NO. 07-01-0021 -CR NO. 07-01-0026 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JANUA RY 3, 2002

______________________________ BANESSA

HOPE HUERTA, AP PELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 24 2ND DISTRI CT COURT OF HALE COUNT Y; NO. B13048-9806 &

A13133-9808; HON ORABLEED SE LF, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Upon hearing evidence that app ella nt Banessa H ope Huerta had violated the con dit ions of her com munity s upervision, which had been granted upo n two s eparate convictions for burglary of a habitation, the trial court revoked com munity s upervision and assessed punishment

at five years confinem ent and a $500 fine in cause num ber B13048- 9806 and six years confinement in cause num ber A13133-9808. P resenting two points of2

error, appellant contendsthe tri al court erred by revoking her com munity s upervision because (1) she proved theaffirmative defense of inability to pay by a preponderance of the evidence, and (2) all other violations were a direct result of her inabili ty to pay. Based up on th e r at i on al e e xp re ss ed he re i n, we a ff i rm. W hen rev iew ing a n or

der revokin g co m m unit

y s upe rvis ion, thesolequestion before this Court is whether the trial court abused its discretion. Jackson v. S tate, 645 S.W.2d 303, 305 (Tex.Cr.App. 1983). In a revocat ion proceeding, the State m us t prove by a preponder ance of the evidence that appellant violated a condition of com munity supervision. Cobb v. S tate, 851 S.W.2d 871, 874 (Tex.Cr.App. 1993). However, when a defendant raises in ab il it y to pa y, Te x. Code Crim . Proc. Ann . art. 42.12, § 21(c) (Vernon Supp. 2002), the burde n is on the defe ndant to prove the affirmative defense by a preponder ance of the evidence. Stanfield v. State, 718 S.W.2d 734, 737 (Tex.C r.App. 1 986). W here inabili ty to pay is raised, the S tate bears the burden of p roving that th e failure to pay was intentional. Id. at 737-38. At the hearing on the S tate’s m otion to revoke for m ultiple viol ations of conditions of comm unity super vision , appell ant volunta ril y plead true to the State’s all egations. The clerk’s records al so contain si gned stipul ations of evi dence in w hich app ellan t state s, “ all the acts a nd allegations in said Origi nal Application to Revoke Probation are true a n d correct.” She testified at the hearing that sh e kne w she ha d violated the conditions of com munity

supervision, but justified the violations based on her affirmative defense of3

inabili tyto pay. Thecourt found that sheviolated the following conditions of com munity supervision:

C failed to maintain suitable employm ent;

C failed to advise her supervision officer of changes in em ployment;

C failed to pay restitution, fines and costs;

C failed to complete com munity s ervice; and

C fa i l ed to at te nd GE D p ro gr am. Appellantrationalized the viol ations by explai ning that she had no one to le ave her children w ith while she was at work, or

to attend the GE D program , or com plete comm unity service hours. She clai med to be unable to lea ve her ch ildr en with her father and stepm other

because sheclaimed her father m olested her and she fea red him . How ever, atthe time of the hearing she testified that her children were living with her father an d she waslivi ng with her boyfri end in Lubb ock. W hen questioned by the trial co urt on what eff ort she had m ade to find som eone to care for her children she responded, “I never tried to find anyone.” Appellant’s boyfriend testified that she had as ked friends to ta k e care of her children, but that no one wanted to help. Although one sufficient ground for revocation supports the trial co urt’s order, M oore v . State, 605 S .W .2d 924, 926 (Tex .Cr.App. 1980), a plea of true standing a lone i s sufficientto support the trial court’s revocation order. Moses v . State, 590 S.W.2d 469, 470 (Tex.Cr.A pp. 1979). Although appellant asserted inability to pay as a justification for4

all violations, her failure to complete com munity s ervice at the pace of only eight hours per mont h did notrequire financi al resour ces. Regardle ss of appell ant’s affirmative defe nse of inabili ty to pay, a plea of true to the State’s allegations and her testimony tha t she knew she had viol ated the condi tions of community supervisi on support the tr ial cou rt’s revocation order. Duke v. S tate, 2 S.W.3d 512, 517 (Tex.App .–San Antonio 1999, no pet.). W e find the trial court did not abuse its discretion in revoking appellant’s comm unity supervision. Points of error one and tw o are overruled. Accordingly, the j udgme nt of the trial court is affirmed.
Don H. Reavis Justice Do not publish.