*1 indiсtment, infor- only to ready they given pertains if the as- Act had been mation, on which the State signment. complaint or defend- at the time the seeks to the case try December arrested trial; not right speedy ant asserts his 5, December charged pos- On he was with or abandoned previously dismissed prohibited felony. session of In- weapons, the State. pistol gasoline, stead of a and container of “weapons” pistol were a water toy case, trial In the instant water, the State to requiring container charge. A misdemeanor Class A new felоny charge. abandon indict- applicable. 90-day period time 1981, January alleg- ment was obtained rehearing misdemeanor, ing only a Clаss A terroristic threat. the felony
Since both and misdemeanor out
charges arose of the same transaction custody detained in filing charge, either criminal against аction at commenced the time STANFIELD, Appellant, Paul 32.A.02, 2.(a). of his arrest. Art. Sec. commenced, a criminal has Once action requirеs Section of Act State to be Texas, State.
ready for trial within: No. 2-81-348-CR. (1) days if is the defendant accused Court of Appeals of felony; of a Second District. if days accused of a A Class misdemeanor; if days accused of a B Class On Rehearing Aug. misdemeanor. Discretionary Review Granted State’s motion for reasons 27, 1982. Oct. period the time case applicable any upon the depends category charge
against defendant when criminal commences;
action category
charge upon which the defendant to be
tried and from relief which he seeks under Speedy Trial Act. We do not ascribe intent to Act. significant
A of the Act is purpose
to establish means defendant charges
may obtain dismissal of the him,
which the try State seeks to ready pre within time
scribed. trial target “speedy Since indictment,
dismissal motion” is the infor
mation, complaint which the de under accused,
fendant not construe his we do charges
rights being dependent upon pre abandoned on which the
viously
never trial.
This court concluded that each of the periods prescribed
time in Section of the
We reverse and remand. Aрpellant burglary was convicted of April Punishment was assessed at not less than two nor more than seven years probated. years, movеd to revoke subsequently probation, alleging vio- proba- lated the conditions of his terms and tion by failing pay probation fees of mоnth, per passing and also a check forged signa- which he his mother’s allegation, appellant pled ture. To each “untrue”. hearing January
At the revocation had commit- the court found alleged ted both of violations and and as- signed revoking probation an ordеr sessing punishment years. at seven there is Appellant complains that pay evidence that his failure (2) insuffi- tion fees was intentional and fоrgery allega- cient evidence sustain the tion. appellant paid
The evidence is that probation except fee October, 1980. He September due in employed pay and had the fees at all times material to the case. that he believed he tеstified fees, paid September inten- pay and that his failure to tional. The record contains no evidence that he failed to that if general rule is Clary, William K. Bridgeport, appel- is to be revoked on lants. fees, pay supervision Smith, Gainesville, Brock R. Atty., Dist. (a) probation the State must appellees. (b) er his failure intentional. Curtis HUGHES, L. RICHARD BROWN HOLMAN, JJ. rule to has modified the extent in cases where revo- ground upon of fees is the HOLMAN, Justice. sought, cation is This is appeal from an order is an affirmative defense revoking appellant’s probation by prepоnderance of his conviction of must raise and 42.12, building. art. sec. burglary V.A.C.C.P. art. 42.- the evidence. V.A.C.C.P. cases, 8(c). probationer fails In those defense, then to raise the affirmative was intentional. longer required during probation in- focuses argument Much the State’s Jones v. tentionally failed. 42.12, 8.(c), enacted V.A.C.C.P. Art. App. 1979). impose effect of sec. *3 case at revocation was that prove the the to upon probationer burden we hold grounds, two that to have the financial he did not prove
the was to required State therefore payments. make required the that the appellant the inadvertence, 1977 seeming By to pay. he numbered enacted two sections amendment Curtis, suprа. “8.(c)”, classifying as did proved ability, but not an defense. inability pay as affirmative intent, we prove appellant’s sustain between the differеnce only apparent ground error. first of the first sec. two sections was that may Because it be revoked stated that printed in the amendment of only one violation of the conditions applied non-payment in which to situations probation, appellant’s ground оf second of seeking the solo ground error is material. probation. revocation of
To
prove
violated
in the
8.(c) printed
sеcond
by
check on his
forging
conditions
in which
to situations
applied
amendment
account,
mother’s bank
her
signing
name as
only
of fees wаs
drawer, the
was to
State’s burden
establish
sought.
ground
which revocation
the check without
“8.(c)”
were in force
Both
sections
of
his mother’s authorization and with the in
appellant’s
when
to revoke
tent to defraud or harm
Pe
her. V.T.C.A.
probation. Subsequently,
nal Code sec. 32.21.
“8.(c)”
matter
two
sections
addressed the
of
Appellant admits
that he wrote the
in 1981. While
by repealing the second one
check on his
mother’s аccount and
co-exist, however, they
the two
did
sections
it,
cashed
on October
1980. The evi-
were
conflict.
compatible
presented
dence is that he had written and cashed
They
“inability
pay”
made
simply
checks on her account on
previous
two
occa-
probationer
defense which
affirmative
sions,
objected,
to which his mother had not
preponderance
had to
and though shе learned
son had used
her
State,
v.
Jones
an assertion that in
Although Legisla- noted ture has altered one we have BALTAZAR, Appellant, Lazaro C. found neither statutory nor case law which rescinds either requirements. of the two Texas, Appellee. “8.(c)”
The two sections enacted “ability addressed element of 13-81-094-CR. No. pay”. The relieved statutоry amendments the state that a proving of the burden of Appeals Court of ability. had such The burden Corpus Christi. probationer, requiring was shifted to а raise and amendments, however,
The 1977 did not
even long standing requirement address the State must that a probation-
er’s failure to fees was intentional. We
conclude that still exists. rehearing, its motion for
relies supra, Champion App. 1979)
as authority necessary However, intentional failure
in neither opinions of those is it clear that
the State did not intentional non-pay-
ment, and neither opinion holds such longer required.
In the case at the State offered no
evidence that appellant intentionally failed two of the seventeen fees.
The ability was never
issue in this case. argues State also on motion for
rehearing that the trial court was entitled
to disregard appellant’s testimony as to the
circumstances
check on his mother’s bank account. We
agree.
Aside from appellant’s testimony, how-
ever, undisputed evidence is
had cashed two previous checks on his objection
mother’s account with no from
her she had never instructed repeat
not to that conduct. We conclude to infer an intent to defraud or harm
the mother under these circumstances is an
abuse of discretion. There was no further
evidence as to intent.