Gipson, Raimond Kevon

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0377-13

RAIMOND KEVON GIPSON, Appellant v. THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

JEFFERSON COUNTY A LCALA, J., filed a concurring opinion in which C OCHRAN, J., joined.

CONCURRING OPINION

I join the majority opinion upholding the conviction of Raimond Kevon Gipson, appellant. I write separately to point out that the majority opinion does not reach a ground that, if preserved, might well have changed the outcome of this case. Included within his arguments in this appeal, appellant accurately observes that the federal Constitution requires that a trial court inquire into a defendant’s reasons for his failure to pay a fine and consider alternatives to his incarceration. In light of the trial court’s failure to make such inquiries in this case, I conclude that, but for appellant’s failure to preserve this complaint for review, the outcome of this appeal would probably be different.

I agree with the majority opinion that the trial court properly revoked appellant’s community supervision on the basis that he failed to pay his fine because fines are not included within the ability-to-pay statute. Appellant’s community supervision was revoked on the basis that he failed to pay certain amounts assessed as a fine, court costs, and fees for supervision, pre-sentence investigation, and Crime Stoppers.1 As the majority opinion points out, fines are not included within Texas’s ability-to-pay statute, which, under its plain language, applies only to “compensation paid to appointed counsel, community supervision fees, or court costs[.]” T EX. C ODE C RIM. P ROC. art. 42.12, § 21(c); see Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (distinguishing fines from court costs); Weir v. State, 278 S.W.3d 364, 366–67 (Tex. Crim. App. 2009) (same). As also noted by the majority opinion, because fines are punitive, they are characteristically different from the types of expenses listed in the ability-to-pay statute that are directed at recouping the expenses of the trial court in the prosecution of a defendant. See Armstrong, 340 S.W.3d at 767 (“Fines are punitive, and they are intended to be part of the convicted defendant’s sentence as they are imposed pursuant to Chapter 12 of the Texas Penal Code, which is entitled ‘Punishments.’”); Weir, 278 S.W.3d at 366 (stating that court costs are intended as “nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case”) (citations omitted). Furthermore, the majority opinion correctly observes that, because a defendant’s community supervision can be revoked solely for failing to pay a fine, the trial court’s judgment revoking appellant’s community supervision may be upheld on this ground alone. See Bryant v. State, 391 S.W.3d 86, 93 (Tex. Crim. App. 2012); Smith v. State, 286 S.W.3d 333, 342–43 (Tex. Crim. App. 2009); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

Although appellant presented no objections that he was unable to pay his fine and fees, his sufficiency-of-the-evidence challenge under the ability-to-pay statute may be addressed on appeal, but his complaint under the federal Constitution may not. Even absent preservation, an appellate court may address whether the evidence is sufficient to support revocation because the statute describes the evidentiary burden of the State, and sufficiency- of-the-evidence complaints cannot be forfeited through the inaction of failure to object at trial. See Bryant, 391 S.W.3d at 93; Gipson v. State, 395 S.W.3d 910, 914–15 (Tex. App.—Beaumont 2013) (op. on remand). In contrast, appellant forfeited his complaint under the federal Constitution by failing to object on that basis at trial. See Gipson, 395 S.W.3d at 916 (citing Rogers v. State, 640 S.W.2d 248, 263–64 (Tex. Crim. App. 1982) (second op. on reh’g)); see also Ieppert v. State, 908 S.W.2d 217, 219 (Tex. Crim. App. 1995); T EX. R. A PP. P. 33.1(a).

Because appellant was required to preserve his complaint under the federal Constitution and did not do so, this Court correctly does not address that matter. I address it, however, to explain why the result in this case would likely have been different had appellant preserved that constitutional complaint. In Bearden v. Georgia, the Supreme Court held that, “in revocation proceedings for failure to pay a fine,” the Fourteenth Amendment requires that “a sentencing court must inquire into the reasons for the failure to pay” and that the judge consider alternatives to imprisonment if he finds that a defendant is unable to pay.2 461 U.S. 660, 672, 103 S. Ct. 2064 (1983); see also U.S. C ONST. amend. XIV. No evidence in this record shows that the sentencing court inquired into the reasons for appellant’s failure to pay, and therefore, had appellant’s complaint under the federal Constitution been preserved, it would appear that relief should be granted to him and his conviction reversed. See Bearden, 461 U.S. at 674 (without determination as to defendant’s reasons for failure to pay and lack of alternatives, “fundamental fairness requires that the petitioner remain on probation”).

Furthermore, as this Court noted in its first Gipson opinion, the applicability of the evidentiary or procedural burden differs among revocations based on a failure to pay a fine, depending on whether the complaint is analyzed under the ability-to-pay statute or the federal Constitution. See Gipson v. State, 383 S.W.3d 152, 157 (Tex. Crim. App. 2012) (“Gipson I”) (“Bearden prescribes a mandatory judicial directive, not a prosecutorial evidentiary burden.”). Under the ability-to-pay statute, the State must prove by a preponderance of the evidence that the defendant was able to pay certain amounts and did not pay as ordered by the judge. T EX. C ODE C RIM. P ROC. art. 42.12, § 21(c); see Gipson I, 383 S.W.3d at 159 n.3. By comparison, the federal Constitution places the burden on the trial judge to inquire into the reasons for the failure to pay and permits incarceration when “alternate measures are not adequate to meet the State’s interests in punishment and deterrence[.]” Bearden, 461 U.S. at 672. The outcome of a defendant’s appeal, therefore, could be entirely different depending on whether the case is analyzed under the Texas statute or the federal Constitution. Here, because fines are not included within the ability-to-pay statute, appellant’s revocation may be properly upheld under that statute even if the trial court did not consider whether he had the ability to pay the fine, but, had he preserved his complaint under the federal Constitution, his revocation would be improper unless the trial court first considered his ability to pay and alternatives to his incarceration.

Though there are Texas statutes with evidentiary requirements or other considerations for certain monetary allegations, the federal Constitution may ultimately provide greater relief because it requires a judge to consider alternatives to imprisonment if he finds that a defendant is unable to pay. It would be prudent for a defendant who is facing revocation solely for monetary allegations such as failing to pay a fine, restitution, or other fees, to assert an objection under the federal Constitution because the failure to do that may be outcome- determinative, as here. With these comments, I join the majority opinion.

Filed: April 16, 2014 Publish