Williams, Jerry Wernard v. State ( 2003 )

Affirmed and Opinion filed May 29, 2003

Affirmed and Opinion filed May 29, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00570-CR

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JERRY WERNARD WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176^th District Court

Harris County, Texas

Trial Court Cause No. 702,831

M E M O R A N D U M  O P I N I O N

Appellant entered a plea of guilty to the offense of misapplication of fiduciary property and was sentenced to ten years= probation, 360 hours of community service, drug and alcohol counseling and restitution in the amount of $12,242.30. Subsequently, the State filed a motion to revoke probation on several grounds. The trial court granted the State=s motion on the ground that appellant failed to comply with the order to live and work in Harris County. The trial court then assessed punishment at ten years= confinement in the Institutional Division of the Texas Department of Criminal Justice.

Appellant's appointed counsel filed a brief in which he concludes that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel's brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and appellant filed a pro se response on March 31, 2003.

Appellant raises thirty-three issues in his pro se brief in which he contends (1) the trial court erred in accepting his original plea, (2) the trial court erred in amending the conditions of his probation, (3) the trial court abused its discretion in revoking his probation, (4) the trial court abused its discretion in not Aprocessing appellant=s application for writ of habeas corpus, and (5) several of appellant=s constitutional rights were violated. 

In issues one through five, twenty-six, and thirty-three, appellant complains of issues regarding his original plea.  Those issues, however, cannot be considered in an appeal from a revocation of probation. Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998).  Accordingly, issues one through five, twenty-six, and thirty-three are overruled.

In issues six, seven, ten, eleven, twelve, eighteen, twenty-one, twenty-two, and twenty-eight, appellant contends the trial court erred in amending the conditions of probation. In issues eight, fifteen, sixteen, seventeen, and twenty-five, appellant contends the trial court abused its discretion in revoking his probation.  Appellant was placed on probation in Harris County on January 18, 2000, for misapplication of fiduciary funds.  At that time, appellant was allowed to live in Jefferson County to maintain his employment. On October 15, 2001, the Jefferson County probation department closed supervision on appellant because he was sentenced to the federal penitentiary.^[1]  On December 6, 2002, appellant received a letter, which informed him that when he was released from the federal penitentiary, he would be required to live and work in Harris County.  Appellant was released on January 10, 2002.  On January 23, 2002, the trial court held a hearing on the modifications to appellant=s probation conditions.  The modification at issue here is the one that required appellant to live and work in Harris County.  At that time, appellant signed a document entitled ASecond Amended Conditions of Community Supervision.@  Above appellant=s signature on that document is the following language:

I understand that under the laws of this State, the Court shall determine the terms and conditions of Community Supervision, and may alter or modify said conditions during the period of Community Supervision.  I further understand that failure to abide by these Conditions of Community Supervision may result in the revocation of Community Supervision or an adjudication of guilt.

On February 15, 2002, appellant filed written objections to the amended conditions.  The record reflects neither a hearing, nor a ruling on those objections.  On February 26, 2002, the State filed a motion to revoke appellant=s probation because he did not live or work in Harris County.  On May 30, 2002, the trial court held a hearing on the State=s motion where appellant raised his objections to the amended conditions of probation.  The trial court overruled appellant=s objections and revoked his probation.

Appellant contends on appeal that the trial court abused its discretion in amending the conditions of probation and in revoking his probation.  An award of probation is not a right, but a contractual privilege, and conditions of probation are terms of the contract entered into between the trial court and the defendant.  Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). Conditions not objected to are affirmatively accepted as terms of the contract.  Id.  By entering into a contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. Id.  A defendant who benefits from the contractual privilege of probation must complain at the time the conditions are imposed if he finds those conditions objectionable.  Id. By signing the amended conditions of probation and not raising an objection until approximately three weeks after the hearing on the amended conditions, appellant waived any complaint about the amended conditions of probation.  Accordingly, appellant=s sixth, seventh, eighth, tenth, eleventh, twelfth, fifteenth, sixteenth, seventeenth, eighteenth, twenty-first, twenty-second, twenty-fifth, and twenty-eighth issues are overruled.

In his ninth issue, appellant contends the trial court erred in failing to grant a prompt hearing on the State=s motion to revoke probation.  In issues thirteen and twenty-seven, appellant contends the trial court erred in failing to rule on his application for writ of habeas corpus.  Appellant contends that article 42.12 of the Code of Criminal Procedure requires the trial court to hold a hearing on the motion to revoke probation within twenty days of the date the motion is filed. Article 42.12 section 21(b) provides that if a defendant is arrested pursuant to a motion to revoke probation and is held without bail, he may file a motion requesting release on bail and the trial judge must hold a hearing on that motion within twenty days.  Here, appellant filed an application for writ of habeas corpus requesting, among other things, that he be released from custody.  The appellate record does not reflect a hearing or ruling on appellant=s application.  Issues of pretrial bail, however, are moot after the defendant is sentenced.  See Oldham v. State, 5 S.W.3d 840, 846 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  Therefore, appellant=s ninth, thirteenth, and twenty-seventh issues are overruled.

In his fourteenth issue, appellant contends the evidence was insufficient to support a violation of the conditions of probation.  A court reviewing an order revoking probation is limited to determining whether the trial court abused its discretion.  Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).  The appellate court must examine the evidence in the light most favorable to the trial court=s order.  Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.CHouston [1st Dist.] 1993, no pet.).  At the hearing on the motion to revoke, appellant presented no evidence that he was living or working in Harris County prior to the filing of the motion. The trial court liason officer testified that appellant did not live or work in Harris County.  Appellant argued that he had a Harris County address, but presented no evidence of that address.  Therefore, the trial court did not abuse its discretion in finding that appellant violated the conditions of probation.

In issues nineteen, twenty, twenty-three, twenty-four, twenty-nine, thirty, thirty-one, and thirty-two, appellant contends the trial court committed several errors in violation of the state and federal constitutions.  Appellant failed, however, to timely object to those violations. To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court. Tex. R. App. P. 33.1; Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). The failure to object can waive even an error involving constitutional rights.  Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993). Therefore, appellant=s nineteenth, twentieth, twenty-third, twenty-fourth, twenty-ninth, thirtieth, thirty-first, and thirty-second issues are overruled.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Opinion filed May 29, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The record does not reflect for what offense appellant was sentenced.