COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-097-CR
DAVID ALLEN SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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In a single issue, appellant David Allen Smith contends that the trial court
abused its discretion by unlawfully delegating its authority when adjudicating
appellant guilty of aggravated assault and indecency with a child. We affirm.
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… See Tex. R. App. P. 47.4.
Background
Appellant pled guilty pursuant to a plea bargain to one count of
aggravated sexual assault of a child and two counts of indecency with a child.
In accordance with the State’s recommendation, the trial court placed appellant
on ten years’ deferred adjudication for each offense and imposed a fine of $750
for the aggravated sexual assault.
One of the conditions of appellant’s deferred adjudication community
supervision was to “remain in the Sexual Abuse Treatment Program until the
program has been successfully completed, as determined by the treatment
specialist(s), or until [appellant’s] term of supervision has expired.” Appellant
was subsequently involuntarily discharged from the treatment program. The
State therefore filed a Motion to Proceed with Adjudication of Guilt, contending
that appellant violated his community supervision by failing to successfully
complete the program. The trial court subsequently adjudicated appellant guilty
of all three charges and sentenced him to ninety-five years’ confinement on the
aggravated sexual assault count and eighteen years’ confinement on each
indecency count, with each sentence to be served consecutively.
Analysis
Appellant’s sole issue is that the trial court unconstitutionally delegated
its authority by making one of appellant’s probation conditions—whether
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appellant successfully completed the sex offender treatment program—solely
determinable by a third party, appellant’s sex offender treatment counselor. In
other words, appellant contends that the counselor’s decision to involuntarily
terminate appellant predetermined a finding of “true” by the trial court.
Appellant failed to raise this argument in the trial court, either when
community supervision was originally imposed or during the adjudication
proceedings. 2 To preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling if they are not apparent from the context
of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v.
State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert.
denied, 526 U.S. 1070 (1999). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
2
… Appellant did move to quash the allegations in the petition to
adjudicate on the ground that they were vague, especially as to dates, and on
the ground that appellant could not be adjudicated guilty for being involuntarily
discharged from the program; however, these complaints do not comport with
appellant’s specific complaint on appeal. See Heidelberg v. State, 144 S.W.3d
535, 537 (Tex. Crim. App. 2004); Bell v. State, 938 S.W .2d 35, 54 (Tex.
Crim. App. 1996), cert. denied, 522 U.S. 827 (1997).
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A complaint regarding a condition of community supervision must be raised at
the time the condition is imposed or it is forfeited. Speth v. State, 6 S.W.3d
530, 534–35 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088 (2000).
Appellant contends that the trial court’s error is systemic and, thus, may
be raised for the first time on appeal. But in Speth, the court of criminal
appeals held that because community supervision is a contractual privilege, not
a systemic right,
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.
Id. at 534. Accordingly, we conclude and hold that appellant failed to preserve
his sole issue for review because there is nothing in the record showing that he
objected to the condition when it was imposed. See id. at 534–35; Heiringhoff
v. State, 130 S.W.3d 117, 133–34 (Tex. App.—El Paso 2003, pet. ref’d).
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Conclusion
Having overruled appellant’s sole issue, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: LIVINGSTON, J.; CAYCE, C.J.; and MCCOY, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 8, 2009
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