COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00090-CR
LYNDON BART LONG, II APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In three issues, appellant Lyndon Bart Long, II appeals his conviction for
sexual assault of a child. 2 We affirm.
Background Facts
In September 2003, a grand jury indicted appellant with committing sexual
assault of a child by causing her sexual organ to contact his sexual organ. In
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 22.011(a)(2)(C) (West 2011).
August 2004, with the assistance of counsel, appellant waived constitutional and
statutory rights, judicially confessed to that offense, and pled guilty. 3 The trial
court deferred its adjudication of appellant’s guilt and placed him on community
supervision for an eight-year term. 4
The conditions of appellant’s community supervision required him to,
among other acts, remain in Tarrant County, attend sex offender treatment,
abstain from drinking alcohol, and refrain from viewing sexually explicit material.
In December 2008, May 2009, July 2011, August 2011, and September 2011,
the trial court supplemented the terms of appellant’s community supervision,
sometimes requiring his confinement for short periods in jail. 5
In January 2012, the State filed a petition that requested the trial court to
adjudicate appellant’s guilt because he had violated several conditions of his
community supervision. The State amended its petition in February 2012,
alleging in part that appellant had left Tarrant County without permission, had
drunk alcohol, and had watched a movie that contained sexually explicit material.
3
Appellant was twenty-three years old at the time of his guilty plea and was
less than twenty years old at the time of the offense.
4
See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 2(2)(A), 5(a) (West Supp.
2012).
5
The evidence indicates that appellant was incarcerated during his
community supervision because he failed polygraph examinations on various
topics, including, apparently, his consumption of alcohol.
2
Appellant pled true and judicially confessed to leaving Tarrant County and to
consuming alcohol.
In the adjudication hearing, after receiving appellant’s pleas and evidence
from the parties, the trial court heard appellant’s closing argument, in which he
asked the trial court to allow him to continue on community supervision. At the
conclusion of that argument, the trial court found that appellant had violated the
terms of his community supervision, revoked it, adjudicated his guilt, and
sentenced him to ten years’ confinement. Appellant brought this appeal.
The Propriety of the Trial Court’s Adjudication Decision
In his first issue, appellant contends that the trial court abused its
discretion by adjudicating his guilt and by sentencing him to ten years’
confinement because over the course of more than seven years, he mostly
complied with the terms of his community supervision, and his violations of some
conditions of the community supervision were “minor” and “technical.”
At the hearing on the State’s petition, witnesses, including appellant’s
probation supervision officer, testified that appellant had gone to a certain movie
theater that the State considered to be a child safety zone and had watched a
movie there that contained nudity; 6 had left Tarrant County once to eat at a
6
Appellant’s probation supervision officer testified that she had watched
this movie and that it contained male and female nudity, simulated anal sex, a
reference to buying children for sex, and a “monkey performing oral sex on a
monk with a beer bottle under his tunic simulating oral sex.” The probation
supervision officer said that probationers are “taught in treatment . . . to see what
is the content of a movie . . . before . . . watch[ing] it.” Appellant reported to the
3
restaurant that was barely across the county line and had disclosed this fact to
his probation supervision officer; had drunk alcohol multiple times during the
community supervision, including when his parents separated; and had worked
as a bartender. The evidence also established that appellant’s probation
supervision officer had considered recommending appellant’s placement in an
inpatient substance-abuse treatment facility but had eventually determined that
she could not place him in the facility because of his score on an assessment,
that appellant was a college student and was attending Alcoholics Anonymous at
the time of the hearing on the State’s adjudication petition, that he had paid all of
his probation fees and had complied with many terms of his probation, that he
had maintained employment for most of his probation, and that he had actively
participated in sex offender treatment, including attending sessions of which the
trial court had not required.
When appellant’s counsel asked appellant’s sex offender treatment
provider whether appellant could continue to be a successful probationer, the
provider testified,
My opinion is that for seven years [appellant] was, you know,
compliant . . . . I don’t know that the problem of drinking will be
addressed in [prison]. It bothers me . . . that he was not honest
[about drinking alcohol]. That’s probably more of a concern to me
than the fact he drank a beer here and a beer there.
probation supervision officer that he had left the theater when the movie
displayed a scene with nudity.
4
On cross-examination, the provider expressed that she was concerned about
appellant’s lack of attention to following the rules of his community supervision,
including his failure to investigate the content of the movie that he had watched
that contained nudity.
As we have explained,
We review an order revoking community supervision under an
abuse-of-discretion standard. In a revocation proceeding, the State
must prove by a preponderance of the evidence that the defendant
is the same individual who is named in the judgment and order of
probation, and then must prove that the defendant violated a term of
probation as alleged in the motion to revoke.
Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.)
(quoting Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet.
ref’d)). “Proof by a preponderance of the evidence of any one of the alleged
violations of the conditions of community supervision is sufficient to support a
revocation order.” Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth
2005, pet. ref’d).
Appellant concedes that the evidence was generally sufficient to support
the trial court’s adjudication decision (based in part on his pleas of true to two
allegations in the State’s amended petition to adjudicate), 7 but he argues that
7
See Perry v. State, 367 S.W.3d 690, 693 (Tex. App.—Texarkana 2012, no
pet.) (“A plea of true, standing alone, is sufficient to support revocation.”).
Because appellant concedes that the evidence is sufficient to support the trial
court’s finding that he violated at least two conditions of his community
supervision, we decline to address appellant’s contentions about whether the
evidence establishes that he violated other conditions (including, for example,
whether he failed to pay for treatment or went within 1,000 feet of a place where
5
under the facts of this case, the “trial court’s act of sentencing [him] to ten years
in prison violates the goals of community supervision in Texas, . . . and the trial
court abused its discretion by not considering the many alternatives it could have
utilized.” Appellant contends that the trial court’s abuse of discretion in his
adjudication and sentencing decisions is illustrated by his assertion that the
evidence was insufficient to prove four of the six allegations in the State’s
amended petition.
Appellant makes a reasoned argument that under the evidence presented
in the revocation hearing, a court could have rationally made a decision that is
different than the adjudication decision made by the trial court in this case. But
as to appellant’s contention that the trial court abused its discretion by revoking
his community supervision and adjudicating his guilt because his violations of
community supervision were “minor,” precedent and persuasive authority are not
on his side.
In Beckworth v. State, Beckworth had pled guilty to driving while
intoxicated and had been placed on probation for twelve months. 551 S.W.2d
414, 415 (Tex. Crim. App. 1977). A trial court revoked the probation only on the
ground that Beckworth had consumed alcohol. Id. On appeal, Beckworth
contended that the trial court’s revocation was an abuse of discretion because, in
part, he had only drunk alcohol while under emotional stress and he had
children commonly gather). See Tex. R. App. P. 47.1; Sanchez v. State, 603
S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Leach, 170 S.W.3d at 672.
6
voluntarily started an alcohol treatment program. Id. at 416. The court of
criminal appeals disagreed, explaining,
[Beckworth argues that] a court may refuse to revoke
probation even when there has been a technical violation of the
probation terms. . . . In our discussion of appellant’s first ground of
error, we found that the State proved by a preponderance of the
evidence that appellant violated the conditions of his probation.
There was sufficient evidence for the trial judge to conclude that the
appellant had broken the contract he made with the court after
appellant’s guilt had been determined. Thus, the trial judge did not
abuse his discretion by entering the order revoking appellant’s
probation.
Id. (citation omitted).
More recently, following Beckworth’s lead, several courts of appeals have
concluded that a trial court does not abuse its discretion in revoking community
supervision as long as there is sufficient evidence of at least one violation of it,
even if the defendant considers that violation insignificant. For example, in
Thomas v. State, Thomas received deferred adjudication and a six-year
community supervision term for burglary of a habitation, but he violated the terms
of his community supervision by failing to report to his community supervision
officer once and by failing to participate in community service at the designated
rate of hours per month. No. 14-10-00653-CR, 2011 WL 1709940, at *1 (Tex.
App.—Houston [14th Dist.] May 3, 2011, pet. ref’d) (mem. op., not designated for
publication), cert. denied, 132 S. Ct. 1858 (2012). The court of appeals affirmed
the trial court’s revocation of Thomas’s community supervision, stating,
The court may revoke community supervision for any violation,
including “technical” violations. “Technical” violations typically
7
include the probationer’s failure to report to the probation officer, pay
community supervision fees, and perform community service at the
specified rate.
The trial court . . . found that appellant had violated the
conditions of his community supervision. The trial court’s decision is
supported by the record evidence, which includes appellant’s
admissions. Even if appellant’s violations were “technical” violations,
they were nonetheless sufficient to revoke his community
supervision. The resulting seven-year prison sentence is not for
appellant’s violations of the conditions of his community supervision,
but for the burglary offense to which appellant had previously pled
guilty.
Id. at *2 (citations omitted); see also Cook v. State, No. 12-09-00201-CR, 2010
WL 5141777, at *3 (Tex. App.—Tyler Dec. 15, 2010, pet. ref’d) (mem. op., not
designated for publication) (holding that a defendant’s failure to complete a
community service requirement was sufficient to revoke his community
supervision although he argued that the requirement was a “mere technicality”),
cert. denied, 132 S. Ct. 459 (2011); Bland v. State, No. 11-08-00023-CR, 2008
WL 4684668, at *3 (Tex. App.—Eastland Oct. 23, 2008, no pet.) (mem. op., not
designated for publication) (“While Bland characterizes [being late on paying fees
and missing one reporting date] as technical violations[,] a distinction for which
we find no support in the law, these violations still would authorize the trial court
to revoke his community supervision.”); Nurridin v. State, 154 S.W.3d 920, 924
(Tex. App.—Dallas 2005, no pet.) (“Courts may revoke community supervision
for a violation of any condition, including violations of any single ‘technical’
condition.”); Nicholas v. State, No. 12-01-00102-CR, 2002 WL 253837, at *2
(Tex. App.—Tyler Feb. 20, 2002, no pet.) (not designated for publication) (“Every
8
condition of probation is important, and if not complied with, subjects the
defendant to potential revocation.”). We have not found any case in which an
appellate court reversed a trial court’s revocation of community supervision
based solely on the rationale that a defendant’s violations of a community
supervision agreement with the trial court were too insignificant.
Moreover, we note that an award of community supervision is “a quasi-
contractual privilege, not a right.” Applin v. State, 341 S.W.3d 528, 533 (Tex.
App.—Fort Worth 2011, no pet.); see Bowen v. State, 649 S.W.2d 384, 386 (Tex.
App.—Fort Worth 1983, pet. ref’d) (“The court extends clemency to the
probationer if he will keep and perform certain requirements and conditions, the
violation of which will authorize the revocation of the probation.”). 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 v. State, 6 S.W.3d 530, 534 (Tex. Crim.
App. 1999), cert. denied, 529 U.S. 1088 (2000). Appellant did not at any stage in
the trial court complain that the conditions imposed by the trial court, including
the conditions requiring him to refrain from drinking alcohol and to stay within
Tarrant County, were unreasonable or oppressive. And although, on appeal,
appellant characterizes those conditions as “minor” and “technical,” at the time of
his plea, the trial court advised him in writing that it had the “authority . . . to
[r]evoke [his] Community Supervision for any violation of the conditions of [his]
Community Supervision.” [Emphasis added.]
9
Appellant cites three Texas cases for the proposition that a trial court errs
by imposing a predetermined sentence, but in each of those cases, when placing
defendants on probation, the trial courts had told the defendants that if they
violated the probation’s terms, they would likely receive high or maximum
sentences. See Earley v. State, 855 S.W.2d 260, 262–63 (Tex. App.—Corpus
Christi 1993), pet. dism’d, improvidently granted, 872 S.W.2d 758 (Tex. Crim.
App. 1994); Howard v. State, 830 S.W.2d 785, 787–89 (Tex. App.—San Antonio
1992, pet. ref’d); Jefferson v. State, 803 S.W.2d 470, 471–73 (Tex. App.—Dallas
1991, pet. ref’d). In this case, we have not located evidence of any
representation made by the trial court to appellant at the time of his guilty plea
concerning what his punishment would be if he violated the terms of his
community supervision. Likewise, we have not located other evidence indicating
that the trial court predetermined its adjudication or punishment decisions before
listening to the evidence at the adjudication hearing.
Although appellant contends that the trial court “did not consider any
alternatives regarding Appellant other than to send [him] to prison,” it is just as
likely that the trial court, while listening to appellant’s closing argument,
considered those alternatives and rejected them. Finally, appellant did not
receive a maximum sentence in this case; his conviction authorized the trial court
10
to assess twenty years’ confinement, and he received ten. 8 See Tex. Penal
Code Ann. §§ 12.33(a), 22.011(f) (West 2011). And appellant did not complain in
the trial court about the excessiveness of his sentence, so to the extent he
makes that argument in this court, he has forfeited it. See Means v. State, 347
S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no pet.); see also Ortiz v. State,
No. 02-11-00481-CR, 2013 WL 362799, at *1 (Tex. App.—Fort Worth Jan.
31, 2013, no pet. h.) (mem. op., not designated for publication) (holding that an
appellant forfeited his complaint about the excessiveness of his sentence
following a revocation of community supervision for “technical violations”
because the appellant did not object to his sentence in the trial court).
For all of these reasons, we conclude that the trial court did not abuse its
discretion by revoking appellant’s community supervision, adjudicating his guilt,
and sentencing him to ten years’ confinement based on his pleas of true and on
the evidence presented in the adjudication hearing. We overrule his first issue.
The Constitutionality of Section 22.011(a)(2) of the Penal Code
In his second and third issues, appellant contends that section
22.011(a)(2) of the penal code is unconstitutional, as a violation of federal and
state due process, 9 because it fails to require the State to prove that a defendant
8
Appellant acknowledges that a sentence within the range provided by law
will not generally be disturbed on appeal. See Jackson v. State, 680 S.W.2d
809, 814 (Tex. Crim. App. 1984).
9
See U.S. Const. Amend V; Tex. Const. art. I, § 19.
11
knew the sexual assault victim’s age when engaging in the crime and because it
does not recognize an affirmative defense based on a defendant’s reasonable
belief that the victim was at least seventeen years old.
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); Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012); Clay, 361 S.W.3d at 765. 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); Pena v. State, 353 S.W.3d 797, 807 (Tex.
Crim. App. 2011). Preservation of error is a systemic requirement. Wilson v.
State, 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010) (op. on reh’g); Clay, 361
S.W.3d at 765.
Facial and as-applied challenges to the constitutionality of statutes are
forfeited when raised for the first time on appeal. See Karenev v. State, 281
S.W.3d 428, 434 (Tex. Crim. App. 2009); Holmes v. State, 380 S.W.3d 307, 308–
09 (Tex. App.—Fort Worth 2012, pet. ref’d); Ibenyenwa v. State, 367 S.W.3d
420, 422 (Tex. App.—Fort Worth 2012, pet. ref’d) (op. on reh’g). Appellant did
not challenge the constitutionality of section 22.011(a)(2) in the trial court.
Although he asserts that section 22.011(a)(2)’s alleged unconstitutionality makes
the trial court’s judgment void, the court of criminal appeals has decided that a
12
statute’s unconstitutionality does not affect a trial court’s jurisdiction and that the
application of an unconstitutional statute does not make a defendant’s conviction
void. See Karenev, 281 S.W.3d at 432–34.
Appellant contends that we may review unassigned error. This is true, but
unassigned error is different than unpreserved error. See Pfeiffer v. State, 363
S.W.3d 594, 599 (Tex. Crim. App. 2012) (“[A]ppellate courts may review
unassigned error—a claim that was preserved in the trial court but was not raised
by either party on appeal.”); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.
App. 2006) (“[E]rrors that are subject to procedural default may not be remedied
by the appellate court as unassigned error unless the error was in fact preserved
in the trial court.”).
Appellant also contends that due process rights are “fundamental” and
therefore “should not be subject to the requirements of a contemporaneous
objection at trial.” The court of criminal appeals, however, has held otherwise.
See, e.g., Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009). 10 We
may not disregard the court of criminal appeals’s precedent. Wilson v. State, 108
S.W.3d 328, 332 (Tex. App.—Fort Worth 2003, pet. ref’d).
10
Appellant relies in part on the court of criminal appeals’s decision in
Almanza v. State to argue that we may review his unpreserved error. 686
S.W.2d 157, 171 (Tex. Crim. App. 1984) (establishing that when no objection is
made to jury charge error, we may reverse a conviction if the defendant suffered
egregious harm). But we have held that Almanza does not apply to constitutional
challenges to statutes. See Shafer v. State, No. 02-10-00496-CR, 2012 WL
745422, at *1 (Tex. App.—Fort Worth Mar. 8, 2012, pet. ref’d) (citing Curry v.
State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995)).
13
Next, appellant asks us to review his issues in the interests of justice. The
court of criminal appeals has instructed us that we should not address the merits
of an issue that has not been preserved for appeal. Wilson, 311 S.W.3d at 473;
see Clay, 361 S.W.3d at 765. We note, however, that in a case that involved
issues that were similar to the arguments raised by appellant in this case, we
upheld the constitutionality of section 22.021 of the penal code, which is the
aggravated sexual assault statute. See Fleming v. State, 376 S.W.3d 854, 862
(Tex. App.—Fort Worth 2012, pet. granted); see also Tex. Penal Code Ann.
§ 22.021 (West Supp. 2012).
Ultimately, appellant concedes that he did not preserve his constitutional
complaints for appellate review, and we agree. Accordingly, we hold that
appellant forfeited the complaints raised in his second and third issues, and we
overrule those issues. See Tex. R. App. P. 33.1(a); Ibenyenwa, 367 S.W.3d at
422–23.
14
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 4, 2013
15
Lyndon Bart Long, II v. State
Combined Opinion