Opinion
No. 05-17-00241-CR No. 05-17-00242-CR
08-14-2017
EX PARTE LISA ANN FINEBERG
On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. WX16-90016 , WX16-90017
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Fillmore
Lisa Ann Fineberg appeals the trial court's order denying her application for writ of habeas corpus. In four issues, appellant contends the trial court violated her right to procedural and substantive due process of law when it imposed sex offender community supervision conditions and subsequently modified those conditions to terminate her right to have contact with, and reside with, her biological children. We affirm.
Although appellant references in her brief both the federal constitutional right to due process of law, U.S. CONST. amend. XIV, and the state constitutional right to due course of law, TEX. CONST. art. I, § 19, she does not contend the Texas Constitution offers more protection than the Fourteenth Amendment to the United States Constitution. Therefore, we will evaluate her claims under the Fourteenth Amendment. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
Motion to Strike
Before addressing the issues in the case, the Court must first adjudicate a pending motion filed by appellant to strike the State's brief or, alternatively, to strike the supplemental clerk's records filed in these cases and all references to the supplemental clerk's records within the State's brief. After appellant filed her brief—asserting there is no evidence in the record showing why she should be treated as a sex offender—the State filed a motion asking to supplement the clerk's records with the entire files of the trial court. The Court denied the State's motion without prejudice to the State filing a more limited request for specific relevant items omitted from the records. Subsequently, supplemental clerk's records were filed consisting of treatment reports from appellant's sex offender treatment provider, a notice of noncompliance for failing to attend a therapy session, a letter regarding appellant's disclosures of numerous sexual offenses against the victims during a polygraph examination, and the presentence investigation reports which included records related to appellant's initial arrest on charges of indecency with a child. After the State filed its brief, citing liberally to the supplemental clerk's records, appellant filed the motion to strike the State's brief and/or the supplemental clerk's records. Subsequently, the trial court filed a letter with the Court stating it was the trial court, rather than the State, that had requested supplementation of the records to include certain specified documents it had considered when it modified the conditions of appellant's community supervision.
The rules of appellate procedure grant the trial court the authority to request the clerk's record be supplemented with relevant omitted items. See TEX. R. APP. P. 34.5(c)(1). We conclude the supplemental clerk's records, consisting of additional relevant documents from the trial court's files it considered in deciding to modify the conditions of appellant's community supervision, are properly before the Court. We deny appellant's motion to strike the State's brief and/or the supplemental clerk's records.
We note the supplemental clerk's records also contain treatment reports generated after the trial court made its determination to modify the conditions of appellant's community supervision. Although those reports may be relevant to the trial court's ongoing responsibilities to supervise appellant's community supervision, they are not relevant to our resolution of these appeals and we do not consider them.
Background
Appellant was arrested in 2014 and charged with two offenses of indecency with a child. Subsequently, the indecency charges were dropped and she was re-indicted for two injury-to-a-child offenses. According to the State and the trial court's findings on the writ application, the dismissal of the indecency charges and re-indictments for injury to a child occurred as partial consideration for a plea agreement between the State and appellant. The filed plea agreement, however, does not mention the re-indictments occurred in connection with the agreement. Under the plea agreement contained in the records, the State and appellant agreed appellant would enter guilty pleas to the injury-to-a-child offenses and be sentenced to ten years' imprisonment with the sentences probated for ten years and the two sentences to run concurrently. The plea agreement further obligates appellant to undergo sex offender evaluation and treatment and be bound by sex offender community supervision conditions. The trial court followed the parties' plea agreement in sentencing appellant.
Appellant filed one writ application addressing both cases. The plea agreement in Case No. 05-17-00241-CR is attached as an exhibit to the writ application. No separate plea agreement was attached for Case No. 05-17-00242-CR. It is unclear from the record whether there was a second plea agreement for Case No. 05-17-00242-CR or whether the parties intended the one agreement in the record to memorialize their agreement for both cases. Because the parties represent the plea arrangements were the same in both cases and the records show the same community supervision conditions and sentences, we will assume that, if two plea agreements exist, the agreements are identical.
To effectuate the plea agreement, the trial court and appellant entered into an agreed set of conditions of community supervision. The initial community supervision conditions required, among other things, that appellant (1) not have contact with anyone seventeen years old or younger except for her biological children, (2) not go within 1000 feet of a place where children gather or participate in any program where children are participants except for parent/teacher conferences and picking up her biological children from school, and (3) participate in sex offender treatment and counseling. Appellant, the trial court, and the trial court's community supervision officer signed the conditions immediately below the following representation:
You are hereby advised that under the law of this State, the Court shall determine the terms and conditions of your supervision, and may at any time during the period of Supervision, alter or modify the conditions of your Supervision. The Court also has the authority at any time during the period of Supervision to revoke your Supervision and/or proceed to adjudication for violation of any of the conditions of your Supervision set out above.
During April 2016, the trial court signed two orders modifying appellant's community supervision conditions to allow her to attend one church service per week and live at home, provide for the payment of a monthly sex-offender fee, and expand her ability to attend her children's school, athletic, and extracurricular activities. Appellant agreed to the April 2016 modifications.
Appellant began her sex offender treatment in April 2016. Appellant contends she took a polygraph, participated in group and individual sessions, cooperated with the treatment staff, and took responsibility for her actions. The treatment provider's narratives for appellant's group participation, however, show appellant was in denial, was dishonest with the group regarding the facts of her offenses, and "made every attempt in the group to portray herself as the victim."
Specifically, the treatment provider noted appellant initially admitted to only inappropriate texting with one of the victims. During a polygraph examination conducted on June 7, 2016, however, appellant admitted to multiple sexual acts with two different children. Appellant was confronted about these disclosures during a group session on June 14, 2016. Appellant told the group the first victim was the older brother of one of her son's friends. She first had sexual intercourse with him during a game of hide and seek appellant was playing with the victim and appellant's children. Although appellant claimed the victim "overpowered" her, she did not scream and did not report the alleged assault. She allowed the victim to continue to come to her house and interact with her children. Appellant claimed she "blacked out" the second time she had sexual intercourse with this child and "briefly attempted to allude the child gave her a date rape drug." Appellant admitted she consented to her third sexual encounter with her first victim. As to her second victim, appellant stated she did not view him as a child and admitted to willingly engaging in sexual intercourse with him. During her polygraph examination, appellant admitted she had sexual intercourse with the second victim approximately twelve times and also engaged in anal and oral sex with him.
On June 20, 2016, appellant and her husband attended a group session. According to the treatment provider, appellant's husband defended her, viewed her as a "complete victim," and talked about appellant being raped by the first victim. The treatment provider noted she discussed with appellant and appellant's husband that appellant had set no boundaries with the first victim and continued to allow him access to her home. The treatment provider also informed appellant that she was the adult in the relationship and "[t]here is not another set of circumstances that changes that." During the session, both appellant and her husband were told appellant "should not have access to any minor child," and it was the therapist's fear "that this is a pattern of behavior." Although appellant denied there were any other victims, the treatment provider noted appellant had been "dishonest from the start" of her treatment and continued to "blame the victim."
On June 21, 2016, without conducting a hearing, the trial court signed a third order modifying the conditions of appellant's community supervision to prohibit her from having contact with any child, going within 1000 feet of a place where children congregate, and participating in any program where children are participants. The third modification effectively prevented appellant from having contact with and residing with her biological children. Appellant did not agree to the third modification and filed a written objection and motion to modify the conditions, which the trial court overruled. The third modification order is the basis for appellant's current writ application.
Appellant's writ application asserted the conditions requiring her to attend sex offender counseling and treatment and the condition that she avoid contact with all children, including her own, violated her right to substantive and procedural due process of law. Appellant asserted her right to procedural due process was violated because she did not receive written notice from the factfinder identifying the evidence relied upon and the justifications for imposing the sex offender conditions on her community supervision. She also contended she has a liberty interest in not being subjected to sex offender treatment because she was not convicted of a sex offense, and the sex offender conditions violated her right to substantive due process because they were disconnected from the nonsexual offenses with which she was charged and convicted.
Appellant further asserted the modified condition of community supervision prohibiting her from residing with her biological children violated her right to substantive due process because it is substantively unreasonable and overbroad. Appellant argued the condition interferes with her fundamental right to establish a home to raise her children, and preventing a person charged with injury to a child from having any contact with her own children, which appellant characterizes as a constructive termination of her parental rights, is not rationally related to a legitimate state interest.
Finally, appellant contended the modification of the terms of her community supervision violated her right to procedural due process. Appellant asserted her guilty pleas were conditioned upon her being allowed to reside with her children. She alleged she made this clear in "extensive conferences and conversations" with the trial court and when she inquired of the trial court whether her guilty plea would restrict or limit her ability to reside with her children, the trial court assured her that it would not. She contended the trial court's docket sheet notes permission to reside with her children. Appellant asserted the trial court should not be allowed to impose the modified condition without first making specific findings regarding the necessity of restricting her contact with her children, and the record was void of evidence supporting the modification. Further, appellant contended she relied on the trial court's assurances and they are essential to her probation "contracts." The State filed a short response indicating the trial court had discretion to impose and modify conditions of community supervision and appellant had not shown a deprivation of her constitutional rights. The State did not file any evidence revealing why appellant received sex offender community supervision.
The trial court denied appellant's writ application without conducting a hearing and made extensive findings of fact. The trial court specifically found appellant was originally charged with, and the underlying facts of the case involved, a sexual offense; the imposition of sex offender conditions to appellant's community supervision was reasonable and necessary to protect the community and rehabilitate appellant; and appellant had presented "no evidence, aside from her allegations, as to why the condition prohibiting contact with her children was unreasonable given the circumstances of her case and her conduct on probation." The trial court concluded appellant had not met her burden to show the trial court abused its discretion or violated her right to due process of law.
Standard of Review
An applicant seeking post-conviction habeas corpus relief bears the burden to prove his or her claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016). In a post-conviction writ application arising from a case where the applicant received community supervision, the application proceeds under article 11.072 of the code of criminal procedure. Id. at 42. In reviewing an order denying relief on an article 11.072 writ, the trial court is the sole finder of fact, and "we afford almost total deference to a trial court's factual findings when they are supported by the record, especially when those findings are based on credibility and demeanor." Id. We view the facts in the light most favorable to the trial court's ruling, and we will uphold the trial court's ruling absent an abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).
Imposition of Sex Offender Conditions
In her first and second issues, appellant contends the trial court's imposition of sex offender conditions on her community supervision for convictions of non-sex based offenses was capricious, infringed on her fundamental liberty interests, and lacked adequate procedural safeguards resulting in a violation of her right to procedural and substantive due process of law.
Appellant did not object to the term of community supervision requiring her to participate in sex offender treatment at the time the condition was imposed. See Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014) (to preserve error, defendant must object to condition of supervision at trial). She did, however, file a motion to modify the terms of her community supervision, arguing the requirement she participate in sex offender treatment violated her rights to procedural and substantive due process. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 3(b)-(c) (West 2015) (applicant seeking relief by writ of habeas corpus may challenge condition of community supervision on constitutional grounds by filing motion to amend conditions of community supervision in trial court).
Regarding her procedural due process claim, appellant contends that state parole authorities must comply with a six-step procedure before they may impose sex offender conditions on a parolee who has not been convicted of a sex offense. See Ex parte Evans, 338 S.W.3d 545, 550-51, 556 (Tex. Crim. App. 2011); see also Meza v. Livingston, 607 F.3d 392, 412 (5th Cir. 2010). In summary, the six steps require notice, an evidentiary hearing before an impartial decision maker, and a written statement explaining why the evidence supports imposing the sex offender conditions. See Evans, 338 S.W.3d at 550-51 (quoting Meza, 607 F.3d at 412). Contending there is no evidence she was convicted of sex offenses because she was charged and convicted of injury to a child, appellant argues she has a "liberty interest" in not being required to participate in sex offender treatment, and she should have received written findings justifying the imposition of sex offender conditions on her community supervision.
A plea agreement is a contract between the defendant and the State that, once entered into knowingly and voluntarily and accepted by the trial court, binds the parties to the terms of the contract. Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009). A plea agreement may contain a wide variety of terms that allow the parties to tailor the conditions of the plea. Id. at 331-32. The trial court's only role is to accept or reject the plea agreement negotiated by the parties—it may not alter the terms of the negotiated agreement. Id. at 332. When a defendant accepts a plea bargain, she waives a number of fundamental constitutional rights including the right to trial by jury, the right to confront her accusers, the right to present witnesses in her defense, the right to remain silent, and the right to be convicted only by proof beyond a reasonable doubt. Ex parte Cox, 482 S.W.3d 112, 117 (Tex. Crim. App. 2016). Although a contract, a plea agreement should not be strictly enforced to the detriment of due process. Id. at 116. Nevertheless, the terms being contractual in nature, even the court of criminal appeals will rarely disturb the terms of such agreements. Id. Generally, a plea agreement may be invalidated when there is some unanticipated failure of the contract that deprives one of the parties of the benefit of the bargain. See, e.g., id. at 119 (defendant who pleaded guilty to two offenses as part of "package deal" entitled to relief when terms of plea agreement unenforceable as to one of the offenses); Ex parte Adkins, 767 S.W.2d 809, 811 (Tex. Crim. App. 1989) (plea agreement invalidated where it included term defendant could not legally agree to); Shannon v. State, 708 S.W.2d 850, 852 (Tex. Crim. App. 1986) (defendant entitled to withdraw plea agreement that has become unenforceable due to circumstances beyond control of either party to agreement). In such cases, the proper remedy is to unwind the entire plea agreement and restore the parties to their original positions before the plea agreement was struck. See Cox, 482 S.W.3d at 119.
A grant of community supervision establishes a contractual relationship between the trial court and the supervisee. Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). The terms of the resulting contract are the conditions of community supervision entered into between the trial court and the defendant. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). "[B]y entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract." Id. The trial court has leeway to "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." TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a) (West Supp. 2016).
Although appellant was not convicted of a sex offense, in her plea agreements with the State, she agreed to be evaluated and treated as a sex offender and to abide by conditions of community supervision designed for sex offenders. Appellant concedes she had "extensive conferences and conversations" with the trial court regarding her plea agreement and the conditions that would be imposed on her. She received and signed a copy of the written plea agreement and the conditions of community supervision. The record before us does not contain a copy of the reporter's record from appellant's plea hearing, but appellant has not alleged she did not have one.
Because the trial court did not "impose" the sex offender treatment conditions on appellant as she suggests, but rather accepted an agreement appellant and the State negotiated to resolve appellant's cases, these cases are distinguishable from the situation in Evans where sex offender conditions were imposed involuntarily on unwilling parolees. See Evans, 338 S.W.3d at 550-51. Moreover, there was an express finding in Evans that the defendant's injury to a child offense involved physical abuse rather than sexual activity. See Evans, 338 S.W.3d at 546. In appellant's cases, in contrast, the "injury" appellant pleaded guilty to inflicting upon her victims was sexual in nature.
In her reply brief, appellant concedes she received a written copy of the conditions of community supervision, but she contends the trial court's conditions were not specific enough for her to understand what those terms were and that they would require her to waive her Fifth Amendment right and submit to polygraph examinations as part of her treatment. Although appellant's applications for writ of habeas corpus do make a bare allegation that the trial court violated her rights under the Fifth Amendment, no argument is raised or authorities presented as to how the trial court committed the violation. See U.S. CONST. amend. V. The argument appellant did not understand she would be polygraphed in violation of her right against self-incrimination was not raised in the trial court and is therefore not before us on appeal. See Ex parte Evans, 410 S.W.3d 481, 485 (Tex. App.—Fort Worth 2013, pet. ref'd) (constitutional argument not raised in trial court in application for writ of habeas corpus may not be considered on appeal).
Because appellant negotiated the terms of her community supervision and signed and received copies of the plea agreement and the conditions of community supervision she agreed to obey, we conclude appellant has not met her burden to show she did not receive procedural due process regarding entry of her plea and her acceptance of the sex offender conditions. See Torres, 483 S.W.3d at 43. We resolve appellant's first issue against her.
In her second issue, appellant contends requiring her to "participate in sex offender treatment is so disconnected from the offense that she was charged with and to which she entered a plea of guilty that it violates her substantive due process rights." She argues that because the offense of injury to a child is not a sex offense, requiring her to participate in "highly stigmatizing" sex offender treatment, which may lead to violation of her right against self-incrimination in the context of mandated polygraphs, both infringes on a fundamental liberty interest and is not rationally related to the State's legitimate interest in supervising individuals on community supervision. Appellant asserts that, because the trial court went beyond the basic conditions of community supervision and required her to attend sex offender treatment, it acted capriciously and violated her liberty interest.
We must first determine the level of judicial scrutiny that should be applied to this due process challenge. "The Due Process Clause guarantees more than fair process, and the 'liberty' it protects includes more than the absence of physical restraint." Washington v. Glucksberg, 521 U.S. 702, 719 (1997). It also "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id. at 720. Strict scrutiny is applied when determining whether a law impinges on a "fundamental right or liberty interest." Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016), cert. denied, 137 S.Ct. 1336 (2017). Under that standard, courts must determine whether "the infringement is narrowly tailored to serve a compelling state interest." Id. (quoting Glucksberg, 521 U.S. at 721). "On the other hand, a statue that infringes upon a non-fundamental right must merely meet the standard of 'rationally advancing some legitimate governmental purpose[.]'" Id. (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)).
Rights are "fundamental" if they are "deeply rooted in this Nation's history and tradition" and are "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Glucksberg, 521 U.S. at 720-21 (internal quotes omitted). Such rights include the freedoms protected by the Bill of Rights as well as certain liberty interests that have been expressly characterized as fundamental in decisions of the United States Supreme Court. Id. (collecting cases designating fundamental rights). But beyond these parameters, courts have been "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended," Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992), and because "extending constitutional protection to an asserted right or liberty interest" effectively places "the matter outside the arena of public debate and legislative action," Glucksberg, 521 U.S. at 720.
Appellant had the burden of demonstrating the requirement she attend sex offender treatment burdened a fundamental liberty interest. See Schlittler, 488 S.W.3d at 313-14. We conclude appellant failed to do so. See Ex parte Chamberlain, 306 S.W.3d 328, 334 (Tex. App.—Fort Worth 2009) (declining to recognize that sex offender possesses a fundamental right or liberty interest in his reputation), vacated on other grounds, 335 S.W.3d 198 (Tex. Crim. App. 2011); Barker v. State, 335 S.W.3d 731, 736 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (concluding, in evaluating equal protection claim, that "reputational damage caused by having to register as a sex offender does not violate a fundamental right"). We therefore consider whether requiring appellant to participate in sex offender treatment as a condition of community supervision had a rational relation to a legitimate governmental purpose. See Glucksberg, 521 U.S. at 728; Schlitter, 488 S.W.3d at 314-15.
Appellant also complains in one paragraph of her brief that "participation in sex offender treatment such as counseling and mandatory polygraph tests lead to violations of constitutionally protected rights such as rights against self-incrimination." See U.S. CONST. V ("No person . . shall be compelled in any criminal case to be a witness against himself[.]"). Appellant, however, waived this complaint by participating in both counseling and a polygraph examination without objecting that either infringed on her right against self-incrimination. See Minnesota v. Murphy, 465 U.S. 420, 427 (1984) ("The answers of such a witness to questions put to him are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege."); Dansby, 448 S.W.3d at 447.
See also Doolittle v. State, No. 03-16-00685-CR, 2017 WL 2729670, at *5 (Tex. App.—Austin June 22, 2017, no pet. h.) (mem. op., not designated for publication) (concluding appellant failed to establish "substantive right not to register" as sex offender was a fundamental liberty interest).
Substantive due process generally protects against the arbitrary use of government power. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998). In adjudicating a substantive due process challenge to conditions of community supervision, we are mindful that a person placed on community supervision does not enjoy the absolute liberty afforded a law-abiding citizen, but rather conditional liberty granted in exchange for obeying the conditions of community supervision. See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987). The conditions of community supervision are generally designed to ensure the period of community supervision results in genuine rehabilitation and that the community is not harmed while the probationer enjoys his or her conditional liberty. Id. at 875. A condition of community supervision is not necessarily invalid merely because it affects or restricts a probationer's exercise of his or her constitutional rights, provided the condition is reasonably related to the purposes of community supervision. Lee v. State, 952 S.W.2d 894, 899-900 (Tex. App.—Dallas 1997, no pet.) (en banc). In evaluating whether a condition is reasonably related to the purposes of community supervision, a court considers three factors: (1) the purposes the community supervision serves; (2) the extent to which a probationer should be accorded constitutional rights enjoyed by law-abiding citizens; and (3) the legitimate needs of law enforcement. Id. at 900; Macias v. State, 649 S.W.2d 150, 152 (Tex. App.—El Paso 1983, no pet.).
Appellant entered into a plea agreement and, in exchange for receiving probation, agreed to undergo sex offender treatment and all that such treatment entails. By entering into such an agreement, appellant's community supervision allows her to avoid imprisonment while her treatment protects the community, thus satisfying the purpose of community supervision. Appellant argues she is not a sex offender—not that sex offenders have a constitutional right to be free from mandated treatment. However, appellant was originally indicted for indecency with a child, and the trial court had before it evidence relating to the sexual nature of the offenses. Although she was re-indicted for two offenses of injury to a child, appellant's contention that her convictions for injury to a child bear no rational relationship to a requirement of sex offender treatment is, under the circumstances of her offenses, disingenuous. Further, requiring a person in appellant's circumstances to participate in sex offender treatment would serve the legitimate needs of law enforcement. The trial court was entitled to consider the broad range of information available to it, including the underlying facts of the offenses, in crafting the appropriate conditions for appellant's supervised release. We see nothing capricious, arbitrary, or infringing of appellant's substantive due process rights in including sex offender treatment, that she agreed to and that is rationally related to the underlying sex-based offenses she admitted had occurred, in the conditions of community supervision. See Macias, 649 S.W.2d at 152. We resolve appellant's second issue against her.
Modification of the Conditions
In her third and fourth issues, appellant contends the trial court's third modification to the conditions of community supervision, terminating her ability to contact and reside with her children, violated her substantive and procedural due process rights. Appellant specifically argues the amended condition burdened a fundamental right, thus requiring heightened scrutiny, and yet was carried out by the trial court sua sponte without notice, a hearing, and an opportunity to be heard, resulting in a record void of evidence to justify such a modification.
Regarding her substantive due process claim, appellant contends the modification of community supervision to bar her access to her children is so disconnected from the offenses she was charged with, and to which she pleaded guilty, that it is substantively unreasonable and overbroad. She contends the modified condition interferes with her fundamental right to establish a home in which to raise her children and capriciously interferes with her liberty interest in having companionship with her children. However, none of the authorities appellant cites in her brief involve the community supervision conditions appropriate to persons convicted of offenses involving repeated sexual relations with children.
The substantive portion of the Due Process Clause provides heightened protection against governmental interference with fundamental rights or liberty interests. See Glucksberg, 521 U.S. at 720. When such a right or liberty is involved, we consider whether "the infringement is narrowly tailored to serve a compelling state interest." Schlittler, 488 S.W.3d at 313-14 (quoting Glucksberg, 521 U.S. at 721). The interest of parents in the care, custody, and control of their children is a long-recognized fundamental liberty interest. Schlittler, 488 S.W.3d at 313. This interest, however, "is not absolute and may be limited where necessary in order to effectuate the compelling governmental interest in the protection of children." Id. Further, as we have already discussed, a probationer surrenders a portion of the liberty afforded as a matter of right to a law-abiding citizen. See Griffin, 483 U.S. at 874-75.
Although not convicted of a sex offense, appellant's offenses involved committing sexual acts against two children on multiple occasions. Appellant agreed as part of her plea agreement to be bound by sex offender restrictions, accepted the trial court's conditions without objection, and acknowledged the trial court's power to alter the conditions as needed. In her brief, appellant indicates the trial court initially barred her from contact with her children after her arrest but later allowed her to have supervised access to them. Appellant recounts the trial court allowed her to return home to live with her children while she was on bond. Appellant argues the trial court twice modified the conditions of community supervision to allow her greater access to her children's activities. The record thus reflects the trial court's dynamic and evolving view of the balance between affording appellant a right to enjoy the companionship of her children and the need to protect her children and others as part of the community supervision process. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a) ("The judge may impose any reasonable condition [of community supervision] that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant."); Ex parte Alakayi, 102 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd).
By June 21, 2016, when it decided to modify the terms of appellant's community supervision, the trial court had before it evidence that, while participating in sex offender treatment, appellant failed to take responsibility for her actions, portrayed herself as the victim, and placed the blame, to the point of claiming she was raped and drugged, on the children who were the actual victims of appellant's actions. Further, appellant's first victim was the older brother of one of her son's friends, and appellant had sexual intercourse with this child while playing a game of hide and seek with both him and appellant's children. Although appellant claimed the victim raped her during this encounter, she did not scream, did not report the alleged rape, and continued to allow the victim to come to her house and be around her children. Appellant's husband attended appellant's group counseling session on June 20, 2016, defended appellant, and viewed her as a "complete victim." Both appellant and her husband were told by the therapist during the session that appellant "should not have access to any minor child" and it was the therapist's fear "that this is a pattern of behavior." Although appellant denied there were any other victims, the therapist noted appellant had been "dishonest from the start." The following day, the trial court modified the conditions of appellant's community supervision to prohibit her from having contact with any minor child.
Given that one purpose of community supervision conditions is to protect the community, that appellant as a convicted felon on community supervision enjoys a diminished level of constitutional rights, and that the State has a compelling interest in protecting children, including appellant's children, from sexual exploitation, we cannot conclude appellant carried her burden to show the trial court's modification of the conditions of community supervision to prohibit contact with any child was so disconnected from appellant's offenses as to constitute a violation of substantive due process and an abuse of the trial court's discretion. See Schlitter, 488 S.W.3d at 313 (fundamental liberty interest in parent's care, custody, and control of her children may be limited where necessary to effectuate compelling governmental interest in protecting children); Alakayi, 102 S.W.3d at 432-34 (concluding probationer convicted of sexual assault had not met burden to show modification of community supervision to prohibit access to his child violated his fundamental liberty interest in familial relationship); Belt v. State, 127 S.W.3d 277, 284 (Tex. App.—Fort Worth 2004, no pet.) (concluding trial court acted within its discretion in barring convicted sex offender from having contact with any children including his own child and stepchildren); see also United States v. Garcia, No. 16-1011, 2017 WL 2297386, at *9 (10th Cir. May 25, 2017) (concluding, based on facts of case, that appellant failed to show condition of supervised release prohibiting him from unsupervised contact with his own children "amount[ed] to 'an unwarranted infringement on his fundamental right of familial association'"). We resolve appellant's third issue against her.
Regarding her procedural due process claim, appellant asserts she discussed the conditions of community supervision with the trial court and her guilty plea was conditioned on the trial court's agreement that she would be able to reside with her children. Appellant argues the trial court had previously allowed her greater access to her children and the third modification of community supervision was issued sua sponte without any notice to her, without a hearing, and on a record devoid of evidence justifying termination of her ability to contact and reside with her children. Appellant asserts she was entitled to rely upon her community supervision "contract" which placed her on community supervision for ten years and allowed her to reside with her children in exchange for her guilty pleas. Appellant denies that there is anything in the record regarding the nature of her offenses of injury to a child and nothing in the record shows she is a danger to her children. Finally, appellant contends she is entitled to a written finding from the factfinder that justifies the modification.
The court of criminal appeals has previously held it does not violate a probationer's right to due process of law to modify the conditions of community supervision without a hearing. See Sanchez v. State, 603 S.W.2d 869, 870 (Tex. Crim. App. [Panel Op.] 1980). In Sanchez, the court explained a probationer is not entitled to a hearing concerning modification of conditions of community supervision and the probationer in that case was not contending he did not receive notice of the changes which could have been imposed initially and were not unreasonable. See id. Sanchez is controlling authority in this case.
It is undisputed appellant received timely notice of the third modification. She refused to sign it and filed an objection with the trial court. The trial court could have prohibited appellant from contacting any children at the start of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a). The record on appeal does not reflect any evidence showing the trial court made an agreement that it would never interfere with appellant's ability to reside with her children. To the contrary, appellant signed an acknowledgment expressly stating her understanding the trial court had the power to alter or amend the conditions of community supervision at any time. Without a record documenting appellant's allegations that access to her children was a necessary predicate for her entering her plea agreements, appellant has not carried her burden to show the trial court abused its discretion. See Torres, 483 S.W.3d at 43; Sanchez, 603 S.W.2d at 870.
Regarding her argument about the state of the evidentiary record, the documentation in the supplemental clerks' records provides ample evidence from which the trial court could conclude appellant required greater restrictions on her access to children. Appellant's apparent failure to make progress in treatment suffices to support the trial court's determination to further restrict appellant's access to minors in order to protect the community. Under the code of criminal procedure, the trial court enjoys great discretion in altering or modifying the conditions of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a); Stevens v. State, 938 S.W.2d 517, 520 (Tex. App.—Fort Worth 1997, pet. ref'd) (finding no abuse of discretion when trial court amended defendant's conditions of community supervision to add sex offender restrictions).
As authority she is entitled to a written statement from the trial court documenting its reasons for tightening the conditions of community supervision, appellant relies upon an opinion from the Second Circuit that vacated and remanded a condition of federal "supervised release" mandating the person on supervised release have no contact with her life partner. See United States v. Napulou, 593 F.3d 1041, 1043 (2nd Cir. 2010). As appellant notes, the Second Circuit in Napulou determined that when a condition of release singles out a particular person with whom the supervised releasee has an intimate relationship, "the sentencing court must undertake an individualized review of that person and the relationship at issue, and must provide a justification for the imposition of such an intrusive prohibitory condition." Id. at 1047. The Second Circuit, however, bases its opinion on the requirements of federal statutes governing supervised release rather than upon constitutional notions of due process. See id. at 1044-45, 1047.
Appellant received a copy of the third modification of the conditions of community supervision and was able to express any objections to the modification to the trial court. That is precisely the procedural due process she was entitled to receive. See Sanchez, 603 S.W.2d at 870 (noting probationer was not complaining about not receiving notice of modification). We conclude appellant has not shown a violation of her right to procedural due process of law in the modification of the conditions of community supervision. We resolve appellant's fourth issue against her.
We affirm the trial court's order denying relief on appellant's application for writ of habeas corpus.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47 170241F.U05
JUDGMENT
On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. WX16-90016.
Opinion delivered by Justice Fillmore. Justices Whitehill and Boatright participating.
Based on the Court's opinion of this date, the order of the trial court denying relief on appellant's application for writ of habeas corpus is AFFIRMED. Judgment entered this 14th day of August, 2017.
JUDGMENT
On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. WX16-90017.
Opinion delivered by Justice Fillmore. Justices Whitehill and Boatright participating.
Based on the Court's opinion of this date, the order of the trial court denying relief on appellant's application for writ of habeas corpus is AFFIRMED. Judgment entered this 14th day of August, 2017.