Lawrence Donovan v. State , 2014 Tex. App. LEXIS 2852 ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00033-CR
LAWRENCE DONOVAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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OPINION ON EN BANC RECONSIDERATION
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Introduction
A majority of this court ordered en banc reconsideration of the court’s prior
opinion. See Tex. R. App. P. 49.7. We withdraw our opinion of July 26, 2012,
and substitute the following in its place.
Background Facts and Procedural History
In 2004, a grand jury indicted Appellant for aggravated sexual assault and
indecency with a child. In 2006, Appellant pleaded no contest to injury to a child
in exchange for five years’ deferred-adjudication community supervision. The
trial court specifically found Appellant not guilty of aggravated sexual assault and
indecency with a child and granted his motion to expunge the records relating to
those counts. 1 However, all three offenses arose out of the same underlying
facts and alleged the same victim.
The trial court judge was replaced after the next election. In March 2008,
his successor extended Appellant’s community supervision and modified its
terms to require that Appellant submit to an evaluation for sex-offender treatment
and successfully complete the prescribed treatment. Appellant was not required
to register as a sex offender. There is no record that Appellant objected to these
terms at the time they were imposed.
In August 2008, Appellant first met with Michael Strain, an approved sex-
offender-treatment provider, and began group-counseling sessions that
1
The parties seem to agree that Appellant was not entitled to an
expunction but that the expunction order has not been rescinded. See Tex.
Code Crim. Proc. Ann. art. 55.01(c) (West Supp. 2013) (prohibiting expunction
for person convicted or subject to prosecution for offense arising from same
criminal episode as offense for which expunction sought). The State did not
appeal the expunction order. See, e.g., In re Expunction of Jones, 311 S.W.3d
502, 504–05 (Tex. App.—El Paso 2009, no pet.) (discussing standard of review
in State’s appeal from trial court’s grant of expunction petition under article
55.01).
2
September. On November 8, 2008, he was told that he was required to “admit
the offense or pass a polygraph” to remain in the group. However, “probation
was able to work it out with Mr. Strain for [Appellant’s] return to group,” and
Appellant resumed participating in the treatment program approximately two
weeks later. Strain testified that successful completion of the treatment program
generally requires that participants meet thirty goals over a three-year period but
that some goals may be waived to accommodate individual circumstances. For
instance, the goal of admitting responsibility for a sex offense is commonly
waived for persons on community supervision for non-sex offenses. 2 Strain
testified that the trial court had instructed him not to require Appellant to admit
that he had committed a sex offense. On November 17, 2008, the trial court
added work-release confinement as a community-supervision condition.
Appellant never objected to this condition.
On February 2, 2009, almost a year after the sex-offender conditions had
been imposed, Appellant filed a motion to modify the conditions of his community
supervision, asserting that the sex-offender-treatment requirements violated due
process. There is no record, however, that Appellant presented his motion to the
trial court or that the trial court ruled on it.
In his first year of treatment, Appellant completed eight treatment goals.
On August 24, 2009, at a conference between the trial court, prosecutor,
2
Strain estimated that ten to fifteen percent of defendants in sex-offender
treatment are not charged with sex offenses.
3
Appellant’s counsel, Appellant’s community-supervision officer, and Strain, all
agreed that Appellant could meet the program goals without mentioning or
admitting guilt for the expunged sex offenses. The trial court concluded that
Appellant would not be required to admit responsibility for those offenses, but
that he would be required to discuss the underlying facts leading to the expunged
sexual offenses and to complete sex-offender treatment.
By February 2010, Appellant had completed eleven treatment goals. On
February 3, 2010, Appellant told Strain that he would not discuss the expunged
offenses during treatment sessions because it was illegal for him to do so.
Strain’s recollection of the trial court’s instructions was that Appellant was not
required to admit responsibility for the original charged offenses but not that it
would be illegal to discuss them. He told Appellant that if it was illegal to discuss
the sexual nature of the original charges, he was uncertain whether any useful
treatment work could be done and, pending some clarification of the matter, he
discontinued Appellant’s treatment.
Appellant testified that his attorneys met with the trial court on February 8,
2010, and that the trial court indicated that it wanted to hear from the community-
supervision department on the issue. Appellant stated he was “in a holding
pattern” after this meeting. Appellant’s community-supervision supervisor, Mayra
Pinedo, testified that she repeatedly stressed to Appellant that while the matter
was pending review he still would be held accountable for meeting his treatment
goals by the two-year deadline. She further testified that she offered for him to
4
choose another approved provider so that he could complete the goals.
Likewise, Appellant testified that Pinedo told him he “need[ed] to go to a different
provider.” 3 Appellant refused Pinedo’s offer to attend treatment with another
provider and did not attend any further treatment sessions before the two-year
treatment deadline.
The State filed its petition to adjudicate on October 20, 2010, alleging that
Appellant had violated his community supervision by not attending sex-offender
treatment and not completing two-thirds of his treatment by the two-year
deadline. Appellant’s counsel conceded at the subsequent adjudication hearing
that no timely objection had been made to the modified conditions and that
Appellant had attempted to fully comply with them. The trial court granted the
State’s petition, adjudicated Appellant’s guilt, revoked his community supervision,
and sentenced him to four years’ confinement.
Discussion
In three points, Appellant contends his due-process rights were violated by
the imposition of sex-offender conditions after he was convicted of a non-sex
offense, relying on Ex parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011). In
Evans, the court of criminal appeals curtailed the availability of sex-offender
3
The dissenting opinion argues that the assertion that Appellant’s counsel
were told Appellant could transfer to another provider is “not supported by the
record and cannot, therefore, be considered.” Dissenting Op. at 17. But both
Pinedo and Appellant testified that Appellant was given the option to change
providers. Appellant did not accept Pinedo’s option because “it wouldn’t matter.”
Clearly, Appellant was aware that the option to switch providers was available.
5
treatment for parolees convicted of non-sex offenses. Appellant concedes that
Evans allows for situations in which a defendant can be required to attend and
complete sex-offender treatment as a condition of community supervision or
release. He appears to argue, however, that he was denied due process when
the trial court modified his community supervision to require him to attend and
complete sex-offender treatment and that he was only required to submit to these
conditions because he had originally been charged with a sex offense. He
stresses that the trial court found him not guilty of the originally charged sex
offenses that were later expunged.
Most of Appellant’s briefing and argument focuses on the trial judge’s
apparent displeasure with and reluctance to accept the fact that her predecessor
granted Appellant an expunction. While the debate on the propriety and effect of
the expunction, which all parties agreed Appellant was not entitled to, filled pages
in the record and in the parties’ briefs, this anomaly should not divert us from
analyzing the question in this case. The expunction has no bearing whatsoever
on whether Appellant preserved by objection any complaint about terms and
conditions that were unarguably part of his community supervision.
Further, this curious history has no bearing on the dispositive issue in this
case because whatever merit may lie in Appellant’s contentions, Evans did not
alter, nor does Appellant claim that it altered, the rules for preserving error. It is
still the law in this state that a defendant may forfeit constitutional complaints by
not raising them timely in the trial court. Fuller v. State, 253 S.W.3d 220, 232
6
(Tex. Crim. App. 2008), cert. denied, 555 U.S. 1105 (2009); Alexander v. State,
137 S.W.3d 127, 130–31 (Tex. App.––Houston [1st Dist.] 2004, pet. ref’d)
(holding that a due-process complaint was forfeited by failure to assert it in the
trial court). 4 To preserve error for appellate review, a party must make a timely
and specific objection or motion at trial, and there must be an adverse ruling by
the trial court. Tex. R. App. P. 33.1(a); Aldrich v. State, 104 S.W.3d 890, 894–95
(Tex. Crim. App. 2003).
In Speth v. State, the court of criminal appeals held that to complain about
a community-supervision condition on appeal, an appellant must have first
challenged the condition in the trial court. 6 S.W.3d 530, 534 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1088 (2000). Speth was originally placed on
deferred-adjudication community supervision for aggravated assault on a peace
officer and was later charged with indecency with a child. Id. at 531. Although
the jury acquitted Speth on the indecency charge, the trial court adjudicated his
guilt on aggravated assault based upon evidence admitted during the trial for
indecency with a child and placed him on community supervision. Id. Despite
4
Clearly, the dissent disapproves of the trial court’s handling of this matter.
And while the majority, too, may not agree with adding sex-offender conditions to
community supervision for a non-sex offense absent notice, a hearing, and
evidence proving that the conditions are reasonable, principles of judicial
restraint, the rules of error preservation, this court’s precedents, and those from
the court of criminal appeals all compel us to resist the temptation to reach out
and substitute our judgment for the trial court’s on issues that––no matter how
compelling––are not preserved for our review. See Little v. State, 376 S.W.3d
217, 220 (Tex. App.—Fort Worth 2012, pet. ref’d).
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the acquittal for indecency with a child, the trial court ordered Speth to register as
a sex offender, submit to polygraph testing, and refrain from contact with minor
girls during the term of his community supervision. Id. at 531 & n.1. Speth did
not object to these terms in the trial court but raised them on appeal, arguing
their invalidity given his acquittal on the charge of indecency with a child. Id. at
531. He argued that the sex-offender terms amounted to a punishment that,
given his circumstances, was unauthorized by law and that could be challenged
for the first time on appeal. Id. The court of criminal appeals, though, held that
unobjected-to conditions of community supervision are affirmatively accepted
and that Speth had forfeited his claims because he failed to assert them in the
trial court. Id. at 534.
In Rickels v. State, the court of criminal appeals recognized an exception
to the general rule of error preservation it had relied upon in Speth when it held
that the rule does not apply to a defendant who does not have an opportunity to
object to the community-supervision condition in the trial court at the time the
condition is imposed. 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). In Rickels,
the trial court modified a community-supervision condition without a hearing, and
Rickels had no opportunity to object to this modification in the trial court. Id.
Because Rickles never had a chance to object, the court of criminal appeals
addressed the merits of his claim, even though he raised the issue for the first
time on appeal. Id.; see also Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim.
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Ohio App. 1999) (stating when defendant does not have opportunity to object at
sentencing hearing, a motion for new trial preserves error).
Here, the Rickels exception does not apply because the record shows that
Appellant had the opportunity to object to the modified conditions. He and the
trial judge both signed the conditions. Almost a year afterward, Appellant took
steps to object to the conditions, filing a motion to modify, in which he contended
that the conditions violated due process, but the record does not show that he
ever presented his motion to the trial court or had it ruled on. The record does
show, however, that Appellant’s lawyers had a conference with the trial court
after Appellant had complied with the conditions for over a year, and that during
that conference the trial court agreed to waive the treatment goal of Appellant’s
admitting responsibility for a sex offense. Appellant’s lawyers again met with the
trial court after Appellant had complied with the community-supervision terms for
approximately two years, and the trial court believed the community-supervision
department should be contacted for further information. Moreover, at the
adjudication hearing, Appellant’s counsel announced ready and did not argue the
issue they now present on appeal. And although counsel for Appellant
mentioned in passing at the adjudication hearing that Appellant objected to
“being labeled as a sex offender,” he conceded that Appellant did not object to
the conditions of having to submit to a sex-offender-treatment evaluation and to
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complete the prescribed treatment. 5 Further, at the conclusion of the
adjudication hearing, counsel urged the trial court to maintain Appellant on
community supervision and acknowledged that Appellant was bound to comply
with the conditions if the trial court did so.
On rehearing, Appellant argues that two recent cases from the court of
criminal appeals could provide a path to a result in his favor. The first is Leonard
v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012). Indeed, in many ways, the
facts in Leonard align with the facts in this case. Leonard was indicted for
aggravated sexual assault, and appearing before the same trial judge that
presided over this case, pleaded guilty to injury to a child in exchange for five
years’ deferred-adjudication community supervision. Id. at 572. The trial court
ordered him to submit to sex-offender evaluation and treatment as a condition of
his community supervision and Leonard enrolled in a treatment program with the
same provider as Appellant did in this case. See id. at 573.
But that is where the parallels end.
5
Addressing the trial court at the adjudication hearing, counsel said:
[W]hen you ordered that Mr. Donovan go into sex offender
treatment, there was no objection to that. He attempted to do
exactly what you asked him to do. It seems that he was doing all
right in that until the issue came up about the expunction. . . .
All we’re saying is . . . tell us . . . how you want this finished,
and let Mr. Donovan finish these goals so he can complete what
you’ve asked him to do. Even though we’re – we really object to the
fact that he is being labeled as a sex offender, let’s put that aside for
a moment and say help us . . . and then let him finish the probation.
10
The trial court ordered Leonard to submit to polygraph testing and show no
deception during the tests. Id. at 572. When two polygraphs indicated deceit,
Leonard was discharged from the program. Id. at 572–73. The State petitioned
the trial court to adjudicate, alleging that Leonard had violated the polygraph
condition and had failed to successfully complete sex-offender treatment. Id.
The court of criminal appeals clearly set out the issue: “If the polygraph results
were inadmissible, then the record would not contain a basis for [the treatment
provider’s] decision to discharge the appellant, and the trial court abused its
discretion by adjudicating the appellant guilty.” Id. at 577. The court of criminal
appeals in Leonard did not address the issue of whether a defendant must object
to conditions of community supervision at the earliest opportunity, and we decline
to rely on a case reversing the same trial court on a different issue as a valid
reason to disregard the law that applies to this case.
The second case relied on by Appellant is Gutierrez v. State, 380 S.W.3d
167 (Tex. Crim. App. 2012). Gutierrez was put on community supervision for
possessing cocaine. Id. at 170. As a condition, the trial court ordered her to file
for “appropriate legal status” and to “leave the country” if she failed to obtain legal
status within twelve months of starting community supervision. Id. Gutierrez did
not object to either condition. Id. After the trial court revoked her community
supervision for violating the condition that she self-deport, Gutierrez complained
for the first time on appeal that the condition violated the Supremacy Clause of
the United States Constitution. Id. at 171. Although the State conceded that the
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trial court lacked authority to order self-deportation as a condition of community
supervision, it argued that, under Speth, Gutierrez had procedurally defaulted her
claim because she had not objected to the condition when it was first imposed.
Id. (citing Speth, 6 S.W.3d at 534).
The court of criminal appeals did not retreat from its holding in Speth but
distinguished its facts (which are on-point with the facts in this case) from those
in Gutierrez, which involved a defendant having bargained for something that the
trial court had no authority to impose. See id. at 174–75. The court reasoned:
We are not inclined to read Speth so categorically as to hold
that a defendant may not complain for the first time on appeal of a
condition of probation which violates an absolute prohibition . . . .
This is not to say that a defendant will not forfeit many, if not most,
appellate complaints—even most constitutional complaints—about
particular conditions of community supervision by failing to object at
trial, or that he will not effectively waive any constitutional or
statutory waiver-only right that might be violated by a condition of
community supervision he has agreed to follow in his contractual
relationship with the trial court. But he cannot agree to submit to a
condition of community supervision that the criminal justice system
simply finds intolerable and which is therefore, by definition, not even
an option available to the parties.
Id. at 175–76 (footnote omitted).
As in Speth, the conditions that the trial court imposed in this case do not
rise to the level of being an “intolerable” invasion of federal prerogative in
violation of the Supremacy Clause as was the case in Guiterrez. See id. at 176.
The compelling argument that prevailed in Gutierrez does not apply to the facts
before us in this case.
12
Because the record shows that Appellant did not object to the complained-
of conditions by pursuing his motion to amend as a prerequisite to filing an
application for writ of habeas corpus 6 or by presenting written objections to the
trial court at any point between the time the conditions were imposed and the
adjudication hearing––despite his being well represented by counsel and having
multiple opportunities to do so––we hold that Appellant has forfeited his claims
for review. See, e.g., Stacks v. State, No. 06-08-00157-CR, 2009 WL 78141, at
*1–2 (Tex. App.—Texarkana Jan. 14, 2009, no pet.) (mem. op., not designated
for publication) (collecting cases and holding that complaints regarding
community-supervision conditions must be raised in timely appeal after
conditions imposed). 7 Accordingly, we overrule all of Appellant’s points and
6
See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(b) (West Supp. 2013).
7
We disagree with the concurring and dissenting opinion that we must
reach the merits of Appellant’s argument that “the trial court abused its discretion
by revoking his community supervision for failure to attend and complete a sex-
offender treatment program that required him to discuss and admit to sex
offenses of which he had been found not guilty and that had been expunged.”
Concurring & Dissenting Op. 9. Appellant did not argue in his brief that the trial
court abused its discretion in revoking his community supervision; rather,
Appellant argued that the terms and conditions violated his rights to due process.
Indeed, Appellant’s argument focuses entirely on the due-process implications of
the imposition of sex-offender conditions on a non-sex offense: “The issue is,
when should Sex Offender Treatment be required for non-sex offenders? Evans
helps answer that question.” The concurring and dissenting opinion agrees that
“Appellant forfeited any challenge to the trial court’s imposition of the sex-
offender-treatment condition to his community supervision.” Concurring &
Dissenting Op. 1. Because that is the only claim Appellant raised and
substantively argued in his brief, our inquiry must end. See Tex. R. App. P.
38.1(i); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (“It is
13
affirm the trial court’s judgment. See Rickels, 108 S.W.3d at 902, Speth, 6
S.W.3d at 534; see also Beatty v. State, No. 01-08-00335-CR, 2010 WL
2133870, at *11 (Tex. App.––Houston [1st Dist.] May 27, 2010, pet. ref’d) (mem.
op., not designated for publication); Harrison v. State, No. 05-08-01362-CR, 2009
WL 3631820, at *3 (Tex. App.—Dallas Nov. 4, 2009, pet. ref’d) (not designated
for publication).
Finally, we address the dissenting opinion’s conclusion that a new trial is
warranted because the trial court abused its discretion in more than one
instance. Dissenting Op. at 16-17. Appellant’s only argument is that his due-
process rights were violated when the trial court imposed sex-offender
community-supervision conditions for a non-sex offense. Many of the dissenting
opinion’s bases for an abuse-of-discretion finding were not raised by Appellant
on appeal. As such, we may not “reach out and reverse the trial court on an
issue that was not raised.” State v. Bailey, 201 S.W.3d 739, 744 (Tex. Crim.
App. 2006).
incumbent upon counsel to cite specific legal authority and to provide legal
argument based upon that authority.”).
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Conclusion
Having overruled all of Appellant’s points, we affirm the trial court’s
judgment.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
EN BANC
PUBLISH
DAUPHINOT, J., filed a dissenting opinion.
WALKER, J., filed a concurring and dissenting opinion in which GARDNER, J.,
joins.
DELIVERED: March 13, 2014
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