Donovan v. State
| Decision Date | 26 July 2012 |
| Docket Number | NO. 02-11-00033-CR,02-11-00033-CR |
| Parties | LAWRENCE DONOVAN APPELLANT v. THE STATE OF TEXAS STATE |
| Court | Texas Court of Appeals |
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
Introduction
In this direct appeal from a judgment adjudicating guilt, Appellant Lawrence Donovan claims that the trial court violated his due process rights when it revoked his community supervision (probation) for violating terms to which he had acquiesced for over a year. We affirm.
Background Facts and Procedural History
In 2004, a grand jury indicted Appellant for aggravated sexual assault and indecency with a child. In 2006, Appellant pled no contest to injury to a child in exchange for five years' deferred-adjudication probation. The trial court specifically found Appellant not guilty of aggravated sexual assault and indecency with a child and granted his motion to expunge the records relating to those counts.1
The trial court judge was replaced after the next election. In March 2008, his successor extended Appellant's probation and modified its terms to require that Appellant submit to an evaluation for sex-offender treatment and successfully complete the prescribed treatment. There is no record that Appellant objected to these terms at the time they were imposed.2
In August 2008, Appellant first met with Michael Strain, an approved sex-offender treatment provider, and began group-counseling sessions that September. Strain testified that successful completion of the treatment program generallyrequires that probationers meet thirty goals over a three-year period but that some goals may be waived to accommodate individual circumstances. For instance, the goal of admitting responsibility for a sex offense is commonly waived for persons on probation for non-sex offenses.3 Strain testified that the trial court had instructed him not to require Appellant to admit that he had committed a sex offense.
In his first year of treatment, Appellant completed eight treatment goals. On August 24, 2009, at a conference between the trial court, prosecutor, Appellant's counsel, Appellant's probation officer, and Strain, all agreed that Appellant could meet the program goals without mentioning or admitting guilt for the expunged sex offenses. The trial court concluded that Appellant would not be required to assume responsibility for those offenses but that he would be required to continue sex-offender treatment and complete its goals. By February 2010, Appellant had completed eleven treatment goals.
On February 3, 2010, Appellant told Strain that he would not discuss the expunged offenses during treatment sessions because it was illegal for him to do so. Strain's recollection of the trial court's instructions was that Appellant was not required to admit responsibility for the original charged offenses but not that it would be illegal to discuss them. He told Appellant that if it was illegal to discuss the sexual nature of the original charges, he was uncertain whether any usefultreatment work could be done, and pending some clarification of the matter, he discontinued Appellant's treatment.
Appellant testified that his attorneys met with the trial court on February 8, 2010, and that the trial court indicated that it wanted to hear from the probation department on the issue. Appellant's probation supervisor, Mayra Pinedo, testified that she stressed to Appellant that while the matter was pending review he still would be held accountable for meeting his treatment goals by the second-year deadline. She further testified that she offered for him to choose another approved provider so that he could complete the goals. Appellant refused Pinedo's offer to attend treatment with another provider and did not attend any further treatment sessions before the second-year treatment deadline.
The State filed its petition to adjudicate on October 20, 2010, alleging that Appellant had violated his probation by not attending sex-offender treatment and not completing two-thirds of his treatment by the two-year deadline. After a four-day hearing, the trial court granted the State's petition, adjudicated Appellant's guilt, revoked his probation, and sentenced him to four years' confinement.
Discussion
Appellant contends that the trial court abused its discretion by revoking his probation upon finding that he failed to attend and complete sex-offender treatment as ordered because in Ex parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011), the court of criminal appeals "severely curtailed the requirement of Sex Offender Treatment for parolees convicted of non-sex offenses (there, such as here, Injury toa Child.)." Appellant concedes that Evans allows for situations in which a probationer or parolee can be required to attend and complete sex offender treatment as a condition of probation or release, respectively. He appears to argue, however, that he was denied due process when the trial court modified his probation to require him to attend and complete sex offender treatment and that he was only required to submit to these conditions because he had originally been charged with a sex offense. He stresses that the trial court found him not guilty of the originally charged sex offenses that were later expunged.
But this curious history has no bearing on the dispositive issue in this case because whatever merit may lie in Appellant's contentions, Evans did not alter, nor does Appellant claim that it altered, the rules for preserving error. It is still the law in this state that a defendant may forfeit constitutional complaints by not raising them in the trial court. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008), cert. denied, 555 U.S. 1105 (2009); Alexander v. State, 137 S.W.3d 127, 130-31 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) ().4
To preserve error for appellate review, a party must make a timely and specific objection or motion at trial, and there must be an adverse ruling by the trial court. Tex. R. App. P. 33.1(a); Aldrich v. State, 104 S.W.3d 890, 894-95 (Tex. Crim. App. 2003). In Speth v. State, the court of criminal appeals held that to complain about a probation condition on appeal, an appellant must have first challenged the condition in the trial court. 6 S.W.3d 530, 534 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088 (2000). In Speth, the court of criminal appeals also stated that conditions of probation that are not objected to are affirmatively accepted. Id.
In Rickels v. State, the court of criminal appeals recognized an exception to this general rule of preservation when a defendant does not have an opportunity to object to the probation condition in the trial court at the time the condition is imposed. 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). In Rickels, the trial court modified a probation condition without a hearing and Rickels had no opportunity to object to this modification in the trial court. Id. In this circumstance, the court of criminal appeals addressed the merits of Rickels's appeal, even though he raised the issue for the first time on appeal. Id.; see also Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) ().
Here, the Rickels exception does not apply because the record shows that Appellant had the opportunity to object to the modified conditions. He and the trial judge both signed the conditions. Almost a year afterward, Appellant took steps toobject to the conditions, filing a motion to modify, in which he contended that the conditions violated due process, but the record does not show that he ever presented his motion to the trial court or had it ruled on.
The record does show, however, that Appellant's lawyers had a conference with the trial court after Appellant had complied with the conditions for a year, and that during that conference the trial court agreed to waive the treatment goal of Appellant's admitting responsibility for a sex offense. Moreover, at the adjudication hearing Appellant's counsel announced ready and did not argue the issue they now present on appeal. And although counsel for Appellant mentioned in passing at the adjudication hearing that Appellant objected to "being labeled as a sex offender," he conceded that Appellant did not object to the conditions of having to submit to a sex offender treatment evaluation and to complete the prescribed treatment. 5 Further, at the conclusion of the adjudication hearing, counsel urged the trial court to maintain Appellant on probation and acknowledged that Appellant was bound to comply with the conditions if the trial court did so.
Because the record shows that Appellant did not object to the complained-of conditions by pursuing his motion to amend as a prerequisite to filing an application for writ of habeas corpus6 or by presenting written objections to the trial court at any point between the time the conditions were imposed and the adjudication hearing— despite his being well-represented by counsel and having multiple opportunities to do so—we hold that Appellant has forfeited his claims for review. Accordingly, we overrule all of his points and affirm the trial court's judgment. See Rickels, 108 S.W.3d at 902, Speth, 6 S.W.3d at 534; Jackson v. State, No. 02-09-00258-CR, 2010 WL 5186811, at *4-5 (Tex. App.—Fort Worth Dec. 23, 2010, no pet.) (mem. op., not designated for publication); see also Beatty v. State, No. 01-08-00335-CR, 2010 WL 2133870, at *11 (Tex. App.—Houston [1st Dist.] May 27, 2010, pet. ref'd) (); Harrison v. State, No. 05-08-01362-CR, 2009 WL 3631820, at *3 (Tex. App.—Dallas Nov. 4, 2009, pet. ref'd) ().
Conclusion
Having overruled all of Appellant's points, we affirm the trial court's judgment.
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