COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00067-CR
TRACY WAYNE TOW APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant Tracy Wayne Tow was indicted on four counts of indecency with
a child by fondling. After the State amended the indictment to add a fifth count of
injury to a child, Appellant entered into a plea bargain agreement with the State.
In exchange for his plea of guilty to the offense of injury to a child, the State
recommended a fine of $500, five years’ deferred adjudication community
supervision, assignment to the sex offender caseload, and sex offender
1 See Tex. R. App. P. 47.4. conditions to his supervision. The trial court accepted Appellant’s plea of guilty
and the plea bargain agreement, deferring adjudication of guilt and placing
Appellant on community supervision for a period of five years with sex offender
conditions. Almost four years later, the State filed a petition to proceed to
adjudication. Appellant entered a plea of ―not true‖ to each of the allegations in
the State’s petition. The trial court adjudicated Appellant guilty and sentenced
him to eight years’ confinement.
Appellant brings four issues on appeal, arguing that the judgment in this
case should be modified to reflect that he entered a plea of ―not true‖ to the
allegations in the State’s petition to proceed to adjudication, his original plea was
involuntary and therefore the trial court erred by denying his motion to withdraw
his plea, the trial court should have granted his motion to modify the terms and
conditions of supervision, and the trial court erred in finding paragraphs 6 (a), (b),
and (c) true because the State failed to prove the allegations as alleged and
failed to prove that he was able to pay. Because the trial court did not abuse its
discretion in adjudicating Appellant’s guilt, we affirm the trial court’s judgment as
modified.
I. Voluntariness of Plea
In his second issue, Appellant contends that his original plea of guilty was
involuntary and that he should have been allowed to withdraw it. After the State
filed its petition to proceed to adjudication, Appellant filed a motion to withdraw
his original plea of guilty, alleging that his original plea had been involuntary
2 because he had entered into the plea bargain not because he was guilty but
because he was afraid he would be found guilty of the offense of indecency with
a child. Appellant argues that, while a defendant is on deferred adjudication
community supervision, he may properly file a motion to withdraw his plea, and
appellate courts may review the trial court’s decision on the motion for an abuse
of discretion.2 Here, Appellant waited almost four years to ask to withdraw his
plea. And when he did ask to withdraw his plea, it was to avoid adjudication, not
to allow the trial court to proceed to adjudication.
The Texas Court of Criminal Appeals has stated that when a defendant
enters an open plea of guilty in a bench trial, he ―may withdraw his guilty plea as
a matter of right without assigning reason until such judgment has been
pronounced or the case has been taken under advisement.‖3 The Dallas Court of
Appeals has held that once the trial court has admonished the defendant,
accepted the defendant’s plea, found that the evidence substantiates the
defendant’s guilt, and placed the defendant on deferred adjudication community
supervision, the trial court has ―taken the case under advisement.‖4 Once the
2 See Labib v. State, 239 S.W.3d 322, 331 (Tex. App.—Houston [1st Dist.] 2007, no pet.). 3 Murray v. State, 302 S.W.3d 874, 883 (Tex. Crim. App. 2009). 4 Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.—Dallas 1993, no pet.); see Crumpton v. State, 179 S.W.3d 722, 724 n.5 (Tex. App.—Fort Worth 2005, pet. ref’d) (relying on Thompson in case not involving community supervision); Perkins v. State, No. 02-07-00258-CR, 2008 WL 2002739, at *1 (Tex. App.—Fort Worth May 8, 2008, pet. ref’d) (same).
3 trial court has taken a case under advisement, whether to allow a defendant to
withdraw his plea is a matter within the sound discretion of the trial court. That is,
the trial court is not required to allow the defendant to withdraw his plea.5 Rather
than concluding that the trial court has taken the case under advisement during
the entire period of community supervision, we believe that it makes more sense
to hold that once the trial court has admonished the defendant, accepted the
defendant’s plea, found that the evidence substantiates the defendant’s guilt, and
placed the defendant on deferred adjudication community supervision, the trial
court has accepted and complied with the plea bargain agreement.
Appellant appears to argue that an Alford plea may be withdrawn at any
time.6 An Alford plea is a guilty plea pursuant to which the defendant maintains
his innocence but admits that the State has enough evidence to likely secure a
conviction.7 If Appellant did, indeed, enter an Alford plea, there is no evidence
that the trial court refused to accept the plea bargain agreement or that Appellant
was misled or improperly induced into entering the plea—that he did so because
exculpatory evidence was hidden, that he was not properly advised by trial
5 Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009). 6 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). 7 Alford Plea Law and Legal Definition, USLEGAL.COM, http://definitions.uslegal.com/a/alford-plea/ (last visited Jan. 11, 2012); Stephanos Bibas, Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361, 1372 (2003).
4 counsel, or that newly discovered evidence has been found.8 Rather, he argues
that he should be allowed to withdraw his plea because it was an Alford plea and
because he was placed on deferred adjudication community supervision
pursuant to the plea bargain agreement. Because Appellant has cited no ground
for setting aside his plea of guilty that is supported by the law, we overrule
Appellant’s second issue.
II. Refusal to Modify Appellant’s Terms and Conditions of Supervision
In his third issue, Appellant argues that the trial court erred when it denied
his motion to modify the terms and conditions of supervision. On January 7,
2011, after the State had filed its petition to proceed to adjudication, Appellant
filed a motion to modify the terms and conditions of his community supervision.
Essentially, he asked to be removed from the sex offender caseload. Appellant
argued below, as he argues here, that the conditions of supervision of which he
complains violate his rights under the due process clause of the Fourteenth
Amendment to the Constitution of the United States. The State points out that
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00067-CR
TRACY WAYNE TOW APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant Tracy Wayne Tow was indicted on four counts of indecency with
a child by fondling. After the State amended the indictment to add a fifth count of
injury to a child, Appellant entered into a plea bargain agreement with the State.
In exchange for his plea of guilty to the offense of injury to a child, the State
recommended a fine of $500, five years’ deferred adjudication community
supervision, assignment to the sex offender caseload, and sex offender
1 See Tex. R. App. P. 47.4. conditions to his supervision. The trial court accepted Appellant’s plea of guilty
and the plea bargain agreement, deferring adjudication of guilt and placing
Appellant on community supervision for a period of five years with sex offender
conditions. Almost four years later, the State filed a petition to proceed to
adjudication. Appellant entered a plea of ―not true‖ to each of the allegations in
the State’s petition. The trial court adjudicated Appellant guilty and sentenced
him to eight years’ confinement.
Appellant brings four issues on appeal, arguing that the judgment in this
case should be modified to reflect that he entered a plea of ―not true‖ to the
allegations in the State’s petition to proceed to adjudication, his original plea was
involuntary and therefore the trial court erred by denying his motion to withdraw
his plea, the trial court should have granted his motion to modify the terms and
conditions of supervision, and the trial court erred in finding paragraphs 6 (a), (b),
and (c) true because the State failed to prove the allegations as alleged and
failed to prove that he was able to pay. Because the trial court did not abuse its
discretion in adjudicating Appellant’s guilt, we affirm the trial court’s judgment as
modified.
I. Voluntariness of Plea
In his second issue, Appellant contends that his original plea of guilty was
involuntary and that he should have been allowed to withdraw it. After the State
filed its petition to proceed to adjudication, Appellant filed a motion to withdraw
his original plea of guilty, alleging that his original plea had been involuntary
2 because he had entered into the plea bargain not because he was guilty but
because he was afraid he would be found guilty of the offense of indecency with
a child. Appellant argues that, while a defendant is on deferred adjudication
community supervision, he may properly file a motion to withdraw his plea, and
appellate courts may review the trial court’s decision on the motion for an abuse
of discretion.2 Here, Appellant waited almost four years to ask to withdraw his
plea. And when he did ask to withdraw his plea, it was to avoid adjudication, not
to allow the trial court to proceed to adjudication.
The Texas Court of Criminal Appeals has stated that when a defendant
enters an open plea of guilty in a bench trial, he ―may withdraw his guilty plea as
a matter of right without assigning reason until such judgment has been
pronounced or the case has been taken under advisement.‖3 The Dallas Court of
Appeals has held that once the trial court has admonished the defendant,
accepted the defendant’s plea, found that the evidence substantiates the
defendant’s guilt, and placed the defendant on deferred adjudication community
supervision, the trial court has ―taken the case under advisement.‖4 Once the
2 See Labib v. State, 239 S.W.3d 322, 331 (Tex. App.—Houston [1st Dist.] 2007, no pet.). 3 Murray v. State, 302 S.W.3d 874, 883 (Tex. Crim. App. 2009). 4 Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.—Dallas 1993, no pet.); see Crumpton v. State, 179 S.W.3d 722, 724 n.5 (Tex. App.—Fort Worth 2005, pet. ref’d) (relying on Thompson in case not involving community supervision); Perkins v. State, No. 02-07-00258-CR, 2008 WL 2002739, at *1 (Tex. App.—Fort Worth May 8, 2008, pet. ref’d) (same).
3 trial court has taken a case under advisement, whether to allow a defendant to
withdraw his plea is a matter within the sound discretion of the trial court. That is,
the trial court is not required to allow the defendant to withdraw his plea.5 Rather
than concluding that the trial court has taken the case under advisement during
the entire period of community supervision, we believe that it makes more sense
to hold that once the trial court has admonished the defendant, accepted the
defendant’s plea, found that the evidence substantiates the defendant’s guilt, and
placed the defendant on deferred adjudication community supervision, the trial
court has accepted and complied with the plea bargain agreement.
Appellant appears to argue that an Alford plea may be withdrawn at any
time.6 An Alford plea is a guilty plea pursuant to which the defendant maintains
his innocence but admits that the State has enough evidence to likely secure a
conviction.7 If Appellant did, indeed, enter an Alford plea, there is no evidence
that the trial court refused to accept the plea bargain agreement or that Appellant
was misled or improperly induced into entering the plea—that he did so because
exculpatory evidence was hidden, that he was not properly advised by trial
5 Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009). 6 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). 7 Alford Plea Law and Legal Definition, USLEGAL.COM, http://definitions.uslegal.com/a/alford-plea/ (last visited Jan. 11, 2012); Stephanos Bibas, Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361, 1372 (2003).
4 counsel, or that newly discovered evidence has been found.8 Rather, he argues
that he should be allowed to withdraw his plea because it was an Alford plea and
because he was placed on deferred adjudication community supervision
pursuant to the plea bargain agreement. Because Appellant has cited no ground
for setting aside his plea of guilty that is supported by the law, we overrule
Appellant’s second issue.
II. Refusal to Modify Appellant’s Terms and Conditions of Supervision
In his third issue, Appellant argues that the trial court erred when it denied
his motion to modify the terms and conditions of supervision. On January 7,
2011, after the State had filed its petition to proceed to adjudication, Appellant
filed a motion to modify the terms and conditions of his community supervision.
Essentially, he asked to be removed from the sex offender caseload. Appellant
argued below, as he argues here, that the conditions of supervision of which he
complains violate his rights under the due process clause of the Fourteenth
Amendment to the Constitution of the United States. The State points out that
Appellant’s plea bargain agreement allowed him to plead guilty to the offense of
injury to a child in exchange for agreeing to be placed on the sex offender
caseload and to comply with the requirements of that caseload. Appellant
concludes his argument by stating, ―Appellant contends it was fundamentally
unfair to send him to prison for an offense the complainant was no longer
8 See Moore, 295 S.W.3d at 332; Coronado v. State, 25 S.W.3d 806, 810 (Tex. App.—Waco 2000, pet. ref’d).
5 accusing him of and for not complying with probationary conditions for a sexual
offense for which, in any event, he never pled guilty.‖
When Appellant entered his plea of guilty, the plea agreement included a
provision that he be placed on the sex offender caseload and comply with the
conditions mandated by the sex offender caseload. Article 42.12, section 11(a)
provides,
The judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time during the period of community supervision, alter or modify the conditions. The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.9
Because community supervision is a contractual relationship between the
trial court and the offender, only the trial court may determine the conditions of
community supervision. The trial court may not delegate this task to anyone
else,10 nor may the parties usurp the trial court’s authority to determine the
conditions of community supervision.11 While the attorneys may recommend
conditions of community supervision to the trial court, they may not bind the trial
court to their recommendation.12
9 Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (West Supp. 2011). 10 Pierce v. State, 67 S.W.3d 374, 379–80 (Tex. App.—Waco 2001, pet. ref’d). 11 Cortez v. State, 971 S.W.2d 100, 101–02 (Tex. App.—Fort Worth 1998, no pet.). 12 Id. at 102.
6 To allow the lawyers, through plea bargaining, to restrict the trial court’s
ability to determine the conditions of community supervision would seriously limit
the trial court’s ability to modify the conditions as necessary throughout the
course of the probationary period.13 Realistically, the plea bargain rarely
provides for all the standard conditions of probation. For example, to hold that
the parties determine the conditions of community supervision and bind the trial
court to those agreed on in the plea bargain would, in this case, mean that
Appellant was not required to avoid persons of disreputable or harmful character,
to support his dependents, or to report to his probation officer because those
terms were not included in the plea bargain agreement.
While the plea agreement cannot not bind the trial court, it can constitute a
written waiver of objection to certain specific terms or conditions of community
supervision. By agreeing in the plea bargain agreement to being placed on the
sex offender caseload, Appellant placed before the trial court a written waiver of
objection to that condition of community supervision. Such waiver may be
accomplished by plea bargain.14 The question of whether an agreed-to condition
becomes unreasonable with change of circumstance and, thereby, renders
continuation of that condition an abuse of discretion is not before this court, and
we do not address it here.
13 Id. 14 See Tex. Code Crim. Proc. Ann. art. 1.14(a) (West 2005).
7 Without more than Appellant has shown this court, we cannot say that it is
fundamentally unfair to expect him to comply with the terms of his plea bargain
agreement after it was accepted by the trial court and after he benefited from the
plea bargain by receiving the agreed-upon probated sentence.15 We overrule
Appellant’s third issue.
III. Sufficiency of the Evidence to Prove Allegations in the Petition to Proceed to Adjudication
In his fourth issue, Appellant argues that if this court determines that the
trial court should have removed the sex offender conditions from the
requirements of his community supervision, the only allegations remaining in the
petition to proceed to adjudication are violations of the terms and conditions of
his community supervision by failure to make certain payments.
The Texas Court of Criminal Appeals has held that when a defendant
agrees to certain terms and conditions of probation as part of a plea bargain
agreement, the defendant is bound by that agreement unless he objects in open
court at the time those conditions are imposed.16 We do not understand the
Speth rule to mean that the parties can limit the trial court’s ability to amend
conditions of community supervision through a plea bargain. Rather, a
15 See Speth v. State, 6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088 (2000); Ex parte Shoe, 137 S.W.3d 100, 102–03 (Tex. App.—Fort Worth 2004), pet. dism’d as improvidently granted, 235 S.W.3d 782 (Tex. Crim. App. 2007). 16 Speth, 6 S.W.3d at 534–35.
8 defendant may agree, as part of a plea bargain agreement, to a condition of
community supervision that is more onerous than the standard conditions usually
imposed. Here, Appellant affirmatively agreed to be placed on the sex offender
caseload and comply with its rules as part of his plea bargain agreement.
For the sake of clarity, however, we must discuss the requirement of the
sex offender caseload that Appellant ―assume responsibility for [his] offense.‖
Appellant’s offense was injury to a child. There is no evidence that Appellant did
not accept responsibility for that offense. To the extent the State contends
Appellant failed to comply with the conditions of the sex offender caseload by
refusing to admit that he was guilty of sexual offenses against children, we reject
that argument. Appellant cannot be required to admit his guilt with respect to an
offense of which he has not been convicted or for which he has not been placed
on community supervision.17
Appellant candidly admits that there was conflicting evidence about
whether he accessed Facebook and about whether he had a cell phone capable
of Internet access. There was also evidence that he accessed Facebook in late
February or early March 2009.
Proof by a preponderance of the evidence of any one of the alleged
violations of the community supervision conditions is sufficient to support a
17 See Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141–42 (1984) (citing Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322 (1973), and Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S. Ct. 1551, 1557 (1976)).
9 revocation order.18 Because both the plea bargain agreement and court order
establishing the conditions of community supervision required Appellant to
comply with the conditions of the sex offender caseload, and because the State
proved that he failed to comply with those conditions, specifically the conditions
regarding accessing Facebook, we hold that the State sustained its burden to
prove Appellant violated the conditions of community supervision as alleged in
paragraph 5 of the petition to proceed to adjudication. We therefore hold that the
trial court did not abuse its discretion by revoking Appellant’s community
supervision and overrule his fourth issue.
IV. Modifying the Judgment to Reflect Appellant’s Pleas of “Not True”
The record reflects that Appellant did, indeed, plead ―not true‖ to the
allegations in the State’s petition. The State candidly agrees that the judgment
should be corrected. We therefore sustain Appellant’s first issue, in which he
complains of this matter, and modify the judgment by deleting the pleas of ―true‖
to the allegations in the State’s petition to proceed to adjudication and inserting
instead pleas of ―not true‖ to those allegations.
V. Conclusion
Having sustained Appellant’s first issue and overruled his three remaining
issues, we affirm the trial court’s judgment as modified.
18 Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d).
10 LEE ANN DAUPHINOT JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 12, 2012