Patrick Shane Stacks v. State ( 2009 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00157-CR
______________________________
PATRICK SHANE STACKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 00F0245-005
Before Morriss, C.J., Moseley and Cornelius*, JJ.
Memorandum Opinion by Chief Justice Morriss
________________________________________
*William J. Cornelius, Retired, Sitting by Assignment
MEMORANDUM OPINION
Over eight years ago, Patrick Shane Stacks, after exposing his genitals to a child, pled guilty
to the third-degree felony offense of indecency with a child, was given a ten-year suspended
sentence, and was placed on ten years of community supervision with various conditions. One
condition of the community supervision forbade Stacks from possessing, acquiring, obtaining,
reviewing, or retaining sexually oriented compact disks or disks that portrayed nudity of an adult or
child.
On April 30, 2008, officers visited Stacks' home1 and found there a collection of DVDs: at
least seven of those were noted specifically to contain adult nudity. Many were noted to contain
"strong sexuality." Thereafter, on the State's motion, the trial court entered judgment revoking
Stacks' community supervision and sentenced him to eight years' confinement.
Stacks now appeals from this judgment and argues that the condition forbidding him from
viewing materials portraying adult nudity was not reasonably related to treatment associated with
his conviction for indecency with a child, that the condition violated due process since there was no
factual basis in the record to support the imposition of such a condition, and that the condition was
an unconstitutional prior restraint of his freedom of expression. Finally, Stacks requests reformation
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During that home visit, Stacks reportedly admitted to viewing "sexually oriented material
for approximately a month and a half." Based on this discovery, community supervision officer
David Rodgers executed an affidavit averring Stacks violated a condition of his community
supervision. The trial court conducted a hearing on the motion to revoke Stacks' community
supervision. Rodgers testified he had warned Stacks about viewing sexually explicit materials after
Stacks failed several polygraph examinations and "was dishonest about this issue."
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of the judgment revoking community supervision since it incorrectly labeled indecency with a child
as a violation of Section 22.11 of the Texas Penal Code, rather than Section 21.11, and incorrectly
categorized the offense as a second-degree felony, rather than a third-degree felony. See TEX . PENAL
CODE ANN . § 21.11(d) (Vernon 2003).
We affirm the revocation because (1) Stacks waived all challenges to the conditions of his
community supervision; although we reform the judgment because (2) the judgment incorrectly
recites the section number and the offense level.
(1) Stacks Waived All Challenges to the Conditions of His Community Supervision
An award of community supervision is a contractual privilege entered into between a court
and a defendant. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). Conditions of
community supervision2 not objected to are affirmatively accepted as terms of the contract. Id. at
534.
The law is well settled that a defendant cannot challenge a condition of community
supervision for the first time at a revocation proceeding. Id. at 535; Vale v. State, 486 S.W.2d 370
(Tex. Crim. App. 1972); Lozano v. State, Nos. 04-04-00534-CR, 04-04-00535-CR, 04-04-0536-CR,
04-04-00537-CR, 2006 WL 166364, at *2 (Tex. App.—San Antonio Jan. 25, 2006, pet. ref'd); In re
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A trial court has broad discretion in determining conditions of community supervision. TEX .
CODE CRIM . PROC. ANN . art. 42.12, § 11 (Vernon Supp. 2008); McArthur v. State, 1 S.W.3d 323,
331 (Tex. App.—Fort Worth 1999, no pet.). In fact, Article 42.12 of the Texas Code of Criminal
Procedure allows a trial court to "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."
TEX . CODE CRIM . PROC. ANN . art. 42.12, § 11(a); Speth, 6 S.W.3d at 533.
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V.A., 140 S.W.3d 858, 860 (Tex. App.—Fort Worth 2004, no pet.) (defendant could not object that
condition of community supervision was unreasonable at revocation hearing); Lopez v. State, 46
S.W.3d 476, 480 (Tex. App.—Fort Worth 2001, pet. ref'd) ("Under Speth, therefore, we are
prohibited from hearing on appeal a challenge to the validity of a condition of community
supervision unless an objection to that condition was made at the time the condition was imposed,
presumably at sentencing."); McIntyre v. State, No. 01-98-00163-CR, 2000 WL 489412, at *5 (Tex.
App.—Houston [1st Dist.] Apr. 27, 2000, no pet.) (mem. op., not designated for publication)
("Appellant's allegation that some of his conditions of community supervision were vague, invalid,
and/or unconstitutional concern appellant's conviction and punishment, not the revocation of his
community supervision. Therefore, these matters should have been raised by timely appeal after he
was placed on community supervision."); Edwards v. State, No. 06-99-00113-CR, 2000 WL
1130076, at *2 (Tex. App.—Texarkana Aug. 8, 2000, pet. ref'd) (mem. op., not designated for
publication); Anthony v. State, 962 S.W.2d 242, 245–46 (Tex. App.—Fort Worth 1998, no pet.).
A brief review of the issues on appeal reveals that they concern Stacks' conviction and
punishment, not the revocation of his community supervision. Stacks' complaints, that the condition
requiring him to refrain from viewing or possessing compact disks depicting adult nudity was
unreasonable, violated due process, and restrained his freedom of expression, are all matters that
should have been raised eight years ago when the condition complained of was imposed. Because
Stacks' complaints are untimely, we cannot address them. See Edwards, 2000 WL 1130076, at *2.
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(2) The Judgment Incorrectly Recites the Section Number and the Offense Level
Stacks also seeks reformation of the judgment revoking his community supervision. The
Texas Rules of Appellate Procedure give this Court authority to reform judgments and correct
typographical errors to make the record speak the truth. TEX . R. APP . P. 43.2; French v. State, 830
S.W.2d 607, 609 (Tex. Crim. App. 1992); Peek v. State, No. 06-08-00069-CR, 2008 WL 5090344,
at *1–2 (Tex. App.—Texarkana Dec. 4, 2008, no pet. h.) (reforming judgment to reflect correct
degree of offense); Battle v. State, No. 06-07-00148-CR, 2008 WL 482343, at *3 (Tex.
App.—Texarkana Feb. 25, 2008, no pet.) (mem. op., not designated for publication) (reforming
judgment to reflect proper statute under which defendant should have been convicted); Gray v. State,
628 S.W.2d 228, 233 (Tex. App.—Corpus Christi 1982, pet. ref'd).
Although Stacks was convicted of indecency with a child, an offense found in Section 21.11
of the Texas Penal Code, the judgment revoking community supervision recites Section 22.11 as the
"statute for offense." Section 22.11 of the Texas Penal Code, entitled "Harassment By Persons in
Certain Correctional Facilities; Harassment of Public Servant," does not apply. We reform the
judgment by replacing "22.11" with "21.11," to reflect conviction under the correct statute.
Additionally, indecency with a child by means of exposure is a third-degree felony offense. TEX .
PENAL CODE ANN . § 21.11(d). There is nothing in the record to suggest that Stacks' conviction was
enhanced. Thus, we also reform the judgment to reflect that the offense was a third-degree felony,
not a second-degree felony.
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As reformed, the judgment is affirmed.
Josh R. Morriss, III
Chief Justice
Date Submitted: January 12, 2009
Date Decided: January 14, 2009
Do Not Publish
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