Appeal from the 177th District Court Harris County, Texas
Trial Court Case No. 1150018
consists of Justices Kelly, Hightower, and Countiss.
2008, Lashun Davis pleaded guilty to theft, a third-degree
felony. See Tex. Penal Code §§ 31.03(a),
31.03(e)(5). The trial court deferred adjudication and placed
her on community supervision for ten years. In February 2018,
the State filed a motion to adjudicate guilt based on her
failure to pay supervision fees and failure to pay
restitution. The trial court granted the motion, adjudicated
Davis guilty, revoked supervision, and sentenced her to five
that the trial court abused its discretion in revoking
Davis's probation for failure to pay fees and
restitution. We vacate the trial court's judgment
adjudicating Davis's guilt, revoking her community
supervision, and sentencing her to confinement, and render
judgment discharging her from supervision.
2008, Davis was indicted for stealing 550 cellular phones
over the course of a year from her employer, Cricket
Communications. In March 2008, Davis pleaded guilty without
an agreed punishment recommendation. The court deferred
adjudication and placed Davis on community supervision for
ten years. The initial conditions of Davis's supervision
required her to pay: a $20 monthly fee for supervision, a
$209 fine at a rate of $5 per month, a $5 monthly laboratory
fee during supervision, and restitution of $92, 952.08 at a
rate of $745.43 monthly plus an initial payment of $5, 000.
She was also required to submit to random drug testing and
perform 160 hours of community service at a rate of 8 hours
March 4, 2010, the State filed a motion to adjudicate guilt
based on Davis's failure to report to her probation
officer from March 2009 through March 2010, failure to
complete community service, and failure to pay fees or
restitution. The motion was dismissed in June 2010, and the
terms of Davis's supervision were amended, including
increasing the restitution amount from $745.73 per month to
$943 per month beginning August 2010. In 2012, the terms of
supervision were amended again. The court waived delinquent
laboratory and supervision fees, reduced the amount of
community service hours, and ordered Davis to serve 45 days
in Harris County jail beginning April 5, 2012.
February 2, 2018, the State filed another motion to
adjudicate guilt, which is at issue in this appeal. In the
motion, the State alleged Davis violated her supervision
conditions by failing to pay:
• The $20 monthly supervision fee, resulting in $940 in
arrears as of January 2018
• The $5 monthly laboratory fee, accruing $230 in
arrears as of January 2018
• $943 per month restitution, resulting in $76, 528 in
arrears as of January 2018.
hearing on the State's motion to adjudicate guilt took
place on May 3, 2018. Davis pleaded true to the allegations.
The State did not call any witnesses and rested after
admitting one piece of evidence: the State's motion to
adjudicate guilt. The trial court heard testimony from Davis,
her probation officer, and her mother.
testified that she was 38 years old, single, and had lived
with her mother and stepfather for 20 years. She graduated
from high school and attended college but did not graduate.
She was fired from her job for the 2008 theft offense.
Following her conviction, she worked at her aunt's
daycare as a caregiver for $7.55 per hour from 2008 to 2011.
From 2011 to 2015, she worked as a delivery dispatcher for $8
per hour. In 2015, she participated in the City of Houston
Reentry Program, attending classes during the day, and
applying to jobs through staffing agencies. She was hired
temporarily at Lone Star Fasteners as a data entry clerk
where she earned $10 per hour. At the time of the hearing,
she had worked at the company for two years, and she had been
promoted to purchasing agent, earning $39, 000 a year. She
had recently interviewed for a promotion that would include
an increase in salary. She testified that she applied to
numerous part-time jobs to supplement her income, had been
interviewed, and was never hired.
testified that she had been on probation for ten years, never
tested positive for drugs, and completed the community
service hours required for her probation. She testified that
she was charged with driving with an invalid license in 2010.
explained that her license was invalid because she could not
afford full insurance coverage. She said she had not been
charged with any other criminal conduct or received any
testified about her medical conditions and medical expenses.
In 2013, she was diagnosed with Graves' disease. The
condition gave her a high heart rate and made her sensitive
to heat. She had a goiter in her neck that blocked 30% of her
trachea. During her probation, she had it surgically removed
along with part of her thyroid. Though she applied for
assistance from Harris County, she had to pay $1, 000 out of
pocket for the surgery. She also had an operation to remove a
mass under her right arm and some breast tissue. At the time
of the hearing, Davis remained under the care of a physician,
requiring monthly laboratory work to check her thyroid levels
and daily medications that cost between $100 and $120
also testified that she was in a car accident with a drunk
driver in 2013. The other driver was uninsured, and at the
time, she only had liability insurance because she could not
afford uninsured, underinsured, or collision coverage.
testified that she declined her mother's offer to pay
restitution after the last revocation hearing because she
felt the debt was her responsibility and her mother would
have had to take a loan from her retirement account to pay
it. If allowed to stay on probation, Davis planned to pay off
the remainder of the restitution by seeking part-time
employment and accepting assistance from her father.
cross-examination, the State asked Davis about her cellphone
expenses and Davis responded that her bill was $100 in a
previous month. The State asked if she knew that her
probation cost county taxpayers. The State hypothesized that
it would cost the taxpayers $36, 000, based on a rate of $10
per day, to keep her on probation for ten years. Davis agreed
that that was twice what she had paid back to Cricket
redirect, Davis affirmed that she wanted to pay restitution
and that she had been unable to pay it back. She explained
that for the first seven to eight years of probation she did
not have a job that paid well. She only recently obtained a
job where she felt she could be in a financially secure place
to make payments. She asked the court to allow her to remain
on probation so that she had the opportunity to pay back
money she owed.
Probation Officer's Testimony
Scott, Harris County Adult Probation Officer, testified that
she had been Davis's probation officer for two years.
They met regularly, and Davis never had any positive drug
tests. She testified that Davis was ordered to pay a large
amount monthly in restitution and was unable to make the
payments. She had provided Davis with job listings to support
her effort to find additional income. According to Scott,
Davis made payments throughout her supervision, with fewer
than 12 months passing between payments. She confirmed that
Davis had medical issues and that she was a good probationer
who was making an effort to better herself.
3.Vanessa Davis Alexander's ...