Gipson v. State
2011 Tex. App. LEXIS 6241
| Tex. App. | 2011Background
- Gipson was convicted of assault on a family member and sentenced to 10 years, suspended, with 10 years’ community supervision and a $500 fine.
- The State filed a motion to revoke Gipson’s community supervision based on three alleged violations: theft from a person, nonpayment of court fees/arreas, and failure to avoid contact with the victim.
- Gipson pleaded true to failing to pay court-assessed fees and not true to the other two alleged violations.
- The trial court did not hear evidence about Gipson’s ability to pay or reasons for nonpayment and revoked supervision solely on the nonpayment allegation.
- The trial court imposed an eight-year confinement sentence upon revocation, and Gipson appealed claiming revocation was improper where evidence of the ability to pay was not shown.
- The appellate court held that revoking based solely on nonpayment without evidentiary support of ability to pay violated due process and Bearden/Fairness principles, so the revocation was an abuse of discretion and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation based solely on nonpayment was supported by evidence | Gipson | State | Yes, reversed for lack of evidence of ability to pay |
| Whether Article 42.12, §21(c) requires showing ability to pay for nonpayment revocation | Gipson | State | Yes, requirement applies; need willful refusal or bona fide effort to pay |
Key Cases Cited
- Rickels v. State, 202 S.W.3d 759 (Tex.Crim.App.2006) (preponderance standard for revocation; evidence viewed in light of trial court’s ruling)
- Cardona v. State, 665 S.W.2d 492 (Tex.Crim.App.1984) (plea of true can support revocation but not where sole basis is nonpayment absent ability-to-pay evidence)
- Cole v. State, 578 S.W.2d 127 (Tex.Crim.App. [Panel Op.] 1979) (single violation can support revocation; need not prove ability to pay in all contexts)
- Moore v. State, 605 S.W.2d 924 (Tex.Crim.App.1980) (proof of a single violation may support revocation)
- Bearden v. Georgia, 461 U.S. 660 (U.S. 1983) (probation may be revoked for nonpayment only if willful failure or inability to pay with Bona fide efforts; due process)
- Lively v. State, 338 S.W.3d 140 (Tex.App.-Texarkana 2011) (Bearden-based standard; legislature intended due-process alignment; must show willful refusal or bona fide efforts to pay)