The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0427-24
ANDREW STEELE, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY
KELLER, P.J., delivered the opinion of the Court in which HERVEY,
RICHARDSON, KEEL, SLAUGHTER and MCCLURE, JJ., joined. YEARY, J., filed a
concurring opinion. NEWELL and WALKER, JJ., dissented.
OPINION
This is a case about $100.
After a jury found Appellant guilty of driving while intoxicated, the trial court placed him
on probation. As a condition of probation, the court ordered him to pay $100 to the Houston Area
Women’s Shelter. Appellant did not object. Holding that Appellant did not have to object and could
raise the complaint for the first time on appeal, the court of appeals deleted the condition. We
conclude that the court of appeals erred in holding that Appellant did not have to object. Because
STEELE — 2
paying $100 to a women’s shelter is not a condition “that the criminal justice system simply finds
intolerable,” a failure to object waives any complaint about the imposition of that condition.
I. BACKGROUND
A. Trial
The entire punishment stage of Appellant’s trial occurred as follows:
THE COURT: And what are we doing on punishment?
DEFENSE COUNSEL: We’re going to you, Judge.
THE COURT: All right. You want me to just do my thing or you
want to say stuff?
DEFENSE COUNSEL: Do you have anything you want to put on?
PROSECUTOR: No, Your Honor. I’m okay with you doing your thing.
THE COURT: Okay. Any objections from the Defense?
DEFENSE COUNSEL: None.
THE COURT: All right. We’ll do one year probation. Condition of
probation, the restitution, and then just the standard
DWI probation terms and a hundred dollars to
Houston Area Women’s Shelter.
Appellant did not object.
B. Appeal
The court of appeals held that Appellant was not required to object to the women’s-shelter
condition to complain about it for the first time on appeal.1 The court relied on a statute that
1
Steele v. State, No. 01-22-00311-CR, 2023 WL 5535788, *9 (Tex. App.—Houston [1st
Dist.] August 29, 2023) (mem. op., not designated for publication).
STEELE — 3
prohibited the payment of money as a condition of probation except in certain circumstances.2 The
appellate court held that this statute created an absolute prohibition, permitting a complaint about
its violation for the first time on appeal.3 One of the exceptions to the statutory prohibition is “a
payment ordered as a condition that relates personally to the rehabilitation of the defendant or that
is otherwise expressly authorized by law.”4 But the court of appeals held that payment to a women’s
shelter did not qualify under the exception because it did not relate personally to the rehabilitation
of a DWI defendant.5 Consequently, the court of appeals ordered that the women’s-shelter condition
be deleted.6
II. ANALYSIS
In Speth v. State, we held that a defendant affirmatively accepts and waives any complaint
about a condition of probation if he fails to object at the time it is imposed.7 We have later clarified
that a waiver occurs only if the defendant was made aware of the condition in time to object at trial.8
Here, Appellant was clearly made aware of the condition when the trial judge pronounced it orally.
Appellant had an opportunity to object but failed to do so.
Speth addressed the exact issue Appellant raised on appeal. Speth complained for the first
2
Id. at *8 (quoting TEX. CODE CRIM. PROC. art. 42A.651(a)).
3
Id. at *9.
4
Id. at *8 (quoting TEX. CODE CRIM. PROC. art. 42A.651(a)(3)).
5
Id. at *9.
6
Id. at *10.
7
6 S.W.3d 530, 533–34 (Tex. Crim. App. 1999).
8
Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014).
STEELE — 4
time on appeal that some of his conditions of probation were illegal. We said,
An award of community supervision is not a right, but a contractual privilege, and
conditions thereof are terms of the contract entered into between the trial court and
the defendant. Therefore, conditions not objected to are affirmatively accepted as
terms of the contract. Thus, by entering into the contractual relationship without
objection, a defendant affirmatively waives any rights encroached upon by the terms
of the contract. A defendant who benefits from the contractual privilege of probation,
the granting of which does not involve a systemic right or prohibition, must complain
at trial to conditions he finds objectionable.9
In Gutierrez v. State, we recognized a narrow exception to the Speth waiver rule.10 A waiver
will not occur for a condition “that the criminal justice system simply finds intolerable” and “is
therefore, by definition, not even an option available to the parties.”11 In Gutierrez, the condition
of probation at issue was a requirement that Gutierrez either obtain legal status to remain in this
country or leave the country and reside in a place where she could do so legally.12 In analyzing the
issue, we relied in part on Hernandez v. State,13 an older case that addressed a condition of probation
that deported or banished a defendant.14 We found the condition in Hernandez to be “so antithetical
to the aims of the justice system as a whole as to be intolerable, and therefore, not subject to
agreement by the parties.”15 We pointed out that federal preemption precluded a Texas state court
from ordering deportation and that banishment was precluded by an express provision of the Texas
9
Speth, 6 S.W.3d at 534.
10
380 S.W.3d 167, 175–76 (Tex. Crim. App. 2012).
11
Id. at 176.
12
Id. at 169.
13
613 S.W.2d 287 (Tex. Crim. App. 1981) (op. on reh’g).
14
Gutierrez, 380 S.W.3d at 173–74, 176–77.
15
Id. at 176.
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Constitution.16 We concluded that “a condition of community supervision that effectively operates
to deport a probationer violates an absolute prohibition and is therefore not subject to ordinary
principles of waiver or procedural default.”17
Relying on Hernandez, we held that Gutierrez could complain for the first time on appeal
about the condition of probation that required her to either obtain legal status or leave the country.
Along the way, though, we said,
This is not to say that a defendant will not forfeit many, if not most, appellate
complaints—even most constitutional complaints—about particular conditions of
community supervision by failing to object at trial, or that he will not effectively
waive any constitutional or statutory waiver-only right that might be violated by a
condition of community supervision he has agreed to follow in his contractual
relationship with the trial court.18
Later, in Gutierrez-Rodriguez v. State, we held that the imposition of restitution for items the
defendant was not charged with stealing did not fall under the “intolerable” condition exception to
the Speth waiver rule:
Requiring restitution for stolen items that were not included in the charging
instrument, but that belonged to the complaining witnesses and were stolen during
the same transaction as the charged items, is not the sort of condition that the
criminal justice system finds intolerable or unconscionable. This is true even if
appellant’s connection to the theft of these items was not specifically established, as
long as she had the opportunity to object and challenge such a connection. A trial
objection would have given the trial court the opportunity to reconsider the condition
of probation or to reconsider the appropriateness of the probation contract without
the objected-to condition.19
16
Id. (citing TEX. CONST. art. I, § 20).
17
Id. at 177.
18
Id. at 175.
19
444 S.W.3d 21, 23–24 (Tex. Crim. App. 2014).
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Appellant contends that the women’s-shelter condition violated an absolute prohibition
because it violated a statutory prohibition. He and the court of appeals both rely upon the following
general statute that addresses payment as a condition of probation:
(a) A judge may not order a defendant to make a payment as a term or condition of
community supervision, except for:
(1) the payment of fines, court costs, or restitution to the victim;
(2) reimbursement of a county as described by Article 42A.301(b)(11); or
(3) a payment ordered as a condition that relates personally to the
rehabilitation of the defendant or that is otherwise expressly authorized by
law.20
But we have held that mandatory statutory language does not automatically create an absolute
prohibition or even a waivable-only right.21 In Trinidad v. State, the statute at issue prohibited any
person from being with the jury while the jury is deliberating.22 In spite of the “shall” language in
the statute, we held that Trinidad had procedurally defaulted his argument on appeal and that the
court of appeals erred to address the merits of the claim.23 We said,
Nothing else about Article 36.22 suggests that the Legislature regarded the
requirement of a jury completely free of outside influence to be so indispensable to
the fairness of trial that the system simply will not tolerate any conviction obtained
under those circumstances, regardless of the will of the parties or how trivial the
outside influence might be.24
20
TEX. CODE CRIM. PROC. art. 42A.651(a).
21
Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010).
22
Id. (quoting Tex. Code Crim. Proc. art. 36.22) (“No person shall be permitted to be with
the jury while it is deliberating . . .”).
23
Id.
24
Id.
STEELE — 7
Appellant is simply wrong to conclude that language of prohibition in a statute is itself sufficient to
make something an “absolute prohibition” immune from waiver.
The court of appeals and the parties have focused on the third statutory exception in the
payment-condition provision, involving a payment that relates to the rehabilitation of the defendant.
By its nature, that provision would seem to involve a great deal of discretion, but we need not
consider the breadth of the exception. Even if the trial court exceeded that discretion, the statutory
provision does not have the blanket-prohibition appearance of an absolute prohibition. It is more
like the restitution situation in Gutierrez-Rodriguez, where the defendant was required to raise a
challenge at trial if he thought restitution for certain items was unauthorized. If a defendant believes
that a trial court is wrong to impose a certain condition of probation, he should say so to the trial
court “so that the error may be rectified or, barring that, so that the defendant can make a timely
record for appeal.”25 And as we acknowledged in Gutierrez-Rodriguez, a trial objection would have
given the trial court the opportunity not only to reconsider the specific condition of probation, but
to reconsider whether probation was even appropriate without the condition.26
The State argues that the court of appeals created a new Marin category-one absolute
prohibition27 that is contrary to Speth. The State also argues that the particular condition
here—making a relatively small payment to a women’s shelter—is a condition that could validly be
imposed in numerous cases. Therefore, the State claims, the condition is not the sort of intolerable,
antithetical-to-justice condition that is immune from waiver. We agree. In responding to an estoppel
25
Id.
26
444 S.W.3d at 23–24.
27
See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
STEELE — 8
complaint by the State, Gutierrez said that estoppel did not apply because deportation and
banishment conditions were the type that made a contract unenforceable on grounds of public
policy.28 And given the wording of the exception to the Speth waiver rule, we conclude that a
condition of probation is subject to an absolute prohibition only when, like the banishment condition
at issue in Gutierrez, it is “intolerable” and “antithetical to justice,” i.e., it is the type of condition
that no Texas state court could ever impose as a condition of probation.29
Payment to a women’s shelter is neither intolerable nor antithetical to justice, regardless of
whether it is warranted in a particular case. Appellant’s implied acceptance of the condition (by
failing to object) is valid. Consequently, he has waived his complaint.
We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
Delivered: December 18, 2024
Publish
28
380 S.W.3d at 177-78.
29
Another example of a condition that is banned in all cases in Texas is orchiectomy: “A
judge may not require a defendant to undergo an orchiectomy as a condition of community
supervision.” TEX. CODE CRIM. PROC. art. 42A.307.