Bryant v. State, 2011 Tex. App. LEXIS 9930

Bryant was originally placed on deferred adjudication for misapplication of trust funds with two judgments in January 2000; restitution ordered was $197,663.64 and monthly payments were required through the end of the supervision term.
Bryant made many payments, totaling $33,904.75 toward restitution, but the State later alleged unpaid restitution totaling $164,658.89 through October 2009.
A motion to revoke community supervision and adjudicate guilt was filed November 13, 2009, claiming Bryant failed to pay the court-ordered restitution and related fees.
The trial court revoked supervision, adjudicated Bryant guilty, imposed a two-year sentence with the term suspended, and placed him on seven years of community supervision, while keeping unpaid restitution as a condition.
At the revocation hearing (held after the term of supervision had ended), Bryant testified to limited income, health issues, and inability to pay more than $300 per month, while the State maintained the need to prove ability-to-pay under Article 42.12.21(c).
The Texas appellate court ultimately reversed in part, remanding for consideration of Article 42.037(h) factors and addressing preservation and sufficiency issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence supports nonpayment of restitution under Article 42.12, §21(c).	Bryant argues the State must prove nonpayment or lack of ability to pay.	Bryant contends he paid as much as he could and was financially unable to pay the full restitution.	Evidence sufficient to show nonpayment of restitution.
Whether due process required proving ability to pay under Bearden before revoking supervision.	Bryant asserts inability-to-pay invalidates revocation.	Bearden limits punishment but allows revocation where alternatives are used; no absolute burden to prove ability-to-pay.	Bearden does not render revocation unconstitutional where alternative punishment is used; no due-process violation.
Whether the trial court abused discretion by failing to consider Article 42.037(h) factors before revoking.	Court did not adequately weigh Bryant’s ability to pay and other listed factors.	(State) Argued additional subsections may not apply and that evidence showed nonpayment.	Court abused discretion by failing to consider all six factors in 42.037(h); remanded.
Whether Bryant preserved Article 42.037(h) issue for review despite timing of amendments.	Bryant preserved by evidence and argument about ability to pay.	State argued no preservation for 42.037(h).	Issue preserved; trial court should consider 42.037(h) factors on remand.

Bearden v. Georgia, 461 U.S. 660 (U.S. 1983) (due-process limits on revoking probation for nonpayment of fines/restitution; alternatives may be required)
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) (appellate review of revocation for abuse of discretion; preponderance standard for evidence)
Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009) (preservation and standard of proof issues in revocation contexts)