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Lombardo v. State

Court of Appeals of Texas, Fourteenth District

March 16, 2017

JULIE GAYLENE LOMBARDO, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 932351

          Panel consists of Chief Justice Frost and Justices Brown and Jewell.

          OPINION

          Kevin Jewell Justice.

         Appellant 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.

         Background

         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' confinement, 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 failed to pay, or underpaid, the monthly restitution amount.

         A few days before appellant's probation[1] was set to expire in February 2014, the State moved to revoke community supervision for failure to pay restitution. The trial court held a hearing, at which the sole issue was appellant's ability to make the restitution payments. The State presented five witnesses, appellant testified on her own behalf, and both parties introduced exhibits. At the time of the revocation hearing, appellant had paid $33, 460 in restitution.

         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 on 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.[2] The trial court may revoke community supervision if the defendant fails to comply with the order. See id. In determining whether to revoke community supervision, the trial court "shall consider" certain factors set forth by statute. See id.

         Appellant contends the trial court erred in failing to consider one of the statutory factors, but this argument depends on which version of the restitution statute applies. In 2004-when the trial court initially ordered appellant to pay restitution- the statute provided:

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 consider:
(1) the defendant's employment status;
(2) the defendant's current and future earning ability;
(3) the defendant's current and future financial ...

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