                                      In The

                               Court of Appeals
                     Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00363-CR
                           ____________________

                       EDUARDO LUIS FELIX, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________________________

                     On Appeal from the 258th District Court
                              Polk County, Texas
                            Trial Cause No. 20,089
________________________________________________________            _____________

                          MEMORANDUM OPINION

      Appellant Eduardo Luis Felix appeals from the revocation of his deferred

adjudication community supervision and imposition of sentence. In three appellate

issues, he contends: (1) the juvenile court abused its discretion by waiving

jurisdiction over him and placing him under adult supervision; (2) the trial court

erred in denying his request for a record of the juvenile court proceedings; and (3)

the trial court abused its discretion in finding a violation of the community

supervision order.

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      In 2008, a grand jury issued an indictment accusing Felix of committing an

aggravated sexual assault of a child in 2006, when Felix was sixteen years old.

Pursuant to a plea bargain agreement, the trial court deferred adjudication of guilt

and placed Felix on community supervision. On three occasions the State filed

motions to adjudicate guilt. Instead of adjudicating guilt, the trial court modified

the terms of the deferred adjudication order. On August 12, 2014, the trial court

granted the State’s second amended fourth motion to adjudicate, proceeded with

adjudication of guilt, and imposed a twenty-five year prison sentence. Felix did not

file a written objection to the prosecution of criminal charges in the trial court. See

generally Tex. Code Crim. Proc. Ann. art. 4.18(a) (West Supp. 2015).

                           Transfer from Juvenile Court

      In his appeal, Felix contends in issue one that the juvenile court abused its

discretion by waiving jurisdiction over Felix and placing him under adult

supervision. He argues that the juvenile court exceeded its authority when it

waived jurisdiction over Felix and there was insufficient evidence to support a

transfer to the criminal court. He suggests an abuse of discretion by the juvenile

court in ordering his transfer deprived the trial court of jurisdiction over Felix.

      A claim that a district court does not have jurisdiction over a person because

jurisdiction is exclusively in the juvenile court and has not been waived must be

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made by written motion in bar of prosecution. Tex. Code Crim. Proc. art. 4.18(a).

If a written objection is not timely filed before trial, the trial judge is deprived of

the ability to decide the claim, and no issue is preserved for appellate review.

Rushing v. State, 85 S.W.3d 283, 286 (Tex. Crim. App. 2002) (article 4.18

“prevents a claim from being raised in any context if the statute’s preservation

requirements are not met.”).

      Furthermore, for transfer orders issued before September 1, 2015,

concerning conduct occurring after January 1, 1996, a non-jurisdictional challenge

to a transfer order must be made in an appeal from the order deferring adjudication

of guilt. Eyhorn v. State, 378 S.W.3d 507, 509–10 (Tex. App.—Amarillo 2012, no

pet.); see also Act of May 27, 1995, 74th Leg. , R.S., ch. 262, § 85, 1995 Tex. Gen.

Laws 2517, 2584 (adding Tex. Code. Crim. Proc. art. 44.47), amended by Act of

June 2, 2003, 78th Leg., R.S., ch. 283, § 30, 2003 Tex. Gen. Laws 1221, 1234–35

(amending Tex. Code Crim. Proc. art. 44.47(b)), repealed by Act of May 12, 2015,

84th Leg., R.S., ch. 74, § 4, 2015 Tex. Sess. Law Serv. 1065, 1065 (West).

Therefore, Felix cannot challenge the juvenile court’s transfer order in an appeal

following revocation of community supervision and adjudication of guilt. See

Eyhorn, 378 S.W.3d at 510. We overrule issue one.




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                                Incomplete Record

      In issue two, Felix contends the trial court erred in denying his request to

make a supplemental designation of the clerk’s record to include documents filed

in the juvenile court and suggests the record is incomplete. The records from the

juvenile court proceedings are not necessary to the resolution of the appeal because

Felix cannot now appeal any issues relating to that proceeding. See Daniels v.

State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000); see also Diamond v. State, 419

S.W.3d 435, 438 (Tex. App.—Beaumont 2012, no pet.) (concluding that the record

from the original plea proceedings is unnecessary to the resolution of an appeal

from order adjudicating guilt). We overrule issue two.

                               Adjudication of Guilt

      In issue three, Felix contends the trial court abused its discretion in finding

that Felix violated the terms of the community supervision order. In 2010, the State

filed its second motion to adjudicate, alleging that Felix violated several conditions

of the community supervision order, including committing the criminal offense of

criminal mischief and failing to attend and participate in all treatment and

counseling sessions of the sex offender program. Felix was represented by counsel

in the proceedings, which resulted in the trial court ordering Felix to an

intermediate sanction facility. The trial court also amended the community

                                          4
supervision order to add new conditions, including a condition that “Defendant

shall not allow any child under the age of 18 at [his] residence or premises,

whether [he is] there or not, unless approved in advance and in writing by [his]

Community Corrections Officer.” Felix acknowledged his receipt of the modified

conditions on the face of the order. The record does not indicate that Felix objected

to the condition at the time it was imposed.

      In the revocation hearing, Felix objected to this condition because the Penal

Code offense of sexual assault defines a child as a person under seventeen years of

age. See generally Tex. Penal Code Ann. § 22.011(c)(1) (West 2011). Generally, a

challenge to a condition of community supervision must be raised in the trial court

when the condition is imposed and cannot be challenged for the first time in an

appeal from the order adjudicating guilt. See Speth v. State, 6 S.W.3d 530, 534–35

(Tex. Crim. App. 1999). It appears that Felix had notice of the condition when it

was imposed and failed to make a timely objection to the condition. However, in

this appeal, Felix may challenge the propriety of the revocation based upon a

violation of the condition. See Corley v. State, 782 S.W.2d 859, 860 n.2 (Tex.

Crim. App. 1989).

      Felix argues that prohibiting him from residing with a seventeen-year-old

person is unreasonable and is not “designed to protect or restore the community,

                                          5
protect or restore the victim, or punish, rehabilitate, or reform the defendant.” Tex.

Code Crim. Proc. Ann. art. 42.12, § 11(a) (West Supp. 2015). In an appeal from

the revocation of a community supervision order, a defendant may challenge a

condition of community supervision if it is “so antithetical to the aims of the

justice system as a whole as to be intolerable[.]” Gutierrez v. State, 380 S.W.3d

167, 176 (Tex. Crim. App. 2012). Because the decision whether to grant an eligible

defendant probation and the judicial determination of appropriate conditions of

probation are highly discretionary, “the assessment of a particular condition of

community supervision will not ordinarily implicate an absolute feature of the

system, not optional with the parties, in the same way that a sentence that is

manifestly outside the statutorily applicable range of punishment does.” Id. at 175.

      In Gutierrez, the trial court revoked community supervision for the sole

reason that the defendant failed to comply with a condition that she obtain legal

status or leave the country. Id. at 169. Finding the condition invaded a federal

prerogative in violation of the Supremacy Clause and violated an explicit and

unqualified state constitutional prohibition on banishment, the Court of Criminal

Appeals held “a condition of community supervision that effectively operates to

deport a probationer violates an absolute prohibition and is therefore not subject to

ordinary principles of waiver or procedural default.” Id. at 176–77. Restricting a

                                          6
sex offender’s freedom to reside with a seventeen-year-old person who is not a

member of the probationer’s immediate family is not so antithetical to the aims of

the justice system as to be an intolerable condition of community supervision.

      In a hearing to revoke community supervision, the State satisfies its burden

to prove a violation by a preponderance of the evidence if the greater weight of the

credible evidence creates a reasonable belief that the defendant violated a condition

of his community supervision. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex.

Crim. App. 2013). In a revocation proceeding, the trial court is the sole trier of

facts, and in that role, it assesses the credibility of witnesses and the weight of the

testimony. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). We

review the evidence in the light most favorable to the trial court’s order. See id.

One sufficient ground for revocation will provide adequate support for the trial

court’s order revoking community supervision. Moore v. State, 605 S.W.2d 924,

926 (Tex. Crim. App. 1980).

      The trial court heard testimony that a seventeen-year-old high school junior

lived with Felix and had a sexual relationship with him while Felix was on

community supervision. The seventeen-year-old possessed videos that depict him

and Felix drinking tequila, as well as Felix in the home with a child family member

on the dates of the alleged violations in the State’s motion to adjudicate. Felix’s

                                          7
sister testified that they believed that her niece was allowed to be in the home when

Felix was present as long as another adult was also present. However, the

community supervision order did not contain an exception for children being

supervised by adults.

      Viewing the evidence in the light most favorable to the trial court’s ruling,

we conclude that the trial court did not abuse its discretion in finding that the State

proved, by a preponderance of the evidence, that Felix violated at least one of the

conditions of his community supervision. We overrule issue three, and we affirm

the trial court’s judgment.

      AFFIRMED.




                                              ________________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on July 27, 2015
Opinion Delivered April 13, 2016
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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