In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00103-CR ______________________________
BENITO SANTOS AGUILAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 35679-B
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Benito Santos Aguilar stood before the trial court--aided by a Spanish interpreter--accused of driving while intoxicated (DWI), having had two previous convictions for DWI. Aguilar pled guilty without a plea agreement and sought community supervision rather than jail time. In the dialogue with the trial court, Aguilar admitted that he was in the United States illegally. He stipulated to evidence that, on the occasion in question, he drove a motor vehicle while intoxicated and that he had previously been convicted of two prior DWIs. There was also evidence that Aguilar, after this offense, had been arrested for DWI on two later occasions. The trial court accepted the guilty plea, rejected the request for community supervision, and sentenced Aguilar to five years' imprisonment.
On appeal, Aguilar contends the trial court abused its sentencing discretion as shown by "racist" remarks. The portion of the record in question is the trial court's response to counsel's request for community supervision:
[Defense Counsel]: He wants probation, he's a hard worker, he's got a family here he needs to care for, on his behalf, I ask you to consider placing him on probation.
THE COURT: Okay. He mentions that his family needs him. Well, he sure wasn't thinking about his family when he was out there on the road all tanked up. But I'm thinking about a family, I'm thinking about those families that are out there on the highways, minding their own business and there are Benito Aguilars out there tanked up on the road and what could happen when that occurs. And I ain't going to let it happen on my watch under the facts of this case.
In support of the argument, counsel points out that the court asked Aguilar, at the time he waived a jury trial, whether he was a citizen and that, on finding out that he was not, the court warned him deportation might follow any conviction. Counsel implies that this is improper because it is not required by law or custom at that point in the proceedings.
Counsel also acknowledges that the trial court repeated this sequence when Aguilar pled guilty and that such inquiry is mandated by Article 26.13 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2008).
Counsel directs our attention to cases in which defense counsel's racially specific and negative references to his or her own client can constitute ineffective assistance of counsel. See Ex parte Guzmon, 730 S.W.2d 724, 726 (Tex. Crim. App. 1987) (counsel referred to client as "wetback"); Ramirez v. State, 65 S.W.3d 156, 157 (Tex. App.--Amarillo 2001, pet. ref'd) (counsel argued that jury not consider client a "drunk Mexican").
First, we note that here there was no objection to any of the trial court's comments and that counsel also made no objection later--when asked whether there was any reason for sentence not to be pronounced--and, in fact, said he had no legal reason for sentence not to be pronounced at that time. In the absence of any timely complaint by counsel, the claimed error has not been preserved for appellate review. Tex. R. App. P. 33.1.
Even if the complaint had been properly preserved, we do not read such racial implications into these statements. The trial court stated that it would not let the drunken "Benito Aguilars" of the world back onto the roadway to endanger other families and that it would not allow such to happen with this person in this case. It was a generic statement of intent to enforce the law and sentence as it saw necessary to protect the public. The trial court's comments were not perjorative to Hispanics, nor were they race-specific in any fashion, beyond using the name of the defendant. Using a defendant's name in such a fashion does not make a statement racist.
We overrule the point of error and affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: December 1, 2008
Date Decided: December 2, 2008
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00017-CR
______________________________
MARICELA RODRIGUEZ GUTIERREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 7th Judicial District Court
Smith County, Texas
Trial Court No. 007-80280-99
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
O P I N I O N
On May 12, 2004, when Maricela Rodriguez Gutierrez was placed on community supervision,[1] she agreed her community supervision status would subject her to twenty-nine supervisory conditions.[2] Fifteen of those conditions were general conditions, seven were financial, two were drug-related, two were education-related, and three were immigration-related. Only one of those conditionsimmigration-relatedis at issue here.
At the time the trial court heard the States motion to revoke[3] Gutierrez community supervision, the sole evidence was that she had violated a single conditionthat she failed to leave the United States after not obtaining legalized immigration status by a stated deadline. Interestingly, the State did not allege that she had violated condition number one, obeying the law. Finding only that condition sixty was violatedher failure to leave the country after failing to get legal status by a stated deadlinethe trial court revoked Gutierrezs community supervision December 1, 2010.
On appeal, Gutierrez argues that the term requiring that she leave the United States was void and, thus, cannot support her revocation. Because the federal government has exclusive jurisdiction to deport or accept immigrants, we must agree. Thus, we reverse the revocation and render judgment that Gutierrezs community supervision not be revoked on this basis.
Two major principles collide in this appeal.
The first major principle is that, under Texas law, an award of community supervision is not a right, but a contractual privilege; and its conditions are terms of the contract entered into between the trial court and the defendant. Therefore, conditions to which the defendant does not object are affirmatively accepted as terms of the contract. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). They are part of the judgment, but not part of the sentence. Id. Consistent with that concept, under Texas law, a defendant is sentenced, but the sentence is suspended and the defendant is placed on community supervision pursuant to the conditions of community supervision.
The other major principle in this casethe one that must have supremacy hereis that the regulation of immigration is unquestionably exclusively a federal power. De Canas v. Bica, 424 U.S. 351, 354 (1976). This has been recognized explicitly by the Texas Court of Criminal Appeals. See Hernandez v. State, 613 S.W.2d 287, 290 (Tex. Crim. App. 1981) (op. on rehg).
At the time her community supervision was imposed, Gutierrez made no objection that the terms and conditions were unlawful, and did not appeal from that judgment. Under normal conditions, a defendant cannot complain about community supervision conditions for the first time on appeal from revocation. Speth, 6 S.W.3d at 535; Lindley v. State, 331 S.W.3d 1, 5 (Tex. App.Texarkana 2010, no pet.).[4] One exception to this general rule that appellant relies on is that for a void judgment, which is a nullity and can be attacked at any time. See Nix v. State, 65 S.W.3d 664, 66769 (Tex. Crim. App. 2001); Crume v. State, 342 S.W.3d 241 (Tex. App.Beaumont 2011, no pet.); Martinez v. State, 194 S.W.3d 699, 701 (Tex. App.Houston [14th Dist.] 2006, no pet.). Under that exception, where an original judgment imposing community supervision is void, there is no judgment imposing community supervision, and, accordingly, nothing to revoke. Nix, 65 S.W.3d at 66869. As discussed below, there is also a question of whether a condition that is void may be enforcedunder more than one theory of law.
Here, the judgment itself cannot be considered void. The conditions of community supervision ancillary to the judgment contain a term that, if directly attacked, would certainly be found unlawful. A void judgment, however, is a different creature.
But a judgment is void only in very rare situationsusually due to a lack of jurisdiction. In civil cases, a judgment is void only when there was no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter a particular judgment, or no capacity to act as a court. This rule is essentially paralleled in criminal cases. A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright. While we hesitate to call this an exclusive list, it is very nearly so.
Nix, 65 S.W.3d at 668. Under that description, we cannot agree that the judgment in this case is void. At most, the one condition used to revoke Gutierrez community supervision was outside the authority or power of the trial court to impose. As it could be easily severed from the entirety of the judgment, such a fact does not make the entire judgment void.
Factually, this situation is very similar to that described in Hernandez. See Hernandez, 613 S.W.2d at 290. As in Hernandez, Gutierrez did not appeal from the order placing her on community supervision, but instead appeals from the revocation of community supervision. As in Hernandez, community supervision was revoked based on a single alleged violation of the conditions of supervisionthe condition requiring the alien defendant to leave the United States. In both cases, we have a state court intruding into an area exclusively within the authority of the federal governmentand at that, within the authority of the executive branch, not even of the federal judiciary.
In Hernandez, the Texas Court of Criminal Appeals did not discuss the contractual nature of conditions of community supervision.[5] It also did not apply any theory of preservation of error. The high court instead directly addressed the issue, focusing on the trial courts total lack of authority to impose any such condition and noting that the only reasons for revoking community supervision in that case were violations of conditions the trial court had no power to impose in the first place.
After providing a concise explanation of the supremacy of the national power over immigration, naturalization, and deportation based on the Supremacy Clause of the United States Constitution, the court held that the conditions of community supervision ordering Hernandez to remain in the Republic of Mexico and not to re-enter the United States without prior written consent of the trial court were void. Based on that determination, the high court then held that, since community supervision was revoked only for violations of these two conditions, the revocation could not stand. Hernandez, 613 S.W.2d at 290.
The sole distinction between these cases lies in the fact that Gutierrez, unlike Hernandez, did not go to Mexico and then return. In the present case, Gutierrez did not obey the trial courts directive to go to Mexico unless she obtained legal status allowing her to lawfully remain in the United Statesand the court found that she had violated a term of her community supervision by failing to leave. Although the distinction does exist, it is a distinction that makes no difference.
Accordingly, the outcome of this appeal turns solely on whether, despite Hernandez, we conclude that this issue was waived.
The State properly acknowledges the authority of the Federal government over all matters involving immigration and deportation. The States argument is based on concepts of waiver and preservation. In short, the State argues that, since Gutierrez did not complain about an unlawfully imposed condition at the time it was imposed, she cannot complain about it now. There is support for that position. In Speth, a 1999 decision, it was recognized that a trial court abuses its discretion by imposing unlawful conditions on community supervision. Speth, 6 S.W.3d at 534.
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.
Id. As the exact language used is of some importance, we quote:
We do not hold that a trial court does not abuse its discretion by imposing conditions that are unreasonable or violate constitutional rights or statutory provisions. But such defects must be timely objected to in order to be raised on appeal.
Id. at 534 n.10. That language categorically states that, even violations of constitutional rights must be objected to, else the defendant risks waiver.[6]
In this case, the trial court did not inform Gutierrez of the existence of this condition in open court during the plea proceeding. Thus, it would be impossible to have objected at trial. The condition was imposed as one of the written conditions, which were signed by the defendant and judge on the date of the judgment: May 12, 2004. The record, however, also contains no later effort to bring the error to the trial courts attention.
Hernandez has not been discussed or otherwise addressed by a Texas court, except in 1997, when the San Antonio Court of Appeals, in an unpublished opinion, simply noted that, if a noncitizen defendant went to his or her native country, but then re-entered the United States illegally, he or she would violate the law, and that violation could violate the terms of community supervision. See Mancha v. State, No. 04-95-00849-CR, 1997 WL 214823, at *23 (Tex. App.San Antonio Apr. 30, 1997, no pet.) (mem. op., not designated for publication). Hernandez, therefore, remains controlling authority requiring reversal of this case, unless we determine that Speth and its progeny overruled the analysis sub silentio.
After examining the two cases, we do not believe that Speth and Hernandez are mutually exclusive. The language in Speth that appears to control the outcome says:
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.
Speth, 6 S.W.3d 530, 534.
We do not hold that a trial court does not abuse its discretion by imposing conditions that are unreasonable or violate constitutional rights or statutory provisions. But such defects must be timely objected to in order to be raised on appeal.
Id. at 534 n.10. Hernandez holds that
the conditions of probation that ordered appellant to remain in the Republic of Mexico and not re-enter the United States without prior written consent of the court are void. Since probation was revoked only for violations of these conditions, it was an abuse of discretion to revoke probation.
Hernandez, 613 S.W.2d at 290. According to Speth, you can contract for, and be bound by, unconstitutional conditions of community supervision, such conditions being described by the court as a defect. Failure to object results in waiver of the defect. But Hernandez says the trial court had no power to do what it did. According to Hernandez, the unlawful condition, one the court had no authority to employ, was void and thus could not be enforced. The condition is not merely unreasonable, and it does not merely violate a constitutional right of the defendant. It violates the exclusive authority of the United States of America to absolutely control immigration to, and banishment from, the United States. The condition itself violated the Supremacy Clause of the United States Constitution.
Accordingly, we conclude, in accordance with Hernandez, that the condition is void, and that the revocation, premised solely on Gutierrez violation of that condition, cannot stand.
We reverse the order revoking Gutierrez community supervision.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 12, 2011
Date Decided: October 7, 2011
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[1]Gutierrez was convicted for possession of a controlled substance, and placed on ten years community supervision. Her conviction was pursuant to a plea agreement. The written order containing the conditions of her community supervision, consistent with the oral order, required her to contact legal authorities within ten days to start proceedings for legalization of her immigration status and complete filing of all paperwork within ninety days. The written order then went far beyond the oral pronouncement, ordering her at the end of twelve months, if she did not obtain legal status, to leave the country and reside in a location where you do have a legally authorized status. It appears that, during the following four years, she took various actions, filed the requisite paperwork, and obtained extensions from the trial court, but did not obtain a legally authorized status in the United States or leave the country. Her counsel stated at the revocation hearing that she had four children who were United States citizens, two of whom have Downs Syndrome. It appears that she sought a legalized immigration status based on her relationship with a person legally within this country.
[2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (West 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[3]In July 2010, the State filed a motion to revoke. The State alleged two violations, but abandoned its claim that she had failed to file the requisite paperwork to seek legal status. The State proceeded based on her failure to meet one requirement of the conditions of her community supervision: in the absence of obtaining permission from the federal authorities to remain formally in the country, she broke the terms of her community supervision by failing to leave the country and reside in a location where she had a legally authorized status. She pled true to the allegation. The trial court revoked her community supervision and sentenced her to five years confinement.
[4]An appeal from an order revoking community supervision is limited to the propriety of the revocation. Corley v. State, 782 S.W.2d 859, 860, n.2 (Tex. Crim. App. 1989). In such appeals, the court has allowed defendants the opportunity to raise errors made at the plea hearing but, as in all other collateral attacks on a judgment, the defendant is restricted to pleading and proving fundamental error that makes the judgment void. Traylor v. State, 561 S.W.2d 492, 494 (Tex. Crim. App. 1978).
[5]At that time, as now, the courts recognized that, when a trial court grants community supervision, the court and the probationer have a contractual relationship, and the conditions of community supervision should be clearly set forth in the courts judgments and orders so that the probationer and the authorities know the conditions with certainty. McDonald v. State, 442 S.W.2d 386, 387 (Tex. Crim. App. 1969).
[6]This language would not assist a party in understanding how or when to seek relief when a court later adds new conditions or amends conditions already in existence.