                           COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                NO. 02-11-00033-CR


LAWRENCE DONOVAN                                                          APPELLANT

                                           V.

THE STATE OF TEXAS                                                               STATE


                                        ----------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                        ----------

     DISSENTING OPINION ON EN BANC RECONSIDERATION

                                        ----------

      Respectfully, I cannot agree with the majority’s conclusion that “despite his

being well represented by counsel and having multiple opportunities to do

so[,] . . . Appellant has forfeited his claims for review.” 1 The majority does not

explain how Appellant could object when his lawyer did not. Although our state’s

constitution guarantees that “[i]n all criminal prosecutions the accused . . . shall have



      1
       Majority Op. at 13.
the right of being heard by himself or counsel, or both. . . ,” 2 the courts of this state

have repeatedly held that a defendant has no right to his voice’s being heard if he is

represented by counsel. 3 Either Appellant was represented by counsel when the

conditions of community supervision were amended, in which case he had no

recognized right, aside from the constitutional right which has been abrogated by the

courts, to be heard, or he was denied his right to be represented by counsel at this

significant stage in his prosecution.

      Nor does the majority explain how Appellant could know that Michael Strain,

who is neither a judge nor a community supervision officer, would have the power to

create conditions of community supervision that were never ordered by the trial

court except by general delegation. Appellant argues that the trial court abused its

discretion by revoking his community supervision. I would hold that Appellant is

correct.

      Appellant was charged by indictment with one count of aggravated sexual

assault of a child under seventeen years of age and one count of indecency with a

child by contact. The indictment was amended by interlineation to add a third count

of bodily injury to a child. Appellant entered his plea of nolo contendere to count

three of the indictment pursuant to a plea agreement, and the trial court explicitly

acquitted Appellant of the two sexual offenses. The trial court placed Appellant on


      2
       Tex. Const. art. I, § 10.
      3
       See, e.g., Ex parte Medina, 361 S.W.3d 633, 637 (Tex. Crim. App. 2011).


                                            2
deferred adjudication community supervision for five years. The trial court also

entered an order expunging the records pertaining to the two sexual offenses.

There is no record of any opposition by the State to the expunction order. The

expunction order itself, however, was inexplicably destroyed.

      Subsequently, the trial judge was defeated for reelection, and the new trial

judge amended the conditions of Appellant’s community supervision to include a

requirement that Appellant serve time in jail as a condition of community supervision

and that he complete sex offender treatment. The record reflects no grounds for the

amendment that had not been before the prior trial judge. Nor does the record

reflect whether the amendment was ordered in court or in the community

supervision office, whether Appellant was informed that he could object to the

amendment or seek advice of counsel, or whether he was represented by counsel

when the new trial judge amended the conditions of community supervision.

      A timeline is necessary to fully understand the issues of forfeiture and

preservation:

      August 23, 2006            Appellant was acquitted of sexual offenses,
                                 convicted of injury to a child, placed on deferred
                                 adjudication community supervision for five years,
                                 and served with conditions of community
                                 supervision. He was not placed on the sex
                                 offender caseload. At some point, by agreement
                                 with the district attorney’s office, an expunction
                                 order was entered regarding the sex offenses.

      August 25, 2006            The trial court modified conditions of community
                                 supervision from “Do not use, possess, or
                                 consume any alcoholic beverage” to “No excessive
                                 consumption of any alcoholic beverage.”


                                         3
March 24, 2008      The new trial judge extended community
                    supervision for one year and modified conditions of
                    community supervision to “Do not use, possess or
                    consume any alcoholic beverage. Do not refuse a
                    breath, blood, urine or field sobriety test as
                    requested by a peace officer or supervision
                    officer.”

March 24, 2008      The new trial judge amended community
                    supervision conditions to place Appellant on the
                    sex offender caseload and to require him to
                    comply with all terms and conditions of the sex
                    offender caseload except registration as a sex
                    offender.

November 17, 2008   The new trial judge amended conditions of
                    community supervision to require “Confinement
                    TCJ as COP 16 days begins Nov. 21, 2008
                    Fridays by 9 pm and out Mondays by 5 am.”

December 1, 2008    The new trial judge amended conditions of
                    community supervision to change the dates of
                    work-release, which she had imposed on
                    November 17, 2008.

February 2, 2009    Appellant’s attorney filed “DEFENDANT’S
                    MOTION FOR MODIFICATION OF CONDITIONS
                    OF PROBATION.” Appellant’s motion states that
                    “the only reason his conditions of probation were
                    amended to require successful completion of the
                    sex offender treatment program was because of
                    Judge Westfall’s concern over the Community
                    Supervision Community Development’s report to
                    her that [Appellant] had originally been charged
                    with sex offenses—the same offenses for which he
                    had been found not guilty, and for which the
                    Tarrant County District Clerk’s Office records were
                    expunged.”       This statement was never
                    controverted by the State.

August 24, 2009     En camera meeting with lawyers occurred.



                            4
      October 20, 2010           The State filed its “FIRST PETITION TO
                                 PROCEED TO ADJUDICATION.” The trial court
                                 issued an alias capias for the arrest of Appellant
                                 and ordered him held without bond.

      October 26, 2010           Appellant’s attorney entered a notice of
                                 representation. The trial court set bond and
                                 imposed conditions.

      November 3, 2010           The warrant for Appellant’s arrest was executed.

      January 7, 2011            The hearing on the State’s motion to proceed to
                                 adjudication began.

      January 18, 2011           The trial court granted the State’s motion,
                                 adjudicated Appellant’s guilt, and imposed a four-
                                 year sentence.

      Appellant participated in the sex offender treatment program until he was

required to discuss the facts of the two offenses of which he had been acquitted.

Michael Strain had been given a copy of the offense report containing descriptions

of the expunged offenses as well as descriptions of the offense of which Appellant

had been convicted. When Strain told Appellant that he would have to discuss the

facts of the allegations upon which the expunged offenses were based, Appellant

told Strain that it was illegal for him to comply with Strain’s requirement. The

majority does not address this issue, holding, instead, that Appellant did not object.

Although his lawyer did not object until he had opportunity, Appellant clearly

objected when he told Strain that he could not comply with Strain’s directive.

Appellant was not in court, and there is no showing that he was aware of the proper

procedure for complaining about a condition of community supervision or that he




                                          5
knew the proper vehicle for lodging a legally valid objection. But Appellant was

correct when he told Strain that it was illegal for him to discuss expunged cases.

      Article 55.03 of the Texas Code of Criminal Procedure provides,

             When the order of expunction is final:

                 (1) the release, maintenance, dissemination, or use of the
      expunged records and files for any purpose is prohibited;

                   (2) except as provided in Subdivision (3) of this article, the
      person arrested may deny the occurrence of the arrest and the
      existence of the expunction order; and

                   (3) the person arrested or any other person, when
      questioned under oath in a criminal proceeding about an arrest for
      which the records have been expunged, may state only that the matter
      in question has been expunged. 4

As the majority acknowledges,

      Strain’s recollection of the trial court’s instructions was that Appellant
      was not required to admit responsibility for the original charged
      offenses but not that it would be illegal to discuss them. He told
      Appellant that if it was illegal to discuss the sexual nature of the original
      charges, he was uncertain whether any useful treatment work could be
      done, and pending some clarification of the matter, he discontinued
      Appellant’s treatment. 5

      That is, Appellant did not abandon Strain’s program. Strain abandoned him

because Appellant understood article 55.03 to mean that dissemination of the facts

and allegations contained in the expunged records was prohibited. The trial court

did not explain to Appellant how the statute did not apply to him.                    Other


      4
       Tex. Code Crim. Proc. Ann. art. 55.03 (West 2006).
      5
       Majority op. at 4.


                                           6
requirements of the sex offender caseload included detailed discussions of

Appellant’s sexual history, polygraph tests regarding sexual activity, and other

admissions regarding “victims.”

      Like the applicant in Ex parte Evans, who was successful on parole for

eighteen months before the Texas Department of Criminal Justice unlawfully added

sex offender conditions to his conditions of parole, 6 Appellant was doing well on

community supervision until the trial court amended his conditions to place him on

the sex offender caseload. The new trial judge clearly stated on the record that she

did not agree that the expunction should have been granted by the prior trial judge.

Her statements included, “So he got an illegal expunction.” She also referred to it as

a “baseless expunction.” She maintained her position, despite the facts that, as

pointed out to her, the district attorney’s office had agreed to the expunction, and it

had not been appealed.

      When Appellant was placed on the sex offender caseload, he was apparently

in compliance with the conditions of his community supervision. He had a long-

standing ministry with the Roman Catholic Church, was a decorated Air Force

veteran who had served during the Vietnam War era, and was employed as a

nuclear physicist with the United States Nuclear Regulatory Commission. He had

earned two masters degrees and had received a bachelor of science and physics




      6
       338 S.W.3d 545, 546, 553, 556 (Tex. Crim. App. 2011).


                                          7
degree from Duke University. As was the case for the applicant in Ex parte Evans, 7

Appellant’s life quickly went downhill after being placed on the sex-offender

caseload.

      Due process requires a rational relationship between the offense and the

obligations of community supervision. If restitution is ordered, a defendant may be

ordered to pay restitution only to the complainants in the cases of which he was

actually convicted. 8 There must be not only a rational relationship between the

offense and the conditions of community supervision but also recognition of the

constitutional rights of the probationer. A probationer cannot be ordered to do an

act that violates his constitutional rights as balanced with the goals of community

supervision. 9

      The record does not reflect any action by Appellant that justifies the trial

court’s transferring him to the sex offender caseload. From the record, the transfer

appears to have been ordered because the new trial judge did not agree with the

ruling of the former trial judge in acquitting Appellant of the two sex offenses and

granting the agreed-upon expunction.

      The State argues, and the majority holds, that Appellant should have objected

to the amended conditions of community supervision. But the order provides no

      7
       Id. at 548.
      8
       Martin v. State, 874 S.W.2d 674, 677 (Tex. Crim. App. 1994).
      9
      Ex parte Dangelo, 339 S.W.3d 143, 148–49 (Tex. App.—Fort Worth 2010)
(Dangelo I), aff’d, 376 S.W.3d 776 (Tex. Crim. App. 2012) (Dangelo II).


                                         8
notice to Appellant that he would be required to discuss sex offenses of which he

had been acquitted as well as possible offenses with which he had never been

charged. When Appellant learned that he was expected to admit to those offenses,

he objected to Mike Strain. The trial judge did intervene, then, to countermand

Strain’s requirement that Appellant actually admit to the offenses of which he had

been acquitted.

      The record does not reflect that Appellant was represented by counsel when

the trial court amended his conditions of community supervision or even that the

amendment occurred in open court. Nor is there any indication that Appellant was

aware either of his ability to object or of what the amendments to his conditions of

community supervision entailed. As the Supreme Court of the United States

explained in regard to statements made in response to custodial interrogation,

      The abdication of the constitutional privilege—the choice on his part to
      speak to the police—was not made knowingly or competently because
      of the failure to apprise him of his rights; the compelling atmosphere of
      the in-custody interrogation, and not an independent decision on his
      part, caused the defendant to speak.

            ....

             At the outset, if a person in custody is to be subjected to
      interrogation, he must first be informed in clear and unequivocal terms
      that he has the right to remain silent. For those unaware of the
      privilege, the warning is needed simply to make them aware of it—the
      threshold requirement for an intelligent decision as to its exercise.
      More important, such a warning is an absolute prerequisite in
      overcoming the inherent pressures of the interrogation atmosphere. It
      is not just the subnormal or woefully ignorant who succumb to an
      interrogator’s imprecations, whether implied or expressly stated, that
      the interrogation will continue until a confession is obtained or that
      silence in the face of accusation is itself damning and will bode ill when


                                          9
      presented to a jury. Further, the warning will show the individual that
      his interrogators are prepared to recognize his privilege should he
      choose to exercise it.

             The Fifth Amendment privilege is so fundamental to our system
      of constitutional rule and the expedient of giving an adequate warning
      as to the availability of the privilege so simple, we will not pause to
      inquire in individual cases whether the defendant was aware of his
      rights without a warning being given. Assessments of the knowledge
      the defendant possessed, based on information as to his age,
      education, intelligence, or prior contact with authorities, can never be
      more than speculation; a warning is a clearcut fact. More important,
      whatever the background of the person interrogated, a warning at the
      time of the interrogation is indispensable to overcome its pressures and
      to insure that the individual knows he is free to exercise the privilege at
      that point in time.

             The warning of the right to remain silent must be accompanied
      by the explanation that anything said can and will be used against the
      individual in court. This warning is needed in order to make him aware
      not only of the privilege, but also of the consequences of forgoing it. It
      is only through an awareness of these consequences that there can be
      any assurance of real understanding and intelligent exercise of the
      privilege. Moreover, this warning may serve to make the individual
      more acutely aware that he is faced with a phase of the adversary
      system—that he is not in the presence of persons acting solely in his
      interest. 10

      A defendant in a criminal case does not lose his right against self-

incrimination under either the Constitution of the United States or the Constitution of

the State of Texas when he is placed on community supervision.11 Yet the trial court

granted the State’s motion to proceed to adjudication because Appellant refused to

discuss underlying facts of the cases of which he had been acquitted and which had


      10
         Miranda v. Arizona, 384 U.S. 436, 465–69, 86 S. Ct. 1602, 1623–25 (1966)
(citations omitted).
      11
        Dangelo II, 376 S.W.3d at 781.

                                          10
been expunged and refused to discuss sexual activity that might reveal acts for

which he could be criminally prosecuted.        Essentially, the trial court revoked

Appellant’s community supervision and proceeded to adjudication of his guilt

because he invoked his constitutional right not to provide evidence against himself,

resulting in Strain’s expelling Appellant from his sex offender program.

      On appeal, the State contends that Appellant’s treatment program could have

been “tailored” to avoid doing violence to the proscriptions regarding an expunged

offense. Appellant’s counsel has stated repeatedly, both in oral argument and in

written argument, that they were

      constantly in [the trial court’s] chambers to address the recurring issue
      as to how Appellant was to deal with a probation department that, in
      effect, required him to admit a nonexistent sex crime—the very
      “offense” he had (with the State’s consent) been found not guilty of and
      the subject of an expunction order.

             There is no showing in the record that defense counsel were
      ever made aware by the Court or Probation that Appellant could switch
      to a provider other than Michael Strain and Associates. That is the
      “surprise” referred to by defense counsel in the trial court and on
      appeal. Counsel were never advised that option was available. Had
      they known, they would have switched providers. 12

      Appellant has suggested that a recent Texas Court of Criminal Appeals

opinion is instructive in this case and that we should follow its reasoning. In Leonard

v. State, the Court of Criminal Appeals reminds us that

      [i]n a revocation proceeding, the trial court has discretion to revoke
      community supervision when a preponderance of the evidence
      supports one of the State’s allegations that the defendant violated a

      12
        Appellant’s Post-Submission Brief at 4.


                                          11
condition of his community supervision. Though defendants are not
entitled to community supervision as a matter of right, once a
defendant is assessed community supervision in lieu of other
punishment, this conditional liberty “should not be arbitrarily withdrawn
by the court . . . .” On appeal from a trial court’s decision to revoke,
therefore, appellate courts review the record only to ensure that the trial
court did not abuse its discretion.

      Upon close examination, however, it is not obvious how an
abuse-of-discretion standard applies in this case. The trial court
ordered the appellant to “[a]ttend and participate fully in and
successfully complete” a program. The evidence at the adjudication
hearing showed that the appellant did “[a]ttend” and “participate fully” in
the program, both of which were within his power to do. The appellant
did not have full control over his ability to “successfully complete” the
program, however; he was discharged because the therapist came to
believe that he was being dishonest. Thus it was the therapist’s
discretion that caused the appellant to be in violation of a term of his
community supervision.

      As the trial court suggested, under an ordinary abuse-of-
discretion review, our analysis would already be over: Discharge
caused the appellant to be in violation, and there was evidence that the
appellant was discharged. Such an analysis on our part, however,
would be inadequate.

       Revocation involves the loss of liberty and therefore implicates
due process. “The central issue to be determined in reviewing a trial
court’s exercise of discretion in a [community supervision] revocation
case is whether the [defendant] was afforded due process of law.” It
would surely offend due process if a defendant were discharged from
his therapy program for a wholly inappropriate reason—such as illegal
discrimination or mere caprice—and the bare fact of that discharge
were used as a basis to revoke the defendant’s community supervision.
Yet, by an ordinary abuse-of-discretion review, such a revocation would
be sustained.

       What has happened here is that the trial court, through a
condition of the appellant’s community supervision, made the
appellant’s compliance with the terms of his community supervision
subject to the discretion of a third party. In such a case, to determine
whether the trial court abused its discretion we must also examine the
third party’s use of its discretion to ensure that it was used on a basis


                                    12
      that was rational and connected to the purposes of community
      supervision. 13

      The majority, however, declines Appellant’s invitation, stating, “we decline to

rely on a case reversing the same trial court on a different issue as a valid reason to

disregard the law that applies to this case.” 14 With all appropriate respect to the

majority, the Leonard court is dealing with the same trial judge and the same kind of

condition of community supervision and the same provider. Leonard was told by

Strain to pass a polygraph test. In the case now before this court, Appellant was

told to discuss his sexual abuse of a child in a case that had been expunged

because the trial court had found Appellant not guilty of the accusations. The State

argued at the hearing on adjudication and again argues on appeal that Appellant

could have discussed other instances of his sexually abusing children, although

there is no evidence that Appellant ever sexually abused any child. A mere

allegation, whether by the State or by a treatment provider, is not evidence.

      Leonard made no objection to the polygraph requirement. The Texas Court of

Criminal Appeals, nevertheless, held that because the trial court ordered Leonard to

both do things within his power to do, such as attend the program and participate

fully, but also things not within his power to do, such as pass a polygraph test, that

the appellate court should have determined whether Strain abused his discretion in


      13
        Leonard v. State, 385 S.W.3d 570, 576–77 (Tex. Crim. App. 2012) (citations
omitted).
      14
        Majority Op.at 11.


                                          13
discharging Leonard from therapy and therefore causing Leonard “to be in violation

of a term of his community supervision.” 15 The Leonard court concluded that

because Strain’s opinion was founded in inadmissible evidence, the only evidence

supporting revocation was inadmissible, rendering the trial court’s action in revoking

Leonard’s community supervision an abuse of discretion. 16

      Although I cannot agree with the Leonard court that a trial court can properly

delegate its authority to a third party to determine whether community supervision

should be revoked, 17 I do not agree with the majority here that we can ignore the

mandates of Leonard. In the case now before this court, there is no showing that

Appellant had the ability to comply with Strain’s order to discuss sexually abusing

children. The former trial judge had found Appellant not guilty in response to the

only accusations against him, and those cases had been expunged.

      The majority also suggests that I have attempted to “reach out and reverse

the trial court on an issue that was not raised” because I would hold that the trial

court abused its discretion by ordering, without hearing or benefit of counsel, jail

confinement as a condition of community supervision. A trial court may abuse its

discretion by ordering a condition of community supervision that deprives a




      15
        Leonard, 385 S.W.3d at 577–78.
      16
        Id. at 583.
      17
        See id. at 577.


                                         14
defendant of his conditional liberty without due process of law. 18 If that action of the

trial court was not the basis of revocation and not the basis of the appeal, reversal

may not necessarily be required. But here, it was merely one step down the slippery

slope of an improper revocation. The majority appears to believe that because

Appellant attempted to comply with improperly imposed conditions of community

supervision, he could never complain of any action of the trial court. On appeal the

State suggests that Appellant and his counsel were aware of all circumstances. But

Appellant’s counsel on appeal points out that they were never told that Appellant

could choose another treatment provider. The fact that Appellant was tossed in jail

during his community supervision with no motion, no hearing, and no lawyer is an

inseparable part of the mosaic of this revocation that is now being appealed. The

trial court abused its discretion at this point on the path to revocation, and we should

say so. But I agree that this additional abuse of discretion by the trial court would

not be grounds to reverse under the facts and posture of this case as a whole.

      I cannot agree, however, with the majority’s interpretation of Gutierrez v.

State. 19 The Gutierrez court held that although a criminal defendant may waive his

right to complain of improper conditions of community supervision, he “cannot agree

to submit to a condition of community supervision that the criminal justice system

      18
          Id. at 576 (“Though defendants are not entitled to community supervision as
a matter of right, once a defendant is assessed community supervision in lieu of
other punishment, this conditional liberty should not be arbitrarily withdrawn by the
court . . . .”) (internal quotation marks omitted).
      19
        380 S.W.3d 167 (Tex. Crim. App. 2012).


                                           15
simply finds intolerable and which is therefore, by definition, not even an option

available to the parties.” 20 When the majority in the case before us states, “[T]he

conditions that the trial court imposed in this case do not rise to the level of being an

‘intolerable’ invasion of federal prerogative in violation of the Supremacy

Clause . . . ,” 21 the majority mistakenly narrows the Gutierrez holding, improperly

limiting its reach to questions of federal preemption or conflicts with federal

mandate. I would hold that a probationer “cannot agree to submit to a condition of

community supervision that the criminal justice system simply finds intolerable and

which is therefore, by definition, not even an option available to the parties.” 22

      I would further hold that the trial court abused its discretion (1) by placing

Appellant on the sex offender caseload, (2) by ordering, without hearing or benefit of

counsel, jail confinement as a condition of community supervision, (3) by delegating

to Mike Strain the authority to set the conditions of community supervision, (4) by

requiring Appellant to discuss the details of offenses of which he had been acquitted

as well as the related records which had been expunged, and (5) by requiring

Appellant to discuss uncharged sexual activity which could have been illegal and

which was never shown to exist. I would also hold that the trial court abused its

discretion by revoking Appellant’s community supervision because of his attempt to


      20
        Id. at 175–76.
      21
        Majority Op. at 12.
      22
        Gutierrez, 380 S.W.3d at 175–76.


                                           16
comply with article 55.03. That is, I would hold that the trial court abused its

discretion by revoking Appellant’s community supervision and proceeding to

adjudication because the trial court found that Appellant, who had not been

convicted of a sex offense, had failed to comply with the sex offender caseload

conditions promulgated by a person who was neither a judge nor a community

supervision officer and based on records which had been ordered expunged and

Appellant’s refusal to reveal facts that could lead to his criminal prosecution. I would

additionally hold that claims that Appellant’s counsel were told that Appellant could

transfer to a provider other than Strain are not supported by the record and cannot,

therefore, be considered.

      Because the majority does not so hold, I must respectfully dissent.


                                                      /s/ Lee Ann Dauphinot
                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PUBLISH

DELIVERED: March 13, 2014




                                          17
