April Marie Berryhill v. State ( 2014 )

Affirmed; Opinion Filed November 12, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01605-CR
APRIL MARIE BERRYHILL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-1231151-Y
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Evans
Opinion by Justice Lang
The sole issue in this appeal from an order of deferred adjudication is whether the trial
court abused its discretion in imposing in-patient drug treatment as a condition of community
supervision. We conclude appellant failed to preserve error and affirm the trial court’s judgment.
I. BACKGROUND
April Marie Berryhill was charged with possession of heroin in an amount less than one
gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.102(2), 481.115(b) (West 2010). A pre-
sentence investigation report reflected she had a “significant” drug problem and had admitted
using heroin, marijuana, and methamphetamine. According to the report, she refused to
adequately address and accept responsibility for her drug problem, and it was recommended she
complete a long-term in-patient treatment program.
Berryhill and the State entered into a plea agreement which recited she would plead
guilty and the State would recommend two years’ deferred adjudication and a $1500 fine.
However, they could not agree on an appropriate drug treatment program, and the issue was tried
to the trial court.
At the plea hearing, probation officer Laura Weddle testified Berryhill presented to the
pre-sentence evaluation with glassy eyes and under the influence of alcohol and Adderall,
“which she did not have a prescription for.” Weddle further testified Berryhill denied having a
drug problem. As a result, Weddle did not think Berryhill would be a good candidate for an
intensive outpatient program, but would need residential treatment.
Berryhill admitted to a “heroin problem in the past” and agreed she needed treatment.
She testified, however, that she wanted the trial court to order intensive outpatient treatment
instead of in-patient treatment. She explained that she did not want to be separated from her two
young sons and also that her grandparents had offered to pay for her to attend cosmetology
school in Washington state, where they lived.
The trial court accepted Berryhill’s plea, placed her on two years’ deferred adjudication
probation, and assessed the $1500 fine recommended by the State, but probated it. As one of the
conditions of community supervision, the trial court ordered appellant to complete an inpatient
drug treatment program. Berryhill did not object to the imposition of any of the conditions of
supervision and signed a document listing the conditions. Three weeks after the plea hearing,
however, she filed a motion for the trial court to reconsider the requirement that she complete an
in-patient drug treatment program. The motion was not set for hearing, and no record of any
hearing was filed with this Court.
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II. PRESERVATION OF ERROR
It is well-settled that a complaint for appellate review must be preserved by timely
request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Grado v. State, ___ S.W.3d ___, 2014
WL 5247808 *2 (Tex. Crim. App. Oct. 15, 2014). Recognizing that trial counsel did not lodge a
formal objection at the plea hearing, Berryhill argues that her testimony disagreeing with
residential treatment and requesting outpatient treatment constituted an objection. She further
argues that her motion for reconsideration also preserved error. We disagree.
A. Applicable Law
The purpose of a timely objection is to allow the trial judge an opportunity to cure error.
Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). To be considered timely, an
objection must be made at the first opportunity or as soon as the basis of the objection becomes
apparent. Id.; Stevens v. State, 671 S.W.2d 517, 521 (Tex. Crim. App. 1984). A premature or
late objection preserves nothing for review. See Brewer v. State, 367 S.W.3d 251, 253 (Tex.
Crim. App. 2012); King v. State, 631 S.W.2d 486, 492 n.15 (Tex. Crim. App. 1982). Generally,
when a defendant does not have an opportunity to object, he must file a motion for new trial to
preserve error for appellate review. See Isaa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App.
1992); Habib v. State, 431 S.W.3d 737, 741 (Tex. App.—Amarillo 2014, pet. ref’d). A motion
for new trial is not an available remedy for a defendant placed on deferred adjudication,
however, unless he has first moved for adjudication. Donovan v. State, 68 S.W.3d 633, 637-38
(Tex. Crim. App. 2002).
B. Application of Law to Facts
Assuming Berryhill’s testimony constituted an objection, it preceded the trial court’s
imposition of the terms of community supervision and was premature, preserving nothing for
review. See King, 631 S.W.2d at 492 n.15. Further, because a defendant placed on deferred
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adjudication may not avail himself of a motion for new trial, Berryhill’s motion for
reconsideration also failed to preserve error for review. Donovan, 68 S.W.3d at 637.
To preserve error, Berryhill needed to object as soon as the trial court announced
Berryhill had to complete an in-patient drug treatment program. Berryhill did not object at that
time and, in fact, affirmatively accepted the terms of community supervision by signing the
document listing them. We resolve Berryhill’s sole issue against her.
III. CONCLUSION
Having resolved Berryhill’s sole issue against her, we affirm the trial court’s order of
deferred adjudication.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131605F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
APRIL MARIE BERRYHILL, Appellant On Appeal from the Criminal District Court
No. 7, Dallas County, Texas
No. 05-13-01605-CR V. Trial Court Cause No. F-1231151-Y.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee Bridges and Evans participating.
Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.
Judgment entered this 12th day of November, 2014.
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