Javiel Ramirez v. State

• Court: Court of Appeals of Texas
• Decided: July 15, 2004
• Docket: 03-03-00683-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00683-CR

Javiel Ramirez, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY NO. 588534, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Javiel Ramirez was placed on community supervision following his

conviction for driving while intoxicated. See Tex. Pen. Code Ann. § 49.04 (West 2003). He now

appeals from an order revoking supervision and imposing a sentence of 180 days’ incarceration. In

his only point of error, he contends that the condition of supervision he was found to have violated

was unconstitutional. We disagree and affirm the court’s order.

The court found that appellant violated the condition requiring him to “[s]ubmit a

urine, blood, or breath specimen when required by the Community Supervision Officer or any Peace

Officer.” Appellant asserts that this condition violated the federal and state constitutional

prohibitions against unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I,

§ 9. He relies on Tamez v. State, in which the court of criminal appeals held unconstitutional a condition of probation requiring the probationer to “[s]ubmit his person, place of residence and

vehicle to search and seizure at any time of the day or night, with or without a search warrant,

whenever requested to do so by the Probation Officer or any law enforcement officer.” 534 S.W.2d

686, 690-92 (Tex. Crim. App. 1976).

Appellant did not raise this contention at the hearing below and there is no indication

that he objected to the condition at the time it was imposed. A defendant must complain at trial to

conditions of community supervision he finds objectionable; conditions that are not objected to when

imposed are deemed accepted. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). A

defendant cannot challenge a condition of community supervision for the first time on appeal. Id.

at 535.

Appellant’s constitutional argument is without merit even if it is properly before us.

A probationer has a diminished expectation of privacy to the extent necessary for his reformation

and rehabilitation. Tamez, 534 S.W.2d at 692. The condition at issue here, unlike the condition

disapproved in Tamez, did not require appellant to waive his Fourth Amendment rights. The

requirement that appellant submit a specimen for testing upon request was reasonably related to his

reform and rehabilitation following a conviction for driving while intoxicated. See McArthur v.

State, 1 S.W.3d 323, 332 (Tex. App.—Fort Worth 1999, no pet.) (defendant convicted of indecency

with child; condition requiring him to permit searches for sexually explicit materials did not violate

Fourth Amendment); Macias v. State, 649 S.W.2d 150, 153 (Tex. App.—El Paso 1983, no pet.)

(defendant convicted of delivering heroin; condition requiring him to submit to weekly urinalysis

did not violate Fourth Amendment).

2 The point of error is overruled and the order revoking community supervision is

affirmed.

__________________________________________

Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 15, 2004

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