                            NUMBER 13-18-00059-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

MARCUS ROBERT ARCHER,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.



                       MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Longoria and Perkes
             Memorandum Opinion by Justice Longoria

      Appellant Marcus Robert Archer appeals from an order revoking his community

supervision. In six issues Archer argues that: (1) the trial court erred by revoking his

community supervision based on the allegation that he used electronic social media; (2)

the use of social media is protected under the First Amendment; (3) a person placed on
community supervision is entitled to First Amendment rights; (4) the State may not deny

a person placed on community supervision the First Amendment right to access social

media; (5) the evidence was insufficient to permit the trial court to find that he failed to

pay the alleged court costs and had the ability to pay those costs; and (6) trial counsel

was ineffective. We affirm.

                                   I.     BACKGROUND

       Archer was indicted on two counts of sexual assault of a child. See TEX. PENAL

CODE ANN. § 22.011. In April 2016, Archer pleaded guilty pursuant to a plea agreement,

and the trial court placed him on deferred-adjudication community supervision for a period

of ten years. In August 2016, the State filed its first motion to revoke Archer’s community

supervision, alleging that Archer, inter alia, accessed the internet in violation of his sex

offender special conditions. Archer pleaded true to the allegations in the motion and the

trial court continued his community supervision. In October 2017, the State filed its

second motion to revoke Archer’s community supervision, alleging Archer continued to

access the internet and failed to pay court costs. A hearing was held, and the trial court

found the allegations true. The trial court revoked Archer’s community supervision,

adjudicated him guilty of both counts of sexual assault of a child, and sentenced him to

nine years’ imprisonment on each count to run concurrently. This appeal followed.

                           II.    UNCONSTITUTIONAL CONDITION

       By his second, third, and fourth issues, Archer argues that the trial court erred in

revoking his community supervision based on an allegation that he used electronic social

media because the condition itself was unconstitutional in violation of his First




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Amendment rights, citing the United States Supreme Court’s decision in Packingham v.

North Carolina, 137 S.Ct. 1730 (U.S. 2017).

A.     Preservation of Error

       A trial court has the authority to impose any reasonable condition of community

supervision that is designed to protect or restore the community, protect or restore the

victim, or punish, rehabilitate, or reform the defendant. See TEX. CODE CRIM. PROC. ANN.

art. 42A.301(a). When community supervision is granted, a contractual relationship is

created between the trial court and the defendant. Speth v. State, 6 S.W.3d 530, 533

(Tex. Crim. App. 1999) (en banc). Conditions of community supervision that are not

objected to are affirmatively accepted as terms of the contract. Id. at 534. A defendant

who benefits from the contractual privilege of community supervision, the granting of

which does not involve a systemic right or prohibition, must complain at trial to conditions

he finds objectionable. Id.; see TEX. R. APP. P. 33.1(a). To be subject to procedural

default under these circumstances, the defendant must be aware of the condition of

community supervision in time to object at trial. See Dansby v. State, 448 S.W.3d 441,

447 (Tex. Crim. App. 2014).

       According to the prosecutor at the revocation hearing, as part of his plea bargain,

the State recommended:

       [T]hat the Court defer adjudication and place the defendant on community
       supervision for a period of ten years. To assess a fine in the amount of
       $1,000. To include probation conditions as follows: The sex offender
       caseload, 150 hours of community service, 120 days Nueces County jail
       with credit. He should have over 140 by now is my understanding. That he
       stay away, at least, 200 yards, and not contact in person, online, or by
       phone, the victim in this case, [E.P.]. And that he also not contact any
       person under the age of 18. That he pay to the Victim of Crime Fund $100.
       And $50 to the Crime Stoppers Fund.



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The trial court accepted Archer’s guilty plea, deferred his guilty finding, and placed him

on community supervision pursuant to the State’s recommended terms.

       “As a prerequisite to presenting a complaint on appeal, a party must have made a

timely and specific request, objection, or motion to the trial court.” Grant v. State, 345

S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (citing TEX. R. APP. P. 33.1(a)(1)(A)).

“This rule ensures that trial courts are provided an opportunity to correct their own

mistakes at the most convenient and appropriate time—when the mistakes are alleged to

have been made.” Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); see also

Mora v. State, No. 13-11-00177-CR, 2012 WL 2929387, at *2 (Tex. App.—Corpus

Christi–Edinburg July 19, 2012, pet. ref’d) (mem. op., not designated for publication).

       In the present case, subsequent to the hearing in which he pled guilty, Archer,

along with the trial court judge, the community supervision officer, and the district clerk,

signed the plea agreement which contained, inter alia, the following sexual offender

special conditions:

       DEFENDANT shall not have access to the internet (or any electronic device
       which provides access to the internet), world wide web, or electronic mail
       from any computer he/she owns, possesses (including employment), or
       uses unless permission is granted in writing by the Court.

       DEFENDANT shall not have access to or participate in any “chat” room on
       the internet or send or receive e-mail messages to any person unless
       permission is granted in writing by the Court.

Archer did not object to the inclusion of special conditions during the imposition of his

conditions of community service, nor did he object to the specific condition he now

complains of in the first or second revocation hearing. See Hull, 67 S.W.3d at 217.

       Archer concedes that in Speth, the Texas Court of Criminal Appeals held that a

probationer may not challenge the constitutionality of a condition of probation for the first

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time on appeal. 6 S.W.3d at 535. However, Archer contends that he falls within an

exception allowing him to raise the issue of constitutionality for the first time on appeal.

Specifically, he argues that he was without counsel when he signed the list of conditions,

that he had no right to appeal, and that the Packingham decision rendered the condition

unconstitutional a year later. See Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App.

2003) (en banc) (finding that appellant could raise an objection to a condition of probation

for the first time on appeal where appellant did not have a meaningful opportunity to object

to the condition).

       Archer was represented by counsel during the plea hearing, as well as during both

revocation hearings. In the first revocation hearing, the State moved to revoke on the

allegation that Archer had used the internet in violation of the now complained-of

condition. Archer pled true, and the trial court continued his community supervision with

an admonishment that Archer comply with all conditions. Archer was aware of the

condition, at the very latest, as of the first revocation hearing, and he did not object to the

condition or file any motion to modify the condition. See Little v. State, 376 S.W.3d 217,

221 (Tex. App.—Fort Worth 2012, pet. ref’d) (finding that appellant forfeited his claim for

review as he affirmatively accepted the complained-of condition of his community

supervision by not objecting to the condition “until it became apparent that the State was

going to seek revocation on the basis of the condition’s violation”).

       Archer further argues that this issue can be raised on appeal because Packingham

was not decided until June 19, 2017, more than a year after his community supervision

conditions were imposed. See Packingham, 137 S.Ct. at 1730. While the decision in

Packingham was not decided until after the conditions were imposed, it was decided prior



                                              5
to Archer’s second revocation hearing on December 11, 2017, during which he still did

not object to the complained-of condition.

       Because Archer had the opportunity to object to the application of the special

conditions either at the plea hearing or at either revocation hearing and he did not do so,

we hold appellant waived any complaint on appeal about the trial court’s application of

the special condition. See TEX. R. APP. P. 33.1(a)(1)(A); Hull, 67 S.W.3d at 217–18; Little,

376 S.W.3d at 221; Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (“[A]lmost

all error—even constitutional error—may be forfeited if the appellant failed to object.”).

       Even assuming that Archer had objected under Packingham, we are not

persuaded that the complained-of condition is unconstitutional under Packingham. In

Packingham, the Supreme Court decided whether a North Carolina statute making it a

felony for a registered sex offender to gain access to certain websites, including common

social media websites, violated the First Amendment Free Speech Clause. Id. at 1733.

The Supreme Court found the statute constituted an unconstitutional infringement on an

individual’s First Amendment rights. Id. at 1738.

       Here, we are not analyzing a state statute, as in Packingham, but rather a condition

of community supervision. A similar situation has been addressed by United States v.

Farrell:

       Packingham dealt with a lifetime, state-wide statute restricting the internet
       access of all registered sex offenders, while this case involves temporary,
       individual conditions, which are effective only for the duration of Farrell’s
       supervised release. Second, Packingham, is devoid of any indication that
       the Supreme Court’s holding extended to conditions of supervised release.

No. 4:06-CR-103, 2018 WL 1035856, at *2 (E.D. Tex. Feb. 23, 2018). Accordingly,

because the conditions of Archer’s community supervision were not a permanent ban on



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internet usage, but rather temporary conditions during his period of supervision, we

cannot hold that Packingham would render the condition unconstitutional.

        Accordingly, Archer’s second, third, and fourth issues are overruled. 1

                                     III.     INSUFFICIENT EVIDENCE

        By his fifth issue Archer contends that the trial court erred in revoking on the basis

that he did not pay his court costs because the State failed to demonstrate that he was

able to pay the fees and that his failure to do so was willful.

A.      Standard of Review and Applicable Law

        We review revocation of community supervision for abuse of discretion. See

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Carreon v. State, 548

S.W.3d 71, 77 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.).                               To revoke a

defendant’s probation, the State need only prove a violation of a condition of the probation

by a preponderance of the evidence. See Hacker v. State, 389 S.W.3d 860, 865 (Tex.

Crim. App. 2013). Preponderance of the evidence means “that greater weight of the

credible evidence which would create a reasonable belief that the defendant has violated

a condition of his probation.” Id. A single proven violation is all that is needed to affirm a

trial court’s order revoking a defendant’s community supervision. See Smith v. State, 286

S.W.3d 333, 342 (Tex. Crim. App. 2009).




        1  In Archer’s first issue, he contends that the trial court erred by revoking his community supervision
based on his use of social media. While Archer’s appellate brief states that “[t]he only evidence concerning
any social messaging forming a basis for revocation was a message sent to someone who was shown to
be 19 years old,” he does not argue that there was insufficient evidence to prove he violated the condition.
Rather, he bases his contentions on the argument that the condition should not have been a condition at
all, and therefore the trial court should not have revoked. Because we have already addressed Archer’s
contention regarding the constitutionality of the condition, we need not address it again here. Accordingly,
Archer’s first issue is overruled.

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       When reviewing an order revoking community supervision, we view all the

evidence in the light most favorable to the trial court’s ruling. See Hacker, 389 S.W.3d at

865. The trial court, as fact-finder, is the sole judge of the credibility of witnesses and the

weight to be given to their testimony. See id. Thus, if the record supports conflicting

inferences, it must be presumed that the trial court resolved any such conflict in favor of

its findings. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

B.     Analysis

       Archer argues the State failed to demonstrate he was able to pay the fees and that

his failure to do so was willful. The relevant statute states:

       In a revocation hearing at which it is alleged only that the defendant violated
       the conditions of community supervision by failing to pay community
       supervision fees or court costs or by failing to pay the costs of legal services
       as described by Article 42A.301(11), the state must prove by a
       preponderance of the evidence that the defendant was able to pay and did
       not pay as ordered by the judge.

See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i). The clear language of the statute

provides that the State only needs to prove the defendant’s ability to pay when the failure

to pay is the only allegation. See id. On the other hand, when the State alleges more

than one allegation at the revocation hearing, as in the present case, the State is not

required to prove the defendant had the ability to pay or that his failure to do so was willful.

See Gipson v. State, 428 S.W.3d 107, 113 (Tex. Crim. App. 2014) (Johnson, J.,

concurring); see also Farr v. State, No. 13-17-00297-CR, 2018 WL 4017118, at *4 (Tex.

App.—Corpus Christi–Edinburg Aug. 23, 2018, no pet.) (mem. op., not designated for

publication).

       Though Archer presents no argument as to the sufficiency of the evidence to

revoke under the violation internet condition, we note that the State presented a witness

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who testified that she was nineteen years old and had met Archer through the internet.

She testified that Archer sent her a message through Facebook in September of 2017,

which led to a conversation and that she ultimately gave Archer her address and he

picked her up to spend time together. The witness identified Archer as the man who

showed up at her house after the conversation she had with him on Facebook. Viewing

this evidence in the light most favorable to the trial court’s ruling, we conclude the trial

court did not abuse its discretion in finding that Archer had used the internet in violation

of his sexual offender conditions of community supervision. See Hacker, 389 S.W.3d at

865.

       Archer’s fifth issue is overruled.

                       IV.     INEFFECTIVE ASSISTANCE OF COUNSEL

       By his sixth issue, Archer contends that his trial counsel was ineffective for “failing

to file a pre-hearing 11.072 petition complaining of the unconstitutionality of the internet

prohibition.”

A.     Standard of Review and Applicable Law

       To sustain a claim of ineffective assistance of counsel, an appellant must prove

two factors:    (1) that counsel made errors so serious that counsel was no longer

functioning as “counsel” under the Sixth Amendment, and (2) that the errors prejudiced

the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). Ineffective assistance claims are subject to a strong presumption

of reasonable trial strategy which an appellant must overcome. See Strickland, 466 U.S.



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at 689; Ex parte Bryant, 448 S.W.3d 29, 39 (Tex. Crim. App. 2014); Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).

       Generally, in order to satisfy the requirement of proving that the errors prejudiced

the defense, an appellant must show a reasonable probability that the proceedings would

have been different but for counsel’s error. See Strickland, 466 U.S. at 689; Ex parte

Bryant, 448 S.W.3d at 39; Thompson, 9 S.W.3d at 812.

B.     Analysis

       Archer argues that his counsel was ineffective for failing to argue that the internet

prohibition condition was unconstitutional under Packingham. See 137 S. Ct. at 1730.

Archer’s argument is premised on his underlying claim that the condition was

unconstitutional; however, we have already determined that the condition was not

unconstitutional under Packingham. Therefore, because the condition of community

supervision of which Archer now complains is not unconstitutional, his counsel was not

deficient in failing to present such an argument in a petition for writ of habeas corpus.

Having failed to meet the first prong under Strickland, Archer’s sixth issue is overruled.

See Strickland, 466 U.S. at 689.

                                    V.     CONCLUSION

       The judgment of the trial court is affirmed.



                                                               NORA L. LONGORIA
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of May, 2019.

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