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Carreon v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 11, 2018


         On appeal from the 389thDistrict Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa



         Luis Armando Carreon appeals from a judgment revoking community supervision for failure to pay community supervision fees, court costs, a fine, and restitution, and sentencing him to four years' confinement. In four issues, Carreon argues that the trial court abused its discretion by revoking community supervision on the grounds that: (1) the evidence does not establish one of the alleged violations; (2) the evidence establishes that Carreon lacks the ability to pay; (3) the community supervision terms contained contrary provisions ordering Carreon to both support his family with his earnings and requiring him to spend all his earnings to pay restitution, fines, fees, and costs; and (4) the trial court was biased. We reverse and render.

         I. Background

         On April 17, 2006, pursuant to a guilty plea, the trial court convicted Carreon on two counts of burglary of a habitation, both second degree felonies. See Tex. Penal Code Ann. § 30.02(c)(2) (West, Westlaw through 2017 1st C.S.). On the only count that is the subject of this appeal, the trial court sentenced Carreon to ten years' confinement, suspended the sentence, and placed Carreon on community supervision for ten years. The judgment ordered Carreon to pay $23, 107.36 in restitution, [1] $347.00 in court costs, and a $750.00 fine.[2]

         On February 24, 2016, the State moved to revoke Carreon's community supervision, alleging that Carreon violated four community supervision terms by failing to pay $3, 223.00 in monthly community supervision fees, $30.00 in court costs, a $750.00 fine, and a delinquent sum of $23, 709.36 in restitution.

         At the initial hearing on the motion to revoke, Carreon's counsel asserted that he lacked the ability to pay the restitution. The State recommended that Carreon be confined for two years, to which the trial court responded, "That's not going to happen either. That's ridiculous, okay? I wouldn't even accept that plea bargain, okay? Give the minimum because it's the minimum. That's ridiculous. Now you know where I am. Either go to trial or go to trial. That's pretty much it." The motion was set for an evidentiary hearing the following day.

         At the evidentiary hearing, the State moved to dismiss the motion to revoke because it believed that it lacked sufficient evidence. Specifically, the State asserted that it lacked evidence of the considerations outlined in article 42.037(h) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.037(h) (West, Westlaw through 2017 1st C.S.). Despite the State's concession regarding its lack of evidence, the trial court denied the State's motion to dismiss the motion to revoke, responding:

Okay. So when-please make that record because if the victim comes back at me for the State's failure to even try the case, I will show that record to the victim and say, [t]alk to your DA because the State is failing to even try the case.
. . . .
I'm not dismissing it. I'm going to make you go to trial.
. . . .
That's all I can tell you. Now, do your job. Now, I can't make you call witnesses, but I can certainly make you go to trial and I'm not dismissing it.

         Having no choice, the State called Carreon's current and previous probation officers, Crystal Garcia and Anna Lisa Sanchez, [3] respectively. The State did not call any other witnesses, such as the complainant to whom restitution was owed. Carreon called himself and his wife, Erica Carreon.[4]

         A. Garcia

         Garcia recounted that during Carreon's ten-year supervisory period, he was not arrested, he tested negative for drugs, and he attended the mandatory monthly meetings or timely rescheduled them. Garcia testified that the accounting department in the probation office determined how Carreon's restitution payments were credited as between the underlying burglary conviction and the other burglary conviction. As a result of the accounting department's allocations, Carreon paid all of the restitution ordered in the conviction stemming from the other count. On the other hand, Carreon paid no money towards restitution in the underlying conviction from 2007 through 2010. With the exception of 2016, Carreon's payments towards restitution in the underlying conviction in the other years were minimal.[5] In 2016, with the help of family and after being jailed for failure to pay restitution, Carreon paid $2, 166.00. Garcia could not explain why the accounting department in the probation office credited Carreon's restitution payments as it did. On examination by the trial court, Garcia admitted that she failed in her duties by not creating a monthly budget for Carreon.

         B. Carreon

         Carreon testified he was placed on community supervision at eighteen years old, and he had not previously worked. Carreon had no car, and he, Erica, and their infant son lived with Erica's parents in a three-bedroom trailer. Carreon's first job out of jail was selling newspaper subscriptions door-to-door. It paid on commission, and it allowed Carreon to work only three hours in the evening. Carreon's earnings were approximately $150.00 every two weeks and his supervisor, who drove him to work, eventually stopped transporting him.

         After the subscription sales job, Carreon enrolled in a government program that matched probationers with employers. He worked at a fast-food restaurant until he was laid off. Through a different government program, Carreon earned a GED. He then pursued a "degree"[6] in "computer accounting" from a vocational school, but he incurred approximately $17, 000 in student loan debt. As a result, Carreon's tax refunds are now garnished to pay his outstanding student loan.

         Even with some education in accounting, Carreon claimed it was difficult for him to obtain and maintain steady work. Some employers were reluctant to interview, further screen through a call back interview, or hire a convicted felon. When Carreon was hired, the monthly probation meetings bothered most of his supervisors. Carreon's attempt to work in out-of-state oilfields was stymied by the probation office's prohibition on such travel, and the only in-state oilfield job he obtained ended when the employer learned of Carreon's criminal record.

         Generally, Carreon posited that his status as a convicted felon posed an insurmountable obstacle to his employment prospects. At this point in Carreon's testimony, the trial court questioned Carreon directly, as follows:

Court: Okay. And you're telling me that people care about whether you have a criminal background if you're picking onions? You're telling me that you couldn't get a job picking onions or watermelon or cantaloupe or lettuce or anything? You're telling me that?
Carreon: Well, who would drive me there, Your Honor? I don't have a car.
Court: Where did you say you lived?
Carreon: Monte Cristo and Conway.
Court: Monte Cristo is-would that be safe to say, there's a lot of farmland around there? Orchards too. Would that be safe to say?
Carreon: Yeah, but the places where they hire is not there. It's just the field.
Court: Did you ever show up to one of the fields and say, Hey, do you have work available? Did you ever do that? Just around your area, walking area where there's farmland. You didn't answer the question. Is there farmland and orchards around where you live?
Carreon: There's one, Your Honor.
Court: Walking distance?
Carreon: It's like, two miles, yeah.
Court: Walking distance?
Carreon: Oh, no, not walking distance.
Court: You don't think two miles is walking distance? Not for you. Did you ever try to go to the-to that farmland and ...

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