PD-0181&0182-15 February 18, 2015 No.
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
BRODERICK LAMOND GAMBLE PETITIONER
PETITION ON 02-13-00573-CR AND 02-13-00574-CR FROM THE SECOND COURT OF APPEALS, FORT WORTH, TEXAS AND FROM COUNTY CRIMINAL COURT NO. 5, TARRANT COUNTY, TEXAS TRIAL COURT CAUSE NO. 1289513; 1290398, THE HONORABLE JAMIE GRAYES CUMMNGS PRESIDING
PETITION FOR DISCRETIONARY REVIEW
COFER LAW, P.C. Cody L. Cofer State Bar No. 24066643 300 Throckmorton Street, Suite 500 Fort Worth, Texas 76102 Email: ccofer@coferlaw.com Telephone: (817) 810-9395 Facsimile: (817) 764-7377
Counsel for Broderick Lamond Gamble, Petitioner/Appellant/Defendant
Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL
Petitioner: Petitioner/Defendant’s Appellate Counsel:
Broderick Lamond Gamble Cofer Law, P.C. Cody L. Cofer State Bar No. 24066643 300 Throckmorton Street, Suite 500 Fort Worth, Texas 76102 Email: ccofer@coferlaw.com Telephone: (817) 810-9395 Facsimile: (817) 764-7377
State of Texas State of Texas Appellate Counsel:
Tarrant County District Attorney The Honorable Sharen Wilson State Bar No. 21721200 401 W. Belknap Street Fort Worth, Texas 76196 Telephone: (817) 884-1687 Facsimile: (817) 884-1672
State Prosecuting Attorney Lisa C. McMinn P.O. Box 13046, Capitol Station Austin, Texas 78711-3046 Telephone: (512) 463-1660 Facsimile: (512) 463-5724 information@spa.texas.gov
PETITION FOR DISCRETIONARY REVIEW Page 1 of 15 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ........................................................... 1
TABLE OF CONTENTS ......................................................................................... 2
INDEX OF AUTHORITIES .................................................................................... 3
STATEMENT REGARDING ORAL ARGUMENT .............................................. 4
STATEMENT OF THE CASE ................................................................................ 5
GROUND FOR REVIEW ........................................................................................ 7
ARGUMENT ............................................................................................................ 8
A. THE PRESERVATION OF ERROR REQUIREMENT HINGES ON THE NATURE OF THE RIGHT ALLEGEDLY INFRINGED. ............................................................................ 8
B. COMMUNITY SUPERVISION MAY IMPLICATE ABSOLUTE RIGHTS OR RIGHTS THAT MUST BE IMPLEMENTED UNLESS EXPRESSLY WAIVED. ................................ 9
C. EVEN WELL-INTENTIONED DEVIATION FROM STATUTORY GUIDANCE MAY REQUIRE REVIEW OF UNOBJECTED TO DUE PROCESS VIOLATIONS. ...................... 11
PRAYER................................................................................................................. 12
CERTIFICATE OF COMPLIANCE ...................................................................... 13
CERTIFICATE OF SERVICE ............................................................................... 13
APPENDIX............................................................................................................. 14
PETITION FOR DISCRETIONARY REVIEW Page 2 of 15
INDEX OF AUTHORITIES Cases
Caddell v. State, 605 S.W.2d 275 (Tex. Crim. App. 1980) .................................... 10 Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) ........................................... 9 Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) ...................................... 10 Gamble v. State, No. 02-13-00573-CR, 2015 WL 221108 (Tex. App.—Fort Worth, Jan. 15, 2015)................................................................................................... 8, 11 Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014) ...................................... 11 Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) ............................. 10, 11 Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)..................................... 8, 9 Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996) .................................... 9 Morrissey v. Brewer, 408 U.S. 471 (1972) ............................................................. 10 Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) .............................................. 9 Statutes
TEX. CODE OF CRIM. PROC. ART. 42.12 .................................................................... 9 Rules
TEX. RULE OF APP. PROC. 33.1 .................................................................................. 8 Constitutional Provisions
TEX. CONST. ART. II § 1 .......................................................................................... 11 TEX. CONST. ART. IV § 11A ............................................................................... 9, 11
PETITION FOR DISCRETIONARY REVIEW Page 3 of 15
STATEMENT REGARDING ORAL ARGUMENT
Oral Argument Requested: Because this case presents novel issues this
Court has not previously addressed, oral argument would be helpful.
PETITION FOR DISCRETIONARY REVIEW Page 4 of 15
STATEMENT OF THE CASE
Petitioner was charged by information with violation of protective order. On
January 10, 2013 (January Proceedings), Petitioner, the trial court, and State
entered into an agreement resembling community supervision. In exchange for
Petitioner’s plea of “no contest” the trial judge would not enter a finding of guilt
for 180 days. If “no offenses [were] reported” within the 180 days, then the State
would consent to Petitioner’s withdrawal of his plea. Further, Petitioner could enter
a plea of “guilty” to a Class C offense of Disorderly Conduct.
On November 15, 2013 (November Proceedings), Petitioner filed a request
to withdraw his waiver of a jury trial. The trial court denied the request as
untimely. Further, during the November Proceedings Petitioner complained that
the plea was illegal and invalid due to being a conditioned or alternative plea. The
State admitted computer printouts indicating Petitioner had been charged with a
new offense. The trial court ignored Petitioner’s complaints and imposed a
sentence of 90 days county jail.
Without reaching the issue of whether Petitioner was placed on any form of
community supervision, the Second Court of Appeals affirmed the trial court’s
judgment based on waiver of Petitioner’s complaints. This petition challenges that
holding.
PETITION FOR DISCRETIONARY REVIEW Page 5 of 15
STATEMENT OF PROCEDURAL HISTORY
The court of appeals handed down 02-13-00573-CR and 02-13-00574-CR
on January 15, 2015; and no motion for rehearing was filed.
PETITION FOR DISCRETIONARY REVIEW Page 6 of 15
GROUND FOR REVIEW
When placed on a form of community supervision not authorized by statute, may
an appellant complain for the first time on appeal?
PETITION FOR DISCRETIONARY REVIEW Page 7 of 15
ARGUMENT
PETITIONER’S RIGHT TO HAVE THE TRIAL JUDGE TO FOLLOW CONSTITUTIONAL AND STATUTORY LIMITATIONS ON COMMUNITY SUPERVISION WAS NOT FORFEITED.
A. THE PRESERVATION OF ERROR REQUIREMENT HINGES ON THE NATURE OF THE RIGHT ALLEGEDLY INFRINGED.
The Second Court did not determine whether the trial court “created any
form of community supervision.” Gamble v. State, No. 02-13-00573-CR, 2015 WL
221108, at *7 Note 8 (Tex. App.—Fort Worth, Jan. 15, 2015). Instead, the Second
Court relied solely on “waiver” to dispense with Petitioner’s complaints.
Generally, to preserve error for appellate review one must make a
contemporaneous objection. TEX. RULE OF APP. PROC. 33.1. However, the Court in
Marin identified three categories of rights, and preservation of error in each
category is treated differently.
Category 1-Marin Right: Absolute requirements and prohibitions. a. Cannot be lawfully avoided even with partisan consent; and b. The merits of a complaint on appeal are not affected by the existence of a waiver or forfeiture at trial. Category 2-Marin Right: Rights must be implemented absent expressed waiver. a. Waiver must be plainly, freely, and intelligently (sometimes in writing), and always on the record; and b. Absent required waiver, failure to implement these rights at trial causes error, which may be urged for the first time on appeal.
PETITION FOR DISCRETIONARY REVIEW Page 8 of 15
Category 3-Marin Right: Rights only implemented upon request. a. The institutional representative (trial judge) has no duty to enforce forfeitable rights unless requested; and b. Failure to voice objection obviates appellate review. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) overruled by Cain v.
State, 947 S.W.2d 262 (Tex. Crim. App. 1997) abrogated by Matchett v. State, 941
S.W.2d 922 (Tex. Crim. App. 1996).
Determining the appropriate review is impossible without identifying the
species of community supervision (or plea agreement) Petitioner entered into. The
Second Court treated all of Petitioner’s complaints as though only Category 3-
Marin Rights were implicated.
B. COMMUNITY SUPERVISION MAY IMPLICATE ABSOLUTE RIGHTS OR RIGHTS THAT MUST BE IMPLEMENTED UNLESS EXPRESSLY WAIVED.
It is true that the granting of community supervision is a privilege, not a
right. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). However, a trial
court’s power to suspend a sentence is granted by the Texas Constitution. TEX.
CONST. ART. IV § 11A. That same power is abridged by the Legislatures
prescribed conditions. TEX. CONST. ART. IV § 11A. Presumably, the Legislature
prescribes conditions that protect the required due process for those placed on
community supervision. See TEX. CODE OF CRIM. PROC. ART. 42.12.
PETITION FOR DISCRETIONARY REVIEW Page 9 of 15
It is axiomatic that proceeding to revoke probation threatens deprivation of
liberty, so the application of appropriate due process of law is constitutionally
required. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). The idea
of the due process required has evolved over time. See Ex parte Doan, 369 S.W.3d
205, 209 (Tex. Crim. App. 2012) (abandoning a pluralities reliance on Morrissey v.
Brewer, 408 U.S. 471, 489 (1972) as the measure of due process). However,
community supervision revocation proceedings are judicial proceedings governed
by the rules established to govern judicial proceedings. Doan, 369 S.W.3d at 212.
Conditions of probation cannot supplant the trial court’s function as a fact-
finder or eliminate the appropriate burden of proof. Leonard v. State, 385 S.W.3d
570, 583 (Tex. Crim. App. 2012) (“Show no deception” on a polygraph required as
a term of community supervision does not provide a basis for admitting unreliable
evidence). In our case, the Second Court blessed the prospective waiving of
valuable due process rights by affirming revocation based solely on the vague
condition requiring no new offenses be reported within 180 days. “Reporting” of
an offense entails merely an accusation, rather than proof of conduct within
Petitioner’s control. Like in Leonard, Petitioner could be “revoked” based merely
on the opinion or, worse yet, the malice of an individual not confronted in court.
PETITION FOR DISCRETIONARY REVIEW Page 10 of 15
C. EVEN WELL-INTENTIONED DEVIATION FROM STATUTORY GUIDANCE MAY REQUIRE REVIEW OF UNOBJECTED TO DUE PROCESS VIOLATIONS.
The Second Court relied on “analogous precedent” and “persuasive
authority” when deciding not to review the merits of Petitioner’s complaint.
Gamble v. State, No. 02-13-00573-CR, 2015 WL 221108, at *7 (Tex. App.—Fort
Worth, Jan. 15, 2015). However, none of the sited authority touches upon the
complete abandonment of legislative conditions and protections. Leonard better
explains the dangers of allowing conditions to supplant the trial court’s fact-finding
function with another’s discretion. See Leonard v. State, 385 S.W.3d 570 (Tex.
Crim. App. 2012).
Recently, the Court decided that although the parties and the trial court were
in agreement about an erroneous minimum sentence, the accused still had the due
process right for the trial judge to consider the full range of punishment. Grado v.
State, 445 S.W.3d 736, 743 (Tex. Crim. App. 2014). Further, this right is a
Category 2-Marin Right. Id. Thus the complaint was not procedurally defaulted.
Id. The Second Court should have considered the complaints of Petitioner as
Category 1 or 2-Marin Rights. Instead, complaints of the violation of the trial
courts limitations to act within legislatively granted authority was ignored as being
waived. TEX. CONST. ART. IV § 11A; TEX. CONST. ART. II § 1.
PETITION FOR DISCRETIONARY REVIEW Page 11 of 15
PRAYER
Petitioner prays the Court hold that Petitioner’s complaints were not waived,
and remand his cases (02-13-00573-CR and 02-13-00574-CR) to the Second Court
with instruction to review the merits of Petitioner’s complaints.
Respectfully submitted by,
Cody L. Cofer State Bar No. 24066643 COFER LAW, P.C. 300 Throckmorton Street, Suite 500 Fort Worth, Texas 76102 Email: ccofer@coferlaw.com Telephone: (817) 810-9395 Facsimile: (817) 764-7377 Counsel for Broderick Gamble Appellant/Defendant
PETITION FOR DISCRETIONARY REVIEW Page 12 of 15
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. Rule App. Proc. 9.4, I certify the number of words in the
“contents included” of this document are 1077.
_______________________________________ Cody L. Cofer
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5, I certify that on February 16, 2015, a copy
of this petition was sent by facsimile and mail to:
Tarrant County District Attorney The Honorable Sharen Wilson State Bar No. 21721200 401 W. Belknap Street Fort Worth, Texas 76196 Telephone: (817) 884-1687 Facsimile: (817) 884-1672
State Prosecuting Attorney Lisa C. McMinn P.O. Box 13046, Capitol Station Austin, Texas 78711-3046 Email: information@spa.texas.gov Telephone: (512) 463-1660 Facsimile: (512) 463-5724
Cody L. Cofer
PETITION FOR DISCRETIONARY REVIEW Page 13 of 15
APPENDIX
PETITION FOR DISCRETIONARY REVIEW APPENDIX COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00573-CR NO. 02-13-00574-CR
BRODERICK LAMOND GAMBLE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY TRIAL COURT NOS. 1289513, 1290398 ------------
MEMORANDUM OPINION 1
Through two identical issues raised in both of these appeals, appellant
Broderick Lamond Gamble appeals his Class A misdemeanor convictions for
violating a protective order. 2 He contends, among other arguments, that the trial
1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 25.07(a), (g) (West Supp. 2014); Tex. Code Crim. Proc. Ann. art. 17.292 (West Supp. 2014). court granted a form of community supervision that the law does not authorize.
The State contends that appellant did not preserve his arguments in the trial
court, that the trial court did not place appellant on any form of community
supervision, and that the proceedings in the trial court were legal and
appropriate. Because we hold that appellant forfeited his complaints by not
asserting timely objections in the trial court, we affirm.
Background Facts
In each of two separate cases, the State charged appellant with violating a
protective order that an Arlington municipal court had issued in May 2012. Each
of the State’s charging instruments contained an enhancement paragraph
alleging that appellant had been previously convicted of a misdemeanor offense.
In January 2013, appellant and the State entered into a plea bargain
agreement. Under the agreement, appellant pled no contest and waived
constitutional and statutory rights, including his right to a jury trial. The plea
paperwork expressed the parties’ agreement as including a term of ninety days’
confinement in each case 3 but then contained the following language:
State will allow [appellant] to withdraw plea after 180 days if no offenses [r]eported and [appellant] will be allowed to plea to Class C for Disorderly Conduct with $100 fine . . . . And ONE of these causes will be . . . [d]ismissed . . . .
3 The plea paperwork in the clerk’s records state a handwritten term of ninety days’ confinement with a handwritten term of 106 days crossed out. The plea paperwork admitted by the trial court at a later hearing includes only the originally-written 106-day term.
2 Appellant, his counsel, the State’s counsel, and the trial court signed the plea
paperwork under this language. The trial court, without making a written finding
on the plea at that time, recessed the case for six months. 4
In May 2013, appellant was again arrested for violating a protective order.
In early November 2013, appellant, through counsel, filed various motions in one
of the cases in apparent anticipation of a trial. But in the middle of that month,
following a hearing and pursuant to the terms of the plea bargain, the trial court
found appellant guilty of both offenses and imposed concurrent sentences of
ninety days’ confinement. At the hearing, the trial court admitted, without
objection, a document showing that the State filed two criminal cases (a
misdemeanor and a felony) against appellant in May 2013 (with offense dates in
March 2013 and May 2013). As stated by the trial court, this document was “a
printout from what is called the main frame in Tarrant County.” 5
Appellant did not dispute the State’s assertion, as indicated in this
document, that he had been charged with those offenses and that the offenses
remained pending at the time of the trial court’s decision to convict and sentence
him. But he contended that the trial court should have allowed him to withdraw
his pleas; that the pleas were conditional, alternative, against public policy, and
4 Appellant states that the trial court proceeded “as though [it had] accepted the plea agreement.” 5 Appellant concedes on appeal that “[t]wo new cases were filed after [he] entered his plea.”
3 illegal; that the condition in the plea bargain of having “no offenses reported” was
unconstitutionally vague, making his pleas involuntary; and that his pleas were
improperly induced by the State’s offer of allowing him to plea to a Class C
misdemeanor if he fulfilled the plea bargain.
On the same day that the trial court found appellant guilty and imposed the
sentences, he attempted to withdraw his waiver of the right to a jury trial in both
cases. The trial court denied the request as untimely. The court certified
appellant’s right to appeal, 6 and after he filed an unavailing motion for new trial in
which he again contested the voluntariness of his plea, he perfected these
appeals.
The Forfeiture of Appellant’s Complaints
In his two issues on appeal, appellant contends that by accepting his plea
bargain and recessing proceedings for six months, the trial court placed him on a
statutorily-unauthorized and void form of community supervision. He argues that
although he did not object to the alleged community supervision when it was
imposed, we may review his complaint because the trial court’s alleged error
6 The trial court’s certifications of appellant’s right to appeal state that matters were raised by written motion filed and ruled on before trial. See Tex. R. App. P. 25.2(a)(2)(A). We have not located such matters in the clerk’s records, but we decline to dismiss the appeals because the trial court expressly gave permission to appeal at the hearing that led to appellant’s convictions and sentences. See Tex. R. App. P. 25.2(a)(2)(B); Small v. State, No. 07-11-00408- CR, 2012 WL 6621315, at *1 (Tex. App.—Amarillo Dec. 19, 2012, no pet.) (mem. op., not designated for publication) (construing the trial court’s certification of a right to appeal as implicitly conveying the court’s permission to appeal).
4 affects fundamental and constitutional rights. He also contends that because the
alleged community supervision was not authorized by the code of criminal
procedure, 7 the trial court violated separation of powers principles and his due
process rights by imposing it. As to due process, he argues that the trial court
violated his rights by not entering an order notifying him of the terms of the
alleged community supervision, by not admonishing him of the consequences of
violating the alleged community supervision, by not dismissing the charges
against him when the court did not proceed to adjudication within the 180-day
“probation” period, by not granting him a separate adjudication hearing, by not
requiring the State to file a motion to proceed to adjudication, and by determining
his guilt “[m]erely on an [a]ccusation.” Finally, appellant contends that the “no
offenses reported” language in the plea agreement was vague and gave him no
notice of any prohibited act.
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); Landers v. State, 402 S.W.3d
252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d); see also Lozano v. State, 359 S.W.3d 790,
823 (Tex. App.—Fort Worth 2012, pet. ref’d) (“To be timely, an objection must be
7 See Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp. 2014).
5 made as soon as the basis for the objection becomes apparent.”). Also, the
objection made in the trial court must comport with the argument presented on
appeal. See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014);
Lozano, 359 S.W.3d at 823; Marchbanks v. State, 341 S.W.3d 559, 565 (Tex.
App.—Fort Worth 2011, no pet.) (“An objection preserves only the specific
ground cited.”). 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); Pena v.
State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).
We should not address the merits of an issue that has not been preserved
for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on
reh’g). Preservation of error is a systemic requirement. Gipson v. State, 383
S.W.3d 152, 159 (Tex. Crim. App. 2012). Even constitutional rights may be
forfeited through a defendant’s failure to raise them in the trial court. Mendez v.
State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (“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 failure to comply with [r]ule 33.1(a).”).
In the trial court, appellant failed to raise his complaints that the terms of
his plea bargain had created an unauthorized form of community supervision, 8
8 Appellant did not argue in the trial court that he had been placed on any form of community supervision. While he contended that there was no “statutory
6 that those terms had violated separation of powers principles, or that those terms
had deprived him of due process for any of the several reasons that he
articulates on appeal. The authority cited by appellant does not demonstrate that
these complaints involve systemic requirements or waivable-only rights, and we
have not found such authority. 9 Based on analogous precedent from the court of
criminal appeals and persuasive authority from other intermediate appellate
courts, we conclude that rule of appellate procedure 33.1(a)(1) required appellant
to present his complaint about an allegedly unauthorized form of community
basis” for the plea bargain, he premised this contention on the alleged “conditional” nature of the plea, stating, “The only type of [permissible] conditional plea . . . is referenced in the Code of Criminal Procedure [article 44.02].” See Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006) (allowing a plea-bargaining defendant to appeal matters that are “raised by written motion filed prior to trial”).
Because we hold below that appellant forfeited this complaint, we decline to address whether his plea bargain created any form of community supervision, authorized or not. We also decline to decide appellant’s trial-court argument that the plea bargain he entered was invalid because it was “conditional” or “alternative”; he does not raise that argument on appeal. We note, however, that the court of criminal appeals has stated that parties have “great latitude” in crafting complex plea bargains and has approved a plea bargain that was conditioned on a defendant’s appearance at a sentencing hearing and his agreement to not commit offenses in a period between entering the agreement and returning for sentencing. See State v. Moore, 240 S.W.3d 248, 249, 254–55 (Tex. Crim. App. 2007). 9 The principal case that appellant relies on to argue that unauthorized probation affects a “fundamental” right is inapposite. In State v. Dunbar, the court of criminal appeals held that the State could raise a complaint about an improper order of shock probation for the first time on appeal because the trial court lacked personal jurisdiction over the defendant at the time that the court entered the order. 297 S.W.3d 777, 780–81 (Tex. Crim. App. 2009). It is undisputed that the trial court in this case had personal jurisdiction over appellant at the time that the parties agreed to the plea bargain.
7 supervision in the trial court to preserve such an argument for our consideration.
See Tex. R. App. P. 33.1(a)(1); Ex parte Williams, 65 S.W.3d 656, 658 (Tex.
Crim. App. 2001) (disavowing the notion that an “unlawful grant of probation
constitutes an illegal or void sentence”); 10 Speth v. State, 6 S.W.3d 530, 534
(Tex. Crim. App. 1999) (stating that the granting of community supervision “does
not involve a systemic right or prohibition”), cert. denied, 529 U.S. 1088 (2000);
State v. Enriquez, 47 S.W.3d 177, 179 (Tex. App.—El Paso 2001, no pet.)
(holding that the State could not complain for the first time on appeal that a
community supervision order was unauthorized); see also Lewis v. State, No. 12-
11-00314-CR, 2013 WL 839788, at *2–4 (Tex. App.—Tyler Mar. 6, 2013, no pet.)
(mem. op., not designated for publication) (citing Enriquez and refusing to modify
a judgment that included a statutorily-unauthorized grant of community
supervision when the State raised the issue for the first time on appeal); Wiley v.
State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003, pet. ref’d) (recognizing
the court of criminal appeals’s holding that “illegal sentences and unauthorized
10 In Williams, the court of criminal appeals overruled a prior decision in which the court had held that an unauthorized probation order constituted an illegal sentence that could be complained about for the first time on appeal. See 65 S.W.3d at 658 (overruling Heath v. State, 817 S.W.2d 335, 339 (Tex. Crim. App. 1991) (plurality op. on reh’g)). Williams forecloses appellant’s argument that any unauthorized form of probation created a “void” judgment.
8 probation orders are two different things”). 11 Because he did not, we hold that he
forfeited the argument.
Likewise, we conclude that appellant forfeited his separation of powers
argument by not raising it in the trial court. See Tex. R. App. P. 33.1(a)(1).
While the court of criminal appeals has stated that a “penal statute’s . . .
compliance with the separation of powers section of our state constitution” is a
systemic requirement, see Henson v. State, 407 S.W.3d 764, 768 (Tex. Crim.
App. 2013), cert. denied, 134 S. Ct. 934 (2014), 12 appellant does not contend
that a penal statute violated separation of powers but that his own plea bargain
did so. He has not directed us to authority establishing that a fact-specific
separation of powers challenge that is unconnected with the validity of legislation
may be brought for the first time on appeal. In contexts other than challenges to
the facial validity of penal code provisions, courts have held that separation of
11 While appellant cites a case from the court of criminal appeals for the proposition that the legislature must authorize any form of community supervision, the court there specifically declined to address matters related to error preservation. See Busby v. State, 984 S.W.2d 627, 628 n.3, 629 (Tex. Crim. App. 1998). 12 Our sister courts have challenged the continuing validity of this statement in light of the court of criminal appeals’s decision in Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that a defendant may not raise a facial challenge to the validity of a statute for the first time on appeal). See Moland v. State, No. 01-10-00869-CR, 2012 WL 403885, at *9 (Tex. App.—Houston [1st Dist.] Feb. 9, 2012, pet. ref’d) (mem. op., not designated for publication) (stating that in Karenev, the court “overruled [an] earlier decision . . . in which it held that a separation of powers challenge to a penal statute could be raised for the first time on appeal”); Wilkerson v. State, 347 S.W.3d 720, 724 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
9 powers arguments must be preserved in the trial court. See Russell v. State, No.
02-11-00478-CR, 2013 WL 626983, at *2 (Tex. App.—Fort Worth Feb. 21, 2013,
pet. ref’d) (mem. op., not designated for publication); Boone v. State, 60 S.W.3d
231, 236 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d), cert. denied, 537
U.S. 1006 (2002).
Finally, we conclude that appellant forfeited his due process arguments by
not raising them in the trial court. See Tex. R. App. P. 33.1(a)(1); Anderson v.
State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (“[N]umerous constitutional
rights, including those that implicate a defendant’s due process rights, may be
forfeited for purposes of appellate review unless properly preserved.”); Holmes v.
State, 380 S.W.3d 307, 308–09 (Tex. App.—Fort Worth 2012, pet. ref’d); Belt v.
State, 127 S.W.3d 277, 282 (Tex. App.—Fort Worth 2004, no pet.).
Comparing appellant’s briefing to his arguments in the trial court, we
conclude that the only objection at trial that comports with his arguments on
appeal is that the “no offenses reported” language in the plea bargain agreement
is unconstitutionally vague. We will therefore address this argument. See
Yazdchi, 428 S.W.3d at 844.
In the trial court, at the time of his sentencing, appellant argued,
When we look at the language that was written into these two waivers, when it says, if no offenses reported, we believe that the term “reported” is unconstitutionally vague and it was not the intent of [appellant] to merely have an offense reported. . . . [W]hat if it was a prior offense that took place prior to [the date of appellant’s plea] and it was just now reported subsequent? Would he be in
10 trouble and violate the terms and conditions then? . . . A commission of an offense is something that [appellant] has more control over because he would be in control of himself. And it would be commit no new offense versus having no control over whether someone else reports something. He could be in Canada and someone down here could file a report and under the terms of this written agreement he would still be in violation of the agreement and not eligible for the plea that’s written here. And certainly [appellant] would want to exercise his constitutional right to a trial to see if in fact the report was valid or just a phony or faulty report.
Therefore, [appellant’s] position was that he would have not under any circumstances agree[d] to just having the mere report of an alleged offense trigger his not being able to have the reduction to a class C.
The trial court, however, indicated that appellant had previously expressed
understanding of the condition in his plea bargain, stating,
I will put on the record that when I do these type[s] of pleas I go through my standard questioning with the defendant, his name, what he is charged with, whether he realizes he has the right to waive a jury trial, the fact that he has signed a plea bargain, [and] if he understands what he signed and agreed to. In cases like this I go into the fact [that] it’s a very unique plea bargain, [and] if he understands exactly what the plea bargain is, then I ask the defendant if [he] plead[s] guilty or not guilty. And [in] both of these cases [appellant] pled no contest to each case then I asked him if he pled freely and voluntarily and he stated he did. Then the case was recessed. [Emphasis added.]
We have repeatedly held, in the context of community supervision
conditions, that a defendant who does not object to the alleged vagueness or
ambiguity of a condition at the time it is imposed forfeits any objection to the
condition when it is later enforced. See Overstreet v. State, No. 02-12-00361-
CR, 2013 WL 2339606, at *3 (Tex. App.—Fort Worth May 30, 2013, no pet.)
(mem. op., not designated for publication); Ogbeide v. State, Nos. 02-11-00146-
11 CR, 02-11-00147-CR, 2012 WL 3736309, at *2–3 (Tex. App.—Fort Worth Aug.
30, 2012, no pet.) (mem. op., not designated for publication); Camacho v. State,
No. 02-03-00032-CR, 2004 WL 362376, at *1 (Tex. App.—Fort Worth Feb. 26,
2004, no pet.) (mem. op., not designated for publication).
We are convinced that the same principle should apply here. Having
agreed in January 2013, with the assistance of counsel, to the “no offenses
reported” condition; having confirmed with the trial court that he understood what
he had agreed to; and having proceeded under the terms of the plea bargain for
several months, apparently anticipating the benefit of the bargain he made,
before being charged with another misdemeanor offense in May 2013; we
conclude that appellant could not argue for the first time in November 2013 that
the condition was vague or ambiguous. See Tex. R. App. P. 33.1(a)(1) (requiring
a timely objection); Overstreet, 2013 WL 2339606, at *3; see also Yazdchi, 428
S.W.3d at 844 (stating that to preserve error, the complaining party “must make
the complaint at the earliest possible opportunity”); Mays v. State, 318 S.W.3d
368, 388 (Tex. Crim. App. 2010) (establishing that a constitutional vagueness
complaint may be forfeited for lack of a timely objection), cert. denied, 131 S. Ct.
1606 (2011); Albritton v. State, 676 S.W.2d 717, 720 (Tex. App.—Fort Worth
1984, no pet.) (rejecting an appellant’s argument that the terms of his community
supervision were vague when the appellant testified that he understood the terms
when community supervision was imposed).
12 For all of these reasons, we conclude that appellant did not properly
preserve any of his appellate arguments in the trial court. See Tex. R. App. P.
33.1(a)(1). We therefore overrule both of appellant’s issues.
Conclusion
Having overruled both of appellant’s issues, we affirm the trial court’s
judgments.
PER CURIAM
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 15, 2015