Gutierrez v. State

• Decision Date: 10 October 2012
• Docket Number: No. PD–1658–11.,PD–1658–11.
• Parties: Maricela Rodriguez GUTIERREZ, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

380 S.W.3d 167

Maricela Rodriguez GUTIERREZ, Appellant

v.The STATE of Texas.

No. PD–1658–11.

Court of Criminal Appeals of Texas.

Oct. 10, 2012.

James W. Huggler, Tyler, for Appellant.

Aaron S. Bingham, Asst. District Atty., Tyler, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

The trial court revoked the appellant's community supervision because she failed to comply with a condition that required her either to obtain legal status to remain in this country within twelve months or else “leave the country and reside in a location where [she does] have a legally authorized status.” The appellant failed to object to this condition at the time it was imposed and, in fact, twice requested an extension of the time allotted for her to comply with it before the State filed its motion to revoke. The Texarkana Court of Appeals nevertheless reversed the trial court's revocation order, holding that the community supervision condition that she leave the country “could not be enforced” because it invaded the prerogative of the federal government to decide whether to remove illegal immigrants from the United States.¹ We granted the State's petition for discretionary review in order to examine this holding.² We now affirm.

FACTS AND PROCEDURAL POSTURE

In the Trial Court

The appellant was indicted for the offense of possession of cocaine in an amount greater than four and less than 200 grams, a second degree felony. ³ Pursuant to a plea agreement, the appellant pled guilty to this offense on April 19, 2004. On May 12, 2004, the trial court sentenced the appellant to ten years' confinement in the penitentiary but suspended the sentence, placing her on community supervision for ten years—all in accordance with the recommendation of the State in keeping with the plea agreement reached by the parties. As one of the conditions of community supervision, the trial court announced in open court that it was

also going to order that you file for your appropriate legal status through the Department of Homeland Security, or whichever federal agency that is in charge of that these days. And that you do that within 90 days of this date and that you provide notice to your probation officer in proof of that, that you have in fact followed up and done that. You can't control how fast they act on their processing that application, but you can promptly get it filed.

The trial court also informed the appellant that she would receive a written copy of the terms and conditions of her community supervision before she left the courtroom. The record does in fact contain a written memorialization of the above condition, signed by both the appellant and the judge on the same day as the sentencing hearing, May 12th. In addition, the written terms and conditions informed the appellant: “At the end of twelve (12) months from the date probation begins, if you have not obtained legal status from the [United States Bureau of Immigration and Customs Enforcement] for being within Smith County, Texas, you must leave the country and reside in a location where you do have a legally authorized status.” Although these conditions were not, for all the record reveals, an integral part of the plea agreement by the parties, the appellant voiced no objection to them.

Over the course of the next six years, at the appellant's request, the trial court twice extended the allotted period of time that it had originally granted the appellant to “obtain legal status”—first until May 12, 2007 (three years to the day after the condition was originally imposed), and then again until May 12, 2010 (three years after the expiration of the first extension). On July 19, 2010, the State filed a motion to revoke the appellant's community supervision. As grounds for revocation, the State alleged that, as of May 12, 2010, the appellant had neither (1) provided proof to her probation officer that she had applied for legal status, nor (2) left the country. No other basis for revocation was alleged. The trial court conducted a hearing on the State's motion to revoke on December 1, 2010. At the outset of the hearing, the State abandoned the first alleged basis for revocation, electing to proceed only on the allegation that the appellant had failed to leave the country. Represented by different counsel than at the initial plea proceedings in 2004, the appellant pled true to that violation. At no time did she complain that the probationary condition that she leave the country was objectionable to her in any way. The trial court ordered that the appellant's community supervision be revoked exclusively on the basis of her failure to leave the country. It then reduced the appellant's sentence to five years' confinement in the penitentiary, entered judgment accordingly, and certified the appellant's right to appeal.

In the Court of Appeals

For the first time on appeal, the appellant complained that the trial court erred in revoking her community supervision on the basis of a violation of the condition that she leave the country should she fail to timely obtain legal status. On the authority of this Court's opinion in Hernandez v. State,⁴ the appellant argued that the sole condition upon which her community supervision was revoked was invalid because it impinged upon the federal government's exclusive power to regulate the removal of illegal aliens, in violation of the Supremacy Clause of the United States Constitution.⁵ The State acknowledged that, consistent with Hernandez, the trial court lacked the authority to order the appellant to leave the country, but countered with Speth v. State,⁶ in which we later held that complaints about a condition of community supervision are ordinarily procedurally defaulted for appellate purposes if not first raised in the trial court. Indeed, the very claim that Speth attempted to raise for the first time on appeal from his revocation proceeding was apparently that the trial court lacked the authority to impose several of the conditions about which he complained.⁷ But the appellant in Hernandez did not object at the trial court level either, and yet this Court, holding that any condition of probation that encroaches upon the federal government's monopoly upon matters of alien deportation is “void,” nevertheless overturned the revocation of his probation—without making any reference to procedural default.⁸

Ruling in the appellant's favor, the court of appeals declared that “we do not believe that Speth and Hernandez are mutually exclusive.” ⁹ The court of appeals reasoned:

According to Speth, [one] can contract for, and be bound by, unconstitutional conditions of community supervision, such conditions being described by the court as a “defect.” Failure to object results in waiver of the defect. But Hernandez says the trial court had no power to do what it did. According to Hernandez, the unlawful condition, one the court had no authority to employ, was void and thus could not be enforced. The condition is not merely unreasonable, and it does not merely violate a constitutional right of the defendant. It violates the exclusive authority of the United States of America to absolutely control immigration to, and banishment from, the United States. The condition itself violated the Supremacy Clause of the United States Constitution.¹⁰

The court of appeals therefore reversed the trial court's order revoking the appellant's community supervision, concluding that “the condition is void, and that the revocation, premised solely on [the appellant's] violation of that condition, cannot stand.” ¹¹

On Discretionary Review

In its brief on discretionary review, the State now challenges the court of appeals's holding on what amounts to two grounds. First, the State argues, the court of appeals's purported distinction between Speth and Hernandez is invalid. Speth reiterated that probation is essentially a contractual relationship between the court and the defendant, “and conditions thereof are terms of the contract entered into between the trial court and the defendant.” ¹² “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.” ¹³ Thus, the State maintains, issues with respect to the validity, vel non, of conditions of community supervision do not implicate the kind of absolute requirements rights or prohibitions that are so fundamental as to be “not optional” with the parties under the rubric of Marin v. State.¹⁴ Therefore, concludes the State, even a condition of community supervision that is unauthorized must be raised in the trial court as a predicate to appellate relief. Hernandez was decided a number of years before Speth, and the issue of procedural default was not expressly addressed there, much less decided; under these circumstances, the State insists, Speth should control.

Second, and in any event, the State continues, the appellant should be estopped from complaining of the unauthorized condition on appeal. Because community supervision is a contractual relationship, a prospective probationer may agree to abide by an unauthorized condition “by entering into the contractual relationship without objection[.]” ¹⁵ When the probationer reaps the benefits of that contractual relationship, he should be estopped from subsequently complaining about the unauthorized condition on appeal, under Rhodes v. State.¹⁶ The Rhodes doctrine of estoppel by contract should apply, the State argues, even though the trial court was absolutely prohibited by the Supremacy Clause from imposing a condition impinging upon the federal government's deportation-decision prerogative.

ANALYSIS

Hernandez v. State:Deportation and Banishment

In Hernandez, the appellant's felony probation was revoked for a...