Dionicio Olivarez v. State , 2012 Tex. App. LEXIS 8068 ( 2012 )

OPINION
No. 04-11-00576-CR
Dionicio OLIVAREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2006CR9589
Honorable Philip A. Kazen, Jr., Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: September 26, 2012
AFFIRMED
Appellant Dionicio Olivarez appeals the trial court’s order adjudicating him guilty and
sentencing him to one-year confinement and a $1,200.00 fine. On appeal, Olivarez contends the
trial court erred in granting the State’s motion to adjudicate and sentencing him to confinement
in the absence of a finding that such actions would serve the best interest of society and Olivarez.
We affirm the trial court’s judgment.
04-11-00576-CR
BACKGROUND
In 2007, appellant Dionicio Olivarez pled no contest to the offense of possession of a
controlled substance under one gram. The plea was pursuant to a plea bargain agreement with
the State. The trial court deferred a finding of guilt and placed appellant on community
supervision for a term of three years. Less than two weeks before Olivarez’s community
supervision was to end, the State filed a Motion to Enter Adjudication of Guilt and Revoke
Community Supervision. In the motion, the State alleged, among other things, that Olivarez
violated a condition of his community supervision by committing the offense of theft.
Olivarez pled true to the allegation that he had committed the offense of theft in violation
of the terms of his community supervision. The State waived the remaining alleged violations.
Based on Olivarez’s plea of true, the trial court granted the State’s motion, found Olivarez guilty,
and sentenced him to confinement for one year in a state jail facility and a $1,200.00 fine.
Olivarez filed a pro se notice of appeal and because he is indigent, the trial court appointed
appellate counsel.
ANALYSIS
On appeal, Olivarez raises a single point of error in which he contends the trial court
erred in granting the State’s motion, revoking his community supervision, and sentencing him to
confinement and a fine because the court failed to make a finding that the best interest of society
and Olivarez would be served by such action. We disagree.
Article 42.12, section 5(a) states, in pertinent part:
Except as provided by Subsection (d) of this Section, when in the judge’s opinion
the best interest of society and the defendant will be served, the judge may, after
receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and
finding that it substantiates the defendant’s guilt, defer further proceedings
without entering an adjudication of guilty, and place the defendant on community
supervision.
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TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2012). Olivarez contends that
because this provision requires the trial court to find the best interest of society and the defendant
would be served by placing the defendant on deferred adjudication community supervision, it
must also find those same interests would be served by revoking a defendant’s community
supervision.
First, we hold Olivarez has not preserved this complaint for our review. During the
hearing on the State’s motion, neither Olivarez nor his counsel objected to the absence of a “best
interest” finding, nor did they request such a finding. Except for complaints involving systemic
or absolute requirements, or rights that are waivable only, all other complaints, whether
constitutional, statutory, or otherwise, are forfeited by a failure to comply with Rule 33.1 of the
Texas Rules of Appellate Procedure. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App.
2004). Under Rule 33.1, to preserve a complaint for appellate review, the record must show the
appellant made a specific and timely request, objection, or motion in the trial court, and the trial
court ruled on it. TEX. R. APP. P. 33.1(a); see Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim.
App. 2009). In other words, the appellant must have informed the trial court what was wanted
and why he was entitled to it, and obtained a ruling. Lovill, 319 S.W.3d at 691.
A systemic right is “a law that the trial court has a duty to follow even if the parties wish
otherwise.” Mendez, 138 S.W.3d at 340. “Systemic rights include those that are statutorily or
constitutionally mandated, or are otherwise not optional, waivable or forfeitable by either party.”
Laster v. State, 202 S.W.3d 774, 777 (Tex. App.—San Antonio 2006, no pet.) (citing Sanchez v.
State, 120 S.W.3d 359, 365–66 (Tex. Crim. App.2003); Marin v. State, 851 S.W.2d 275, 279
(Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim.
App. 1997)). These rights are typically those that affect a court’s jurisdiction. Marin, 851
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S.W.2d at 279. The implementation of these rights is not optional and therefore, is neither
waivable nor forfeitable by any party. Id.
Waivable rights are those a trial court has an independent duty to implement in the
absence of an effective waiver by the defendant. Id. at 280. Waiver generally requires
“voluntary relinquishment or abandonment of a known right.” Laster, 202 S.W.3d at 777
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). For example, in Mendez, the court
examined a defendant’s right to plead not guilty. 138 S.W.3d at 343–50. Noting the Code of
Criminal Procedure required the trial court to enter a plea of not guilty in the absence of a plea
by the defendant, the court reasoned that the Code gave “the trial court a duty in the absence of
action by the defendant” thereby creating “a defendant’s right to a plea of not guilty that is a
‘waivable right.’” Id. at 343. Consequently, no objection was required to preserve the complaint
on appeal.
We hold the complaint raised by Olivarez is neither systemic nor waivable. See Marin,
851 S.W.3d at 270 (holding systemic rights are typically those that affect court’s jurisdiction);
Mendez, 138 S.W.3d at 343 (holding trial court had duty to enter not guilty plea as directed by
statute even in absence of objection). The trial court’s failure to make a finding that it would be
in the best interest of society and Olivarez to be found guilty and removed from community
supervision does not affect the trial court’s jurisdiction. And, despite Olivarez’s contention, such
a failure does not render the trial court’s judgment void. See Nix v. State, 65 S.W.3d 664, 668
(Tex. Crim. App. 2001) (holding judgment of conviction is void when (1) charging instrument
does not satisfy constitutional requisites, (2) trial court lacks subject matter jurisdiction over
offense charged, (3) record establishes there is no evidence to support conviction, and (4)
indigent defendant forced to face trial proceedings without counsel when right to counsel not
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waived). Moreover, there is nothing in the Code of Criminal Procedure that mandates such a
finding before a court may revoke community supervision and proceed to an adjudication of
guilt, and therefore there was no need for an affirmative waiver by Olivarez with regard to a best
interest finding in this context; it is not mandated by any statute. See generally TEX. CODE CRIM.
PROC. ANN. art. 42.12. Accordingly, any right to the finding proposed by Olivarez was
forfeitable, i.e., optional at the request of the defendant, and required compliance with Rule 33.1.
See Marin, 851 S.W.2d at 279.
As noted above, Olivarez did not object to the trial court failure to make the finding that
revocation was in the best interest of society and Olivarez, nor did he request such a finding. As
this was a forfeitable right, Olivarez has not preserved this complaint for our review.
However, even if the complaint was preserved, we would find no merit to it. There is
nothing in Article 42.12 that requires the finding proposed by Olivarez, either explicitly or
implicitly, in the context of a revocation. Article 42.12, sections 5(b) and 23(a), which apply to
revocations of community supervision and adjudications of guilt, state:
On violation of a condition of community supervision imposed under Subsection
(a) of this section, the defendant may be arrested and detained as provided b in
Section 21 of this article. The defendant is entitled to a hearing limited to the
determination by the court of whether it proceeds with an adjudication of guilt on
the original charge. This determination is reviewable in the same manner as a
revocation hearing conducted under Section 21 of this article in a case in which an
adjudication of guilt had not been deferred. After an adjudication of guilt, all
proceedings, including assessment of punishment, pronouncement of sentence,
granting of community supervision, and defendant’s appeal continue as if the
adjudication of guilty had not been deferred.
TEX. CODE CRIM. PROC. art. 42.12, § 5(b).
If community supervision is revoked after a hearing under Section 21 of the
article, the judge may proceed to dispose of the case as if there had been no
community supervision, or if the judge determines that the best interests of
society and the defendant would be served by a short term of confinement, reduce
the terms of confinement originally assess to any term of confinement not less
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than the minimum prescribed for the offense of which the defendant was
convicted.
Id. § 23(a).
Under the rules of statutory construction, a court must construe a statute according to its
plain language unless the language is ambiguous or the interpretation would lead to unintended,
absurd results. Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009). We must focus on
the literal text of the statutory language. Id. When a statute is clear and unambiguous, we must
conclude the Legislature meant what it expressed, and it is not our place to add or subtract from
such a statute. Id.
Olivarez has cited no authority, nor have we found any, that would mandate the finding
he proposes. Moreover, the language of the revocation portions of article 42.12 are clear and
unambiguous, and do not require the finding proposed by Olivarez. If the Legislature had
intended the trial court to make a best interest finding before community supervision could be
revoked and the defendant adjudicated, it certainly could have required it. The Legislature
required a best interest finding before a defendant could be placed on deferred adjudication
community supervision and before a trial court could reduce the original confinement terms in
such a case. TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 5(b), 23(a). The Legislature chose not
to impose such a requirement in instances of revocation, and we will not add such a requirement
to the statute. See Tapps, 294 S.W.3d at 177.
CONCLUSION
Based on the foregoing, we hold Olivarez has failed to preserve his complaint for our
review and overrule his sole point of error. We further hold that even if preserved, a trial court is
not required by the Code of Criminal Procedure to find that a revocation of community
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supervision is in the best interest of society or the defendant before it may revoke. Accordingly,
we affirm the trial court’s judgment.
Marialyn Barnard, Justice
Publish
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