David Allen Smith v. State

• Court: Court of Appeals of Texas
• Decided: January 8, 2009
• Docket: 02-08-00097-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-097-CR

DAVID ALLEN SMITH APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

MEMORANDUM OPINION 1

In a single issue, appellant David Allen Smith contends that the trial court

abused its discretion by unlawfully delegating its authority when adjudicating

appellant guilty of aggravated assault and indecency with a child. We affirm.

1 … See Tex. R. App. P. 47.4. Background

Appellant pled guilty pursuant to a plea bargain to one count of

aggravated sexual assault of a child and two counts of indecency with a child.

In accordance with the State’s recommendation, the trial court placed appellant

on ten years’ deferred adjudication for each offense and imposed a fine of $750

for the aggravated sexual assault.

One of the conditions of appellant’s deferred adjudication community

supervision was to “remain in the Sexual Abuse Treatment Program until the

program has been successfully completed, as determined by the treatment

specialist(s), or until [appellant’s] term of supervision has expired.” Appellant

was subsequently involuntarily discharged from the treatment program. The

State therefore filed a Motion to Proceed with Adjudication of Guilt, contending

that appellant violated his community supervision by failing to successfully

complete the program. The trial court subsequently adjudicated appellant guilty

of all three charges and sentenced him to ninety-five years’ confinement on the

aggravated sexual assault count and eighteen years’ confinement on each

indecency count, with each sentence to be served consecutively.

Analysis

Appellant’s sole issue is that the trial court unconstitutionally delegated

its authority by making one of appellant’s probation conditions—whether

2 appellant successfully completed the sex offender treatment program—solely

determinable by a third party, appellant’s sex offender treatment counselor. In

other words, appellant contends that the counselor’s decision to involuntarily

terminate appellant predetermined a finding of “true” by the trial court.

Appellant failed to raise this argument in the trial court, either when

community supervision was originally imposed or during the adjudication

proceedings. 2 To preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling if they are not apparent from the context

of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v.

State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert.

denied, 526 U.S. 1070 (1999). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

2 … Appellant did move to quash the allegations in the petition to adjudicate on the ground that they were vague, especially as to dates, and on the ground that appellant could not be adjudicated guilty for being involuntarily discharged from the program; however, these complaints do not comport with appellant’s specific complaint on appeal. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Bell v. State, 938 S.W .2d 35, 54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997).

3 A complaint regarding a condition of community supervision must be raised at

the time the condition is imposed or it is forfeited. Speth v. State, 6 S.W.3d

530, 534–35 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088 (2000).

Appellant contends that the trial court’s error is systemic and, thus, may

be raised for the first time on appeal. But in Speth, the court of criminal

appeals held that because community supervision is a contractual privilege, not

a systemic right,

by entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable.

Id. at 534. Accordingly, we conclude and hold that appellant failed to preserve

his sole issue for review because there is nothing in the record showing that he

objected to the condition when it was imposed. See id. at 534–35; Heiringhoff

v. State, 130 S.W.3d 117, 133–34 (Tex. App.—El Paso 2003, pet. ref’d).

4 Conclusion

Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.

PER CURIAM

PANEL: LIVINGSTON, J.; CAYCE, C.J.; and MCCOY, J.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: January 8, 2009