Tracy Wayne Tow v. State ( 2012 )


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  •                          COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00067-CR
    TRACY WAYNE TOW                                                      APPELLANT
    V.
    THE STATE OF TEXAS                                                         STATE
    ----------
    FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
    ----------
    MEMORANDUM OPINION1
    ----------
    Appellant Tracy Wayne Tow was indicted on four counts of indecency with
    a child by fondling. After the State amended the indictment to add a fifth count of
    injury to a child, Appellant entered into a plea bargain agreement with the State.
    In exchange for his plea of guilty to the offense of injury to a child, the State
    recommended a fine of $500, five years’ deferred adjudication community
    supervision, assignment to the sex offender caseload, and sex offender
    1
    See Tex. R. App. P. 47.4.
    conditions to his supervision. The trial court accepted Appellant’s plea of guilty
    and the plea bargain agreement, deferring adjudication of guilt and placing
    Appellant on community supervision for a period of five years with sex offender
    conditions.   Almost four years later, the State filed a petition to proceed to
    adjudication. Appellant entered a plea of ―not true‖ to each of the allegations in
    the State’s petition. The trial court adjudicated Appellant guilty and sentenced
    him to eight years’ confinement.
    Appellant brings four issues on appeal, arguing that the judgment in this
    case should be modified to reflect that he entered a plea of ―not true‖ to the
    allegations in the State’s petition to proceed to adjudication, his original plea was
    involuntary and therefore the trial court erred by denying his motion to withdraw
    his plea, the trial court should have granted his motion to modify the terms and
    conditions of supervision, and the trial court erred in finding paragraphs 6 (a), (b),
    and (c) true because the State failed to prove the allegations as alleged and
    failed to prove that he was able to pay. Because the trial court did not abuse its
    discretion in adjudicating Appellant’s guilt, we affirm the trial court’s judgment as
    modified.
    I. Voluntariness of Plea
    In his second issue, Appellant contends that his original plea of guilty was
    involuntary and that he should have been allowed to withdraw it. After the State
    filed its petition to proceed to adjudication, Appellant filed a motion to withdraw
    his original plea of guilty, alleging that his original plea had been involuntary
    2
    because he had entered into the plea bargain not because he was guilty but
    because he was afraid he would be found guilty of the offense of indecency with
    a child. Appellant argues that, while a defendant is on deferred adjudication
    community supervision, he may properly file a motion to withdraw his plea, and
    appellate courts may review the trial court’s decision on the motion for an abuse
    of discretion.2 Here, Appellant waited almost four years to ask to withdraw his
    plea. And when he did ask to withdraw his plea, it was to avoid adjudication, not
    to allow the trial court to proceed to adjudication.
    The Texas Court of Criminal Appeals has stated that when a defendant
    enters an open plea of guilty in a bench trial, he ―may withdraw his guilty plea as
    a matter of right without assigning reason until such judgment has been
    pronounced or the case has been taken under advisement.‖3 The Dallas Court of
    Appeals has held that once the trial court has admonished the defendant,
    accepted the defendant’s plea, found that the evidence substantiates the
    defendant’s guilt, and placed the defendant on deferred adjudication community
    supervision, the trial court has ―taken the case under advisement.‖4 Once the
    2
    See Labib v. State, 
    239 S.W.3d 322
    , 331 (Tex. App.—Houston [1st Dist.]
    2007, no pet.).
    3
    Murray v. State, 
    302 S.W.3d 874
    , 883 (Tex. Crim. App. 2009).
    4
    Thompson v. State, 
    852 S.W.2d 268
    , 270 (Tex. App.—Dallas 1993, no
    pet.); see Crumpton v. State, 
    179 S.W.3d 722
    , 724 n.5 (Tex. App.—Fort Worth
    2005, pet. ref’d) (relying on Thompson in case not involving community
    supervision); Perkins v. State, No. 02-07-00258-CR, 
    2008 WL 2002739
    , at *1
    (Tex. App.—Fort Worth May 8, 2008, pet. ref’d) (same).
    3
    trial court has taken a case under advisement, whether to allow a defendant to
    withdraw his plea is a matter within the sound discretion of the trial court. That is,
    the trial court is not required to allow the defendant to withdraw his plea.5 Rather
    than concluding that the trial court has taken the case under advisement during
    the entire period of community supervision, we believe that it makes more sense
    to hold that once the trial court has admonished the defendant, accepted the
    defendant’s plea, found that the evidence substantiates the defendant’s guilt, and
    placed the defendant on deferred adjudication community supervision, the trial
    court has accepted and complied with the plea bargain agreement.
    Appellant appears to argue that an Alford plea may be withdrawn at any
    time.6 An Alford plea is a guilty plea pursuant to which the defendant maintains
    his innocence but admits that the State has enough evidence to likely secure a
    conviction.7 If Appellant did, indeed, enter an Alford plea, there is no evidence
    that the trial court refused to accept the plea bargain agreement or that Appellant
    was misled or improperly induced into entering the plea—that he did so because
    exculpatory evidence was hidden, that he was not properly advised by trial
    5
    Moore v. State, 
    295 S.W.3d 329
    , 331 (Tex. Crim. App. 2009).
    6
    North Carolina v. Alford, 
    400 U.S. 25
    , 
    91 S. Ct. 160
    (1970).
    7
    Alford     Plea     Law     and    Legal   Definition, USLEGAL.COM,
    http://definitions.uslegal.com/a/alford-plea/ (last visited Jan. 11, 2012);
    Stephanos Bibas, Harmonizing Substantive Criminal Law Values and Criminal
    Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev.
    1361, 1372 (2003).
    4
    counsel, or that newly discovered evidence has been found.8 Rather, he argues
    that he should be allowed to withdraw his plea because it was an Alford plea and
    because he was placed on deferred adjudication community supervision
    pursuant to the plea bargain agreement. Because Appellant has cited no ground
    for setting aside his plea of guilty that is supported by the law, we overrule
    Appellant’s second issue.
    II. Refusal to Modify Appellant’s Terms and Conditions of Supervision
    In his third issue, Appellant argues that the trial court erred when it denied
    his motion to modify the terms and conditions of supervision. On January 7,
    2011, after the State had filed its petition to proceed to adjudication, Appellant
    filed a motion to modify the terms and conditions of his community supervision.
    Essentially, he asked to be removed from the sex offender caseload. Appellant
    argued below, as he argues here, that the conditions of supervision of which he
    complains violate his rights under the due process clause of the Fourteenth
    Amendment to the Constitution of the United States. The State points out that
    Appellant’s plea bargain agreement allowed him to plead guilty to the offense of
    injury to a child in exchange for agreeing to be placed on the sex offender
    caseload and to comply with the requirements of that caseload.            Appellant
    concludes his argument by stating, ―Appellant contends it was fundamentally
    unfair to send him to prison for an offense the complainant was no longer
    8
    See 
    Moore, 295 S.W.3d at 332
    ; Coronado v. State, 
    25 S.W.3d 806
    , 810
    (Tex. App.—Waco 2000, pet. ref’d).
    5
    accusing him of and for not complying with probationary conditions for a sexual
    offense for which, in any event, he never pled guilty.‖
    When Appellant entered his plea of guilty, the plea agreement included a
    provision that he be placed on the sex offender caseload and comply with the
    conditions mandated by the sex offender caseload. Article 42.12, section 11(a)
    provides,
    The judge of the court having jurisdiction of the case shall determine
    the conditions of community supervision and may, at any time during
    the period of community supervision, alter or modify the conditions.
    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.9
    Because community supervision is a contractual relationship between the
    trial court and the offender, only the trial court may determine the conditions of
    community supervision. The trial court may not delegate this task to anyone
    else,10 nor may the parties usurp the trial court’s authority to determine the
    conditions of community supervision.11          While the attorneys may recommend
    conditions of community supervision to the trial court, they may not bind the trial
    court to their recommendation.12
    9
    Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (West Supp. 2011).
    10
    Pierce v. State, 
    67 S.W.3d 374
    , 379–80 (Tex. App.—Waco 2001, pet.
    ref’d).
    11
    Cortez v. State, 
    971 S.W.2d 100
    , 101–02 (Tex. App.—Fort Worth 1998,
    no pet.).
    12
    
    Id. at 102.
    6
    To allow the lawyers, through plea bargaining, to restrict the trial court’s
    ability to determine the conditions of community supervision would seriously limit
    the trial court’s ability to modify the conditions as necessary throughout the
    course of the probationary period.13        Realistically, the plea bargain rarely
    provides for all the standard conditions of probation. For example, to hold that
    the parties determine the conditions of community supervision and bind the trial
    court to those agreed on in the plea bargain would, in this case, mean that
    Appellant was not required to avoid persons of disreputable or harmful character,
    to support his dependents, or to report to his probation officer because those
    terms were not included in the plea bargain agreement.
    While the plea agreement cannot not bind the trial court, it can constitute a
    written waiver of objection to certain specific terms or conditions of community
    supervision. By agreeing in the plea bargain agreement to being placed on the
    sex offender caseload, Appellant placed before the trial court a written waiver of
    objection to that condition of community supervision.       Such waiver may be
    accomplished by plea bargain.14 The question of whether an agreed-to condition
    becomes unreasonable with change of circumstance and, thereby, renders
    continuation of that condition an abuse of discretion is not before this court, and
    we do not address it here.
    13
    
    Id. 14 See
    Tex. Code Crim. Proc. Ann. art. 1.14(a) (West 2005).
    7
    Without more than Appellant has shown this court, we cannot say that it is
    fundamentally unfair to expect him to comply with the terms of his plea bargain
    agreement after it was accepted by the trial court and after he benefited from the
    plea bargain by receiving the agreed-upon probated sentence.15 We overrule
    Appellant’s third issue.
    III. Sufficiency of the Evidence to Prove Allegations in the Petition to
    Proceed to Adjudication
    In his fourth issue, Appellant argues that if this court determines that the
    trial court should have removed the sex offender conditions from the
    requirements of his community supervision, the only allegations remaining in the
    petition to proceed to adjudication are violations of the terms and conditions of
    his community supervision by failure to make certain payments.
    The Texas Court of Criminal Appeals has held that when a defendant
    agrees to certain terms and conditions of probation as part of a plea bargain
    agreement, the defendant is bound by that agreement unless he objects in open
    court at the time those conditions are imposed.16 We do not understand the
    Speth rule to mean that the parties can limit the trial court’s ability to amend
    conditions of community supervision through a plea bargain.            Rather, a
    15
    See Speth v. State, 
    6 S.W.3d 530
    , 534–35 (Tex. Crim. App. 1999), cert.
    denied, 
    529 U.S. 1088
    (2000); Ex parte Shoe, 
    137 S.W.3d 100
    , 102–03 (Tex.
    App.—Fort Worth 2004), pet. dism’d as improvidently granted, 
    235 S.W.3d 782
    (Tex. Crim. App. 2007).
    16
    
    Speth, 6 S.W.3d at 534
    –35.
    8
    defendant may agree, as part of a plea bargain agreement, to a condition of
    community supervision that is more onerous than the standard conditions usually
    imposed. Here, Appellant affirmatively agreed to be placed on the sex offender
    caseload and comply with its rules as part of his plea bargain agreement.
    For the sake of clarity, however, we must discuss the requirement of the
    sex offender caseload that Appellant ―assume responsibility for [his] offense.‖
    Appellant’s offense was injury to a child. There is no evidence that Appellant did
    not accept responsibility for that offense.   To the extent the State contends
    Appellant failed to comply with the conditions of the sex offender caseload by
    refusing to admit that he was guilty of sexual offenses against children, we reject
    that argument. Appellant cannot be required to admit his guilt with respect to an
    offense of which he has not been convicted or for which he has not been placed
    on community supervision.17
    Appellant candidly admits that there was conflicting evidence about
    whether he accessed Facebook and about whether he had a cell phone capable
    of Internet access. There was also evidence that he accessed Facebook in late
    February or early March 2009.
    Proof by a preponderance of the evidence of any one of the alleged
    violations of the community supervision conditions is sufficient to support a
    17
    See Minnesota v. Murphy, 
    465 U.S. 420
    , 426, 
    104 S. Ct. 1136
    , 1141–42
    (1984) (citing Lefkowitz v. Turley, 
    414 U.S. 70
    , 77, 
    94 S. Ct. 316
    , 322 (1973), and
    Baxter v. Palmigiano, 
    425 U.S. 308
    , 316, 
    96 S. Ct. 1551
    , 1557 (1976)).
    9
    revocation order.18 Because both the plea bargain agreement and court order
    establishing the conditions of community supervision required Appellant to
    comply with the conditions of the sex offender caseload, and because the State
    proved that he failed to comply with those conditions, specifically the conditions
    regarding accessing Facebook, we hold that the State sustained its burden to
    prove Appellant violated the conditions of community supervision as alleged in
    paragraph 5 of the petition to proceed to adjudication. We therefore hold that the
    trial court did not abuse its discretion by revoking Appellant’s community
    supervision and overrule his fourth issue.
    IV. Modifying the Judgment to Reflect Appellant’s Pleas of “Not True”
    The record reflects that Appellant did, indeed, plead ―not true‖ to the
    allegations in the State’s petition. The State candidly agrees that the judgment
    should be corrected. We therefore sustain Appellant’s first issue, in which he
    complains of this matter, and modify the judgment by deleting the pleas of ―true‖
    to the allegations in the State’s petition to proceed to adjudication and inserting
    instead pleas of ―not true‖ to those allegations.
    V. Conclusion
    Having sustained Appellant’s first issue and overruled his three remaining
    issues, we affirm the trial court’s judgment as modified.
    18
    Moore v. State, 
    605 S.W.2d 924
    , 926 (Tex. Crim. App. [Panel Op.] 1980);
    Leach v. State, 
    170 S.W.3d 669
    , 672 (Tex. App.—Fort Worth 2005, pet. ref’d).
    10
    LEE ANN DAUPHINOT
    JUSTICE
    PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: January 12, 2012
    11