NO. 05-08-00672-CR NO. 05-08-00673-CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS KENNETH BAZE, Appellant v. THE STATE OF TEXAS, Appellee On appeal from the 283 rd Judicial District Court Dallas County, Texas Cause Nos. F07-01229-T and F07-01230-T STATE'S AMENDED BRIEF FILED PER THIS COURT S OCTOBER 27, 2009 ORDER Counsel of Record: CRAIG WATKINS KIMBERLY J. PFANNENSTIEL CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 24051190 FRANK CROWLEY COURTHOUSE 133 N. RIVERFRONT BLVD., LB-19 AMY SUE MELO MURPHY DALLAS, TEXAS 75207-4399 ASSISTANT DISTRICT ATTORNEY (214) 653-3624 DALLAS COUNTY, TEXAS (214) 653-3643 (FAX) ATTORNEYS FOR THE STATE OF TEXAS
TABLE OF CONTENTS INDEX OF AUTHORITIES... ii STATEMENT OF THE CASE AND OF FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 RESPONSE TO ISSUE ONE: APPELLANT S FIRST ISSUE IS MOOT... 4 RESPONSE TO ISSUE THREE: APPELLANT WAIVED HIS COMPLAINT THAT HIS PLEA WAS INVOLUNTARY BECAUSE HE FAILED TO OBJECT IN THE TRIAL COURT... 4 ALTERNATIVELY, THE RECORD REFLECTS THAT APPELLANT S PLEA OF TRUE WAS VOLUNTARY... 4 A. PRESERVATION OF ERROR... 5 B. APPELLANT FREELY AND VOLUNTARILY PLED TRUE... 6 RESPONSE TO ISSUE FIVE: APPELLANT WAIVED HIS PROCEDURAL DUE PROCESS COMPLAINT REGARDING THE REQUIREMENT THAT HE SUBMIT TO SEX OFFENDER TREATMENT... 9 A. ANALYSIS... 10 RESPONSE TO ISSUES TWO, FOUR, AND SIX: THIS COURT LACKS JURISDICTION OVER THE APPEAL IN CAUSE NUMBER F07-01229-T... 12 PRAYER... 13 CERTIFICATE OF SERVICE... 13
Cases INDEX OF AUTHORITIES Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004)... 10, 11 Basaldua v. State, 558 S.W.2d 2 (Tex. Crim. App. 1977)... 12, 13 Blackledge v. Allison, 431 U.S. 63 (1977)... 6 Brady v. United States, 397 U.S. 742 (1970)... 6, 8 Canseco v. State, 199 S.W.3d 437 (Tex. App. Houston [1st Dist.] 2006, pet. ref d)... 11 Christopher v. State, 7 S.W.3d 224 (Tex. App. Houston [1st Dist.] 1999, pet. ref d)... 12 Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004)... 10 Daniels v. State, 30 S.W.3d 407 (Tex. Crim. App. 2000)... 9 Davis v. State, 195 S.W.3d 708 (Tex. Crim. App. 2006)... 12 Ex parte Wilson, 716 S.W.2d 953 (Tex. Crim. App. 1986) (op. on reh g)... 6 Graham v. Owens, No. 1:08CV66-SS (W.D. Tex. Aug. 6. 2009)... 10 Gutierrez v. State, 108 S.W.3d 304 (Tex. Crim. App. 2003)... 8 Hull v. State, 67 S.W.3d 215 (Tex. Crim. App. 2002)... 9, 10, 11 Labib v. State, 239 S.W.3d 322 (Tex. App. Houston [1st Dist.] 2007, no pet.)... 6 Lopez v. State, 96 S.W.3d 406 (Tex. App. Austin 2002, pet. ref d)... 5 ii
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999)... 9 McGill v. State, 200 S.W.3d 325 (Tex. App. Dallas 2006, no pet.)... 6, 8 Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979)... 11 Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) (second op. on reh g)... 5 Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999)... 10, 11 Teixeira v. State, 89 S.W.3d 190 (Tex. App. Texarkana 2002, pet. ref d)... 5 Williams v. State, 522 S.W.2d 483 (Tex. Crim. App. 1975)... 6 Statutes TEX. CODE CRIM. PROC. ANN. art. 42.12 (Vernon Supp. 2009)... 10 TEX. PEN. CODE ANN. 22.04 (Vernon Supp. 2009)... 1 Rules TEX. R. APP. P. 33.1(a)(1)(A)... 5 iii
TO THE HONORABLE COURT OF APPEALS: The State of Texas respectfully submits this amended brief in response to the amended brief of appellant, Kenneth Baze. STATEMENT OF THE CASE AND OF FACTS Appellant was originally charged with two counts of aggravated sexual assault of a child. (RR 2: 9-10). By agreement, the State later dismissed the aggravated sexual assault charges and charged appellant by information with two counts of the third-degree felony offense of injury to a child. (CR 1: 2, 13; CR 2: 2, 12; RR 2: 9-10). 1 See TEX. PEN. CODE ANN. 22.04 (Vernon Supp. 2009). Appellant waived the right to have the cases presented to the grand jury. (RR 2: 5-6). Pursuant to negotiated plea agreements with the State, appellant pled nolo contendere to both injury to a child charges on October 25, 2007. (CR 1: 8-10; CR 2: 7-9; RR 2: 6-8). In the same proceeding, appellant also pled nolo contendere to the statejail felony offense of burglary of a building in cause number F06-64667-UT. (RR 2: 6-8). The trial court found appellant guilty of burglary of a building and sentenced him to 200 days in the county jail. (RR 2: 14-15). In accordance with the plea agreements in the injury to a child cases, the trial court deferred adjudication of guilt, placed appellant on five years deferred adjudication community supervision, and assessed a $1500 fine in each case. (CR 1: 13; CR 2: 12; RR 2: 14). 1 The clerks records are both labeled Volume One of One. For convenience, the clerk s record for cause number F07-01229-T (Appeal No. 05-08-00672-CR) will be referred to as CR 1, and the clerk s record for cause number F07-01230-T (Appeal No. 05-08-00673-CR) will be referred to as CR 2. 1
Subsequently, the State filed motions to proceed with an adjudication of guilt, alleging multiple violations of the conditions of appellant s community supervision. (CR 1: 19-20; CR 2: 23-24). At a hearing on the State s motions on May 8, 2008, appellant pled true to the allegations without the benefit of a plea bargain. (CR 1: 24-25; CR 2: 19-20; RR 3: 7). Additionally, appellant expressed his intention to waive his right to appeal the cases. (RR 3: 7). The State introduced appellant s signed, written, voluntary plea of true and stipulation of evidence in each case. (CR 1: 24-25; CR 2: 19-20; RR 3: 8). After appellant testified, the trial court accepted his pleas and found the allegations true. (RR 3: 26-27). The court granted the State s motion to adjudicate in cause number F07-01230-T, revoked appellant s probation, and sentenced him to ten years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. (CR 2: 21; RR 3: 27). In cause number F07-01229-T, the trial court extended appellant s probation for five years. (CR 1: 26-27; RR 3: 27). Although the trial court s May 8, 2008 certifications stated that appellant waived the right to appeal, appellant filed written notice of appeal in both cases on May 15, 2008, and these appeals followed. (CR 1: 28, 30; CR 2: 40-41). The State filed a motion to dismiss in cause number F07-01229-T for want of jurisdiction and a motion to abate cause number F07-01230-T to allow the trial court to certify appellant s right to appeal. On April 10, 2009, this Honorable Court denied the motion to abate, ordered the trial court to certify appellant s right to appeal in cause number F07-01230-T, and deferred ruling on the motion to dismiss. The trial court certified appellant s right to appeal in F07-01230-T on November 4, 2009. 2
SUMMARY OF ARGUMENT Appellant presents six issues in his amended brief. Appellant s first issue is moot because the trial court certified appellant s right to appeal in cause number F07-01230-T on November 4, 2009. Appellant s third and fifth issues also concern the revocation of his probation in cause number F07-01230-T. In issue three, appellant alleges that the trial court violated his right to due process by accepting his plea of true, claiming his plea was involuntary because he did not understand the conditions of his probation. Appellant waived this complaint by failing to object in the trial court. Furthermore, the record reflects the voluntariness of appellant s plea: the trial court properly admonished appellant, and appellant admitted that he committed the violations. Accordingly, appellant s third issue should be decided against him. Appellant also waived his fifth issue, in which he claims that the trial court violated his right to procedural due process by revoking his probation when he was placed under sex offender restrictions in the absence of a conviction for a sex offense. Appellant cannot appeal issues relating to the original imposition of the conditions of his community supervision. Appellant s conviction in cause number F07-01230-T should be affirmed. This Court should not consider appellant s second, fourth, and sixth issues because they relate to the trial court s order continuing his community supervision in cause number F07-01229-T. Because an order modifying community supervision is not an appealable order, the State respectfully requests this Court dismiss the appeal for want of jurisdiction. 3
ARGUMENT RESPONSE TO ISSUE ONE: APPELLANT S FIRST ISSUE IS MOOT. In his first issue, appellant alleges that the trial court erred by refusing to certify his right to appeal in cause number F07-01230-T. This Court and the State agree that appellant has the right to appeal the order adjudicating his guilt. Pursuant to this Honorable Court s April 10, 2009 order, the trial court certified appellant s right to appeal in cause number F07-01230-T on November 4, 2009. Accordingly, appellant s first issue is moot, and the State respectfully requests that this issue be overruled. RESPONSE TO ISSUE THREE: APPELLANT WAIVED HIS COMPLAINT THAT HIS PLEA WAS INVOLUNTARY BECAUSE HE FAILED TO OBJECT IN THE TRIAL COURT. ALTERNATIVELY, THE RECORD REFLECTS THAT APPELLANT S PLEA OF TRUE WAS VOLUNTARY. In his third issue, appellant alleges that the trial court violated his right to due process by accepting his plea of true in cause number F07-01230-T; he claims his plea was involuntary because he did not understand that sex offender treatment was a condition of his probation. Specifically, he claims that he lacked a complete understanding of the conditions of his probation; he also claims that he was not informed that he could withdraw his plea, and that, as a result, he was harmed. App. Br. 9-11. By failing to object that his plea was involuntary, appellant waived his complaint. In any event, the record reflects that appellant voluntarily pled true to the allegations in the State s motion to proceed with an adjudication of guilt. To the extent appellant challenges the voluntariness of his plea of nolo contendere, he cannot raise such a complaint after the adjudication of his guilt. 4
A. PRESERVATION OF ERROR As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought by the complaining party. TEX. R. APP. P. 33.1(a)(1)(A). The contemporaneous objection rule applies in the context of appeals from orders revoking community supervision. See, e.g., Rogers v. State, 640 S.W.2d 248, 263-64 (Tex. Crim. App. 1982) (second op. on reh g) (holding that probationer waives error if he fails to raise due process objection in trial court, either at the time the judge continues the hearing and/or probation, or at the time of actual revocation or at the time of sentencing ); Lopez v. State, 96 S.W.3d 406, 415 (Tex. App. Austin 2002, pet. ref d) (holding that failure to contemporaneously object to separate hearing on punishment waives error, unless record shows that probationer lacked opportunity to present mitigating evidence on punishment ); Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App. Texarkana 2002, pet. ref d) (holding that, for a defendant to preserve complaint for appeal that trial court failed to consider full range of punishment, any claim of error must be raised to trial court). In this case, appellant did not object to the trial court s alleged error during the adjudication hearing, nor did he raise his complaint in his motion for new trial. (CR 2: 27). Therefore, nothing is preserved for review, and appellant s third issue should be decided against him. 5
B. APPELLANT FREELY AND VOLUNTARILY PLED TRUE Even assuming appellant preserved his complaint for review, the record reveals that he freely and voluntarily pled true to the allegations in the State s motion to adjudicate. Due process requires that a guilty plea be not only voluntary, but also that it be made willingly, knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748 (1970). On appeal, the court considers the record as a whole when determining the voluntariness of a plea; the record must affirmatively show voluntariness. Id.; see Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975); Labib v. State, 239 S.W.3d 322, 332 (Tex. App. Houston [1st Dist.] 2007, no pet.). To be voluntary, a guilty plea must be the expression of the defendant s own free will and must not be induced by threats, misrepresentations, or improper promises. Brady, 397 U.S. at 755. Recitations in the judgment and other portions of the record regarding appellant s knowing and voluntary entry of his plea and its consequences are binding on appellant in the absence of direct proof to the contrary, and appellant has the burden of overcoming the presumption raised by the record. McGill v. State, 200 S.W.3d 325, 333 (Tex. App. Dallas 2006, no pet.); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977) (holding that a defendant s sworn representation that his guilty plea is voluntary constitute[s] a formidable barrier in any subsequent collateral proceedings. ); Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (op. on reh g). 6
Appellant claims his plea was involuntary because he did not understand that he was required to submit to sex offender treatment under condition (R) of his probation. Condition (R) placed the following requirement on appellant: Within 30 days complete a Sex Offender Clinical Assessment with a counseling agency approved by this [C]ourt. The defendant is further ordered to abide by any and all treatment directives, participate fully in counseling, comply with the rules and regulations of the approved agency, pay all costs incurred for services and continue in treatment/counseling for sex offenders until released by the Court if deemed necessary. (CR 2: 15). At the adjudication hearing, appellant claimed that he was under the impression on the R stipulation that it was going to be a one-time evaluation. (RR 3: 5). He said that he did not understand that he would have to undergo therapy, but he admitted that he read the conditions. (RR 3: 6-7). Despite his claim that he did not understand condition (R), appellant expressed his intent to waive his right to a contested hearing on the adjudication motion and entered a plea of true. (RR 3: 7). Appellant said that no one forced, threatened, or coerced him to plead true or had promised him anything. (RR 3: 7-8). On direct examination, the following exchange took place between appellant and his counsel: Counsel: The Judge had asked you earlier about the conditions of probation that you were given. You read them, correct? Appellant: Yes. Counsel: Part of the plea bargain agreement that you had with the State at that time was that you were going to undergo a sex offender evaluation, correct? Appellant: Yes. 7
Counsel: Then part of the understanding also was that whatever that sex offender evaluation says, you are going to follow up with whatever the recommendation would be, correct? Appellant: Yes. Counsel: So you understood that, right? Appellant: Yes. Counsel: However, what you were trying to explain to the Judge earlier was the fact that you thought that if you go through that evaluation that it would be determined that you don t have any problem and that would be the end of it. That was what you thought, correct? Appellant: Yes. Counsel: You did realize, though, that whatever their recommendation was, that s what the Court expected you to do, correct? Appellant: Yes. (RR 3: 9-10). Appellant signed a written plea of true, stating that his statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences. (CR 2: 19-20). Thus, the record clearly reveals that appellant freely and voluntarily entered a plea of true to the allegations in the State s motion to adjudicate. See Brady, 397 U.S. at 748; McGill, 200 S.W.3d at 333. The State also notes that the trial court was not required to inform appellant that he could withdraw his non-negotiated plea of true. See Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) (concluding that article 26.13 of the Code of Criminal Procedure applies only to pleas of guilty, and not to pleas of true in a revocation hearing). Finally, to the extent appellant complains of the voluntariness of his plea of nolo contendere, he cannot 8
raise the complaint at this time. In Manuel v. State, the Court of Criminal Appeals decided that a defendant placed on deferred adjudication has to appeal issues relating to the original deferred adjudication proceeding when deferred adjudication is first imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); see Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000). Conditions of community supervision imposed at the time of the original sentencing may not be appealed at a revocation hearing unless they were objected to when originally imposed. Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). Appellant did not complain about condition (R) at the original plea proceeding, nor did he file a motion to amend the conditions of his community supervision. In fact, nothing in the record shows that appellant complained about the conditions of his community supervision to the trial court or this Court prior to the adjudication hearing. Accordingly, he cannot now appeal issues relating to the imposition of the conditions of his community supervision or the voluntariness of his nolo contendere plea. Appellant s third issue should, therefore, be decided against him. RESPONSE TO ISSUE FIVE: APPELLANT WAIVED HIS PROCEDURAL DUE PROCESS COMPLAINT REGARDING THE REQUIREMENT THAT HE SUBMIT TO SEX OFFENDER TREATMENT. Appellant waived his fifth issue in which he alleges that the trial court violated his right to procedural due process by revoking his probation in cause number F07-01230-T when he was placed under sex offender restrictions in the absence of a sex offender conviction and that he suffered harm. App. Br. 12-13. 9
A. ANALYSIS An award of community supervision is a contractual privilege. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). The trial court has broad discretion in determining conditions of community supervision and can impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. TEX. CODE CRIM. PROC. ANN. art. 42.12, 11 (Vernon Supp. 2009). Unobjected-to conditions of community supervision are affirmatively accepted as terms of the contract. Speth, 6 S.W.3d at 534. Conditions of community supervision imposed at the time of the original sentencing may not be appealed at a revocation hearing unless they were objected to when originally imposed. Bailey v. State, 160 S.W.3d 11, 13 (Tex. Crim. App. 2004); Hull, 67 S.W.3d at 217; Speth, 6 S.W.3d at 535. Appellant argues that the trial court violated his right to due process by revoking his probation based on a violation of condition (R), requiring a sex offender assessment and treatment, absent a sex offender conviction. App. Br. 12. Relying on federal caselaw regarding the imposition of parole conditions, he claims that his due process rights were violated because he was treated as a sex offender, without an opportunity to meaningfully contest the sex offender restrictions, even though he did not plead guilty or no contest to any sex offenses. App. Br. 12 (citing Coleman v. Dretke, 395 F.3d 216, 222-23 (5th Cir. 2004) 2 ; Graham v. Owens, No. 1:08CV66-SS (W.D. Tex. Aug. 6. 2009)). Although appellant frames 2 Appellant cites this case as Coleman v. United States. 10
his issue as a complaint regarding the revocation of his probation, it is clear that his issue concerns condition (R) of his probation. Any complaint that condition (R) violated due process should have been raised when the trial court imposed the condition. The record from the original plea hearing on October 25, 2007, reveals that appellant did not object to the imposition of condition (R) at any time during the proceeding. (RR 2: 4-16). Accordingly, his complaint is untimely and should be overruled. See Bailey, 160 S.W.3d at 13; Hull, 67 S.W.3d at 217; Speth, 6 S.W.3d at 535. Notably, even if this Court considers the merits of appellant s claim, appellant s contention must fail. The record from the plea hearing reflects that appellant affirmatively stated that he understood that in exchange for the State dismissing the aggravated sexual assault case, he would not be required to register as a sex offender, but he would be required to undergo a sex evaluation and follow whatever recommendations that comes out of it. (RR 2: 12-13). He testified that he understood that failure to follow the recommendations would violate his probation. (RR 2: 13). Appellant also affirmatively stated that he reviewed the conditions of probation with a probation officer and understood the conditions. (RR 2: 15). Thus, appellant was not denied due process because he was provided a meaningful opportunity to contest condition (R). Moreover, appellant pled true to all of the allegations in the State s motion to adjudicate, and proof of a single violation is sufficient to support a revocation. (RR 3: 7) See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Canseco v. State, 199 S.W.3d 437, 439 (Tex. App. Houston [1st Dist.] 2006, pet. ref d). 11
RESPONSE TO ISSUES TWO, FOUR, AND SIX: THIS COURT LACKS JURISDICTION OVER THE APPEAL IN CAUSE NUMBER F07-01229-T. In his second, fourth, and sixth issues on appeal, appellant presents complaints of error relating to the trial court s order continuing his probation in cause number F07-01229-T. This Court lacks jurisdiction over appellant s appeal in cause number F07-01229-T. An order modifying the conditions of community supervision is not an appealable order. Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Christopher v. State, 7 S.W.3d 224, 225 (Tex. App. Houston [1st Dist.] 1999, pet. ref d); see also Davis v. State, 195 S.W.3d 708, 711 (Tex. Crim. App. 2006). A trial court s order extending the period of community supervision is a modification of the conditions of community supervision under the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 42.12, 22(a)(2). In cause number F07-01229-T, the trial court denied the State s motion to proceed with an adjudication of guilt and continued appellant s community supervision for five years. (RR 3: 27). Appellant is now trying to appeal an order continuing his community supervision. While he acknowledges that the trial court did not adjudicate his guilt in cause number F07-01229-T, he nevertheless claims that the trial court s order extending the term of his community supervision was equivalent to placing Appellant on probation for the first time; thus, Appellant should be allowed to appeal from the ruling on May 8, 2008 as an order granting probation. App. Br. 5-6. In fact, appellant cites Basaldua in support of his contention, noting that Basaldua provides that defendants may appeal both from an order granting probation and from an order revoking probation. App. Br. 6 (citing Basaldua, 558 12
S.W.2d at 6-7). The trial court s order on May 8, 2008, did not place appellant on probation; rather, it modified the conditions of his community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, 22(a)(2). This is not an appealable order, and this Honorable Court should dismiss appellant s appeal in cause number F07-01229-T for want of jurisdiction. 3 PRAYER The State prays that this Honorable Court will affirm the trial court s judgment in cause number F07-01230-T. The State further prays that this Honorable Court dismiss the appeal in cause number F07-01229-T for want of jurisdiction. Respectfully submitted, CRAIG WATKINS KIMBERLY J. PFANNENSTIEL CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 24051190 FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS 75207-4399 (214) 653-3624 (214) 653-3643 fax CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Amended Brief has been served on the Honorable Katherine Drew, Attorney for Appellant, Dallas County Public Defender s Office, via hand delivery on November 12, 2009. KIMBERLY J. PFANNENSTIEL 3 If this Court asserts jurisdiction over appellant s appeal in cause number F07-01229-T, the State respectfully requests that the Court apply the State s analysis of issues three and five to issues four and six. 13