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Stafford v. State

At a community supervision revocation hearing, the inability to pay restitution is an affirmative defense for the defendant to prove; once the issue of inability to pay is raised, the burden of proof shifts to the state to prove that the defendant's failure to pay was intentional.

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Opinion Per Curiam

Johnny Stafford appeals from an order revoking his community supervision. Stafford was originally convicted for retaliation, and we affirmed the conviction in a published opinion in Stafford v. State, 948 S.W.2d 921 (Tex. App.-Texarkana 1997, pet. denied). The State subsequently moved to revoke Stafford’s community supervision. On May 28, 1999, the trial court held a hearing on the State’s motion and revoked Stafford’s community supervision. Stafford specifically asked to proceed pro se in his appeal of the revocation and has been allowed to do so. In connection with that determination, we point out that under the holding in Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 164, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), Stafford did not have a constitutional right to self-representation in an appeal from a criminal conviction, and we do not suggest that any broader right exists under the Texas Constitution that would compel this result. Stafford first contends that the trial court had no authority to act in revoking his community supervision. He argues that the trial court, the Honorable Alvin Khoury, had no authority to act in the underlying conviction, the revocation hearing, or in a hearing conducted during the pendency of this appeal concerning the completeness of the record.

Stafford raised his argument about the trial court’s authority to act in the underlying conviction in his appeal from that conviction, and we addressed it in our opinion. We will not revisit the issue, nor will we revisit any collateral claims controlled by that decision.

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