Lively v. State
338 S.W.3d 140
| Tex. App. | 2011Background
- Lively was convicted of theft by check (>$1,500, <$20,000) in 2004 and placed on five years of community supervision.
- A second motion to revoke was filed July 22, 2009 for nonpayment of court costs, fines, and restitution.
- The trial court revoked community supervision and sentenced Lively to 24 months in a state jail after a plea of true to all allegations.
- Lively appeals claiming a speedy revocation hearing violation, involuntary plea, and insufficient evidence.
- The appellate court affirms, addressing preservation of error, sufficiency of evidence, and statutory framework.
- Bearden v. Georgia and Art. 42.12, §21(c) shape the evidentiary standard for willful nonpayment and consideration of ability to pay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Speedy revocation hearing preservation | Lively argues speedy revocation violated. | State maintains waiver principle controls. | Waived; failure to raise before trial. |
| Voluntariness of plea | Plea of true was involuntary because Court dictated wording. | No preserved challenge to voluntariness. | Not preserved; plea affirmed without ruling on voluntariness. |
| Sufficiency of evidence to revoke for nonpayment | Evidence shows nonpayment; plea supported. | Bearden standard requires willful nonpayment and ability-to-pay analysis. | Evidence supports willful nonpayment; no abuse of discretion. |
Key Cases Cited
- Wade v. State, 83 S.W.3d 835 (Tex.App.-Texarkana 2002) (waiver rule for speedy revocation hearing preserved when not raised at trial)
- Fuller v. State, 224 S.W.3d 823 (Tex.App.-Texarkana 2007) (waiver rule for speedy revocation hearing preserved when not raised at trial)
- Sims v. State, 326 S.W.3d 707 (Tex.App.-Texarkana 2010) (voluntariness of plea must be raised to preserve review)
- Mendez v. State, 138 S.W.3d 334 (Tex.Crim.App.2004) (preservation requirement for voluntariness challenges)
- Bearden v. Georgia, 461 U.S. 660 (1983) (bearden standard for ability to pay in revocation for nonpayment)
- Rickels v. State, 202 S.W.3d 759 (Tex.Crim.App.2006) (standard: preponderance of evidence supports revocation if conditions violated)
- In re T.R.S., 115 S.W.3d 318 (Tex.App.-Texarkana 2003) (abuse of discretion standard in revocation cases)
- Cardona v. State, 665 S.W.2d 492 (Tex.Crim.App.1984) (credibility and weight of witness testimony in revocation hearings)
- Sanchez v. State, 603 S.W.2d 869 (Tex.Crim.App.[Panel Op.] 1980) (preponderance standard in revocation contexts)