holding by failing to object to community supervision conditions at trial or file motion for new trial, appellant waived right to complain about conditions on direct appeal
How later courts described this case
- holding by failing to object to community supervision conditions at trial or file motion for new trial, appellant waived right to complain about conditions on direct appeal
Written by the judges who cited it.
The opinion
Opinion issued January 31, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00416-CR
———————————
DOUGLAS ARTHUR LONGRON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Case No. 56645
MEMORANDUM OPINION
Appellant, Douglas Arthur Longron, appeals the trial court’s adjudication of
guilt following an imposition of deferred adjudication. In two issues, appellant
argues the trial court abused its discretion by adjudicating his guilt because (1) the
order for community supervision was too vague to be enforceable and (2) the court
failed to take into account whether appellant made a bona fide effort to pay
restitution.
We affirm.
Background
Appellant was charged by indictment with indecency with a child in 2008.
Appellant and the State entered into a plea bargain on a reduced offense of injury
to a child. The trial court accepted appellant’s plea and placed him on five year’s
deferred adjudication. The trial court amended the order for deferred adjudication
pursuant to a motion in 2009.
In 2011, the State filed a motion to adjudicate guilt. The motion was
amended on March 5, 2012. A hearing was held on April 12, 2012. At the end of
the evidentiary hearing, the trial court found that appellant had violated two
requirements of the order for deferred adjudication. The relevant requirements
were
R4. RESTITUTION of $4,388.56 at $73.14 per month until paid in
full, payments to be make [sic] on the 22nd day of each month,
beginning October 2008, payable through the Brazoria County
Community Supervision and Corrections Department of this
County, to be paid to the victims in the respective sums as is
listed in the Restitution Schedule attached hereto.
...
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MM. Defendant shall report monthly to Supervision Officer in
Brazoria County.
As a result, the trial court found him guilty of the charged offense and sentenced
him to six year’s confinement.
Vagueness of the Monthly Reporting Requirement
In his first issue, appellant argues that the requirement for him to report
monthly to the supervision officer in Brazoria County was too vague to be
enforceable. The State argues this argument has not been preserved for appeal.
We agree.
Community supervision is an arrangement in lieu of the sentence. Speth v.
State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). A trial court’s decision to grant
community supervision is “wholly discretionary” and the trial court also has broad
discretion to determine the conditions of community supervision. Id. at 533. “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.” Id. at 534. If the defendant does not object to the community
supervision conditions, those conditions are “affirmatively accepted as terms of the
contract” and the defendant waives “any rights encroached upon by the terms of
the contract.” Id. Thus, “[a] defendant who benefits from the contractual privilege
of probation . . . must complain at trial to conditions he finds objectionable.”
Id.; Ledet v. State, 177 S.W.3d 213, 221 (Tex. App.—Houston [1st Dist.] 2005,
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pet. ref’d) (holding appellant who failed to object to conditions of community
supervision at trial or file motion for new trial could not object to conditions for
first time on direct appeal). This is consistent with the requirement of Texas Rule
of Appellate Procedure 33.1(a), which requires a defendant to make a timely and
specific objection to preserve his complaint on appeal. See TEX. R. APP. P. 33.1(a).
There is no showing in the record, and appellant does not claim on appeal,
that he objected to the complained-of condition in the trial court. In addition, as
part of his plea agreement, appellant acknowledged in writing that he understood
that the court determines the terms and conditions of the supervision. He also
acknowledged with his signature the written conditions themselves. Because he
did not object to the community supervision provisions in the trial court or in a
motion for new trial, appellant has failed to preserve this issue for review. See
TEX. R. APP. P. 33.1(a); Speth, 6 S.W.3d at 534–35; Ledet, 177 S.W.3d at 221
(holding by failing to object to community supervision conditions at trial or file
motion for new trial, appellant waived right to complain about conditions on direct
appeal).
We overrule appellant’s first issue. “Proof of any one of the alleged
violations is sufficient to support the order revoking probation.” Moses v. State,
590 S.W.2d 469, 470 (Tex. Crim. App. 1979). Accordingly, we do not need to
reach appellant’s remaining issue.
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Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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