## NO. 12

- 21

- 00052

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

LAWANDA RUSHING , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL F ROM THE 114TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Lawanda Rushing a ppeals the trial court’s judgment adjudicating her guilty of state jail felony theft of property . In two issues, Appellant challenges the trial court ’s rev ocation 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

.

B ACKGROUND Appellant was c harged by indictment with theft of p roperty valued at $1,500.00 or more but less than $20,000.00

. Pursuant to a plea bargain agreement in May 2012, sh e pleaded “guilty,” an d the trial court deferred a finding of guilt and placed her on community supervisio n for a term of five years

. Subsequently, t he State filed a motion to proceed with an adjudication of guilt based on allegations that Appellant fail ed to report monthly from May 2014 through November 2015, failed to pay the $60.00 monthly supervision fee f rom May 2014 through
Decembe r 2015, and fail ed to pay restitution at the rate of $150.00 per month from May 2014 through November 2015

. A fter a hearing on the motion, the trial court found the failure to report allegation “not true,” found the failure to p ay allegations “ true , ” adjudicated Appellant “guilty,” and assessed2 her punishment at confinement in a state jail facility for a term of twenty

- four months

. This appeal followed.

P ROPRIETY OF R EVOCATION In Appellant’s first issue , she argues that the tr ial 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
evid en ce that the terms and conditions of communi ty supervision have been violated. Cardo na v. Sta t e , 665 S.W. 2 d 492, 493 (Tex. Crim. App. 1984). The preponderance of the evidence standard is met when the greater weight of the credible evidenc e sup p orts a reasonable beli e f that the
defen d ant violated a c ondition of community supervision. Rickels v. State , 202 S.W.3d 759, 764 (Tex. Crim. App. 200 6). 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. Ta ylor v. Sta t e, 60 4
S.W.2d 17 5, 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. T EX

. C ODE C RIM

. P ROC

. A NN

. 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 27 5, 277 (Tex. Crim. App. [Pa nel Op.] 1980 ) . One suffici en t ground for revo cation 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 fail ure 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 Procedure3 Article 42A.751(i)

— the “ability

- to

- pay statute.” We ne ed not decide whether the State proved Appella nt 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 violat ed 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 4 2A.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.

T EX C ODE C RIM

. P ROC

. A NN

. art. 42A.751(i) (West Supp. 2021)

. We construe a statute in
accordance with its li teral text unless the language is ambiguous or its plain meaning leads to
abs urd results that the legislature could not possibl y 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 commu nity supervision fees, but also that she violated those conditions by failing to r eport 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. Ap p.

— 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

- 0 0606

- CR,
14

- 15

- 00607

- CR, 2016 WL 4533414, at *5 (Tex. App.

— Houston [14th Dist.] Au g. 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 s upport 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 int ended 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. W e are not persuaded by this footnote that we should ignore the plain language of the statute. First, we note that this proposition in4 Brown did not determine the outcome of the case. See id. at 520, 523 (concluding State failed to show appellant’s abil ity 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 t he
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 c onditions 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 prepondera nce of the evidence.”

Id. The othe r 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 burd en to prove the defendant had the a bility 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

— wa s inserted in one act but not in th e 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 in tended 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 S tate the burden of5 proving that Appellant had the ability to pay her community supe rvision 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 287229 2, 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 wh ether the trial court erred by revoking Appell ant’s community supervision for failure to pay restitution. See Smith , 286 S.W.3d at 342;
see also T EX

. R. A PP

. P. 47.1 ( court of appeals opinion must be as brief as practicable and need address only issues nec essary to final disposition of appeal). Accordingly, we overrule Appellant’s first issue.

J UDGMENT E RROR 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 wr itten 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 refor m the written judgment to conform to the sentence that was orally pronounced. Id. ; see also T EX

. R.
A PP

. P. 43.2 ( authorizing courts of appeals to modify trial court’s judgment). Analysis Appellant complains that the trial court’s judgment includes a state ment 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 n ot 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 r eflect 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 a s set out in the State’s Motion to Adjudicate Guilt. See T EX

. R. A PP

. P. 43.2; Thompson , 108 S.W.3d at 290.6 D ISPOSITION Having overruled Appellant’s first and second issues and sustained her third issue, we modify the tria l court’s judgment and affirm it as modified

.

G REG N EELEY Justice
Opinion delivered March 23, 2022. Panel consisted of Worthen, C.J., Hoyle, J., a nd Neeley, J.

( DO NOT PUBLISH )

## 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 f rom 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 brief s 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.
I t is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modifie d to reflect that Appellant violat ed some of the terms and conditions of community supervision a s 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

. Gre g Neeley , Justic e

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.