Belt v. State

• Decision Date: 08 January 2004
• Docket Number: No. 2-03-029-CR.,2-03-029-CR.
• Citation: 127 S.W.3d 277
• Parties: David Owen BELT, Appellant v. The STATE of Texas.
• Court: Texas Court of Appeals

127 S.W.3d 277

David Owen BELT, Appellant v. The STATE of Texas.

No. 2-03-029-CR.

Court of Appeals of Texas, Fort Worth.

January 8, 2004.

Richard Gladden, Denton, for appellant.

Bruce Isaacks, Criminal District Attorney, Kathleen Walsh, Charles E. Orbison, Page McCormick, Assistant District Attorneys for Denton County, Denton, for appellee.

PANEL A: CAYCE, C.J.; GARDNER, J. and SAM J. DAY, J. (Retired, Sitting by Assignment).

OPINION

ANNE GARDNER, Justice.

Appellant David Belt was indicted for the first-degree felony offense of aggravated sexual assault of a child under fourteen. Prior to entering into a plea agreement, Appellant filed written objections to the imposition of certain conditions of community supervision. After conducting a hearing on January 17, 2003, the trial court overruled Appellant's objections. Thereafter, pursuant to a plea bargain, Appellant pleaded guilty, and he was placed on deferred adjudication community supervision for ten years and assessed a $1,000 fine.

I. FACTUAL BACKGROUND

The pre-sentence investigation report ("PSI") conveyed details from the investigation of the sexual assault of thirteen-year-old C.S., who at the time of the assault, was visiting Appellant's stepdaughter at Appellant's residence. According to the PSI, the two girls had been drinking alcohol and smoking marijuana outside by Appellant's swimming pool. Appellant claimed that he went to bed and later woke up with C.S. on top of him and that "that's were [sic] there was intercourse." C.S., however, reported that she became ill, and Appellant carried her to his bedroom, where he inserted his penis into her vagina. Appellant drove her home and instructed C.S. not to tell anyone. The PSI also indicated that Appellant was facing another charge for indecency with a child for allegedly touching his sixteen-year-old daughter "inside her pants near her vaginal area." Additionally, the PSI revealed that CPS had been involved with Appellant before and had warned him and his wife against "skinny dipping with the children."

II. THE CHALLENGED CONDITIONS

Appellant appeals from the denial of his written pretrial motion, in which he raised objections to some of the conditions of his community supervision. See Tex.R.App. P. 25.2(a)(2)(A). In seven issues, he challenges the following conditions of his community supervision:

(ff) Do not possess any printed, photographed, or recorded sexually stimulating or sexually oriented material as deemed inappropriate by the supervision office and your counselor or treatment provider, nor go on the premises of or patronize any place where such material or entertainment is available;

....

(ii) Do not reside, go in, go on, or go within a distance of 1000 feet of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility, unless all living arrangements or other exceptions have been reported to and approved by the supervision officer;

(jj) Do not reside in a household with children under eighteen (18) years of age unless approved in advance by the supervision officer[; and]

(kk) Have no contact with children under eighteen (18) years of age, including members of your own household, unless a designated chaperone is present and supervising the contact. A "designated chaperone" is a person who has completed a required education program and who is approved by the supervision officer with the agreement of your counselor or treatment provider.

III. STANDARD OF REVIEW

We review a trial court's imposition of community supervision conditions under an abuse of discretion standard. See McArthur v. State, 1 S.W.3d 323, 331 (Tex.App.-Fort Worth 1999, no pet.), cert. denied, 531 U.S. 873, 121 S.Ct. 176, 148 L.Ed.2d 121 (2000). Article 42.12, section 11 of the code of criminal procedure permits a trial judge to "impose any reasonable condition ... designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant." Tex.Code Crim. Proc. Ann. art. 42.12, § 11(a) (Vernon Supp.2004); see also Tamez v. State, 534 S.W.2d 686, 691 (Tex.Crim.App.1976) (noting a condition should "have a reasonable relationship to the treatment of the accused and the protection of the public"). In addition, because Appellant was convicted of aggravated sexual assault of a child, sections 13B and 14 also apply. See Tex.Code Crim. Proc. Ann. art. 42.12, § 13B (community supervision for sexual offenses against children), § 14 (community supervision for child abusers and sex offenders).

While the trial court has wide discretion in selecting conditions of community supervision, the conditions must be reasonably related to the treatment of the accused and the protection of the general public. Fielder v. State, 811 S.W.2d 131, 134 (Tex.Crim.App.1991). To be found invalid, a condition of community supervision must: (1) have no relationship to the crime; (2) relate to conduct that is not in itself criminal; and (3) forbid or require conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of probation. Marcum v. State, 983 S.W.2d 762, 768 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd); Lacy v. State, 875 S.W.2d 3, 5 (Tex.App.-Tyler 1994, pet. ref'd); Simpson v. State, 772 S.W.2d 276, 280-81 (Tex.App.-Amarillo 1989, no pet.). If the trial court imposes an invalid condition of probation, the proper remedy is to reform the judgment by deleting the invalid condition. Martinez v. State, 874 S.W.2d 267, 268 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd) (citing Ex parte Pena, 739 S.W.2d 50, 51 (Tex.Crim.App.1987)).

IV. DISCUSSION

A. Conditions (ff), (ii), (jj), and (kk): Delegation of Judicial Authority

In his first and fifth issues, Appellant argues that the trial court abused its discretion by imposing conditions (ff), (ii), (jj), and (kk) because those conditions impermissibly delegate judicial authority to the community supervision officer. We have previously determined that condition (ff), as worded above, does not constitute an impermissible delegation of judicial authority. McArthur, 1 S.W.3d at 334-35. In McArthur, we likewise held that the trial court did not abuse its discretion by imposing condition (ii), which is identical to the one at issue in McArthur, or by imposing conditions (jj) and (kk), which are substantially similar to those in McArthur.¹ Id. at 331, 333. Appellant provides no rationale as to why we should reconsider our previous decision. Accordingly, we overrule Appellant's first and fifth issues.

B. Condition (ff): Vagueness

In his second issue, Appellant complains that the trial court abused its discretion by imposing condition (ff) because it is unconstitutionally vague. Specifically, Appellant maintains that condition (ff) unconstitutionally conveys unfettered discretion to the community supervision office and fails to provide Appellant with adequate notice of what material may be deemed "inappropriate," "sexually stimulating," or "sexually oriented" to his community supervision officer. In McArthur, the appellant challenged the identical condition (ff) as Appellant does in the case before us. Id. at 331. McArthur argued that "because the supervision officer has some discretion in implementing the terms of [appellant's] supervision, [condition (ff) is] vague or indefinite." Id. at 335. We stated that

a defendant can only be penalized after he has received fair notice of the conditions of community supervision. Thus, for example, appellant could not be penalized for possession of sexually explicit material if he is not fairly informed of what constitutes sexually explicit material. The supervision officer's discretion in implementing the details of appellant's supervision does not in and of itself make the complained-of conditions vague.

Id. In accordance with McArthur, we overrule Appellant's second issue. See id.

C. Conditions (ii), (jj), and (kk): Due Process

In his third issue, Appellant contends that the trial court abused its discretion and violated his due process rights by imposing conditions (ii), (jj), and (kk) without a factual basis in the record to support the imposition of those conditions. At the plea hearing, Appellant objected to conditions (ii), (jj), and (kk) on the grounds that they were unauthorized by statute, unreasonable, overbroad, and unconstitutionally vague. Appellant did not raise a due process challenge in the court below as to any of the three conditions he is now challenging, but he claims that the due process issue was implicit in his overbreadth challenges to the complained-of conditions. We disagree.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if those grounds are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Here, Appellant failed to object specifically to conditions (ii), (jj), and (kk) on due process grounds. Accordingly, Appellant has not preserved for our review his complaint that the imposition of conditions (ii), (jj), and (kk) violated his due process rights. See Tex.R.App. P. 33.1(a)(1); see also Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990) (holding even constitutional errors may be waived); In re L.M.I., 119 S.W.3d 707, 711 (Tex.2003) (holding, in a parental termination case, that father's due process argument was waived by his failure to raise that point in the trial court); McCarroll v. Tex. Dep't of Pub. Safety, 86 S.W.3d 376, 379 (Tex.App.-Fort Worth 2002, no pet.) (holding appellant waived complaint concerning violation of due process rights).

Appellant attempts to recast the...