Opinion
PD-0427-24
12-18-2024
ANDREW STEELE, Appellant v. THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY
Keller, P.J., delivered the opinion of the Court in which Hervey, Richardson, Keel, Slaughter and McClure, JJ., joined. Yeary, J., filed a concurring opinion. Newell and Walker, JJ., dissented.
OPINION
Keller, P.J.
This is a case about $100.
After a jury found Appellant guilty of driving while intoxicated, the trial court placed him on probation. As a condition of probation, the court ordered him to pay $100 to the Houston Area Women's Shelter. Appellant did not object. Holding that Appellant did not have to object and could raise the complaint for the first time on appeal, the court of appeals deleted the condition. We conclude that the court of appeals erred in holding that Appellant did not have to object. Because paying $100 to a women's shelter is not a condition "that the criminal justice system simply finds intolerable," a failure to object waives any complaint about the imposition of that condition.
I. BACKGROUND
A. Trial
The entire punishment stage of Appellant's trial occurred as follows:
THE COURT: And what are we doing on punishment?
DEFENSE COUNSEL: We're going to you, Judge.
THE COURT: All right. You want me to just do my thing or you want to say stuff?
DEFENSE COUNSEL: Do you have anything you want to put on?
PROSECUTOR: No, Your Honor. I'm okay with you doing your thing.
THE COURT: Okay. Any objections from the Defense?
DEFENSE COUNSEL: None.
THE COURT: All right. We'll do one year probation. Condition of probation, the restitution, and then just the standard DWI probation terms and a hundred dollars to Houston Area Women's Shelter.
Appellant did not object.
B. Appeal
The court of appeals held that Appellant was not required to object to the women's-shelter condition to complain about it for the first time on appeal. The court relied on a statute that prohibited the payment of money as a condition of probation except in certain circumstances. The appellate court held that this statute created an absolute prohibition, permitting a complaint about its violation for the first time on appeal. One of the exceptions to the statutory prohibition is "a payment ordered as a condition that relates personally to the rehabilitation of the defendant or that is otherwise expressly authorized by law." But the court of appeals held that payment to a women's shelter did not qualify under the exception because it did not relate personally to the rehabilitation of a DWI defendant. Consequently, the court of appeals ordered that the women's-shelter condition be deleted.
Steele v. State, No. 01-22-00311-CR, 2023 WL 5535788, *9 (Tex. App.-Houston [1st Dist.] August 29, 2023) (mem. op., not designated for publication).
Id. at *8 (quoting Tex. Code Crim. Proc. art. 42A.651(a)).
Id. at *9.
Id. at *8 (quoting Tex. Code Crim. Proc. art. 42A.651(a)(3)).
Id. at *9.
Id. at *10.
II. ANALYSIS
In Speth v. State, we held that a defendant affirmatively accepts and waives any complaint about a condition of probation if he fails to object at the time it is imposed. We have later clarified that a waiver occurs only if the defendant was made aware of the condition in time to object at trial.Here, Appellant was clearly made aware of the condition when the trial judge pronounced it orally. Appellant had an opportunity to object but failed to do so.
6 S.W.3d 530, 533-34 (Tex. Crim. App. 1999).
Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014).
Speth addressed the exact issue Appellant raised on appeal. Speth complained for the first time on appeal that some of his conditions of probation were illegal. We said,
An award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial court and the defendant. Therefore, conditions not objected to are affirmatively accepted as terms of the contract. Thus, by entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable.
Speth, 6 S.W.3d at 534.
In Gutierrez v. State, we recognized a narrow exception to the Speth waiver rule. A waiver will not occur for a condition "that the criminal justice system simply finds intolerable" and "is therefore, by definition, not even an option available to the parties." In Gutierrez, the condition of probation at issue was a requirement that Gutierrez either obtain legal status to remain in this country or leave the country and reside in a place where she could do so legally. In analyzing the issue, we relied in part on Hernandez v. State, an older case that addressed a condition of probation that deported or banished a defendant. We found the condition in Hernandez to be "so antithetical to the aims of the justice system as a whole as to be intolerable, and therefore, not subject to agreement by the parties." We pointed out that federal preemption precluded a Texas state court from ordering deportation and that banishment was precluded by an express provision of the Texas Constitution. We concluded that "a condition of community supervision that effectively operates to deport a probationer violates an absolute prohibition and is therefore not subject to ordinary principles of waiver or procedural default."
380 S.W.3d 167, 175-76 (Tex. Crim. App. 2012).
Id. at 176.
Id. at 169.
613 S.W.2d 287 (Tex. Crim. App. 1981) (op. on reh'g).
Gutierrez, 380 S.W.3d at 173-74, 176-77.
Id. at 176.
Id. (citing Tex. Const. art. I, § 20).
Id. at 177.
Relying on Hernandez, we held that Gutierrez could complain for the first time on appeal about the condition of probation that required her to either obtain legal status or leave the country.
Along the way, though, we said,
This is not to say that a defendant will not forfeit many, if not most, appellate complaints-even most constitutional complaints-about particular conditions of community supervision by failing to object at trial, or that he will not effectively waive any constitutional or statutory waiver-only right that might be violated by a condition of community supervision he has agreed to follow in his contractual relationship with the trial court.
Id. at 175.
Later, in Gutierrez-Rodriguez v. State, we held that the imposition of restitution for items the defendant was not charged with stealing did not fall under the "intolerable" condition exception to the Speth waiver rule:
Requiring restitution for stolen items that were not included in the charging instrument, but that belonged to the complaining witnesses and were stolen during the same transaction as the charged items, is not the sort of condition that the criminal justice system finds intolerable or unconscionable. This is true even if appellant's connection to the theft of these items was not specifically established, as long as she had the opportunity to object and challenge such a connection. A trial objection would have given the trial court the opportunity to reconsider the condition of probation or to reconsider the appropriateness of the probation contract without the objected-to condition.
444 S.W.3d 21, 23-24 (Tex. Crim. App. 2014).
Appellant contends that the women's-shelter condition violated an absolute prohibition because it violated a statutory prohibition. He and the court of appeals both rely upon the following general statute that addresses payment as a condition of probation:
(a) A judge may not order a defendant to make a payment as a term or condition of community supervision, except for:
(1) the payment of fines, court costs, or restitution to the victim;
(2) reimbursement of a county as described by Article 42A.301(b)(11); or
(3) a payment ordered as a condition that relates personally to the rehabilitation of the defendant or that is otherwise expressly authorized by law.
But we have held that mandatory statutory language does not automatically create an absolute prohibition or even a waivable-only right. In Trinidad v. State, the statute at issue prohibited any person from being with the jury while the jury is deliberating. In spite of the "shall" language in the statute, we held that Trinidad had procedurally defaulted his argument on appeal and that the court of appeals erred to address the merits of the claim. We said,
Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010).
Id. (quoting Tex. Code Crim. Proc. art. 36.22) ("No person shall be permitted to be with the jury while it is deliberating . . .").
Id.
Nothing else about Article 36.22 suggests that the Legislature regarded the requirement of a jury completely free of outside influence to be so indispensable to the fairness of trial that the system simply will not tolerate any conviction obtained under those circumstances, regardless of the will of the parties or how trivial the outside influence might be.Appellant is simply wrong to conclude that language of prohibition in a statute is itself sufficient to make something an "absolute prohibition" immune from waiver.
Id.
The court of appeals and the parties have focused on the third statutory exception in the payment-condition provision, involving a payment that relates to the rehabilitation of the defendant. By its nature, that provision would seem to involve a great deal of discretion, but we need not consider the breadth of the exception. Even if the trial court exceeded that discretion, the statutory provision does not have the blanket-prohibition appearance of an absolute prohibition. It is more like the restitution situation in Gutierrez-Rodriguez, where the defendant was required to raise a challenge at trial if he thought restitution for certain items was unauthorized. If a defendant believes that a trial court is wrong to impose a certain condition of probation, he should say so to the trial court "so that the error may be rectified or, barring that, so that the defendant can make a timely record for appeal." And as we acknowledged in Gutierrez-Rodriguez, a trial objection would have given the trial court the opportunity not only to reconsider the specific condition of probation, but to reconsider whether probation was even appropriate without the condition.
Id.
The State argues that the court of appeals created a new Marin category-one absolute prohibition that is contrary to Speth. The State also argues that the particular condition here-making a relatively small payment to a women's shelter-is a condition that could validly be imposed in numerous cases. Therefore, the State claims, the condition is not the sort of intolerable, antithetical-to-justice condition that is immune from waiver. We agree. In responding to an estoppel complaint by the State, Gutierrez said that estoppel did not apply because deportation and banishment conditions were the type that made a contract unenforceable on grounds of public policy. And given the wording of the exception to the Speth waiver rule, we conclude that a condition of probation is subject to an absolute prohibition only when, like the banishment condition at issue in Gutierrez, it is "intolerable" and "antithetical to justice," i.e., it is the type of condition that no Texas state court could ever impose as a condition of probation.
See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
Another example of a condition that is banned in all cases in Texas is orchiectomy: "A judge may not require a defendant to undergo an orchiectomy as a condition of community supervision." Tex. Code Crim. Proc. art. 42A.307.
Payment to a women's shelter is neither intolerable nor antithetical to justice, regardless of whether it is warranted in a particular case. Appellant's implied acceptance of the condition (by failing to object) is valid. Consequently, he has waived his complaint.
We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
Yeary, J., filed concurring opinion.
As this Court acknowledged in Speth v. State, "[we] generally view our adversarial system as including three kinds of 'rights': (1) absolute systemic requirements and prohibitions that are nonwaivable, (2) rights of litigants that must be implemented unless expressly waived, and (3) rights that must be insisted upon at trial or nothing is presented for review." 6 S. W3d 530, 533 n5 (Tex Crim App 1999) (citing Marin v State, 851 S.W.2d 275, 278-80 (Tex Crim App1993), overruled on other grounds, Cain v State, 947 S.W.2d 262, 265 (Tex Crim App 1997)) Accordingly, the very first step in our analysis ought to be to ask which kind of "right" is at issue See Burg v State, 592 S.W.3d 444, 453 (Tex Crim App 2020) (Keasler, J, concurring) (criticizing the Court for refusing "to couch its conclusion in Marin's lexicon"). Curiously, though, the Court today does not express its conclusion in the lexicon of Marin v. State For that reason, I can only concur with the majority's result.
Perhaps this is because Speth likewise failed "to couch its conclusion in Marin's lexicon." Burg v. State, 592 S.W.3d 444, 453 (Tex. Crim. App. 2020) (Keasler, J., concurring). In Speth, it is not entirely clear whether the Court categorized the right as Marin category two or three. See Speth v. State, 6 S.W.3d 530, 534-35 & n.11 (Tex. Crim. App. 1999) (discussing an "affirmative waiver" but also distinguishing a case because it did not deal with procedural default). But the notion that the right might be Marin category two is problematic because a waiver is not usually sufficient "unless it amounts to the 'intentional relinquishment or abandonment of a known right or privilege.'" Marin, 851 S.W.2d at 279 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (emphasis added). Although Speth seems to imply that simply entering a contract amounts to an affirmative waiver, surely there are instances in which one accepts the imposition of a condition without an awareness of a particular right or privilege. Under those circumstances, it can hardly be said that the waiver is sufficient. This problem, coupled with the lack of clarity as to which Marin category was even at issue in Speth, counsels against relying on Speth too heavily to decide this case.
The general rule is that an appealing party must raise a complaint at trial before it can be raised on appeal. Tex.R.App.P. 33.1(a)(1)(A). In other words, most rights are forfeited by inaction. Marin, 851 S.W.2d at 278. Only "systemic requirements and prohibitions" (Marin category one), and rights that are "so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection" (Marin category two), are not subject to ordinary principles of procedural default. Id. at 278-79.
To be free of a $100 payment that might not be related to the rehabilitation of a defendant can hardly be said to be a right that is "systemic" or "fundamental to the proper functioning of our adjudicatory process."And the fact that such a payment might be prohibited by mandatory language does not automatically render it Marin category one or two. Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010). In the absence of an objection, the record may not even reveal whether the condition that the trial court judge imposed was prohibited. This is starkly different than, for example, an illegal sentence, which does not require a contemporaneous objection. Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2003) (en banc). When an illegal sentence is imposed, it amounts to a patent defect that a court of appeals can readily recognize and easily cure. See e.g., Ex parte Pena, 71 S.W.3d 336, n.2 (Tex. Crim. App. 2002) ("[H]ad the jury assessed . . . a $20,000 fine, that sentence would be void and illegal because Texas statutes only permit a maximum of a $10,000 fine."). Here, though, the potential illegality of the probation condition is far from obvious, especially because it depends upon whether it "personally relates to the rehabilitation of the defendant." Tex. Code Crim. Proc. art. 42A.651(a)(3).Thus, the right at issue here, in my view, is properly categorized as Marin category three-forfeited if not exercised.
It is entirely possible that this condition might, in fact, relate to the rehabilitation of the defendant. But, without an objection and dialogue on the record as to why the condition is or is not related, it is difficult to imagine how a reviewing court can reach a determination on the merits. See Proenza v. State, 541 S.W.3d 786, 811-16 (Tex. Crim. App. 2017) (Keller, P.J., dissenting) (explaining that trial judges ought to have the opportunity to address and cure potential complaints).
Perhaps, if Appellant had objected to the $100 payment condition, the record might reflect whether it was, or was not, "personally relat[ed] to the rehabilitation of the defendant." Had Appellant objected, the trial court might have explained its reasons for imposing the payment as a condition of Appellant's community supervision in this case. But because Appellant did not object, and instead affirmatively agreed to that payment when he signed the conditions of his community supervision, there is no record development on the question. As it is, we are not well positioned on direct appeal to answer the question presented by the requirement established in Article 42A.651(a)(3).
To be clear, I do not mean to suggest that defendants are without any recourse if they otherwise "accidently," or on account of ineffective assistance of counsel, accept a condition of probation that turns out to be prohibited; indeed, the Legislature imposes certain prohibitions for a reason, and those prohibitions are not to be casually cast aside. To that end, absent a contemporaneous objection that would allow a defendant to raise the issue on appeal, a defendant might be entitled to attack the potentially prohibited condition through a claim made in an application for a writ of habeas corpus. See Tex. Code Crim. Proc. art. 11.072 ("Sec. 1. This article establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision."); see also Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) (noting that habeas corpus is the appropriate avenue for affording relief when the record on direct appeal would not reveal the problem).
I agree with the majority's bottom line-Appellant cannot complain for the first time on appeal about the condition requiring him to pay $100 to a women's shelter. But, because the majority does not explicitly utilize Marin's lexicon, and, like Speth, seems to treat the right as though it should be considered to fall within Marin category two, I can only concur with its result. See Burg, 592 S.W.3d at 453 (Keasler, J., concurring) (observing that a refusal to utilize Marin's explicit framework "needlessly confuses our jurisprudence").
See Majority Opinion at 8 ("Consequently, he has waived his complaint.") (emphasis added).