Elgin Harness v. State ( 2016 )

Opinion filed July 28, 2016
In The
Eleventh Court of Appeals
__________
No. 11-14-00301-CR
__________
ELGIN HARNESS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 18369B
MEMORANDUM OPINION
Elgin Harness1 pleaded guilty in February 2012 to aggravated assault. TEX.
PENAL CODE ANN. § 22.02(a)(1) (West 2011). The trial court deferred a finding of
guilt, placed Appellant on deferred adjudication community supervision for a term
1
We note that Appellant’s name as reflected in the charging instrument is Elgin Harness but that
the judgment reflects his name to be Elgin Christopher Harness.
of five years, and assessed a fine of $1,000. Five weeks later, Appellant’s
community supervision officer requested that the conditions of Appellant’s
community supervision be amended. The trial court amended the conditions of
community supervision to include a requirement that Appellant attend therapy for
sex offenders.
In July 2014, the State filed a motion to proceed with an adjudication of guilt,
alleging twenty-three violations of the terms and conditions of Appellant’s
community supervision. Appellant pleaded “true” to twenty-two of the alleged
violations. The trial court adjudicated Appellant guilty of the charged offense and
assessed his punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of twelve years. In two issues on appeal,
Appellant argues that the trial court violated his due process rights and abused its
discretion when it amended the original conditions of community supervision to
include the requirement that Appellant receive sex offender treatment. We affirm.
Background Facts
Appellant was charged with intentionally and knowingly causing serious
bodily injury to A.C. by causing his male sexual organ to penetrate her female sexual
organ without her consent at a time when he knew A.C. was unconscious or
physically unable to resist. Appellant pleaded guilty to the offense in February 2012.
He executed a stipulation of evidence admitting to these facts as a part of his guilty
plea. At the request of Appellant’s community supervision officer, the trial court
subsequently amended Appellant’s community supervision terms in March 2012 to
include: “Attend and participate in therapy for sex offenders at the direction of the
Taylor County Community Corrections and Supervision Department.”
2
Appellant entered a plea of “true” to twenty-two of the alleged violations, four
of which were violations of his requirement to attend and participate in therapy for
sex offenders. Appellant initially attended sex therapy classes. However, he stopped
attending because he thought the classes were not helpful to him. Appellant admitted
at his revocation hearing that he should have continued attending the classes.
Analysis
In two issues on appeal, Appellant challenges the trial court’s requirement that
he attend sex offender treatment as a term and condition of community supervision.
He contends that the trial court improperly imposed this requirement two years prior
to the filing of the motion to adjudicate. Based upon his contentions, he asserts that
the violations of the sex offender treatment condition “played a significant role” in
the revocation of his community supervision and that we should require the trial
court to reinstate his community supervision without these conditions. We conclude
that Appellant has not preserved his complaints for appellate review.
We note at the outset that Appellant has not challenged the trial court’s
findings of “true” on the eighteen other grounds that were alleged in the motion to
adjudicate guilt. In this regard, Appellant pleaded “true” to all of these other alleged
violations. The other alleged violations to which Appellant pleaded “true” included
using various controlled substances while on community supervision, failing to take
requested drug tests, failing to report to the community supervision officer, failing
to abide by curfew, and failing to make required payments. In announcing its
decision to adjudicate Appellant guilty, the trial court included these other grounds
as a basis for revoking Appellant’s deferred adjudication community supervision.
The decision to proceed with an adjudication of guilt of a defendant on
deferred adjudication community supervision is reviewable in the same manner as a
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revocation of “ordinary” community supervision. See TEX. CODE CRIM. PROC. ANN.
art. 42.12, § 5(b) (West Supp. 2015). We review an order revoking community
supervision under an abuse-of-discretion standard. Rickels v. State, 202 S.W.3d 759,
763 (Tex. Crim. App. 2006). The violation of a single condition is sufficient to
support a revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel
Op.] 1980). Furthermore, a plea of true standing alone is sufficient to support a trial
court’s decision to revoke community supervision. Moses v. State, 590 S.W.2d 469,
470 (Tex. Crim. App. [Panel Op.] 1979). To prevail on appeal, an appellant must
ordinarily successfully challenge all of the trial court’s findings that support
revocation. Silber v. State, 371 S.W.3d 605, 611 (Tex. App.—Houston [1st Dist.]
2012, no pet.); see Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel
Op.] 1978).
In his first issue, relying on Ex parte Evans, 338 S.W.3d 545 (Tex. Crim. App.
2011), Appellant contends that his due process rights were violated by the imposition
of sex offender conditions after he was convicted of a nonsexual offense. In Evans,
the Court of Criminal Appeals limited the availability of sex offender treatment for
parolees convicted of nonsexual offenses. Id. at 550–51. However, Appellant never
objected to the trial court on the ground that the modified community supervision
condition violated his due process rights.
The Fort Worth Court of Appeals addressed a similar situation in Donovan v.
State, ___ S.W.3d ___, 2014 WL 975728, at *3 (Tex. App.—Fort Worth Mar. 13
2014) (not yet released for publication), aff’d, 2015 WL 4040599 (Tex. Crim. App.
July 1, 2015) (not designated for publication). Based upon Speth v. State, 6 S.W.3d
530, 534 (Tex. Crim. App. 1999), the Fort Worth Court of Appeals determined that
the appellant did not preserve error because he did not present his complaint about
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the imposition of a condition of community supervision to the trial court. Id. In
Speth,2 the Court of Criminal Appeals held that, to complain about a community
supervision condition on appeal, an appellant must have first challenged the
condition in the trial court. 6 S.W.3d at 534–35. The court stated as follows:
[C]onditions 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. A trial objection allows the trial
court the opportunity to either risk abusing his discretion by imposing
the condition over objection or reconsider the desirability of the
contract without the objectionable condition.
Id. (footnotes omitted).
We agree with the holding in Donovan and hold that Appellant was required
under Speth to present his complaint regarding the sex offender treatment condition
to the trial court in order to preserve his complaint on appeal. A defendant may
forfeit constitutional complaints by not raising them timely in the trial court.
Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). To preserve error for
appellate review, a defendant must make a timely and specific objection or motion
at trial, and there must be an adverse ruling by the trial court. TEX. R. APP. P. 33.1(a);
Aldrich v. State, 104 S.W.3d 890, 894–95 (Tex. Crim. App. 2003).
Appellant did not object to the trial court’s modification requiring sex
offender treatment. Instead, Appellant accepted the modification by participating in
sex offender treatment for almost two years. Appellant simply stopped going
2
Speth also involved the subsequent imposition of sex offender conditions on a defendant placed
on deferred adjudication community supervision for a nonsexual offense. 6 S.W.3d at 531.
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because he felt that it was not helping. At the revocation proceeding, Appellant
stated he should have continued his classes and “kept my mouth closed.” Appellant
asked for his community supervision to be reinstated but, notably, did not ask for the
sex offender requirements to be removed or modified. Appellant never asserted a
due process violation to the trial court. Accordingly, Appellant did not preserve his
due process claim for appellate review. See Speth, 6 S.W.3d at 534; Donovan, 2014
WL 975728, at *5. We overrule Appellant’s first issue.
In his second issue, Appellant argues that the trial court abused its discretion
when it modified Appellant’s community supervision condition requiring him to
attend therapy for sex offenders. As was the case with his due process complaint,
Appellant did not preserve this complaint for appellate review because he never
asserted it to the trial court. See Speth, 6 S.W.3d at 534; Donovan, 2014 WL 975728,
at *5. Moreover, trial courts possess broad discretion to modify, revoke, or continue
the community supervision of defendants who are placed on community supervision.
CRIM. PROC. art. 42.12, § 11(a); Sundwall v. State, No. 11-12-00141-CR, 2014 WL
1030689, at *2 (Tex. App.—Eastland Mar. 14, 2104, no pet.) (mem. op., not
designated for publication). When the trial court announced its decision to
adjudicate Appellant guilty, it stated that it had imposed the sex offender treatment
condition because “the manner and means that [Appellant] used to commit this
aggravated assault was penetrating the female sexual organ of [A.C.] without her
consent . . . [and] was very consistent with a sex offense.” Accordingly, the record
does not reflect that the trial court abused its discretion by imposing sex offender
treatment as a condition of Appellant’s community supervision. We overrule
Appellant’s second issue.
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Appellant has not preserved error on his complaints that the trial court
improperly imposed sex offender treatment as a term and condition of his deferred
adjudication community supervision. Furthermore, he has not shown that the trial
court abused its discretion in revoking his deferred adjudication community
supervision on any of the grounds that the trial court found to be “true.”
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE
July 28, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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