                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00090-CR


LYNDON BART LONG, II                                               APPELLANT

                                          V.

THE STATE OF TEXAS                                                      STATE


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      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      In three issues, appellant Lyndon Bart Long, II appeals his conviction for

sexual assault of a child. 2 We affirm.

                                Background Facts

      In September 2003, a grand jury indicted appellant with committing sexual

assault of a child by causing her sexual organ to contact his sexual organ. In
      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.011(a)(2)(C) (West 2011).
August 2004, with the assistance of counsel, appellant waived constitutional and

statutory rights, judicially confessed to that offense, and pled guilty. 3 The trial

court deferred its adjudication of appellant’s guilt and placed him on community

supervision for an eight-year term. 4

      The conditions of appellant’s community supervision required him to,

among other acts, remain in Tarrant County, attend sex offender treatment,

abstain from drinking alcohol, and refrain from viewing sexually explicit material.

In December 2008, May 2009, July 2011, August 2011, and September 2011,

the trial court supplemented the terms of appellant’s community supervision,

sometimes requiring his confinement for short periods in jail. 5

      In January 2012, the State filed a petition that requested the trial court to

adjudicate appellant’s guilt because he had violated several conditions of his

community supervision.      The State amended its petition in February 2012,

alleging in part that appellant had left Tarrant County without permission, had

drunk alcohol, and had watched a movie that contained sexually explicit material.




      3
       Appellant was twenty-three years old at the time of his guilty plea and was
less than twenty years old at the time of the offense.
      4
         See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 2(2)(A), 5(a) (West Supp.
2012).
      5
        The evidence indicates that appellant was incarcerated during his
community supervision because he failed polygraph examinations on various
topics, including, apparently, his consumption of alcohol.


                                         2
Appellant pled true and judicially confessed to leaving Tarrant County and to

consuming alcohol.

      In the adjudication hearing, after receiving appellant’s pleas and evidence

from the parties, the trial court heard appellant’s closing argument, in which he

asked the trial court to allow him to continue on community supervision. At the

conclusion of that argument, the trial court found that appellant had violated the

terms of his community supervision, revoked it, adjudicated his guilt, and

sentenced him to ten years’ confinement. Appellant brought this appeal.

           The Propriety of the Trial Court’s Adjudication Decision

      In his first issue, appellant contends that the trial court abused its

discretion by adjudicating his guilt and by sentencing him to ten years’

confinement because over the course of more than seven years, he mostly

complied with the terms of his community supervision, and his violations of some

conditions of the community supervision were “minor” and “technical.”

      At the hearing on the State’s petition, witnesses, including appellant’s

probation supervision officer, testified that appellant had gone to a certain movie

theater that the State considered to be a child safety zone and had watched a

movie there that contained nudity; 6 had left Tarrant County once to eat at a


      6
        Appellant’s probation supervision officer testified that she had watched
this movie and that it contained male and female nudity, simulated anal sex, a
reference to buying children for sex, and a “monkey performing oral sex on a
monk with a beer bottle under his tunic simulating oral sex.” The probation
supervision officer said that probationers are “taught in treatment . . . to see what
is the content of a movie . . . before . . . watch[ing] it.” Appellant reported to the

                                          3
restaurant that was barely across the county line and had disclosed this fact to

his probation supervision officer; had drunk alcohol multiple times during the

community supervision, including when his parents separated; and had worked

as a bartender.       The evidence also established that appellant’s probation

supervision officer had considered recommending appellant’s placement in an

inpatient substance-abuse treatment facility but had eventually determined that

she could not place him in the facility because of his score on an assessment,

that appellant was a college student and was attending Alcoholics Anonymous at

the time of the hearing on the State’s adjudication petition, that he had paid all of

his probation fees and had complied with many terms of his probation, that he

had maintained employment for most of his probation, and that he had actively

participated in sex offender treatment, including attending sessions of which the

trial court had not required.

      When appellant’s counsel asked appellant’s sex offender treatment

provider whether appellant could continue to be a successful probationer, the

provider testified,

      My opinion is that for seven years [appellant] was, you know,
      compliant . . . . I don’t know that the problem of drinking will be
      addressed in [prison]. It bothers me . . . that he was not honest
      [about drinking alcohol]. That’s probably more of a concern to me
      than the fact he drank a beer here and a beer there.




probation supervision officer that he had left the theater when the movie
displayed a scene with nudity.


                                         4
On cross-examination, the provider expressed that she was concerned about

appellant’s lack of attention to following the rules of his community supervision,

including his failure to investigate the content of the movie that he had watched

that contained nudity.

      As we have explained,

             We review an order revoking community supervision under an
      abuse-of-discretion standard. In a revocation proceeding, the State
      must prove by a preponderance of the evidence that the defendant
      is the same individual who is named in the judgment and order of
      probation, and then must prove that the defendant violated a term of
      probation as alleged in the motion to revoke.

Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.)

(quoting Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet.

ref’d)). “Proof by a preponderance of the evidence of any one of the alleged

violations of the conditions of community supervision is sufficient to support a

revocation order.” Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth

2005, pet. ref’d).

      Appellant concedes that the evidence was generally sufficient to support

the trial court’s adjudication decision (based in part on his pleas of true to two

allegations in the State’s amended petition to adjudicate), 7 but he argues that


      7
        See Perry v. State, 367 S.W.3d 690, 693 (Tex. App.—Texarkana 2012, no
pet.) (“A plea of true, standing alone, is sufficient to support revocation.”).
Because appellant concedes that the evidence is sufficient to support the trial
court’s finding that he violated at least two conditions of his community
supervision, we decline to address appellant’s contentions about whether the
evidence establishes that he violated other conditions (including, for example,
whether he failed to pay for treatment or went within 1,000 feet of a place where

                                        5
under the facts of this case, the “trial court’s act of sentencing [him] to ten years

in prison violates the goals of community supervision in Texas, . . . and the trial

court abused its discretion by not considering the many alternatives it could have

utilized.”   Appellant contends that the trial court’s abuse of discretion in his

adjudication and sentencing decisions is illustrated by his assertion that the

evidence was insufficient to prove four of the six allegations in the State’s

amended petition.

       Appellant makes a reasoned argument that under the evidence presented

in the revocation hearing, a court could have rationally made a decision that is

different than the adjudication decision made by the trial court in this case. But

as to appellant’s contention that the trial court abused its discretion by revoking

his community supervision and adjudicating his guilt because his violations of

community supervision were “minor,” precedent and persuasive authority are not

on his side.

       In Beckworth v. State, Beckworth had pled guilty to driving while

intoxicated and had been placed on probation for twelve months. 551 S.W.2d

414, 415 (Tex. Crim. App. 1977). A trial court revoked the probation only on the

ground that Beckworth had consumed alcohol.           Id.   On appeal, Beckworth

contended that the trial court’s revocation was an abuse of discretion because, in

part, he had only drunk alcohol while under emotional stress and he had

children commonly gather). See Tex. R. App. P. 47.1; Sanchez v. State, 603
S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Leach, 170 S.W.3d at 672.


                                         6
voluntarily started an alcohol treatment program.       Id. at 416.   The court of

criminal appeals disagreed, explaining,

              [Beckworth argues that] a court may refuse to revoke
       probation even when there has been a technical violation of the
       probation terms. . . . In our discussion of appellant’s first ground of
       error, we found that the State proved by a preponderance of the
       evidence that appellant violated the conditions of his probation.
       There was sufficient evidence for the trial judge to conclude that the
       appellant had broken the contract he made with the court after
       appellant’s guilt had been determined. Thus, the trial judge did not
       abuse his discretion by entering the order revoking appellant’s
       probation.

Id. (citation omitted).

       More recently, following Beckworth’s lead, several courts of appeals have

concluded that a trial court does not abuse its discretion in revoking community

supervision as long as there is sufficient evidence of at least one violation of it,

even if the defendant considers that violation insignificant.      For example, in

Thomas v. State, Thomas received deferred adjudication and a six-year

community supervision term for burglary of a habitation, but he violated the terms

of his community supervision by failing to report to his community supervision

officer once and by failing to participate in community service at the designated

rate of hours per month. No. 14-10-00653-CR, 2011 WL 1709940, at *1 (Tex.

App.—Houston [14th Dist.] May 3, 2011, pet. ref’d) (mem. op., not designated for

publication), cert. denied, 132 S. Ct. 1858 (2012). The court of appeals affirmed

the trial court’s revocation of Thomas’s community supervision, stating,

       The court may revoke community supervision for any violation,
       including “technical” violations. “Technical” violations typically


                                          7
      include the probationer’s failure to report to the probation officer, pay
      community supervision fees, and perform community service at the
      specified rate.

              The trial court . . . found that appellant had violated the
      conditions of his community supervision. The trial court’s decision is
      supported by the record evidence, which includes appellant’s
      admissions. Even if appellant’s violations were “technical” violations,
      they were nonetheless sufficient to revoke his community
      supervision. The resulting seven-year prison sentence is not for
      appellant’s violations of the conditions of his community supervision,
      but for the burglary offense to which appellant had previously pled
      guilty.

Id. at *2 (citations omitted); see also Cook v. State, No. 12-09-00201-CR, 2010

WL 5141777, at *3 (Tex. App.—Tyler Dec. 15, 2010, pet. ref’d) (mem. op., not

designated for publication) (holding that a defendant’s failure to complete a

community service requirement was sufficient to revoke his community

supervision although he argued that the requirement was a “mere technicality”),

cert. denied, 132 S. Ct. 459 (2011); Bland v. State, No. 11-08-00023-CR, 2008

WL 4684668, at *3 (Tex. App.—Eastland Oct. 23, 2008, no pet.) (mem. op., not

designated for publication) (“While Bland characterizes [being late on paying fees

and missing one reporting date] as technical violations[,] a distinction for which

we find no support in the law, these violations still would authorize the trial court

to revoke his community supervision.”); Nurridin v. State, 154 S.W.3d 920, 924

(Tex. App.—Dallas 2005, no pet.) (“Courts may revoke community supervision

for a violation of any condition, including violations of any single ‘technical’

condition.”); Nicholas v. State, No. 12-01-00102-CR, 2002 WL 253837, at *2

(Tex. App.—Tyler Feb. 20, 2002, no pet.) (not designated for publication) (“Every


                                         8
condition of probation is important, and if not complied with, subjects the

defendant to potential revocation.”). We have not found any case in which an

appellate court reversed a trial court’s revocation of community supervision

based solely on the rationale that a defendant’s violations of a community

supervision agreement with the trial court were too insignificant.

      Moreover, we note that an award of community supervision is “a quasi-

contractual privilege, not a right.” Applin v. State, 341 S.W.3d 528, 533 (Tex.

App.—Fort Worth 2011, no pet.); see Bowen v. State, 649 S.W.2d 384, 386 (Tex.

App.—Fort Worth 1983, pet. ref’d) (“The court extends clemency to the

probationer if he will keep and perform certain requirements and conditions, the

violation of which will authorize the revocation of the probation.”). A “defendant

who benefits from the contractual privilege of probation, the granting of which

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

conditions he finds objectionable.” Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim.

App. 1999), cert. denied, 529 U.S. 1088 (2000). Appellant did not at any stage in

the trial court complain that the conditions imposed by the trial court, including

the conditions requiring him to refrain from drinking alcohol and to stay within

Tarrant County, were unreasonable or oppressive. And although, on appeal,

appellant characterizes those conditions as “minor” and “technical,” at the time of

his plea, the trial court advised him in writing that it had the “authority . . . to

[r]evoke [his] Community Supervision for any violation of the conditions of [his]

Community Supervision.” [Emphasis added.]


                                         9
      Appellant cites three Texas cases for the proposition that a trial court errs

by imposing a predetermined sentence, but in each of those cases, when placing

defendants on probation, the trial courts had told the defendants that if they

violated the probation’s terms, they would likely receive high or maximum

sentences. See Earley v. State, 855 S.W.2d 260, 262–63 (Tex. App.—Corpus

Christi 1993), pet. dism’d, improvidently granted, 872 S.W.2d 758 (Tex. Crim.

App. 1994); Howard v. State, 830 S.W.2d 785, 787–89 (Tex. App.—San Antonio

1992, pet. ref’d); Jefferson v. State, 803 S.W.2d 470, 471–73 (Tex. App.—Dallas

1991, pet. ref’d).    In this case, we have not located evidence of any

representation made by the trial court to appellant at the time of his guilty plea

concerning what his punishment would be if he violated the terms of his

community supervision. Likewise, we have not located other evidence indicating

that the trial court predetermined its adjudication or punishment decisions before

listening to the evidence at the adjudication hearing.

      Although appellant contends that the trial court “did not consider any

alternatives regarding Appellant other than to send [him] to prison,” it is just as

likely that the trial court, while listening to appellant’s closing argument,

considered those alternatives and rejected them.         Finally, appellant did not

receive a maximum sentence in this case; his conviction authorized the trial court




                                        10
to assess twenty years’ confinement, and he received ten. 8 See Tex. Penal

Code Ann. §§ 12.33(a), 22.011(f) (West 2011). And appellant did not complain in

the trial court about the excessiveness of his sentence, so to the extent he

makes that argument in this court, he has forfeited it. See Means v. State, 347

S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no pet.); see also Ortiz v. State,

No. 02-11-00481-CR, 2013 WL 362799, at *1 (Tex. App.—Fort Worth Jan.

31, 2013, no pet. h.) (mem. op., not designated for publication) (holding that an

appellant forfeited his complaint about the excessiveness of his sentence

following a revocation of community supervision for “technical violations”

because the appellant did not object to his sentence in the trial court).

      For all of these reasons, we conclude that the trial court did not abuse its

discretion by revoking appellant’s community supervision, adjudicating his guilt,

and sentencing him to ten years’ confinement based on his pleas of true and on

the evidence presented in the adjudication hearing. We overrule his first issue.

          The Constitutionality of Section 22.011(a)(2) of the Penal Code

      In his second and third issues, appellant contends that section

22.011(a)(2) of the penal code is unconstitutional, as a violation of federal and

state due process, 9 because it fails to require the State to prove that a defendant


      8
        Appellant acknowledges that a sentence within the range provided by law
will not generally be disturbed on appeal. See Jackson v. State, 680 S.W.2d
809, 814 (Tex. Crim. App. 1984).
      9
       See U.S. Const. Amend V; Tex. Const. art. I, § 19.


                                         11
knew the sexual assault victim’s age when engaging in the crime and because it

does not recognize an affirmative defense based on a defendant’s reasonable

belief that the victim was at least seventeen years old.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Clay, 361 S.W.3d at 765. Further, the trial court

must have ruled on the request, objection, or motion, either expressly or

implicitly, or the complaining party must have objected to the trial court’s refusal

to rule. Tex. R. App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex.

Crim. App. 2011). Preservation of error is a systemic requirement. Wilson v.

State, 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010) (op. on reh’g); Clay, 361

S.W.3d at 765.

      Facial and as-applied challenges to the constitutionality of statutes are

forfeited when raised for the first time on appeal. See Karenev v. State, 281

S.W.3d 428, 434 (Tex. Crim. App. 2009); Holmes v. State, 380 S.W.3d 307, 308–

09 (Tex. App.—Fort Worth 2012, pet. ref’d); Ibenyenwa v. State, 367 S.W.3d

420, 422 (Tex. App.—Fort Worth 2012, pet. ref’d) (op. on reh’g). Appellant did

not challenge the constitutionality of section 22.011(a)(2) in the trial court.

Although he asserts that section 22.011(a)(2)’s alleged unconstitutionality makes

the trial court’s judgment void, the court of criminal appeals has decided that a


                                        12
statute’s unconstitutionality does not affect a trial court’s jurisdiction and that the

application of an unconstitutional statute does not make a defendant’s conviction

void. See Karenev, 281 S.W.3d at 432–34.

       Appellant contends that we may review unassigned error. This is true, but

unassigned error is different than unpreserved error. See Pfeiffer v. State, 363

S.W.3d 594, 599 (Tex. Crim. App. 2012) (“[A]ppellate courts may review

unassigned error—a claim that was preserved in the trial court but was not raised

by either party on appeal.”); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

App. 2006) (“[E]rrors that are subject to procedural default may not be remedied

by the appellate court as unassigned error unless the error was in fact preserved

in the trial court.”).

       Appellant also contends that due process rights are “fundamental” and

therefore “should not be subject to the requirements of a contemporaneous

objection at trial.” The court of criminal appeals, however, has held otherwise.

See, e.g., Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009). 10 We

may not disregard the court of criminal appeals’s precedent. Wilson v. State, 108

S.W.3d 328, 332 (Tex. App.—Fort Worth 2003, pet. ref’d).

       10
        Appellant relies in part on the court of criminal appeals’s decision in
Almanza v. State to argue that we may review his unpreserved error. 686
S.W.2d 157, 171 (Tex. Crim. App. 1984) (establishing that when no objection is
made to jury charge error, we may reverse a conviction if the defendant suffered
egregious harm). But we have held that Almanza does not apply to constitutional
challenges to statutes. See Shafer v. State, No. 02-10-00496-CR, 2012 WL
745422, at *1 (Tex. App.—Fort Worth Mar. 8, 2012, pet. ref’d) (citing Curry v.
State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995)).


                                          13
      Next, appellant asks us to review his issues in the interests of justice. The

court of criminal appeals has instructed us that we should not address the merits

of an issue that has not been preserved for appeal. Wilson, 311 S.W.3d at 473;

see Clay, 361 S.W.3d at 765. We note, however, that in a case that involved

issues that were similar to the arguments raised by appellant in this case, we

upheld the constitutionality of section 22.021 of the penal code, which is the

aggravated sexual assault statute. See Fleming v. State, 376 S.W.3d 854, 862

(Tex. App.—Fort Worth 2012, pet. granted); see also Tex. Penal Code Ann.

§ 22.021 (West Supp. 2012).

      Ultimately, appellant concedes that he did not preserve his constitutional

complaints for appellate review, and we agree.        Accordingly, we hold that

appellant forfeited the complaints raised in his second and third issues, and we

overrule those issues. See Tex. R. App. P. 33.1(a); Ibenyenwa, 367 S.W.3d at

422–23.




                                        14
                                Conclusion

      Having overruled all of appellant’s issues, we affirm the trial court’s

judgment.



                                               TERRIE LIVINGSTON
                                               CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 4, 2013




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