App. 2006). In a revocation hearing, the trial court is the sole trier of fact and judge
of the credibility of the witnesses and the weight to be given their testimony. Taylor v. State, 604
S.W.2d 175, 179 (Tex. Crim. App. 1980). The determination to proceed with an adjudication of
guilt after a defendant is placed on deferred adjudication community supervision is reviewable in
the same manner as a revocation hearing. TEX. CODE CRIM. PROC. ANN. art. 42A.108(b) (West
2018).
Appellate review of a trial court’s order revoking community supervision is limited to
determining whether the trial court abused its discretion. Caddell v. State, 605 S.W.2d 275, 277
(Tex. Crim. App. [Panel Op.] 1980). One sufficient ground for revocation will support a trial
court’s order revoking community supervision. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim.
App. 2009).
Analysis
In her second issue, Appellant argues that the trial court erred by revoking her
community supervision for failure to pay her community supervision fees because the State
failed to prove she had the ability to pay them as required by Texas Code of Criminal Procedure

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Article 42A.751(i)—the “ability-to-pay statute.” We need not decide whether the State proved
Appellant had the ability to pay the fees because we conclude that the statute does not apply.
The ability-to-pay statute provides that

[i]n 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 as described by Article 42A.301(b)(11), 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. ANN. art. 42A.751(i) (West Supp. 2021). We construe a statute in
accordance with its literal text unless the language is ambiguous or its plain meaning leads to
absurd results that the legislature could not possibly have intended. Boykin v. State, 818 S.W.2d
782, 785 (Tex. Crim. App. 1991). In this case, it was not alleged “only” that Appellant violated
her community supervision conditions by failing to pay her community supervision fees, but also
that she violated those conditions by failing to report and pay restitution. Therefore, under the
plain meaning of the ability-to-pay statute, the statute does not apply here. See Davis v. State,
591 S.W.3d 183, 193 (Tex. App.—Houston [1st Dist.] 2019, no pet.); Bush v. State, No. 09-18-
00414-CR, 2019 WL 2607592, at *2 (Tex. App.—Beaumont June 26, 2019, no pet.) (mem. op.,
not designated for publication); Johnson v. State, No. 07-19-00031-CR, 2019 WL 2872292, at
*4 (Tex. App.—Amarillo July 3, 2019, no pet.) (mem. op., not designated for publication); Farr
v. State, No. 13-17-00297-CR, 2018 WL 4017118, at *4 (Tex. App.—Corpus Christi Aug. 23,
2018, no pet.) (mem. op, not designated for publication); Beard v. State, Nos. 14-15-00606-CR,
14-15-00607-CR, 2016 WL 4533414, at *5 (Tex. App.—Houston [14th Dist.] Aug. 30, 2016,
pet. ref'd) (mem. op, not designated for publication).
Nonetheless, Appellant cites Brown v. State, 354 S.W.3d 518 (Tex. App.—Fort Worth
2011, pet. ref'd), to support her argument that the statute applies despite its plain language. In a
footnote, citing Stanfield v. State, 718 S.W.2d 734 (Tex. Crim. App. 1986), the court of appeals
opined 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.” Brown, 354 S.W.3d at 520 n.3. We are not persuaded by this footnote
that we should ignore the plain language of the statute. First, we note that this proposition in

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Brown did not determine the outcome of the case. See id. at 520, 523 (concluding State failed to
show appellant’s ability to pay fees but upholding revocation based on commission of new
offense).
Moreover, the court of criminal appeals’s analysis of the ability-to-pay statute in
Stanfield, on which the court of appeals in Brown relied, is inapplicable to an analysis of the
statute’s current version. When Stanfield was decided, two versions of the ability-to-pay statute
existed. See Stanfield, 718 S.W.2d at 735. One version provided that in a revocation hearing at
which

it is alleged only that the probationer violated the conditions of probation by failing to pay
[certain prescribed fees, costs et cetera], the inability of the probationer to pay . . . is an
affirmative defense to revocation, which the probationer must prove by a preponderance of the
evidence.”

Id. The other version provided essentially the same text except that it omitted the word “only.”
Id. Both versions had the effect of relieving the state—at least in cases in which no other
violations were alleged—of its previous burden to prove the defendant had the ability to pay and
intentionally failed to do so. Id. at 736. After reviewing the legislative history of the two
versions, the court concluded that
given those circumstances and when the legislative intent is so clear, to restrict application of
the burden of proving that affirmative defense to a hearing on a motion to revoke making
“monetary allegations” alone produces quirky consequences that simply may not be justified
on the theory that “only”—an often misused adverb—was inserted in one act but not in the
other.

Id. at 737.
Unlike the ability-to-pay statute in effect when Stanfield was decided, there is only one
version of the current statute. Under this circumstance, we cannot presume that the legislature
unintentionally included the word “only” or intended that it be ignored. See Wagner v. State, 539
S.W.3d 298, 306 (Tex. Crim. App. 2018) (“We presume that every word has been used for a
purpose and that each word, phrase, clause, and sentence should be given effect if reasonably
possible”). Nor can we conclude that giving effect to the word “only” in this context leads to an
absurd result. See Boykin, 818 S.W.2d at 785. Because the State alleged violations in addition to
those listed in the ability-to-pay statute, the statute did not work to give the State the burden of

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proving that Appellant had the ability to pay her community supervision fees, and the trial court
did not err by revoking Appellant’s community supervision on that basis. See Davis, 591 S.W.3d
at 193; Bush, at *2; Johnson, 2019 WL 2872292, at *4; Farr, 2018 WL 4017118, at *4; Beard,
2016 WL 4533414, at *5. Accordingly, we overrule Appellant’s second issue.
Because one sufficient ground for revocation will support a trial court’s order revoking
community supervision, we need not address whether the trial court erred by revoking
Appellant’s community supervision for failure to pay restitution. See Smith, 286 S.W.3d at 342;
see also TEX. R. APP. P. 47.1 (court of appeals opinion must be as brief as practicable and need
address only issues necessary to final disposition of appeal). Accordingly, we overrule
Appellant’s first issue.

JUDGMENT ERROR
In Appellant’s third issue, she argues that the judgment must be modified to properly
reflect the trial court’s findings.
Applicable Law
When there is a conflict between the oral pronouncement of sentence in open court and
the sentence set out in the written judgment, the oral pronouncement controls. Thompson v.
State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in such cases is to reform the
written judgment to conform to the sentence that was orally pronounced. Id.; see also TEX. R.
APP. P. 43.2 (authorizing courts of appeals to modify trial court’s judgment).
Analysis
Appellant complains that the trial court’s judgment includes a statement that she
“violated the terms and conditions of community supervision as set out in the State’s Motion to
Adjudicate Guilt.” She contends that because the trial court found one of the State’s allegations
“not true,” the statement in the judgment does not accurately reflect the court’s pronouncement.
The State, while conceding that the statement could be more precise, disagrees that it does not
accurately reflect the court’s pronouncement.
We agree with Appellant that the statement does not accurately reflect the court’s
pronouncement. Accordingly, we sustain her third issue and modify the judgment to reflect that
Appellant violated some of the terms and conditions of community supervision as set out in the
State’s Motion to Adjudicate Guilt. See TEX. R. APP. P. 43.2; Thompson, 108 S.W.3d at 290.

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DISPOSITION
Having overruled Appellant’s first and second issues and sustained her third issue, we
modify the trial court’s judgment and affirm it as modified.

GREG NEELEY
Justice

Opinion delivered March 23, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 23, 2022

NO. 12-21-00052-CR

LAWANDA RUSHING,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0256-12)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that Appellant violated some of the terms and
conditions of community supervision as set out in the State’s Motion to Adjudicate Guilt; in all
other respects the judgment of the trial court is affirmed; and that this decision be certified to the
court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.