Opinion issued December 10, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-01027-CR ——————————— RODNEY MILUM, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1347034
OPINION
Rodney Milum was found guilty of sexual assault of a child 1 and sentenced
to two years’ incarceration suspended in favor of eight years’ community
supervision. The trial court imposed 41 conditions of community supervision and
1 TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011). required him to register as a sex offender. In two issues, Milum contends that two
of these conditions were improper and that he received ineffective assistance of
counsel. We affirm.
Challenged Conditions
The trial court imposed 41 conditions of community supervision. The record
contains no objection to any of them. Milum signed a written copy of the
conditions indicating his acceptance of them. These conditions included the two
challenged in this appeal:
[¶ 26] You may enter a church, synagogue, or other place of worship only to attend a public service. You may arrive fifteen (15) minutes prior to the service and you must depart the place of worship immediately following the service. You are not to enter any area of the place of worship where children’s classes are being conducted or where children play or engage [in] other activities beginning 10/18/2013.
[¶ 32] You may not access to the internet through any manner of method, beginning 10/18/2013, for any reason unless specifically ordered by the Court. You may not view, receive, download, transmit, or possess pornographic material on any computer. You are not to possess pornographic software, images, or material on any hard drive, [computer disk], or magnetic tape.
Milum contends that the trial court abused its discretion by promulgating the
two conditions of community supervision limiting his religious participation and
2 internet access. The State contends that Milum waived error by failing to object to
the conditions of community service. 2
Milum Waived Review
A trial court may “abuse its discretion by imposing conditions that are
unreasonable or violate constitutional rights or statutory provisions. But such
defects must be timely objected to in order to be raised on appeal.” Speth v. State, 6
S.W.3d 530, 534 n.10 (Tex. Crim. App. 1999); accord Ivey v. State, 16 S.W.3d 75,
76 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
The record contains no indication that Milum ever objected to any condition
of community supervision. The record indicates that after the jury recommended
community supervision, the trial court sentenced Milum and stated several
conditions of his community supervisions (albeit not the two challenged
conditions). The trial court then indicated that “we will go over all the conditions
carefully this morning” and “we will give those to you in writing.” The hearing
was then conducted off the record by the parties’ agreement. The actual review of
the conditions with Milum is not in the record. Milum then signed a copy of the
2 The State also suggests that “direct appeal is not the proper vehicle” to challenge the conditions of community supervision because the trial judge may alter them. The statute that the State cites, however, does not prohibit an appeal of conditions of community supervision but merely authorizes the trial judge to “alter conditions of community supervision.” TEX. CODE CRIM. PROC. ANN. art. 42.12 §10(a) (West Supp. 2015). Appeal of community supervision conditions is permissible. See Lemon v. State, 861 S.W.2d 249, 252 (Tex. Crim. App. 1993).
3 conditions. Milum does not argue that he was unaware of these two particular
conditions, which were included on the document he signed.
These facts are very similar to Speth v. State, 6 S.W.3d at 534 n.9. There, the
defendant was “questioned about potential conditions, was orally informed by the
trial court of the conditions assessed, and signed a written version of the conditions
at the punishment hearing.” Id. “In light of Speth’s awareness of the conditions of
community supervision, [the Court of Criminal Appeals] held that his failure to
object to those conditions forfeited any complaint about those conditions on
appeal.” Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014) (discussing
Speth, 6 S.W.3d at 534 n.9).
There are two exceptions to the objection requirement. First, a defendant
may challenge an unobjected-to condition of community supervision if he did not
know about the condition in time to object or had no opportunity to object. See id.
at 534 n.9; Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). Second,
a defendant need not object to a condition “that the criminal justice system finds to
be intolerable and is therefore not a contractual option available to the parties.”
Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014).
Conditions that fall into this second exception violate an absolute right of the
defendant. Gutierrez v. State, 380 S.W.3d 167, 175 (Tex. Crim. App. 2012); see
Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other
4 grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), abrogated on
other grounds by Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996)
(defining absolute rights).
Neither exception to the objection requirement is present here. Milum makes
no argument that he did not know about the conditions or that he did not have an
opportunity to object. That he signed a written copy of the conditions, which detail
exactly what Milum is and is not allowed to do, further indicates that he knew and
accepted these restrictions without objection. See Speth, 6 S.W.3d at 534 n.10;
Ivey, 16 S.W.3d at 76; Ledet v. State, 177 S.W.3d 213, 221 (Tex. App.—Houston
[1st Dist.] 2005, pet. ref’d).
Nor is either complained-of condition an “intolerable” violation of an
absolute constitutional right. Milum’s only argument that the conditions are
“intolerable” is his constitutional argument: that the restrictions on his participation
in religious activities before or after a worship service violate his freedom of
worship. This is not an absolute right. See Marin, 851 S.W.2d at 279 (holding that
not all constitutional rights are absolute rights); Smith v. State, 463 S.W.3d 890,
895–96 (Tex. Crim. App. 2015) (holding that right is not absolute under Marin
unless the statute being applied against defendant has already been declared
unconstitutional on its face and that, if it has not yet been declared
unconstitutional, defendant must object). Therefore, agreeing to the condition
5 without objection waives error. Gutierrez, 380 S.W.3d at 175 & n.39 (citing Hart
v. State, 264 S.W.3d 364, 368 (Tex. App.—Eastland 2008, pet. ref’d));
Milum failed to preserve his complaints for our review. Accordingly, we
overrule his first issue.
Ineffective Assistance of Counsel
Milum contends that, in the alternative, his trial counsel’s failure to object
constitutes ineffective assistance of counsel. The State suggests our order to Milum
to brief the issue of ineffective assistance of counsel was improper. We disagree
When a defendant’s counsel files an Anders brief, the court must conduct “a full
examination of all the proceedings, to decide whether the case is wholly frivolous”
and “if it finds any of the legal points arguable on their merits . . . it must, prior to
decision, afford the indigent the assistance of counsel to argue the appeal.” Anders
v. State of Cal., 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). The court may
identify the arguments that counsel must brief. See Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991) (holding that, in Anders case, court of appeals
must investigate the record and, if it finds arguable grounds for appeal, remand to
trial court to appoint new counsel to present arguments court of appeals identified);
Wilson v. State, 40 S.W.3d 192, 200 (Tex. App.—Texarkana 2001, no pet.) (citing
Wilson v. State, 976 S.W.2d 254, 257 n.4 (Tex. App.—Waco 1998, no pet.))
6 (stating that court of appeals may “identify issues that counsel on appeal should
have addressed but did not”).
Milum’s first counsel filed an Anders brief. In response to the Anders brief,
Milum filed a pro se brief raising, among other arguments, ineffective assistance of
counsel. After reviewing the record, we ordered Milum retain a new attorney to
brief two issues: (1) “whether any or all of the 41 conditions of community
supervision imposed by the trial court are invalid” and (2) “whether failure to
object to any of the conditions of community supervision constituted ineffective
assistance of counsel.” Milum’s second counsel also filed an Anders brief. In
response, we again abated the appeal for new counsel to be appointed. Milum’s
third counsel filed a brief addressing the first issue but not the second issue. Thus,
we issued a third order requiring Milum’s counsel to brief both issues. Contrary to
the State’s assertion, these orders complied with our Anders duty to conduct a full
examination of all the proceedings to determine whether the appeal is frivolous.
A. Standard of review
“To prove ineffective assistance, a defendant must show, by a
preponderance of the evidence, that (1) counsel’s performance was so deficient
that he was not functioning as acceptable counsel under the Sixth Amendment and
(2) there is a reasonable probability that, but for counsel’s error or omission, the
result of the proceedings would have been different.” Apolinar v. State, 106
7 S.W.3d 407, 416 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184
(Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687–96,
104 S. Ct. 2052, 2064–69 (1984) and Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999)).
“Appellant bears the burden of proving by a preponderance of the evidence
that counsel was ineffective.” Thompson, 9 S.W.3d at 813. “When handed the task
of determining the validity of a defendant’s claim of ineffective assistance of
counsel, any judicial review must be highly deferential to trial counsel and avoid
the deleterious effects of hindsight.” Id. (citing Ingham v. State, 679 S.W.2d 503,
509 (Tex. Crim. App. 1984)).
B. Performance
With respect to the first Strickland prong, “[t]here is a strong presumption
that counsel’s conduct fell within the wide range of reasonable professional
assistance, and the defendant must overcome the presumption that the challenged
action might be considered sound trial strategy.” Gavin v. State, 404 S.W.3d 597,
603 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Strickland, 466 U.S. at
686, 104 S. Ct. at 2065). When, as here, the record does not reveal the reasons for
trial counsel’s actions, “an appellate court should not find deficient performance
unless the challenged conduct was so outrageous that no competent attorney would
have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
8 2005) (internal quotation marks omitted); accord Rylander v. State, 101 S.W.3d
107, 110 (Tex. Crim. App. 2003).
To demonstrate that defense counsel’s failure to object constitutes
ineffective assistance, a defendant “must show that the trial judge would have
committed error in overruling such an objection” if it had been asserted. Vaughn v.
State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). “The trial court has no
discretion to impose an ‘invalid’ condition of community supervision.” Mitchell v.
State, 420 S.W.3d 448, 449 (Tex. App.—Houston [14th Dist.] 2014) (citing Barton
v. State, 21 S.W.3d 287, 289 (Tex. Crim. App. 2000)). If a condition of community
supervision contains all of the following three characteristics, it is invalid: “(1) it
has no relationship to the crime; (2) it relates to conduct that is not in itself
criminal; and (3) it forbids or requires conduct that is not reasonably related to the
future criminality of the defendant or does not serve the statutory ends of
community supervision.” Ex parte Renfro, 999 S.W.2d 557, 560 (Tex. App.—
Houston [14th Dist.] 1999, pet. ref’d); accord Mitchell, 420 S.W.3d at 449–50.
1. Restrictions on internet usage
To assess whether trial counsel’s failure to object to these to conditions of
community supervision constituted ineffective assistance, we turn first to the
condition forbidding Milum from accessing the internet for eight years. Milum
9 contends that this bears no relationship to his crime and that the failure to object
was so outrageous that no competent attorney would have failed to do so.
On its face, the restriction is overbroad. Although the State points out that
Milum used electronics to communicate with the complainant, the record only
provides evidence that he used voice calls and text messages. There is no evidence
that Milum and the complainant ever communicated over e-mail, instant
messenger, online dating sites, Skype, Facebook, Twitter, or any other internet
service. Nor is there any record evidence of Milum seeking other sexual partners
over the internet or accessing internet pornography.
Using the internet is not, in itself, a criminal activity. Many people search
for employment on the internet, and many employees are required to access the
internet for work. Many people use the internet as their primary access to the news.
The internet is a de-facto requirement for education as early as middle school.
Many college courses—even traditional classroom courses—require students to
use online interaction software to receive assignments, submit assignments to the
professor, and engage in online class discussion. Finally, internet access is closely
connected with a defendant’s right of free speech––using the internet to send and
receive communication—a fundamental right. 3
3 See generally Reno v. Am. Civil Liberties Union, 521 U.S. 844, 871–72, 117 S. Ct. 2329, 2344–2345 (1997) (striking down federal law regulating internet usage because “vagueness of such a regulation raises special First Amendment concerns
10 Nevertheless, because Milum was required to register as a sex offender, the
trial court was required to restrict Milum’s internet usage. TEX. CODE CRIM. PROC.
ANN. art. 42.12(13g) (West Supp. 2014). The statute requiring restrictions on
internet use for sex offenders is sensitive to the importance of the internet to
students and members of the workforce and allows the court to modify any
condition on internet usage that “interferes with the defendant’s ability to attend
school or become or remain employed . . . . ” Id. § 41.12(13(g)(c)(1). Recognizing
that the judge was required to restrict Milum’s internet usage, but that his client
could return to court at any time to seek a modification, Milum’s counsel could
have thought that he would have a better chance at obtaining relief allowing Milum
to access the internet if he returned at a later time, armed with specific reasons why
Milum needed internet access. An effective attorney recognizes that sometimes the
timing of an argument can be as important as its substance in obtaining relief.
With regards to this condition, therefore, Milum cannot meet the heavy
burden of overcoming the “strong presumption that . . . the challenged action might
be considered sound trial strategy.” Gavin, 404 S.W.3d at 603 (citing Strickland,
466 U.S. at 689, 104 S. Ct. at 2065). In the absence of direct evidence of counsel’s
reasons for the challenged conduct (evidence we do not have), “we will assume a
because of its obvious chilling effect on free speech”); Ex parte Lo, 424 S.W.3d 10, 24–25 (Tex. Crim. App. 2013) (striking down law prohibiting “sexually explicit communications” with minor as overbroad restriction on free speech).
11 strategic motivation if any reasonable strategy can be imagined.” Weeks v. State,
No. 06-12-00110-CR, 2013 WL 557015, at *4 (Tex. App.—Texarkana Feb. 14,
2013, no pet.) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001)). Because a reasonable strategy could justify Milum’s attorney’s conduct,
the attorney’s performance does not fall “below an objective standard of
reasonableness as a matter of law . . . . ” Andrews v. State, 159 S.W.3d 98, 102
(Tex. Crim. App. 2005).
Because we can imagine a “reasonable strategy” for failing to object to this
condition, Milum does not meet his burden to establish that his counsel provided
ineffective assistance as to this condition.
2. Restrictions on church participation
We next turn to the restriction on Milum’s church participation. He asserts
two reasons why the court would be required to sustain a hypothetical objection.
First, he argues that the condition violates his constitutional right to free exercise
of religion. Second, he contends that the condition bears no reasonable relationship
to his crime.
In some circumstances, paragraph 26’s restrictions on church participation
may be overbroad. Such restrictions could negatively impact a person’s right to be
involved in legitimate religious activities at a place of worship that are not part of
“public services” and that would not pose any specific danger to minors. For
12 example, the restriction would prevent a person from meeting with a minister for
private counseling, making a confession to a minister, or attending adult meetings
or events at a church with no involvement with children. It would prevent him
from going into a church area designated for private prayer. These activities would
bear no relationship to the crime in this case.
Nevertheless, Milum cannot meet his burden of overcoming the “strong
presumption that . . . the challenged action might be considered sound trial
strategy” because counsel may have made a strategic choice not to object to this
condition of community supervision for various reasons. Gavin, 404 S.W.3d at 603
(citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).
First, counsel’s failure to object may have been a strategic choice, thinking
he could return to court at a later date to possibly receive a more favorable
reception to such an objection based on a specific need to go on church property
other than for a public service. He might believe that a trial court would want
specific assurances that a registered sex offender is in fact on church property for
legitimate purposes by designating those purposes in advance. Second, Milum may
not attend a church, synagogue or mosque and may have no desire to enter such a
facility except for public events such as a wedding. Thus, counsel may have felt it
was unnecessary to focus the court’s attention on this condition. Alternatively,
knowing he could return later to request a modification to address a particular
13 circumstance—such as a desire to meet privately with a minister—counsel may
have determined that the best strategy was not a global objection at this early stage
of community supervision. Again, we can imagine a reasonable strategy that could
justify Milum’s attorney’s conduct, and thus, the attorney’s performance does not
fall “below an objective standard of reasonableness as a matter of law . . . . ”
Andrews, 159 S.W.3d at 102 (Tex. Crim. App. 2005). Thus, Milum’s counsel did
not meet his burden to establish that his counsel provided ineffective assistance as
to this condition.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown Justice
Panel consists of Justices Jennings, Bland, and Brown.
Justice Jennings, concurring.
Publish. TEX. R. APP. P. 47.2(b).