Speth v. State

• Decision Date: 01 December 1999
• Citation: 6 S.W.3d 530
• Parties: (Tex.Crim.App. 1999) LAWRENCE EDWARD SPETH, Appellant v. THE STATE OF TEXAS NO. 425-98
• Court: Texas Court of Criminal Appeals

Page 530

6 S.W.3d 530 (Tex.Crim.App. 1999)

LAWRENCE EDWARD SPETH, Appellant v. THE STATE OF TEXAS

NO. 425-98

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

December 1, 1999.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

O P I N I O N

Meyers, J., delivered the opinion of the Court, joined by Mansfield, Price, Johnson, and Keasler., J.J.. Womack, J., filed a concurring opinion, joined by McCormick, P.J., Keller, and Holland, J.J..

Adjudication of appellant's guilt for the offense of aggravated assault of a peace officer was deferred and he was awarded five years probation. While on probation, appellant was indicted for indecency with a child. Appellant was acquitted by a jury on the indecency charges, the trial court in the aggravated assault case found the allegations concerning the indecency offense true and concluded appellant had thereby violated his probation. Appellant's guilt was adjudicated and the trial court granted ten years probation, subject to five conditions which related to the indecency charges.¹ Appellant did not object to the conditions at trial, but complained about them for the first time on direct appeal. The State argued appellant had procedurally defaulted his claim by failing to make a trial objection. The Court of Appeals rejected that contention on the ground that appellant could raise "a defect in his sentence" even though he had not objected to it at trial." Speth v. State, 965 S.W.2d 13, 15 (Tex. App.--Houston [14th Dist.] 1998). We granted review to decide "whether a defendant can challenge conditions of probation for the first time on appeal.

The Court of Appeals' holding and appellant's arguments turn on a line of cases which hold that "if a punishment is not authorized by law, that portion of the sentence imposing that punishment is void." Heath v. State, 817 S.W.2d 335, 336 (Tex. Crim. App. 1991)(opinion on original submission)(portion of sentence granting probation where defendant not eligible for probation under controlling statute held void and could be raised at any time)²; see also Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994)("conviction was void because the sentence exceeded the maximum allowed for a third degree felony, of which [the defendant] had been convicted"), cert. denied, 515 U.S. 1105 (1995); Ex parte Johnson, 697 S.W.2d 605, 606-607 (Tex. Crim. App. 1985)(imposition of fine in addition to prison term not "authorized by law" and therefore void); Wilson v. State, 677 S.W.2d 518, 524 (Tex. Crim. App. 1984)(where punishment was assessed at four years confinement, but statutory minimum was five years confinement , judgment of conviction was void). Nearly every case that has held a sentence not "authorized by law" or void (such that the alleged defect could be raised for the first time on appeal) involved the trial court's assessment of a punishment that was not applicable to the offense under the controlling statutes. That is, "the punishment assessed was not within the universe of punishments applicable to the offense." Johnson, 697 S.W.2d at 607. These cases are inapposite here because they involve the imposition of a sentence not authorized by statute, while community supervision is not a sentence or even a part of a sentence.

The Code of Criminal Procedure defines community supervision as involving a suspension of the sentence.³ In other words, community supervision is an arrangement in lieu of the sentence, not as part of the sentence. TEX. CODE CRIM. PROC. art. 42.12 3(a)(providing that a judge, after conviction or plea "may suspend the imposition of the sentence and place the defendant on community supervision"); see also fn.3, supra.

The sentence and the conditions of community supervision are each separate parts of the "judgment."⁴ The Code lists twenty-six items the judgment should reflect, including "the length of community supervision, and the conditions of community supervision" and "[t]he term of the sentence." Id. at l(10) & (15). That community supervision is not viewed as part of the sentence is further evidenced by the fact that these terms are listed as separate items in the "judgment." So, while community supervision is part of the judgment, it is not part of the "sentence," as those terms are defined in the Code of Criminal Procedure. Cf. State v. Ross, 953 S.W.2d 748 (Tex. Crim. App. 1997).

Moreover, imposition of a sentence is profoundly different from the granting of community supervision. The above cases suggest that a defendant has an absolute and nonwaiveable right to be sentenced within the proper range of punishment established by the Legislature.⁵ The granting of community supervision is a privilege, not a right. See Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995)(plurality opinion)("there is no fundamental right to receive probation; it is within the discretion of the trial court to determine whether an individual defendant is entitled to probation"), cert. denied, 516 U.S. 1050 (1996); Burns v. State, 561 S.W.2d 516, 517 (Tex. Crim. App. 1978)(court's discretion to deny or grant community supervision to eligible defendant if jury waived or jury not elected to determine punishment is absolute and unreviewable). The decision whether to grant probation is wholly discretionary and nonreviewable. Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979)(citing Saldana v. State, 493 S.W.2d 778 (Tex. Crim. App. 1973). To even be eligible for jury recommended probation, a defendant bears the burden of pleading and proving that he has no prior felony convictions. TEX. CODE CRIM. PROC. art. 42.12 4(d) & (e). We have likened the granting of probation to an extension of clemency that is contractual in nature:

When probation is granted, the trial court "extends clemency" and creates a relationship that is, "in a way, contractual that is, the court agrees with the convict that clemency by way of probation will be extended if he will keep and perform certain requirements and conditions, the violation of which will authorize the revocation of the probation." Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774, 775 (1951), Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59, 60 (1955), Bradley v. State, 564 S.W.2d 727, 729 (1978).

Flournoy, 589 S.W.2d at 707 (footnotes omitted).

Consistent with its broad discretionary powers in deciding whether to grant community supervision, a trial court likewise has broad discretion in determining the conditions to be imposed. The trial court "shall" determine the conditions of community supervision,⁶ but the description of allowable conditions is prefaced with the permissive term "may": "The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant."⁷ TEX. CODE CRIM. PROC. art. 42.12 11(a); see also Chacon v. State, 558 S.W.2d 874, 875 (Tex. Crim. App. 1977)(condition of probation must be "a reasonable one"). The broadly discretionary language characteristic of this provision is markedly different from the sentencing provisions in which the legislature has established the allowable range of punishment for a given offense. Under those schemes, every option available to the court is narrowly identified on the face of the statute. Because Section 11 is so broadly discretionary, it does not establish a narrowly identifiable "universe or punishments applicable to the offense" in the same manner as the statutory sentencing schemes at issue in the above cases.⁸

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 A trial objection allows the trial court the opportunity to either risk abusing his discretion by imposing the condition over objection¹⁰ or reconsider the desirability of the contract without the objectionable condition.

Appellant did not object at trial to the imposition of the conditions. See fn.13, supra. The Court of Appeals erred in holding appellant could complain about the community supervision conditions for the first time on appeal.¹¹ The judgment of the Court of Appeals is reversed.

WOMACK, J., filed a concurring opinion, in which MCCORMICK, P.J., and KELLER and HOLLAND, JJ.,.

WOMACK, J., filed a concurring opinion, in which MCCORMICK, P.J., and KELLER and HOLLAND, JJ., joined.

In State v. Ross, 953 S.W.2d 748 (Tex. Cr. App. 1997), the Court held that the meaning of "sentence" in Code of Criminal Procedure article 42.02 should be used in construing another statute which gives the State the right to appeal a "sentence [that] is illegal."¹ In a dissenting opinion, I gave my reasons for believing that "sentence" has different meanings in different contexts, and that it was a mistake to use the article 42.02 meaning out of its context. See 953 S.W.2d at 752.²

Today the Court uses the article 42.02 definition of "sentence" to decide, not what a statute means, but what our own judges meant when we held that a defect in a sentence could be raised for the first time on appeal. See Heath v. State, 817 S.W.2d 335, 336 (Tex. Cr. App. 1991).³ Does our holding today mean that some appellants who have in the past been able to complain for the first time on appeal about void sentences, may no longer be able to do so if the error was not in the part of the judgment that article 42.02 defines as the "sentence"? For example, in Heath...