Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 389thDistrict Court of Hidalgo County, Texas.
Chief Justice Valdez and Justices Contreras and Hinojosa
LETICIA HINOJOSA JUSTICE.
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.
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,  $347.00 in court
costs, and a $750.00 fine.
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
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.
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
. . . .
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.
no choice, the State called Carreon's current and
previous probation officers, Crystal Garcia and Anna Lisa
Sanchez,  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
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. 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.
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
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" 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.
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.
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