Smith v. State

993 S.W.2d 408, 1999 WL 274893
Court of Appeals of Texas·Decided June 24, 1999·No. 14-97-00949-CR·Published·Cited by 25 cases

Opinions

MAJORITY OPINION ON REHEARING EN BANC

SAM ROBERTSON, Justice.

We withdraw our opinion of August 27, 1998 and substitute the following opinion after rehearing this matter en banc. With this revised opinion, we overrule appellant’s motion for rehearing en banc and affirm.

Todd Reagan Smith, a chiropractor, was convicted of felony theft involving fraudulent insurance claims. After he filed his notice of appeal, the trial court set an appeal bond and imposed various conditions. Smith contested the validity of the conditions of the appeal bond under Tex. Code Ceim. Proc. Ann. art. 44.04(g) (Vernon Supp.1999). In an unpublished opinion, this court affirmed the conditions of the appeal bond because Smith failed to object to the conditions at the time the conditions were made. See Smith v. State, No. 14-96-00123-CR, 1996 WL 580945 (Tex. App.-Houston [14th Dist.] October 10, 1996, pet. refd). The Court of Criminal Appeals refused Smith’s petition for discretionary review on April 30,1997.

Smith then filed a petition for writ of habeas corpus in the trial court attacking, on constitutional bases, each of the conditions of the appeal bond he previously challenged on appeal. At the conclusion of the hearing, the trial judge denied the requested relief and revoked the appeal bond. Smith gave notice of appeal from the denial of his writ of habeas corpus and independently gave notice of appeal from the revocation of his appeal bond. This court assigned separate cause numbers to the two appeals. This appeal is from the revocation of Smith’s appeal bond. In twenty-three points of error, Smith challenges the conditions and the revocation of the bond. We overrule each of these twenty-three points of error and affirm the judgment of the trial court.

Legality of Imposition of the Bond Conditions

Smith’s points of error six through twenty, twenty-two and twenty-three challenge the constitutionality of the bond conditions under both the United States and Texas constitutions.1 While Smith did not assert constitutional challenges to the imposition of the bond conditions on direct appeal, he did attack each of the bond conditions that he now attacks in this appeal. We agree with this court’s prior analysis that Smith, by failing to object to the conditions when they were made, failed to preserve error for appeal. See Hill v. State, 902 S.W.2d 57, 60 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd); see also Ex Parte Sotelo, 878 S.W.2d 179, 181 (Tex.App.-Fort Worth 1993, pet. refd) (failing to object at trial to urinalysis bond condition, defendant waived any error even though underlying conviction was not drug related).

[411]*411Additionally, in the habeas corpus context, Smith’s failure to object to the conditions at the time they were imposed also prevents him from challenging the conditions via a post-conviction collateral attack. Although a writ of habeas corpus is available to challenge the denial of constitutional rights, a timely objection is required to preserve error. See Ex Parte Russell, 738 S.W.2d 644, 647 (Tex.Crim. App.1986). Smith may not use his writ as a vehicle to attack the conditions of the bond collaterally. Under the “contemporaneous objection rule,” appellate courts will not consider any error which counsel for the accused could have called, but did not call, to the attention of the trial court at the time when such error could have been avoided or corrected by the trial court. See Ex Parte Crispen, 777 S.W.2d 103, 105 (Tex.Crim.App.1989) (en banc) (appellant’s contention raised and rejected on direct appeal will not be addressed on appeal of writ of habeas corpus).

On rehearing, Smith contends the Panel opinion conflicts with Ex Parte Valenciano, 720 S.W.2d 523 (Tex.Crim.App.1986), and this court’s decision in Niver v. State, No. A14-91-00781-CR, 1992 WL 5534 (Tex.App. — Houston [14th Dist.] January 16, 1992, no pet.)(not designated for publication). We disagree. In both Valenci-ano and Niver, the appellant filed an application for writ of habeas corpus prior to appealing and obtaining a ruling from the appellate court on the propriety of the bond conditions. Here, Smith chose to pursue an appeal first, and must now live with the procedural limitations. We also note that Niver does not reflect that the appellant did or did not object to her bond conditions before appealing her denial of habeas relief. Valenciano is similarly silent on this point. Accordingly, we disagree with Smith that this opinion conflicts with Niver or Valenciano.

In sum, Smith failed to object to the constitutionality of the’ bond conditions when the conditions were imposed; therefore, he may not now get a second bite at the apple through a habeas corpus appeal. This court previously affirmed these conditions. We continue to affirm them based on the law of the case and for all the reasons enunciated in our prior opinion. See Smith v. State, No. 14-96-00123-CR, 1996 WL 580945 (Tex.App. — Houston [14th Dist.] October 10, 1996, pet. refd). We overrule points of error six through twenty-three.

Bond Revocation

In Smith’s first point of error, he asserts the bond revocation violated the Fourteenth Amendment because he had no pri- or notice of the potential revocation. We disagree. As to notice, in the original proceeding, the judge explained each of the conditions of the appeal bond and stated on the record, “[y]ou understand that should you violate any one of these conditions that your bond is subject to revocation and your replacement back in jail?” Smith replied, “Yes sir.” Additionally, the trial judge asked Smith if he had any questions and Smith answered “No sir.” As noted above, Smith made no objections to the bond conditions at the time the conditions were imposed. However, when his challenge to the conditions failed on direct appeal, Smith requested a habeas corpus hearing on the bond conditions. At the hearing, Smith presented one defense witness to challenge the bond conditions. The State responded by presenting four witnesses, each detailing Smith’s violation of the bond conditions. Smith offered no objection to the State’s evidence that he violated the conditions.

The Texas Code of Criminal Procedure expressly permits the court to revoke the bail on a finding by a preponderance of the evidence of a violation of a condition. See Tex.Code Cbim. Proc. AnN. art. 44.04(c) (Vernon Supp.1999). Smith contests the revocation because, he claims, the hearing was not conducted for the purpose of revocation. However, the statute does not require the State or the trial court to give notice or a hearing, much less that the [412]*412hearing be entitled a “revocation hearing.” See Robinson v. State, 700 S.W.2d 710, 712 (Tex.App.-Houston [14th Dist.] 1985, no pet.). The statute does require presentation of evidence and that the revocation be based on that evidence.

In Robinson, this court noted that the Court of Criminal Appeals held that an appellant has a liberty interest in bail which requires the protection of the due process clause of the Fourteenth Amendment.

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Smith v. State, 993 S.W.2d 408, 1999 WL 274893 (Tex. Ct. App. 1999).

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