OPINION
This is an appeal from a judgment of conviction of the offense of intentionally and knowingly carrying an illegal knife on premises licensеd for the sale of alcoholic beverages in violation of V.T.C.A., Penal Code § 46.02. At the trial held on June 6, 1980, appellant entered a plea of guilty, waived a jury, stipulated to the evidence by a judicial confession of guilt, and applied for probation.
Acting under Art. 42.12, § 3d, Vernon's Ann.C.C.P., the Court entered an order finding that the evidence substantiated appellant’s guilt but deferred further proceedings without entering an adjudication of guilt and placеd appellant upon probation for a period of five years.
On November 18, 1980, a motion to revoke probation was filed with six separate grounds for revocation set out therein. After a hearing, the trial court revoked probation and assessed punishment аt confinement for not less than two or more than six years. The judgment specifically recited that the first four grounds in the motion to revoke рrobation were found not to be true. Sentence was duly imposed and this appeal follows.
Appellant contends that the trial court abused its discretion by basing revocation upon proof that appellant failed to remain in Jefferson County as required by the рrobation order. The complaint has merit. The boiler plate probation order in our record contains, in paragraph “g”, this requirement: “Remain in the following location: Jefferson County, Texas,” followed by a blank line designed for a variation. This line is blank upon the photocopy of the original order in our record.
Immediately following this generalized order of probation is an amended order changing the requirement that appellant remain in Jefferson County.
But the evidence does not support the implied finding that appellant was required, by the amended probation order, to remain in Jefferson County. Proof that appellant did nоt remain in Georgia, as required by the amended order, did not authorize revocation upon a motion charging that he violated the conditions of his probation by not remaining in Texas.
It has long been the rule that a probationer is entitled to the rudiments of due process аt a revocation hearing, one of which is “a written motion to revoke that fully informs him of the violation of a term of probation which hе is alleged to have breached.” Caddell v. State,
The order revoking probation is not based on a condition of probation as modified. Grommes v. State,
We turn now to appellant’s fourth challenge to the revocation wherein he contends that it was an abuse of discretion to revoke probation because of failure to make the payments required under Condition “h” of the probation order. Four separate payments were required by this condition: the fine of one thousand dollars, the court costs, appointed attorney’s fees, and probation fees. The monthly payments were fixed at forty dollars which would have satisfied appellant’s financial obligations for the four items.
We do not find it necessary to determine the validity of the assessment of the fine as a condition of probation since there аre three other elements of the paragraph of the order the validity of which are not questioned by appellant. In considеring this ground, we recognize the rule that proof of any one of several alleged violations of the order of probation is sufficient to support the order revoking probation. Moses v. State,
We turn now to the third ground wherein he contеnds that he affirmatively showed that he was not financially able to pay the amounts of money required by the order.
Inability of a probationer to pay as ordered is an affirmative defense to revocation of probation. Art. 42.12, § 8(c), V.A.C.C.P.; Jones v. State,
State’s counsel makes no reply to the factuаl statements contained in appellant’s brief and has not joined issue on this ground of error presented by appellant. We do not approve of this tactic which shifts to this Court the duty of considering the ground of error without effective assistance of State’s counsel.
Tex.Cr.App.R. 211 is аpplicable to the situation now confronting this Court. The Rule reads:
“Where not inconsistent with the Code of Criminal Procedure and these rules, as they now exist or may hereafter exist,*119 the Rules of Civil Procedure shall govern proceedings in the courts of appeals in criminаl cases.”
One of the Rules of Civil Procedure which we now hold applicable to appeals in criminal cases is Tex.R.Civ.P. 419, reading:
“Any statements mаde by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.”
This civil rule has been applied in many cases. See, e.g., Crawford v. Modos,
While we are authorized to utilize Civil Rule 419 to control the proceedings in this case, wе have made an independent examination of the record and find that the testimony noted by appellant was that given by appellant’s witness, Cornelia Sue Pymm. Appellant’s own testimony does not corroborate or support that given by Mrs. Pymm.
Notwithstanding the failure of State’s counsel to reply to appellant’s factual statements, we do not find that the un-controverted evidence established appellant’s inability to make the financial payments required by the probation order. We find no abuse of discretion and overrule ground four.
The judgment of the trial court is affirmed.
Notes
The amended order reads: “The conditions of probation are hereby amended to include the following: Probationer is hereby ordеred to reside at Fort Benning Georgia for the purpose of being enlisted in the Army. Mr. Burgess is