Opinion issued December 10, 2015




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-13-01027-CR
                           ———————————
                        RODNEY MILUM, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1347034


                                 OPINION

      Rodney Milum was found guilty of sexual assault of a child 1 and sentenced

to two years’ incarceration suspended in favor of eight years’ community

supervision. The trial court imposed 41 conditions of community supervision and


1
      TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011).
required him to register as a sex offender. In two issues, Milum contends that two

of these conditions were improper and that he received ineffective assistance of

counsel. We affirm.

                             Challenged Conditions

      The trial court imposed 41 conditions of community supervision. The record

contains no objection to any of them. Milum signed a written copy of the

conditions indicating his acceptance of them. These conditions included the two

challenged in this appeal:

      [¶ 26] You may enter a church, synagogue, or other place of worship
      only to attend a public service. You may arrive fifteen (15) minutes
      prior to the service and you must depart the place of worship
      immediately following the service. You are not to enter any area of
      the place of worship where children’s classes are being conducted or
      where children play or engage [in] other activities beginning
      10/18/2013.

      [¶ 32] You may not access to the internet through any manner of
      method, beginning 10/18/2013, for any reason unless specifically
      ordered by the Court. You may not view, receive, download, transmit,
      or possess pornographic material on any computer. You are not to
      possess pornographic software, images, or material on any hard drive,
      [computer disk], or magnetic tape.

      Milum contends that the trial court abused its discretion by promulgating the

two conditions of community supervision limiting his religious participation and




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internet access. The State contends that Milum waived error by failing to object to

the conditions of community service. 2

                               Milum Waived Review

      A trial court may “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.” Speth v. State, 6

S.W.3d 530, 534 n.10 (Tex. Crim. App. 1999); accord Ivey v. State, 16 S.W.3d 75,

76 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

      The record contains no indication that Milum ever objected to any condition

of community supervision. The record indicates that after the jury recommended

community supervision, the trial court sentenced Milum and stated several

conditions of his community supervisions (albeit not the two challenged

conditions). The trial court then indicated that “we will go over all the conditions

carefully this morning” and “we will give those to you in writing.” The hearing

was then conducted off the record by the parties’ agreement. The actual review of

the conditions with Milum is not in the record. Milum then signed a copy of the


2
      The State also suggests that “direct appeal is not the proper vehicle” to challenge
      the conditions of community supervision because the trial judge may alter them.
      The statute that the State cites, however, does not prohibit an appeal of conditions
      of community supervision but merely authorizes the trial judge to “alter conditions
      of community supervision.” TEX. CODE CRIM. PROC. ANN. art. 42.12 §10(a) (West
      Supp. 2015). Appeal of community supervision conditions is permissible. See
      Lemon v. State, 861 S.W.2d 249, 252 (Tex. Crim. App. 1993).

                                           3
conditions. Milum does not argue that he was unaware of these two particular

conditions, which were included on the document he signed.

      These facts are very similar to Speth v. State, 6 S.W.3d at 534 n.9. There, the

defendant was “questioned about potential conditions, was orally informed by the

trial court of the conditions assessed, and signed a written version of the conditions

at the punishment hearing.” Id. “In light of Speth’s awareness of the conditions of

community supervision, [the Court of Criminal Appeals] held that his failure to

object to those conditions forfeited any complaint about those conditions on

appeal.” Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014) (discussing

Speth, 6 S.W.3d at 534 n.9).

      There are two exceptions to the objection requirement. First, a defendant

may challenge an unobjected-to condition of community supervision if he did not

know about the condition in time to object or had no opportunity to object. See id.

at 534 n.9; Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). Second,

a defendant need not object to a condition “that the criminal justice system finds to

be intolerable and is therefore not a contractual option available to the parties.”

Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014).

Conditions that fall into this second exception violate an absolute right of the

defendant. Gutierrez v. State, 380 S.W.3d 167, 175 (Tex. Crim. App. 2012); see

Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other



                                          4
grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), abrogated on

other grounds by Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996)

(defining absolute rights).

       Neither exception to the objection requirement is present here. Milum makes

no argument that he did not know about the conditions or that he did not have an

opportunity to object. That he signed a written copy of the conditions, which detail

exactly what Milum is and is not allowed to do, further indicates that he knew and

accepted these restrictions without objection. See Speth, 6 S.W.3d at 534 n.10;

Ivey, 16 S.W.3d at 76; Ledet v. State, 177 S.W.3d 213, 221 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d).

       Nor is either complained-of condition an “intolerable” violation of an

absolute constitutional right. Milum’s only argument that the conditions are

“intolerable” is his constitutional argument: that the restrictions on his participation

in religious activities before or after a worship service violate his freedom of

worship. This is not an absolute right. See Marin, 851 S.W.2d at 279 (holding that

not all constitutional rights are absolute rights); Smith v. State, 463 S.W.3d 890,

895–96 (Tex. Crim. App. 2015) (holding that right is not absolute under Marin

unless the statute being applied against defendant has already been declared

unconstitutional on its face and that, if it has not yet been declared

unconstitutional, defendant must object). Therefore, agreeing to the condition



                                           5
without objection waives error. Gutierrez, 380 S.W.3d at 175 & n.39 (citing Hart

v. State, 264 S.W.3d 364, 368 (Tex. App.—Eastland 2008, pet. ref’d));

       Milum failed to preserve his complaints for our review. Accordingly, we

overrule his first issue.

                            Ineffective Assistance of Counsel

       Milum contends that, in the alternative, his trial counsel’s failure to object

constitutes ineffective assistance of counsel. The State suggests our order to Milum

to brief the issue of ineffective assistance of counsel was improper. We disagree

When a defendant’s counsel files an Anders brief, the court must conduct “a full

examination of all the proceedings, to decide whether the case is wholly frivolous”

and “if it finds any of the legal points arguable on their merits . . . it must, prior to

decision, afford the indigent the assistance of counsel to argue the appeal.” Anders

v. State of Cal., 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). The court may

identify the arguments that counsel must brief. See Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991) (holding that, in Anders case, court of appeals

must investigate the record and, if it finds arguable grounds for appeal, remand to

trial court to appoint new counsel to present arguments court of appeals identified);

Wilson v. State, 40 S.W.3d 192, 200 (Tex. App.—Texarkana 2001, no pet.) (citing

Wilson v. State, 976 S.W.2d 254, 257 n.4 (Tex. App.—Waco 1998, no pet.))




                                           6
(stating that court of appeals may “identify issues that counsel on appeal should

have addressed but did not”).

      Milum’s first counsel filed an Anders brief. In response to the Anders brief,

Milum filed a pro se brief raising, among other arguments, ineffective assistance of

counsel. After reviewing the record, we ordered Milum retain a new attorney to

brief two issues: (1) “whether any or all of the 41 conditions of community

supervision imposed by the trial court are invalid” and (2) “whether failure to

object to any of the conditions of community supervision constituted ineffective

assistance of counsel.” Milum’s second counsel also filed an Anders brief. In

response, we again abated the appeal for new counsel to be appointed. Milum’s

third counsel filed a brief addressing the first issue but not the second issue. Thus,

we issued a third order requiring Milum’s counsel to brief both issues. Contrary to

the State’s assertion, these orders complied with our Anders duty to conduct a full

examination of all the proceedings to determine whether the appeal is frivolous.

A.    Standard of review

      “To prove ineffective assistance, a defendant must show, by a

preponderance of the evidence, that (1) counsel’s performance was so deficient

that he was not functioning as acceptable counsel under the Sixth Amendment and

(2) there is a reasonable probability that, but for counsel’s error or omission, the

result of the proceedings would have been different.” Apolinar v. State, 106



                                          7
S.W.3d 407, 416 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184

(Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687–96,

104 S. Ct. 2052, 2064–69 (1984) and Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999)).

      “Appellant bears the burden of proving by a preponderance of the evidence

that counsel was ineffective.” Thompson, 9 S.W.3d at 813. “When handed the task

of determining the validity of a defendant’s claim of ineffective assistance of

counsel, any judicial review must be highly deferential to trial counsel and avoid

the deleterious effects of hindsight.” Id. (citing Ingham v. State, 679 S.W.2d 503,

509 (Tex. Crim. App. 1984)).

B.    Performance

      With respect to the first Strickland prong, “[t]here is a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional

assistance, and the defendant must overcome the presumption that the challenged

action might be considered sound trial strategy.” Gavin v. State, 404 S.W.3d 597,

603 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Strickland, 466 U.S. at

686, 104 S. Ct. at 2065). When, as here, the record does not reveal the reasons for

trial counsel’s actions, “an appellate court should not find deficient performance

unless the challenged conduct was so outrageous that no competent attorney would

have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.



                                        8
2005) (internal quotation marks omitted); accord Rylander v. State, 101 S.W.3d

107, 110 (Tex. Crim. App. 2003).

      To demonstrate that defense counsel’s failure to object constitutes

ineffective assistance, a defendant “must show that the trial judge would have

committed error in overruling such an objection” if it had been asserted. Vaughn v.

State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). “The trial court has no

discretion to impose an ‘invalid’ condition of community supervision.” Mitchell v.

State, 420 S.W.3d 448, 449 (Tex. App.—Houston [14th Dist.] 2014) (citing Barton

v. State, 21 S.W.3d 287, 289 (Tex. Crim. App. 2000)). If a condition of community

supervision contains all of the following three characteristics, it is invalid: “(1) it

has no relationship to the crime; (2) it relates to conduct that is not in itself

criminal; and (3) it forbids or requires conduct that is not reasonably related to the

future criminality of the defendant or does not serve the statutory ends of

community supervision.” Ex parte Renfro, 999 S.W.2d 557, 560 (Tex. App.—

Houston [14th Dist.] 1999, pet. ref’d); accord Mitchell, 420 S.W.3d at 449–50.

      1.     Restrictions on internet usage

      To assess whether trial counsel’s failure to object to these to conditions of

community supervision constituted ineffective assistance, we turn first to the

condition forbidding Milum from accessing the internet for eight years. Milum




                                          9
contends that this bears no relationship to his crime and that the failure to object

was so outrageous that no competent attorney would have failed to do so.

      On its face, the restriction is overbroad. Although the State points out that

Milum used electronics to communicate with the complainant, the record only

provides evidence that he used voice calls and text messages. There is no evidence

that Milum and the complainant ever communicated over e-mail, instant

messenger, online dating sites, Skype, Facebook, Twitter, or any other internet

service. Nor is there any record evidence of Milum seeking other sexual partners

over the internet or accessing internet pornography.

      Using the internet is not, in itself, a criminal activity. Many people search

for employment on the internet, and many employees are required to access the

internet for work. Many people use the internet as their primary access to the news.

The internet is a de-facto requirement for education as early as middle school.

Many college courses—even traditional classroom courses—require students to

use online interaction software to receive assignments, submit assignments to the

professor, and engage in online class discussion. Finally, internet access is closely

connected with a defendant’s right of free speech––using the internet to send and

receive communication—a fundamental right. 3


3
      See generally Reno v. Am. Civil Liberties Union, 521 U.S. 844, 871–72, 117 S. Ct.
      2329, 2344–2345 (1997) (striking down federal law regulating internet usage
      because “vagueness of such a regulation raises special First Amendment concerns

                                          10
      Nevertheless, because Milum was required to register as a sex offender, the

trial court was required to restrict Milum’s internet usage. TEX. CODE CRIM. PROC.

ANN. art. 42.12(13g) (West Supp. 2014). The statute requiring restrictions on

internet use for sex offenders is sensitive to the importance of the internet to

students and members of the workforce and allows the court to modify any

condition on internet usage that “interferes with the defendant’s ability to attend

school or become or remain employed . . . . ” Id. § 41.12(13(g)(c)(1). Recognizing

that the judge was required to restrict Milum’s internet usage, but that his client

could return to court at any time to seek a modification, Milum’s counsel could

have thought that he would have a better chance at obtaining relief allowing Milum

to access the internet if he returned at a later time, armed with specific reasons why

Milum needed internet access. An effective attorney recognizes that sometimes the

timing of an argument can be as important as its substance in obtaining relief.

      With regards to this condition, therefore, Milum cannot meet the heavy

burden of overcoming the “strong presumption that . . . the challenged action might

be considered sound trial strategy.” Gavin, 404 S.W.3d at 603 (citing Strickland,

466 U.S. at 689, 104 S. Ct. at 2065). In the absence of direct evidence of counsel’s

reasons for the challenged conduct (evidence we do not have), “we will assume a


      because of its obvious chilling effect on free speech”); Ex parte Lo, 424 S.W.3d
      10, 24–25 (Tex. Crim. App. 2013) (striking down law prohibiting “sexually
      explicit communications” with minor as overbroad restriction on free speech).

                                         11
strategic motivation if any reasonable strategy can be imagined.” Weeks v. State,

No. 06-12-00110-CR, 2013 WL 557015, at *4 (Tex. App.—Texarkana Feb. 14,

2013, no pet.) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001)). Because a reasonable strategy could justify Milum’s attorney’s conduct,

the attorney’s performance does not fall “below an objective standard of

reasonableness as a matter of law . . . . ” Andrews v. State, 159 S.W.3d 98, 102

(Tex. Crim. App. 2005).

      Because we can imagine a “reasonable strategy” for failing to object to this

condition, Milum does not meet his burden to establish that his counsel provided

ineffective assistance as to this condition.

      2.        Restrictions on church participation

      We next turn to the restriction on Milum’s church participation. He asserts

two reasons why the court would be required to sustain a hypothetical objection.

First, he argues that the condition violates his constitutional right to free exercise

of religion. Second, he contends that the condition bears no reasonable relationship

to his crime.

      In some circumstances, paragraph 26’s restrictions on church participation

may be overbroad. Such restrictions could negatively impact a person’s right to be

involved in legitimate religious activities at a place of worship that are not part of

“public services” and that would not pose any specific danger to minors. For



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example, the restriction would prevent a person from meeting with a minister for

private counseling, making a confession to a minister, or attending adult meetings

or events at a church with no involvement with children. It would prevent him

from going into a church area designated for private prayer. These activities would

bear no relationship to the crime in this case.

      Nevertheless, Milum cannot meet his burden of overcoming the “strong

presumption that . . . the challenged action might be considered sound trial

strategy” because counsel may have made a strategic choice not to object to this

condition of community supervision for various reasons. Gavin, 404 S.W.3d at 603

(citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).

      First, counsel’s failure to object may have been a strategic choice, thinking

he could return to court at a later date to possibly receive a more favorable

reception to such an objection based on a specific need to go on church property

other than for a public service. He might believe that a trial court would want

specific assurances that a registered sex offender is in fact on church property for

legitimate purposes by designating those purposes in advance. Second, Milum may

not attend a church, synagogue or mosque and may have no desire to enter such a

facility except for public events such as a wedding. Thus, counsel may have felt it

was unnecessary to focus the court’s attention on this condition. Alternatively,

knowing he could return later to request a modification to address a particular



                                          13
circumstance—such as a desire to meet privately with a minister—counsel may

have determined that the best strategy was not a global objection at this early stage

of community supervision. Again, we can imagine a reasonable strategy that could

justify Milum’s attorney’s conduct, and thus, the attorney’s performance does not

fall “below an objective standard of reasonableness as a matter of law . . . . ”

Andrews, 159 S.W.3d at 102 (Tex. Crim. App. 2005). Thus, Milum’s counsel did

not meet his burden to establish that his counsel provided ineffective assistance as

to this condition.

                                    Conclusion

We affirm the judgment of the trial court.




                                              Harvey Brown
                                              Justice

Panel consists of Justices Jennings, Bland, and Brown.

Justice Jennings, concurring.

Publish. TEX. R. APP. P. 47.2(b).




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