       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00726-CR



                                    Ivan Johnson, Appellant

                                                 v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF LLANO COUNTY, 424TH JUDICIAL DISTRICT
            NO. CR5778, HONORABLE DAN H. MILLS, JUDGE PRESIDING



                                          OPINION


                A jury found appellant Ivan Johnson guilty of indecency with a child by contact and

assessed punishment at five years’ imprisonment. See Tex. Penal Code Ann. § 21.11 (West 2003).

On the jury’s recommendation, the trial court suspended imposition of sentence and placed appellant

on community supervision. In his only point of error, appellant contends that the court erred

by modifying the conditions of supervision after hearing victim statements. We will affirm

the judgment.

                The record contains a formal bill of exception. See Tex. R. App. P. 33.2. We quote

it in full:


                Defendant IVAN JOHNSON, was convicted in Count 2 of Indecency with a
         Child on September 27, 2006. The victim in this count was 10-year-old [B.L.]
         Defendant was acquitted that same day in Count 1 of Indecency with a Child alleged
         to have been committed against 9-year-old [S.D.]
              The jury returned its verdict on punishment on September 28, 2006, after the
       presentation of witnesses and argument of counsel. After the Court imposed a
       sentence of probation in accordance with the jury’s verdict, [K.L.] and [M.B.] were
       allowed to make a statement in open court pursuant to Article 42.03 of the Code of
       Criminal Procedure.[1]

               [K.L.], the mother of [B.L.] read her own written statement in open court in
       the presence of the Court, the Defendant, his attorneys, and the prosecutor and
       members of the audience. This written statement was directed to the Defendant and
       described how the offense had affected her and her daughter, [B.L.], and stated or
       strongly inferred that the Defendant had sexually abused his own granddaughter as
       well as others. Upon finishing her own statement, [K.L.] then read a written
       statement prepared by her daughter, [B.L.]. The statement, like her mother’s,
       described the effects this offense had on her and the negative feelings she now had
       for the Defendant.

               [M.B.] then read her written statement in the presence of the Court, the
       Defendant, his attorneys, and the prosecutor and members of the audience. [M.B.] is
       the mother of [S.D.], the alleged 9-year-old victim in Count 1. [M.B.’s] statement
       was similar to [K.L.’s] statement expressing the effects the Defendant’s actions had
       on her and her daughter and the negative feelings [M.B.] had for the Defendant.
       Upon finishing her own statement, [M.B.] stated that [S.D.] also had written a
       statement but that she and [S.D.] were too traumatized to read it. The Court then
       volunteered to read [S.D.’s] statement aloud and did so at that time. This statement,
       like the others, described in detail how the Defendant’s actions violated her trust in
       him, the effects his actions caused her and her mother and her feelings for the
       Defendant as a result of his actions.[2]

              Immediately after the Court read [S.D.’s] statement in open court he
       proceeded to impose additional conditions of probation including the requirement




       1
           Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b) (West 2006).
       2
         In light of appellant’s acquittal on count one, one might question whether S.D. was a victim
within the meaning of article 42.03. Appellant does not raise this issue, and we express no opinion
on the matter.

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       that the Defendant serve 180 days in the county jail.[ 3 ] In accordance with Article
       42.03, the reading of the four statements was not transcribed by the court reporter.[4]


The bill of exception contains most of the facts pertinent to appellant’s point of error. It should be

added that after receiving the punishment verdict and dismissing the jury, the court announced: “[I]t

is the sentence of this Court that you be placed on probation for a term of five years and a fine of

$5,000 that will be probated also. You will be placed upon the standard conditions of probation and

the ones this [sic] apply to sex offenders.”5 It was at this point that the victim statements were made.

               Under article 42.03, the trial court must permit a victim or a victim’s close relative

or guardian to “appear in person to present to the court and to the defendant a statement of

the person’s views about the offense, the defendant, and the effect of the offense on the victim.”

Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b) (West 2006). “The court reporter may not transcribe

the statement.” Id. There is no requirement that the victim statement be sworn, and the statute does

not provide for cross-examination. “The statement must be made : (1) after punishment has been

assessed and the court has determined whether or not to grant community supervision in the case;

(2) after the court has announced the terms and conditions of the sentence; and (3) after sentence is

pronounced.” Id.


       3
          Although the bill of exception refers to additional conditions, the record otherwise reflects
that the only arguable additional condition imposed by the court was the 180-day jail term. This is
the only condition appellant challenges in this appeal.
       4
        The victim statements were apparently written in advance of trial. The written versions
were made a part of the appellate record by order of the district court on appellant’s motion.
        5
           We do not know if the “standard conditions of probation” referred to by the court are the
basic conditions set out in the community supervision statute or the conditions that are routinely
imposed in Llano County. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11 (West 2006). If the
latter, there is no evidence as to what those conditions are.

                                                   3
                Article 42.03 allows a victim statement only after sentencing in order to alleviate any

 risk that the statement might affect the partiality of the fact finder at the punishment phase. Garcia

 v. State, 16 S.W.3d 401, 408 (Tex. App.—El Paso 2000, pet. ref’d). A victim statement pursuant

 to article 42.03 “can best be thought of as an opportunity for the victim to vent his or her feelings

 in a public forum about the offense and the defendant.” 43 George E. Dix & Robert O. Dawson,

 Texas Practice: Criminal Practice and Procedure § 38.84 (2d ed. 2001). The statement is not

 evidence and is intended to have no effect on decisions made in the criminal process. Id.

                Appellant contends that the trial court violated article 42.03 by modifying the

 conditions of supervision after hearing the victim statements, adding the requirement that he serve

 180 days in jail. In overruling appellant’s objection on this ground, the trial court stated, “[T]his

 Court sat through the whole trial and heard all of the evidence that was in the trial, which clearly

 included what I read and what basically was stated. I mean, the Court could logically deduce most

 of what was read in that victim impact statement. That did not influence this Court in determine

 [sic] to sentence him to 180 days in the county jail because I had not imposed what conditions of

 probation I was going to impose.”

               There is an ambiguity in article 42.03 with regard to its application in community

supervision cases. There is no sentence when community supervision is granted; instead imposition

of sentence is suspended. Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3, 4 (West 2006). “In other words,

community supervision is an arrangement in lieu of the sentence, not as part of the sentence.” Speth

v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). Although article 42.03, section 1(b) clearly

provides that victim statements must be made after the decision to grant community supervision has




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been made, it is unclear whether victim statements must be made after the terms and conditions of

community supervision have been announced and after sentence has been suspended.

               We need not resolve this ambiguity in this case. Jail time as a condition of community

supervision is authorized by statute and is within the trial court’s discretionary authority to impose or

not. Tex. Code Crim. Proc. Ann. art. 42.12, § 12(c) (West 2006); Fielder v. State, 834 S.W.2d 509, 511

(Tex. App.—Fort Worth 1992, pet. ref’d). Section 12(c) permits the trial court to impose confinement

in jail as a condition of supervision when placing the defendant on supervision or “at any time during

the supervision period.” Tex. Code Crim. Proc. Ann. art. 42.12, § 12(c). Thus, even if the conditions

of supervision must generally be determined and announced before any victim statement is made,

section 12(c) of the community supervision statute creates an exception to this rule. The court below

was and remains authorized to impose jail time as a condition of appellant’s community supervision

at any time during the five-year supervision period.         Under the circumstances, if the court’s

determination to impose the jail time condition was made after the victim statements were made, it was

at most harmless error.

               The point of error is overruled and the judgment of conviction is affirmed.



                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 19, 2007

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