Opinion
No. 13-03-678-CR
Memorandum Opinion delivered and filed June 9, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 117th District Court of Nueces County, Texas.
Before Justices RODRIGUEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
Pursuant to a plea agreement, appellant, Jesus Guzman, pleaded guilty to indecency with a child, was granted deferred adjudication for a period of ten years, and was placed on community supervision. Appellant subsequently pleaded true to alleged violations of the terms of his community supervision, had his supervision revoked, was adjudicated guilty of the underlying offense, and was sentenced to five years' imprisonment. Appellant now appeals by two issues, arguing that the trial court abused its discretion (1) by accepting his plea of true to violations of his community supervision even though he maintained that he was innocent of the underlying offense and (2) in determining that he violated his community supervision in the absence of a written judgment or order stating the terms of his community supervision or other evidence to prove that he was provided a copy of the terms. In this case, no appeal was taken within thirty days of the order granting deferred adjudication; instead, the instant appeal was filed after the trial court revoked community supervision and adjudicated appellant's guilt. Appellant's claim of actual innocence may not be raised in the instant appeal because it challenges his plea of guilty to the underlying offense and thus relates to the original plea proceeding. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). We therefore dismiss appellant's first issue. In his second issue, appellant argues that the trial court abused its discretion by revoking his community supervision because the order deferring adjudication and placing him on supervision did not state the terms of the supervision and because the State failed to present any evidence that appellant was provided a copy of the terms prior to the occurrence of the alleged violations. As the court of criminal appeals has explained, "It is incumbent upon a trial judge to incorporate in his order granting probation the conditions upon which the accused is probated, so that the accused and the authorities may know with certainty what those conditions are." Stover v. State, 365 S.W.2d 808, 809 (Tex.Crim.App. 1963); see also Johnson v. State, 672 S.W.2d 621, 623 (Tex.Crim.App. 1984). The court has further stated that the trial judge cannot delegate the fixing of such conditions to the probation officer or anyone else. McDonald v. State, 442 S.W.2d 386, 387 (Tex.Crim.App. 1969); see also DeGay v. State, 741 S.W.2d 445, 449 (Tex.Crim.App. 1987) (en banc). The State contends that the trial court's error in failing to list the terms of supervision in its order cannot be reviewed on appeal from the revocation of supervision and adjudication of guilt because it amounts to an error in the adjudication of guilt process. In Connolly v. State, 983 S.W.2d 738, 740 (Tex.Crim.App. 1999), a case relied upon by the State, the court of criminal appeals reaffirmed that the trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and cannot be reviewed. See also Williams v. State, 592 S.W.2d 931, 932-33 (Tex.Crim.App. 1979). As we understand appellant's second issue, though, it is not challenging the trial court's decision to adjudicate guilt but rather the trial court's decision to revoke community supervision. Upon holding a revocation hearing, the trial court has discretion to either continue or revoke community supervision. Wester v. State, 542 S.W.2d 403, 405 (Tex.Crim.App. 1976). Notwithstanding the trial court's discretion in this matter, supervision should not be arbitrarily withdrawn, and the trial court is not authorized to revoke without having a hearing and finding that the defendant has violated a condition of his supervision. Id. The burden of proof to show a violation is on the State. Id. A defendant may appeal the trial court's decision to revoke community supervision. See Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984) (en banc). The central issue to be determined in reviewing a trial court's exercise of discretion in a revocation case is whether the defendant was afforded due process of law. DeGay, 741 S.W.2d at 450. Appellant maintains that he was not afforded due process because he was not given adequate notice of the conditions of his supervision; however, he does not allege ignorance of the conditions. The record shows that the trial court informed appellant, on the record, that his supervision would be revoked if he committed any criminal offenses. The record also shows that appellant said he understood this term. At the hearing on the State's motion to revoke supervision, appellant made no objections based on lack of notice but instead pleaded true to the allegations that he violated the terms of his supervision by, among other things, committing robbery and evading arrest. Based on this record, we cannot conclude that appellant was not afforded due process of law. Accordingly, appellant's second issue is overruled, and the judgment of the trial court is affirmed.
CONCURRING MEMORANDUM OPINION
See Tex.R.App.P. 47.2, 47.4.
The trial court convened an evidentiary hearing for the dual purpose of considering Guzman's motion for new trial, and the State's motion to adjudicate guilt and revoke community supervision. In his motion for new trial, filed before an adjudication of guilt, Guzman sought to withdraw his guilty plea based on a claim of innocence and newly discovered evidence. At the hearing, Guzman testified he understood he was required "to report, pay a fee, go to classes" and register as a sex offender. Guzman admitted he was guilty of the underlying charge of indecency with a child. Before denying the motion for new trial, the trial court considered a court-ordered psychiatric report and concluded that any claim of incompetency had no merit. A trial court has no authority to consider a motion for new trial before adjudication. Donovan v. State, 68 S.W.3d 633, 638 (Tex.Crim.App. 2002) (en banc). Thus, the trial court properly denied Guzman's motion for new trial. Id. The trial court proceeded to consider the State's motion alleging violations of the terms and conditions of community supervision. In particular, the State alleged that Guzman violated three conditions requiring that he (1) commit no offense against the laws of the State (two counts), and (2) report monthly to his probation officer. Guzman pleaded true to the three counts and proceeded to testify. He acknowledged he knew to report to his probation officer by the probation officer's verbal request to report. He admitted taking tennis shoes from a store without paying for them and fleeing from police before apprehension. He also admitted to failing to identify himself to law enforcement. The record shows that, at the time he entered his plea of guilty and the trial court placed him on deferred adjudication community supervision, the trial court admonished him that he must report every month and "follow the program under community supervision." The trial court adjudicated Guzman's guilt and sentenced him to five years in the Texas Department of Criminal Justice — Institutional Division. This appeal ensued. In his first issue, Guzman asserts the trial court erred by accepting his plea of true, despite his prior claim of innocence during the motion for new trial proceedings. I conclude that Guzman forfeited his complaint on appeal because he did not raise the issue before the trial court. All the party must do to avoid the forfeiture of a complaint on appeal is to let the trial court know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the trial court to understand him at a time when the trial court is in a proper position to do something about it. See Keeter v. State, 2005 Tex. Crim. App. LEXIS 521, at *9 n. 11 (Tex.Crim.App. April 6, 2005) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992) (en banc)). In this case, Guzman did not present his complaint to the trial court before raising it as an issue on appeal. Thus, I would overrule his first issue. Id.; see also Tex.R.App.P. 33.1. In his second issue, Guzman argues that the trial court abused its discretion by sentencing him based on his pleas of true to violations of community supervision conditions not delineated in a written order. He asserts he was denied due process of law and a fair punishment hearing absent a written order containing the conditions. The granting of community supervision is a privilege, not a right. Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App. 1999) (en banc). Consistent with its broad discretionary powers in deciding whether to grant community supervision, a trial court likewise has broad discretion in determining the conditions to be imposed. Id. The trial court "shall" determine the conditions of community supervision, but the description of allowable conditions is prefaced with the permissive term "may:" "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." Id.; see Tex. Code Crim. Proc. Ann. art. 42.12 § 11(a) (Vernon Supp. 2004-05). The probationer must know with certainty what he is being asked to do. See Curtis v. State, 548 S.W.2d 57, 58 (Tex.Crim.App. 1977). In this case, the judgment deferring adjudication states, "The community supervision term and the terms and conditions of community supervision are set out in a supplementary order to this judgment." However, as Guzman states, there is no supplementary order reciting the conditions of community supervision. Even so, the trial court pronounced a condition, among others, at the time it entered judgment that Guzman must report during community supervision. During the same proceeding, Guzman stated he understood his duty to report. During the adjudication hearing, Guzman pleaded true to a violation of that condition, among others, indicating he understood the allegations against him. Thus, I conclude he knew with certainty what he must do with respect to at least one condition he admitted violating. See Curtis, 548 S.W.2d at 58. However, Guzman did not object to the proceedings and he did not present his current complaint to the trial court. Thus, I conclude that Guzman forfeited his complaint on appeal. Keeter, 2005 Tex. Crim. App. LEXIS 521, at *9 n. 11; Tex.R.App.P. 33.1. Constitutional rights, like other rights, may be forfeited. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996) (en banc); Ramirez v. State, 89 S.W.3d 222, 231 (Tex.App.-Corpus Christi 2002, no pet.). Accordingly, I agree that Guzman's second issue should be overruled.
The trial court stated:
Now, the bad part about deferred is this, and that is, if you do not follow the program under community supervision, you do not report, you do not pay fees, you do not register, you do not stay away from children — all of those are conditions. You do not — don't attend the sex education classes, then I can, if somebody brings that to my attention through a motion to revoke and they prove to me, then I can revoke the deferred adjudication. I can find you guilty just like that because it's already in the file and I'll take judicial notice at that time of the evidence that's already there and I then can sentence you to the full range of punishment. . . . So the Court defers a final finding of guilt in this matter and places you on community supervision for 10 years. You're going to be on the sex offender case load which means that you have to report under that case load and you also have to register within a time period and there will also be a lot of other requirements that you're gonna have to do. And you're gonna have to report to me, okay?. . . .
The record does not show that the trial court informed Guzman that his supervision would be revoked if he committed any criminal offenses.
The trial court explained deferred adjudication and community supervision after Guzman pleaded guilty and deferred adjudication community supervision was imposed. Four times, the trial court asked him if he understand what would occur if he did not comply with community supervision, and each time he responded in the affirmative. Toward the end of the proceeding, the trial court asked, "Do you still want this to occur today?," he replied, "Yes."
Standing alone, a plea of true is sufficient to support the trial court's order of revocation. See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979); Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979).
The judgment, including the sentence assessed, is just the written declaration and embodi-ment of that oral pronouncement. Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App. 2004). When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls. Id.