OPINION
Aрpellant Julie Gaylene Lombardo contends her sentence for first-degree felony theft is illegal. Appellant also argues that the trial court erred by re-sentencing her in her absence and by revoking her “regular” community supervision.
We first conclude that the trial court did not abuse its discretion in revoking appellant’s community supervision. However, the trial court erred by reducing the term of confinement originally assessed to a term of confinement less than the minimum prescribed for the offense, thus imposing an illegal sentence. Therefore, we affirm the revocation of appellant’s community supervision, but reverse the trial court’s reduced sentence, and remand the case for the trial court to determine the term of confinement in compliance with article 42A.755(a) of the Code of Criminal Procedure and to sentence appellant accordingly. We overrule appellant’s remaining argument as moot.
In February 2004, appellant pled guilty to first-degree felony theft. In its February 2004 judgment, the trial court found appellant guilty of the charged offense, assessed punishment at ten years’ confinemеnt, suspended imposition of sentence, and placed appellant on ten years’ community supervision. As a condition of the community supervision, the trial court ordered appellant to perform 360 hours of community service, and pay restitution in the amount of $237,235.34. Appellant originally was to pay $2,050 in restitution per month, •but the trial court subsequently reduced appellant’s payments to $300 per month in 2008. Beginning in August 2010, appellant faded to pay, or underpaid, the monthly restitution amount.
A few days before appellant’s probation
The trial court found, based upon the credible evidence presented, appellant failed to pay restitution at the rate of $300 per month as ordered, and that her failure was intentional and willful and not because of an inability to pay. The trial court granted the State’s motion to revoke community supervision. Rather than sentence appellant based on the ten years’ confinement originally assessed, the trial court reduced the term of confinement to four years’ confinement and sentenced appellant accordingly.
Analysis
A. Revocation of Community Supervision
We address appellant’s last issue first. Appellant argues that the trial court erred when it revoked her community supervision. There are two parts to appellant’s argument: first, whether the trial court erred in failing to consider a statutorily prescribed factor currently required in a revocation proceeding; and second, whether the trial court erred in revoking appellant’s probation despite an inability to pay restitution. We address each in turn.
1. Statutory Factors in Revocation Proceedings
When appellant was originally sentenced and placed on ten years’ community supervision, one condition of her sentence was to pay restitution to the complainant. See Tex. Code Crim. Proc; art. 42.037(h) (if a defendant is placed oh community supervision, the trial court shall order the payment of restitution as a condition of community supervision). The State moved to revoke appellant’s probation, alleging that she had failed to pay the restitution ordered by the trial court as a condition of her community supervision.
In determining whether to revoke community supervision, parole, or mandatory supervision, the court or parole panel shall consider:
(1) the defendant’s employment status;
(2) the defendant’s earning ability;
(3) the defendant’s financial resources;
(4) the willfulness of the defendant’s failure to pay; and
(5) any other special circumstances that may affect the defendant’s ability to pay.
Act of May 21, 2001, 77th Leg., R.S., ch. 856, § 10, 2001 Tex. Gen. Laws 1704, 1706 (codified at Tex. Code Crim. Proc. art. 42.037(h)).
' In 2005, the Legislature amended the statute to read:
In determining whether to revoke community supervision, parole, or mandatory supervision, the’court or parole panel shall considеr:
(1) the defendant’s employment status;
(2) the defendant’s current and future earning ability;
(3) the defendant’s current and future financial resources; .
(4) the willfulness, of the defendant’s failure to pay;
(5) any other special circumstances that may affect the defendant’s ability to ■pay; and
(6) the victim’s financial resources or ability to pay expenses incurred by the victim as a result of the offense.
Act of May 27, 2005, 79th Leg., R.S., ch. 969, § i, 2005 Tex. Gen. Laws 3244, 3246 (codified at Tex. Code Crim. Proc. art. 42.037(h)) (additions to prior version in italics).
In amending the statute, the Legislature made clear:
The changes in law made by this Act apply only to an order of restitution that is entered or a condition of community supervision that is imposed on or after September 1, 2005. An order of restitution that is entered or a condition of community supervision that is imposed before September 1, 2005, is governed by the law in effect on the date the order was entered or the condition was imposed, and the former law is continued-in effect for that purpose;
Act of May 27, 2005, 79th Leg., R.S., ch. 969, § 3, 2005 Tex. Gen. Laws 3244, 3247.
Appellant argues that, although the original restitution order was imposed in 2004, the trial court subsequently modified the order by lowering appellant’s monthly payments in 2008. This modification, appellant argues, triggers the current version of the statute, and it was error for the trial court to not consider the sixth factor. .
We conclude that the former version of the statute applies. The trial court’s decision to lower appellant’s monthly restitution-payments was not a separate restitution order or condition of community supervision. It merely modified the preexisting restitution order. See Bryant v. State,
2. No Abuse of Discretion
We next review the record to determine whether the trial court erred in revoking appellant’s probation under the applicable standard.
A trial court has discretion to revoke community supervision when a preponderance of the evidence supports the State’s allegations that the defendant violated ' a condition of her probation. See Leonard v. State,
“The plain language of the former restitution statute permit[s] revocation for failure to pay restitution as long as the trial court considered certain factors pertaining to a defendant’s financial circumstances.” Bryant,
We conclude the trial court acted within the prescribed limits. First, there is no dispute that appellant violated a condition of her probation by failing to pay restitution as ordered. Appellant admitted as much. At the revocation hearing, аppellant testified:
Q. All right. And when you pled guilty, you were aware that you would have to pay back the restitution as a condition of your probation being terminated satisfactorily?
A. Yes, ma’am.
[[Image here]]
Q. In other words you knew that you were not paying the amount you were supposed to for restitution every month?
A. Yes, ma’am.
The State therefore proved at least one violation of the terms and conditions of appellant’s community supervision. See Rickets v. State,
Second, we review whether the trial court’s decision was within its discretion to revoke appellant’s community supervision. See id. at 763 (trial court’s order revoking community supervision reviewed for abuse of discretion); see also Bryant,
Third, we consider whether the trial court’s decision was—or should have been—constrained by constitutional due-process concerns. Appellant maintains that she cannot afford any further restitution payments. At the revocation hearing, appellant introduced evidence of her financial status, which she says “clearly demonstrated an inability tо pay the restitution.” Appellant, relying on Bearden v. Georgia,
As one judge has noted, there is potentially some tension between Texas law and the federal Constitution regarding revocation of an indigent defendant’s probation. See Gipson v. State,
We need not address any perceived discord between Texas and federal revocation princiрles. Nothing in Bearden changes our conclusion. Appellant does not argue that the trial court erred in failing to consider alternatives to imprisonment, nor did appellant raise a federal due-process objection at the time of revocation. See Tex. R. App. P. 33.1(a); Gipson,
The trial court heard evidence regarding appellant’s financial circumstances and summarized that evidence in explaining how it reached the decision to revoke appellant’s probation. For context, we briefly discuss both the evidence highlighted by the trial court in rendering its decision and the evidence adduced by both parties at the revocation hearing. '
Employment status: Appellant cоncedes that she has been employed since the time
Earning ability. Appellant says she introduced “a comprehensive list” of her income, her husband’s income, loan documents, bills, and promissory notes. This is evidence оf financial resources, a different' factor, not evidence of appellant’s earning ability. The evidence showed that, in addition to generating income from her regular job, appellant owned a business, Luscious Treats, which generated approximately $2,000 to $3,000 in annual earnings.
The trial court found that from August 2010 through January 2014, appellant and her husband earned $325,784 (or roughly $7,750 per month), as set forth in one of the exhibits introduced by appellant. During the same period, appellant paid an average of $82.14 per month in restitution.
Financial resources: Appellant-.argued that the evidence showed “a dire financial situation” and “a tight budget every single month.” Specifically, she says she had $100,000 in business debt;-as well as an unspecified amount of personal debt. She took out a $36,000 loan from her employer in 2012, and a $95⅝000 loan in 2013-from an individual with whom appellant and her husband self-financed their home. Appellant and -her husband also re-financed their home with a bank. Several exhibits admitted at the revocation hearing indicate that appellant failed to pay some mortgage payments, occasionally triggering a foreclosure warning. Appellant testified that she and her husband prematurely closed their retirement accounts, though the record does not reveal the amount of those disbursements.-
One of appellant’s probation officers testified that appellant told him that she could not make the $300 restitution payments due to her debt. When asked if appellant had provided the officer with any documentation of her debt, the officer answered, “Not that I recall.” Another officer testified that appellant’s probation case file contained 'a budget that appellant submitted in 2011. The State introduced the budget as an exhibit—it is a one-page document showing what appellant claimed were her average monthly expenses at the time.
As the State points out, there are several troubling discrepancies between appel
Appellant also submitted a phone and internet bill showing monthly charges of approximately $250, but her “Phone/Cell/ TV” expenses listed in her budget spreadsheet ranged from $247.14 to $1061.67 per month. From this evidence, the trial court concluded that appellant paid $26,682 for phone and cable expenses over rоughly three and a half years (for an average of $635 per month), while paying only $3,438 in restitution during the same period.
The trial court concluded appellant had financial resources to pay restitution, which weighs in favor of revocation.
Willfulness in faihure to pay: Appellant contends that her multiple loans show “a pattern of desperate desire to demonstrate her willingness to fulfill” the restitution order. But appellant's own statements undercut this Potion, She admits that the $95,000 loan obtained in 2013 went toward paying off appellant’s business debt, not toward restitution payments. The trial court also found that appellant repaid over $73,000 in loans from 2010 to 2014, in sums varying from $1,200 to $1,900 per month. We find nothing in the record to explain why and how appellant could meet those debt obligations while claiming an inability to pay the court-ordered restitution payments.
Appellant also points to the probation department’s placing her case on the “compliance caseload” in 2011, a special docket for cases in which the probationer, is in compliance with the terms and conditions of probation. This approval aрpears, to have resulted from an administrative error that indicated appellant was ahead on her payment schedule. At a. 2011 hearing on appellant’s motion to terminate her probation early, there was testimony regarding a “credit” on appellant’s account, but one of her probation officers testified that the “credit” was an administrative error. The probation department’s payment system automatically re-calculated appellant’s past payments (at the $2,050 monthly rate) according to the modified amount (at the $300 monthly rate), causing the system to incorrectly read that appellant was ahead on her payments. The officer testified that there was never an actual credit on appellant’s account. After this error was clarified at the 2011 hearing, appellant’s payment receipts clearly indicated the actual balance due, which was over $200,000.
This evidence, together with appellant’s failure to file anything with the trial court prior to the revocation hearing indicating that she needed relief from the restitution payments, supports thе trial court’s finding that appellant willfully failed to pay the court-ordered restitution. Accord, e.g., Thomas v. State,
Special circumstances: • Appellant also argues that her husband’s hip surgery in 2013 caused him to be out 'of work for a short period of time, and the family had over $20,000 in medical bills from 2009 to 2012. As the trial court noted, however, appellant had been delinquent in her restitution payments since 2010, several years before her husband’s surgery. While we are mindful that unexpected expenses may
The trial court was not required to weigh the factors in any particular manner; revocation is not “conditioned on the quantity or quality of evidence adduced as to the enumerated factors.” Bryant,
We overrule appellant’s third issue.
B. Illegal Sentence
Appellant was charged with theft of property valued at $200,000 or more, a first-degree felony at the time. See Act of May 28, 2003, 78th Leg., R.S., ch. 393, § 20, 2003 Tex. Gen. Laws 1633, 1639 (codified at Tex. Penal Code § 31.03(e)(7)).
After appellant рled guilty to first-degree felony theft in 2004, the trial court found appellant guilty of the charged offense, assessed punishment at ten years’ confinement, suspended imposition of the sentence, and placed appellant on ten years’ community supervision. The ten years’ confinement assessed by the trial court in 2004 was within the permissible range of punishment for the offense. See Tex. Penal Code § 12.32(a).
After revoking appellant’s community supervision, the trial court’s 2015 judgment reformed the sentence, in the interest of justice, so that appellant’s punishment would be four years’ confinement rather than ten years’ confinement. Appellant contends that the trial court erred in imposing an illegal sentence below the statutory minimum. We agree.
When “regular” community supervision
Upon revocation of appellant’s community supervision, the trial court had the option of imposing a sentence of ten years’ confinement or оf exercising the trial court’s discretion to impose a sentence of imprisonment for a term of less than ten years, but no less than five years. See Tex. Code Crim. Proc. art. 42.12, § 23(a); Tex. Penal Code § 12.32(a); Cannon,
“A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.” Mizell v. State,
When faced with a void sentence, we are without authority to reform it. See Baker,
We sustain appellant’s first issue.
C. Defendant’s Presence at Punishment
The trial court orally pronounced appellant’s sentence, in appellant’s presence, to be four years’ confinement. This sentence was recorded in the written judgment, but there is a handwritten notation on the judgment, crossing out the number “4” in “4 Years” and substituting “3,” with initials beside the notation. This action, appellant contends, constituted an improper re-sentencing, done outside appellant’s presence. See Tex. Code Crim. Proc. art. 42.03, § 1(a) (with limited exceptions, the sentence in a felony case must be pronounced
We overrule appellant’s second issue as moot.
Conclusion
We overrule appellant’s second and third issues and affirm the trial court’s revocation of appellant’s community supervision. Because we sustain appellant’s first issue regarding the reduced sentence falling outside the statutory range of punishment, however, we reverse the trial court’s reduced sentence, and remand the case to the trial court for further procеedings in accordance with the instructions set forth above.
Notes
. The terms "community supervision” .and probation are used interchangeably in this opinion and with the same intended meaning.
. One of appellant’s probation officers testified that appellant completed her community service in May 2006. The officer also testified that appellant was current on paying her probation supervisory fees'. Both parties agreed that appellant had complied with all of the conditions of community supervision, except for paying restitution.
. Effeсtive January 1, 2017, the Legislature repealed article 42.12 and recodified it as
. Texas law does require the State to prove a defendant’s ability to pay in certain instances. For example, article 42.12 of the Texas Code of Criminal Procedure requires the State in a revocation hearing to prove, by a preponderance of the evidence, that the defendant was able to pay, but did not pay, compensation paid to appointed counsel, community-supervision fees, or court costs as ordered by the trial court. See Tex. Code Crim. Proc. art. 42.12, § 21(c) (West 2006) (recodified at Tex. Code Crim. Proc. art. 42A.751(i), see supra). This statute does not apply to restitution or fines. See Gipson v. State,
. Though the State suggests that appellant may have been intentionally underemployed at some point during the ten-year probation period, the trial court specifically found that she was never underemployed. We see nothing in the record to disturb the trial court's finding.
. Appellant’now cláims that the entirety of Luscious Treats' profits goes toward repaying a loan appellant took out in 2012. The only 'support for this assertion that appellant cites is her post-conviction briefing. Appellant never argued this point or presented evidence in support of it in the early-termination hearing or the revocation hearing.
. The trial court’s finding of average monthly - restitution may be generous considering the evidence, before it. The exhibit showing amounts paid for restitution shows numerous entries of $62 or $67; these, as the probation offiсers testified, are supervisory fees that go to the- probation department—-not restitution - to the complainant.
. We calculate slightly different numbers from the exhibit showing appellant’s monthly payments, but the difference is minimal. We use the calculations stated by the trial court,
. The threshold for first-degree felony theft has since been increased to $300,000. See Tex. Penal Code § 31.03(e)(7) (West Supp. 2016).
. The term "regular” community supervision refers to community supervision in cases not involving deferred-adjudication community supervision.
.Effective January 1, 2017, article 42.12, section 23 has been repealed and recodified as article 42A.755. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 1.01, 2015 Tex. Gen. Laws 2320, 2364 (codified at Tex. Code Crim. Proc. art. 42A.755).