                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00033-CR


LAWRENCE DONOVAN                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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     CONCURRING AND DISSENTING OPINION ON EN BANC
                  RECONSIDERATION
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      I join in the majority opinion’s holding that Appellant forfeited any challenge

to the trial court’s imposition of the sex-offender-treatment condition to his

community supervision. Appellant did not object when the trial court imposed

this supplemental condition, Appellant signed the Supplement/Amendment to

Conditions of Community Supervision, and he began sex-offender treatment in

compliance with that condition; in fact, Appellant’s counsel stated at the
adjudication hearing that Appellant did not object to this condition when it was

imposed and instead “attempted to do exactly what [the court] asked him to do.”

By not timely challenging the sex-offender-treatment condition and by instead

affirmatively accepting the condition, he forfeited his Ex parte Evans complaint

that he was denied due process by not being afforded a hearing prior to

imposition of this condition.1 See Ex parte Evans, 338 S.W.3d 545, 556 (Tex.

Crim. App. 2011) (holding habeas applicant entitled to relief from parole

revocation based solely on violation of sex-offender conditions that were imposed

without due process “and against which [Evans] . . . protested at every step of

the way”); Speth v. State, 6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999), cert.

denied, 529 U.S. 1088 (2000); Little v. State, 376 S.W.3d 217, 221 (Tex. App.—

Fort Worth 2012, pet. ref’d); see also Tex. R. App. P. 33.1(a); Anderson v. State,

301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (“[N]umerous constitutional rights,

including those that implicate a defendant’s due process rights, may be forfeited

for purposes of appellate review unless properly preserved.”).

      But Appellant complains on appeal not only of the imposition of the sex-

offender-treatment condition without a hearing but also of the revocation of his

community supervision based on his failure to attend and complete a sex-

offender treatment program that required him to discuss and admit to sex

      1
       Appellant also did not raise this complaint in the trial court. See Lovill v.
State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be
preserved if the legal basis of the complaint raised on appeal varies from the
complaint made at trial.”).


                                         2
offenses of which he had been found not guilty and that were the subject of an

expunction order.2    When the trial court imposed the sex-offender-treatment


      2
         This issue is fairly subsumed within Appellant’s points on appeal. See
Tex. R. App. P. 38.1(f) (stating that every point “will be treated as covering every
subsidiary question that is fairly included”) (emphasis added). Appellant
complains in his first point of the trial court’s revocation of his community
supervision “for failure to complete [a] sex offender treatment program as a
condition of his probation for the non-sex offense of injury to a child.” Under that
first point, he lists the following subpoints:

      A. The trial judge misunderstood and therefore gave no [e]ffect to
      an earlier expunction order entered in the case.

      B. The trial court misunderstood and therefore gave no [e]ffect to
      the earlier verdict of not guilty to the charged . . . sex offense.

      C. The trial court’s orders and the revocation hearing predated the
      court of criminal appeals’ landmark decision in Ex parte Evans . . . .

Appellant’s second point complains of the trial court’s revocation of his
community supervision “for failure to attend a sex offender treatment program
from February 3, 2010, through the date of the revocation hearing” and lists as
subpoints:

      A. Appellant was discharged by one sex offender treatment provider
      after the provider learned of the [e]ffect of an earlier expunction
      order entered in the case.

      B. It was improper for the probation department to require appellant
      to continue sex offender treatment by choosing a different treatment
      provider because the expunction order would have prevented all
      providers from obtaining and then disseminating information
      involving the earlier charged sex offense.

Appellant’s third point complains of the trial court’s revocation of his community
supervision for failure “to complete two-thirds of a sex offender treatment
program on or before August 18, 2010.” Appellant specifically states in his brief
that he was “confronted by a Catch-22. One of the requirements to complete the
program entailed Appellant admitting that he was a sex offender.” He further
argues that he was found not guilty of the sex offenses and that the records of

                                         3
condition, Appellant could not have objected that treatment would require him to

discuss and admit to the acquitted and expunged sex offenses—he did not know

at that time that he would be asked to do so in order to complete the treatment.3

This requirement became evident only after Appellant entered and participated in

the program, and when it became evident during treatment that Appellant would

have to admit to the offenses as part of treatment, he “protested at every step of

the way.” See Evans, 338 S.W.3d at 556; Speth, 6 S.W.3d at 534 n.9 (stating, in

holding that a defendant must complain at trial to conditions he finds

objectionable, that “[t]his assumes the probationer knew what the conditions

were in time to object at trial”).

       The record reveals that when Appellant began sex-offender treatment, he

informed the treatment provider that he had been found not guilty of the sex

offenses and that the records of those offenses had been expunged.                In

November 2008, a few months into the program, Appellant’s treatment provider

those offenses had been expunged but that the trial court “nevertheless required
Sex Offender Treatment and [revoked] [Appellant’s] probation for various failures
related to that requirement.” According to his brief, “One need only do a cursory
review of the three exhibits tendered by the defense in this case to see the
private matters [Appellant] was forced to reveal and the restrictions on his life in
his attempt to comply with the requirements of Sex Offender Treatment.”
       3
        Thus, this issue is unlike that in Speth, where the appellant’s complaint
about conditions of community supervision was known at the time the condition
was imposed but appellant nevertheless did not object. See 6 S.W.3d at 534
(holding complaints about conditions to register as sex offender, to pay for
counseling, to refrain from working as chiropractor, to participate in sex offender
counseling and take polygraph, and to refrain from contact with minor girls were
forfeited by not objecting when conditions imposed).


                                         4
told Appellant that he could not continue counseling until he either admitted to

the sex offenses or passed a polygraph test.4 Appellant was told to leave the

counseling session, but he returned a couple of weeks later after “probation was

able to work it out with Mr. Strain.” In February 2009, Appellant filed a motion to

modify the conditions of probation, alleging that the sex-offender-treatment

condition of his community supervision required him to

      participate in and successfully complete a sexual offender treatment
      program that, it part, requires him to:

            (1) admit his guilt for the sex offenses for which he was found
            “Not Guilty” by Judge Wilson, or face revocation of his
            deferred adjudication probation for the offense of Injury to a
            Child; and

            (2) as an additional prerequisite to successful completion of
            the required sex offender treatment program, pass a lie
            detector concerning his involvement in the sex offenses for
            which he was found “Not Guilty” and for which the
            Expungement Order was entered.

      In addition, [Appellant] has been required to participate in group sex
      offender counseling sessions in which the therapy provider has, in
      the presence of other probationers in the treatment program,
      accused him of dishonest[]y and subjected him to ridicule when he
      has stated that the sex offenses in question were resolved in his
      favor, that “Not Guilty” verdicts had been entered, and that those
      arrests and charges had been expunged.

Although the record does not show that Appellant presented the motion to the

trial court or that a hearing was held on the motion, Appellant testified that his


      4
       Appellant began treatment with “Mr. Medina” but was later transferred to
Michael Strain’s program. The record conflicts as to whether Medina or Strain
was his treatment provider at this time.


                                        5
attorney and the trial judge had a “conference” in March 2009.5 In August 2009,

after Appellant’s first year of treatment, there was a conference between

Appellant’s counsel, the State’s attorney, the trial court, the community-

supervision officer, and Strain. The trial court decided at the conference that

Appellant would not be required to admit to the sex offenses.6

      After that August conference, Strain told Appellant what to say during

group counseling sessions:        “Just state that you’re here under deferred

adjudication, injury to a child, and you deny the offense, sexual acts, and the

reason that you’re here is because the Court wants you here.” Appellant did so

and continued treatment without incident for almost five months until February 1,

2010, when the issue of Appellant discussing and admitting to the sex offenses

arose again.    During a session with a victim therapist, the therapist asked

Appellant about “the original sexual allegations,” and Appellant refused to

discuss them “per court order.” Appellant set up a meeting with Strain two days

later to discuss how to proceed and brought with him to the meeting “legal

documents” showing the expunction and acquittal of the sex offenses.            After

      5
       The record does not reflect what was discussed at this conference. The
State noted in a post-submission brief to this court that Appellant’s February
2009 “written objections to the sex offender treatment” resulted in the ex parte
hearing with the judge in March and the August hearing conducted in chambers.
      6
        Appellant and his community-supervision officer both testified that the trial
court waived the treatment goal that he admit to the offenses, and Strain testified
that the trial court decided that the treatment providers “could discuss the sexual
offense[s]” but that Appellant’s not admitting to the offenses could not be held
against him.


                                         6
reading the documents, which included a handwritten note by Appellant’s

attorney that it would be illegal for Strain to discuss the sex offenses that were

the subject of an expunction order, Strain told Appellant that he could not

continue counseling and that he needed “to work it out with the Court.”

      Appellant called his community-supervision officer the following day and

relayed to her that “Strain ha[d] discontinued his treatment for now.” Appellant

also talked to his attorneys about asking the trial court for clarification on what

could be discussed during treatment. Appellant’s attorneys met with the trial

court less than one week after Appellant’s meeting with Strain, and the trial court

said it wanted to hear from the community-supervision department on the issue.

Strain also sent Appellant’s community-supervision officer a letter explaining the

confusion as to whether the trial court’s previous ruling prohibited any

discussions about “the original sexual charges” against Appellant and

concluding, “If it is illegal to even discuss that the charges against [Appellant]

were originally sexual in nature, I am not sure any useful treatment work can be

done.”    Appellant’s community-supervision officer showed Strain’s letter to a

court officer, who in turn took the letter to the trial court and “briefed the Judge

regarding the issue.” According to the community-supervision officer, “it was

determined that [Appellant] would still be required to attend sex offender

treatment.”7


      7
      Appellant testified that he was not informed of the trial court’s ruling and
thought that “they” were “in a holding pattern” until they heard back from the trial

                                         7
      A review of the record makes clear that once Appellant learned that sex-

offender treatment would require him to discuss and admit to the sex offenses of

which he had been found not guilty and that were the subject of an expunction

order, he objected to his treatment provider, he filed a motion to modify the terms

of treatment on that basis, the issue was raised and discussed during multiple

conferences with the trial court, the trial court attempted to clarify what could be

discussed during a conference, and after Appellant and Strain disagreed on what

the trial court had concluded could be discussed during treatment, both

Appellant’s attorneys and the probation department talked to the trial court about

the issue again. See Tex. R. App. P. 33.1(a)(1) (requiring, as a prerequisite to

appellate review, that “the complaint was made to the trial court by a timely

request, objection, or motion”). The trial court and all parties involved were well

aware of the issue, having had several prior conferences on it. See Clark v.

State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“The two main purposes of

requiring a specific objection are to inform the trial judge of the basis of the

court. He testified that during every meeting he had with his community-
supervision officer after his February meeting with Strain until the State filed its
petition to proceed to adjudication in October, his community-supervision officer
said that they were waiting to hear from the trial court on that issue.

      Appellant’s community-supervision officer testified that she made clear to
Appellant that “he would still be held accountable for attending” sex offender
treatment. Although the community-supervision officer offered other treatment
providers, Appellant declined, stating, “Until we get information on the offense,
we’re going to have the same issue.”




                                         8
objection so that he has an opportunity to rule on it and to allow opposing

counsel to remedy the error.”). After being briefed on the issue, the trial court

ruled, in effect, that Appellant would still be required to attend sex offender

treatment.    See Tex. R. App. P. 33.1(a)(2)(A) (requiring, for preservation

purposes, that the trial court “ruled on the request, objection, or motion, either

expressly or implicitly”).    I would hold that Appellant complied with the

preservation requisites of rule 33.1(a) by continuously objecting to the

requirement that he admit and discuss sex offenses that he was found not guilty

of committing and that had been expunged as soon as he learned of this

requirement; the trial court and the State were aware of Appellant’s complaint

and had even addressed and attempted to resolve it multiple times, and the trial

court ultimately ruled on the issue. Accord Lankston v. State, 827 S.W.2d 907,

909 (Tex. Crim. App. 1992) (“The standards of procedural default . . . are not to

be implemented by splitting hairs in the appellate courts.”).

      Consequently, for the above reasons, I would hold that Appellant

preserved for this court’s review his complaint that the trial court abused its

discretion by revoking his community supervision for failure to attend and

complete a sex-offender treatment program that required him to discuss and

admit to sex offenses of which he had been found not guilty and that had been

expunged, and I would reach the merits of this argument. Because the majority

does not, I respectfully dissent.




                                         9
                                 /s/ Sue Walker
                                 SUE WALKER
                                 JUSTICE

PUBLISH

GARDNER, J. joins.

DELIVERED: March 13, 2014




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