          PD-0181&0182-15
                                                        February 18, 2015
                No.



                             IN THE
           COURT OF CRIMINAL APPEALS
                           OF TEXAS

              BRODERICK LAMOND GAMBLE
                           PETITIONER

        PETITION ON 02-13-00573-CR AND 02-13-00574-CR FROM
          THE SECOND COURT OF APPEALS, FORT WORTH, TEXAS
   AND FROM COUNTY CRIMINAL COURT NO. 5, TARRANT COUNTY, TEXAS
TRIAL COURT CAUSE NO. 1289513; 1290398, THE HONORABLE JAMIE GRAYES
                         CUMMNGS PRESIDING


             PETITION FOR DISCRETIONARY REVIEW


                        COFER LAW, P.C.
                           Cody L. Cofer
                      State Bar No. 24066643
                 300 Throckmorton Street, Suite 500
                      Fort Worth, Texas 76102
                    Email: ccofer@coferlaw.com
                     Telephone: (817) 810-9395
                     Facsimile: (817) 764-7377

                Counsel for Broderick Lamond Gamble,
                   Petitioner/Appellant/Defendant




                      Oral Argument Requested
                 IDENTITY OF PARTIES AND COUNSEL



Petitioner:                     Petitioner/Defendant’s Appellate Counsel:

Broderick Lamond Gamble         Cofer Law, P.C.
                                Cody L. Cofer
                                State Bar No. 24066643
                                300 Throckmorton Street, Suite 500
                                Fort Worth, Texas 76102
                                Email: ccofer@coferlaw.com
                                Telephone: (817) 810-9395
                                Facsimile: (817) 764-7377

State of Texas                  State of Texas Appellate Counsel:

                                Tarrant County District Attorney
                                The Honorable Sharen Wilson
                                State Bar No. 21721200
                                401 W. Belknap Street
                                Fort Worth, Texas 76196
                                Telephone: (817) 884-1687
                                Facsimile: (817) 884-1672

                                State Prosecuting Attorney
                                Lisa C. McMinn
                                P.O. Box 13046, Capitol Station
                                Austin, Texas 78711-3046
                                Telephone: (512) 463-1660
                                Facsimile: (512) 463-5724
                                information@spa.texas.gov




PETITION FOR DISCRETIONARY REVIEW                                    Page 1 of 15
                                         TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... 1

TABLE OF CONTENTS ......................................................................................... 2

INDEX OF AUTHORITIES .................................................................................... 3

STATEMENT REGARDING ORAL ARGUMENT .............................................. 4

STATEMENT OF THE CASE ................................................................................ 5

GROUND FOR REVIEW ........................................................................................ 7

ARGUMENT ............................................................................................................ 8

       A. THE PRESERVATION OF ERROR REQUIREMENT HINGES ON THE NATURE OF THE
       RIGHT ALLEGEDLY INFRINGED. ............................................................................ 8

       B. COMMUNITY SUPERVISION MAY IMPLICATE ABSOLUTE RIGHTS OR RIGHTS
       THAT MUST BE IMPLEMENTED UNLESS EXPRESSLY WAIVED. ................................ 9

       C. EVEN WELL-INTENTIONED DEVIATION FROM STATUTORY GUIDANCE MAY
       REQUIRE REVIEW OF UNOBJECTED TO DUE PROCESS VIOLATIONS. ...................... 11

PRAYER................................................................................................................. 12

CERTIFICATE OF COMPLIANCE ...................................................................... 13

CERTIFICATE OF SERVICE ............................................................................... 13

APPENDIX............................................................................................................. 14




PETITION FOR DISCRETIONARY REVIEW                                                                          Page 2 of 15
	  
                                          INDEX OF AUTHORITIES
Cases	  
Caddell v. State, 605 S.W.2d 275 (Tex. Crim. App. 1980) .................................... 10
Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) ........................................... 9
Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) ...................................... 10
Gamble v. State, No. 02-13-00573-CR, 2015 WL 221108 (Tex. App.—Fort Worth,
       Jan. 15, 2015)................................................................................................... 8, 11
Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014) ...................................... 11
Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) ............................. 10, 11
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)..................................... 8, 9
Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996) .................................... 9
Morrissey v. Brewer, 408 U.S. 471 (1972) ............................................................. 10
Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) .............................................. 9
Statutes	  
TEX. CODE OF CRIM. PROC. ART. 42.12 .................................................................... 9
Rules	  
TEX. RULE OF APP. PROC. 33.1 .................................................................................. 8
Constitutional Provisions	  
TEX. CONST. ART. II § 1 .......................................................................................... 11
TEX. CONST. ART. IV § 11A ............................................................................... 9, 11




PETITION FOR DISCRETIONARY REVIEW                                                                              Page 3 of 15
	  
             STATEMENT REGARDING ORAL ARGUMENT

      Oral Argument Requested: Because this case presents novel issues this

Court has not previously addressed, oral argument would be helpful.




PETITION FOR DISCRETIONARY REVIEW                                      Page 4 of 15
	  


                         STATEMENT OF THE CASE

       Petitioner was charged by information with violation of protective order. On

January 10, 2013 (January Proceedings), Petitioner, the trial court, and State

entered into an agreement resembling community supervision. In exchange for

Petitioner’s plea of “no contest” the trial judge would not enter a finding of guilt

for 180 days. If “no offenses [were] reported” within the 180 days, then the State

would consent to Petitioner’s withdrawal of his plea. Further, Petitioner could enter

a plea of “guilty” to a Class C offense of Disorderly Conduct.

       On November 15, 2013 (November Proceedings), Petitioner filed a request

to withdraw his waiver of a jury trial. The trial court denied the request as

untimely. Further, during the November Proceedings Petitioner complained that

the plea was illegal and invalid due to being a conditioned or alternative plea. The

State admitted computer printouts indicating Petitioner had been charged with a

new offense. The trial court ignored Petitioner’s complaints and imposed a

sentence of 90 days county jail.

       Without reaching the issue of whether Petitioner was placed on any form of

community supervision, the Second Court of Appeals affirmed the trial court’s

judgment based on waiver of Petitioner’s complaints. This petition challenges that

holding.

	  



PETITION FOR DISCRETIONARY REVIEW                                         Page 5 of 15
	  
	  


                STATEMENT OF PROCEDURAL HISTORY

       The court of appeals handed down 02-13-00573-CR and 02-13-00574-CR

on January 15, 2015; and no motion for rehearing was filed.




PETITION FOR DISCRETIONARY REVIEW                                 Page 6 of 15
	  
	  


                            GROUND FOR REVIEW

When placed on a form of community supervision not authorized by statute, may

an appellant complain for the first time on appeal?




PETITION FOR DISCRETIONARY REVIEW                                  Page 7 of 15
	  
	  


                                    ARGUMENT

       PETITIONER’S RIGHT TO HAVE THE TRIAL JUDGE TO FOLLOW
           CONSTITUTIONAL AND STATUTORY LIMITATIONS ON
             COMMUNITY SUPERVISION WAS NOT FORFEITED.

A.       THE PRESERVATION OF ERROR REQUIREMENT HINGES ON THE NATURE OF
         THE RIGHT ALLEGEDLY INFRINGED.


         The Second Court did not determine whether the trial court “created any

form of community supervision.” Gamble v. State, No. 02-13-00573-CR, 2015 WL

221108, at *7 Note 8 (Tex. App.—Fort Worth, Jan. 15, 2015). Instead, the Second

Court relied solely on “waiver” to dispense with Petitioner’s complaints.

Generally, to preserve error for appellate review one must make a

contemporaneous objection. TEX. RULE OF APP. PROC. 33.1. However, the Court in

Marin identified three categories of rights, and preservation of error in each

category is treated differently.

Category 1-Marin Right: Absolute requirements and prohibitions.
              a. Cannot be lawfully avoided even with partisan consent; and
              b. The merits of a complaint on appeal are not affected by the
                 existence of a waiver or forfeiture at trial.
Category 2-Marin Right: Rights must be implemented absent expressed waiver.
              a. Waiver must be plainly, freely, and intelligently (sometimes in
                 writing), and always on the record; and
              b. Absent required waiver, failure to implement these rights at trial
                 causes error, which may be urged for the first time on appeal.



PETITION FOR DISCRETIONARY REVIEW                                          Page 8 of 15
	  
	  


Category 3-Marin Right: Rights only implemented upon request.
             a. The institutional representative (trial judge) has no duty to enforce
                forfeitable rights unless requested; and
             b. Failure to voice objection obviates appellate review.
Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) overruled by Cain v.

State, 947 S.W.2d 262 (Tex. Crim. App. 1997) abrogated by Matchett v. State, 941

S.W.2d 922 (Tex. Crim. App. 1996).

       Determining the appropriate review is impossible without identifying the

species of community supervision (or plea agreement) Petitioner entered into. The

Second Court treated all of Petitioner’s complaints as though only Category 3-

Marin Rights were implicated.


B.     COMMUNITY SUPERVISION MAY IMPLICATE ABSOLUTE RIGHTS OR RIGHTS
       THAT MUST BE IMPLEMENTED UNLESS EXPRESSLY WAIVED.


       It is true that the granting of community supervision is a privilege, not a

right. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). However, a trial

court’s power to suspend a sentence is granted by the Texas Constitution. TEX.

CONST. ART. IV § 11A. That same power is abridged by the Legislatures

prescribed conditions. TEX. CONST. ART. IV § 11A. Presumably, the Legislature

prescribes conditions that protect the required due process for those placed on

community supervision. See TEX. CODE OF CRIM. PROC. ART. 42.12.




PETITION FOR DISCRETIONARY REVIEW                                         Page 9 of 15
	  
	  


       It is axiomatic that proceeding to revoke probation threatens deprivation of

liberty, so the application of appropriate due process of law is constitutionally

required. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). The idea

of the due process required has evolved over time. See Ex parte Doan, 369 S.W.3d

205, 209 (Tex. Crim. App. 2012) (abandoning a pluralities reliance on Morrissey v.

Brewer, 408 U.S. 471, 489 (1972) as the measure of due process). However,

community supervision revocation proceedings are judicial proceedings governed

by the rules established to govern judicial proceedings. Doan, 369 S.W.3d at 212.

       Conditions of probation cannot supplant the trial court’s function as a fact-

finder or eliminate the appropriate burden of proof. Leonard v. State, 385 S.W.3d

570, 583 (Tex. Crim. App. 2012) (“Show no deception” on a polygraph required as

a term of community supervision does not provide a basis for admitting unreliable

evidence). In our case, the Second Court blessed the prospective waiving of

valuable due process rights by affirming revocation based solely on the vague

condition requiring no new offenses be reported within 180 days. “Reporting” of

an offense entails merely an accusation, rather than proof of conduct within

Petitioner’s control. Like in Leonard, Petitioner could be “revoked” based merely

on the opinion or, worse yet, the malice of an individual not confronted in court.




PETITION FOR DISCRETIONARY REVIEW                                         Page 10 of 15
	  
	  


C.     EVEN WELL-INTENTIONED DEVIATION FROM STATUTORY GUIDANCE MAY
       REQUIRE REVIEW OF UNOBJECTED TO DUE PROCESS VIOLATIONS.


       The Second Court relied on “analogous precedent” and “persuasive

authority” when deciding not to review the merits of Petitioner’s complaint.

Gamble v. State, No. 02-13-00573-CR, 2015 WL 221108, at *7 (Tex. App.—Fort

Worth, Jan. 15, 2015). However, none of the sited authority touches upon the

complete abandonment of legislative conditions and protections. Leonard better

explains the dangers of allowing conditions to supplant the trial court’s fact-finding

function with another’s discretion. See Leonard v. State, 385 S.W.3d 570 (Tex.

Crim. App. 2012).

       Recently, the Court decided that although the parties and the trial court were

in agreement about an erroneous minimum sentence, the accused still had the due

process right for the trial judge to consider the full range of punishment. Grado v.

State, 445 S.W.3d 736, 743 (Tex. Crim. App. 2014). Further, this right is a

Category 2-Marin Right. Id. Thus the complaint was not procedurally defaulted.

Id. The Second Court should have considered the complaints of Petitioner as

Category 1 or 2-Marin Rights. Instead, complaints of the violation of the trial

courts limitations to act within legislatively granted authority was ignored as being

waived. TEX. CONST. ART. IV § 11A; TEX. CONST. ART. II § 1.




PETITION FOR DISCRETIONARY REVIEW                                         Page 11 of 15
	  
	  


                                     PRAYER

       Petitioner prays the Court hold that Petitioner’s complaints were not waived,

and remand his cases (02-13-00573-CR and 02-13-00574-CR) to the Second Court

with instruction to review the merits of Petitioner’s complaints.



                                       Respectfully submitted by,




                                          Cody L. Cofer
                                          State Bar No. 24066643
                                          COFER LAW, P.C.
                                          300 Throckmorton Street, Suite 500
                                          Fort Worth, Texas 76102
                                          Email: ccofer@coferlaw.com
                                          Telephone: (817) 810-9395
                                          Facsimile: (817) 764-7377
                                          Counsel for Broderick Gamble
                                          Appellant/Defendant




PETITION FOR DISCRETIONARY REVIEW                                        Page 12 of 15
	  
	  


                      CERTIFICATE OF COMPLIANCE


       Pursuant to Tex. Rule App. Proc. 9.4, I certify the number of words in the

“contents included” of this document are 1077.


                             _______________________________________
                             Cody L. Cofer

                          CERTIFICATE OF SERVICE
	  

       Pursuant to TEX. R. APP. P. 9.5, I certify that on February 16, 2015, a copy

of this petition was sent by facsimile and mail to:

Tarrant County District Attorney
The Honorable Sharen Wilson
State Bar No. 21721200
401 W. Belknap Street
Fort Worth, Texas 76196
Telephone: (817) 884-1687
Facsimile: (817) 884-1672

State Prosecuting Attorney
Lisa C. McMinn
P.O. Box 13046, Capitol Station
Austin, Texas 78711-3046
Email: information@spa.texas.gov
Telephone: (512) 463-1660
Facsimile: (512) 463-5724




                                           Cody L. Cofer



PETITION FOR DISCRETIONARY REVIEW                                       Page 13 of 15
	  
                                    APPENDIX




PETITION FOR DISCRETIONARY REVIEW              APPENDIX
                         COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                                   FORT WORTH

                              NO. 02-13-00573-CR
                              NO. 02-13-00574-CR


BRODERICK LAMOND GAMBLE                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                    ------------

      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
               TRIAL COURT NOS. 1289513, 1290398
                            ------------

                        MEMORANDUM OPINION 1

                                    ------------

      Through two identical issues raised in both of these appeals, appellant

Broderick Lamond Gamble appeals his Class A misdemeanor convictions for

violating a protective order. 2 He contends, among other arguments, that the trial

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 25.07(a), (g) (West Supp. 2014); Tex. Code
Crim. Proc. Ann. art. 17.292 (West Supp. 2014).
court granted a form of community supervision that the law does not authorize.

The State contends that appellant did not preserve his arguments in the trial

court, that the trial court did not place appellant on any form of community

supervision, and that the proceedings in the trial court were legal and

appropriate.   Because we hold that appellant forfeited his complaints by not

asserting timely objections in the trial court, we affirm.

                                 Background Facts

      In each of two separate cases, the State charged appellant with violating a

protective order that an Arlington municipal court had issued in May 2012. Each

of the State’s charging instruments contained an enhancement paragraph

alleging that appellant had been previously convicted of a misdemeanor offense.

      In January 2013, appellant and the State entered into a plea bargain

agreement.     Under the agreement, appellant pled no contest and waived

constitutional and statutory rights, including his right to a jury trial. The plea

paperwork expressed the parties’ agreement as including a term of ninety days’

confinement in each case 3 but then contained the following language:

            State will allow [appellant] to withdraw plea after 180 days if
      no offenses [r]eported and [appellant] will be allowed to plea to
      Class C for Disorderly Conduct with $100 fine . . . . And ONE of
      these causes will be . . . [d]ismissed . . . .


      3
        The plea paperwork in the clerk’s records state a handwritten term of
ninety days’ confinement with a handwritten term of 106 days crossed out. The
plea paperwork admitted by the trial court at a later hearing includes only the
originally-written 106-day term.


                                           2
Appellant, his counsel, the State’s counsel, and the trial court signed the plea

paperwork under this language. The trial court, without making a written finding

on the plea at that time, recessed the case for six months. 4

      In May 2013, appellant was again arrested for violating a protective order.

In early November 2013, appellant, through counsel, filed various motions in one

of the cases in apparent anticipation of a trial. But in the middle of that month,

following a hearing and pursuant to the terms of the plea bargain, the trial court

found appellant guilty of both offenses and imposed concurrent sentences of

ninety days’ confinement.     At the hearing, the trial court admitted, without

objection, a document showing that the State filed two criminal cases (a

misdemeanor and a felony) against appellant in May 2013 (with offense dates in

March 2013 and May 2013). As stated by the trial court, this document was “a

printout from what is called the main frame in Tarrant County.” 5

      Appellant did not dispute the State’s assertion, as indicated in this

document, that he had been charged with those offenses and that the offenses

remained pending at the time of the trial court’s decision to convict and sentence

him. But he contended that the trial court should have allowed him to withdraw

his pleas; that the pleas were conditional, alternative, against public policy, and


      4
       Appellant states that the trial court proceeded “as though [it had] accepted
the plea agreement.”
      5
       Appellant concedes on appeal that “[t]wo new cases were filed after [he]
entered his plea.”


                                         3
illegal; that the condition in the plea bargain of having “no offenses reported” was

unconstitutionally vague, making his pleas involuntary; and that his pleas were

improperly induced by the State’s offer of allowing him to plea to a Class C

misdemeanor if he fulfilled the plea bargain.

      On the same day that the trial court found appellant guilty and imposed the

sentences, he attempted to withdraw his waiver of the right to a jury trial in both

cases.     The trial court denied the request as untimely.        The court certified

appellant’s right to appeal, 6 and after he filed an unavailing motion for new trial in

which he again contested the voluntariness of his plea, he perfected these

appeals.

                    The Forfeiture of Appellant’s Complaints

      In his two issues on appeal, appellant contends that by accepting his plea

bargain and recessing proceedings for six months, the trial court placed him on a

statutorily-unauthorized and void form of community supervision. He argues that

although he did not object to the alleged community supervision when it was

imposed, we may review his complaint because the trial court’s alleged error


      6
        The trial court’s certifications of appellant’s right to appeal state that
matters were raised by written motion filed and ruled on before trial. See Tex. R.
App. P. 25.2(a)(2)(A). We have not located such matters in the clerk’s records,
but we decline to dismiss the appeals because the trial court expressly gave
permission to appeal at the hearing that led to appellant’s convictions and
sentences. See Tex. R. App. P. 25.2(a)(2)(B); Small v. State, No. 07-11-00408-
CR, 2012 WL 6621315, at *1 (Tex. App.—Amarillo Dec. 19, 2012, no pet.) (mem.
op., not designated for publication) (construing the trial court’s certification of a
right to appeal as implicitly conveying the court’s permission to appeal).


                                          4
affects fundamental and constitutional rights. He also contends that because the

alleged community supervision was not authorized by the code of criminal

procedure, 7 the trial court violated separation of powers principles and his due

process rights by imposing it. As to due process, he argues that the trial court

violated his rights by not entering an order notifying him of the terms of the

alleged community supervision, by not admonishing him of the consequences of

violating the alleged community supervision, by not dismissing the charges

against him when the court did not proceed to adjudication within the 180-day

“probation” period, by not granting him a separate adjudication hearing, by not

requiring the State to file a motion to proceed to adjudication, and by determining

his guilt “[m]erely on an [a]ccusation.” Finally, appellant contends that the “no

offenses reported” language in the plea agreement was vague and gave him no

notice of any prohibited act.

      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); Landers v. State, 402 S.W.3d

252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.

App.—Fort Worth 2013, pet. ref’d); see also Lozano v. State, 359 S.W.3d 790,

823 (Tex. App.—Fort Worth 2012, pet. ref’d) (“To be timely, an objection must be


      7
       See Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp. 2014).


                                        5
made as soon as the basis for the objection becomes apparent.”). Also, the

objection made in the trial court must comport with the argument presented on

appeal. See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014);

Lozano, 359 S.W.3d at 823; Marchbanks v. State, 341 S.W.3d 559, 565 (Tex.

App.—Fort Worth 2011, no pet.) (“An objection preserves only the specific

ground cited.”). 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).

      We should not address the merits of an issue that has not been preserved

for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on

reh’g). Preservation of error is a systemic requirement. Gipson v. State, 383

S.W.3d 152, 159 (Tex. Crim. App. 2012).         Even constitutional rights may be

forfeited through a defendant’s failure to raise them in the trial court. Mendez v.

State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (“Except for complaints

involving systemic (or absolute) requirements, or rights that are waivable only, . .

. all other complaints, whether constitutional, statutory, or otherwise, are forfeited

by failure to comply with [r]ule 33.1(a).”).

      In the trial court, appellant failed to raise his complaints that the terms of

his plea bargain had created an unauthorized form of community supervision, 8

      8
       Appellant did not argue in the trial court that he had been placed on any
form of community supervision. While he contended that there was no “statutory

                                           6
that those terms had violated separation of powers principles, or that those terms

had deprived him of due process for any of the several reasons that he

articulates on appeal. The authority cited by appellant does not demonstrate that

these complaints involve systemic requirements or waivable-only rights, and we

have not found such authority. 9 Based on analogous precedent from the court of

criminal appeals and persuasive authority from other intermediate appellate

courts, we conclude that rule of appellate procedure 33.1(a)(1) required appellant

to present his complaint about an allegedly unauthorized form of community

basis” for the plea bargain, he premised this contention on the alleged
“conditional” nature of the plea, stating, “The only type of [permissible] conditional
plea . . . is referenced in the Code of Criminal Procedure [article 44.02].” See
Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006) (allowing a plea-bargaining
defendant to appeal matters that are “raised by written motion filed prior to trial”).

       Because we hold below that appellant forfeited this complaint, we decline
to address whether his plea bargain created any form of community supervision,
authorized or not. We also decline to decide appellant’s trial-court argument that
the plea bargain he entered was invalid because it was “conditional” or
“alternative”; he does not raise that argument on appeal. We note, however, that
the court of criminal appeals has stated that parties have “great latitude” in
crafting complex plea bargains and has approved a plea bargain that was
conditioned on a defendant’s appearance at a sentencing hearing and his
agreement to not commit offenses in a period between entering the agreement
and returning for sentencing. See State v. Moore, 240 S.W.3d 248, 249, 254–55
(Tex. Crim. App. 2007).
      9
        The principal case that appellant relies on to argue that unauthorized
probation affects a “fundamental” right is inapposite. In State v. Dunbar, the
court of criminal appeals held that the State could raise a complaint about an
improper order of shock probation for the first time on appeal because the trial
court lacked personal jurisdiction over the defendant at the time that the court
entered the order. 297 S.W.3d 777, 780–81 (Tex. Crim. App. 2009). It is
undisputed that the trial court in this case had personal jurisdiction over appellant
at the time that the parties agreed to the plea bargain.


                                          7
supervision in the trial court to preserve such an argument for our consideration.

See Tex. R. App. P. 33.1(a)(1); Ex parte Williams, 65 S.W.3d 656, 658 (Tex.

Crim. App. 2001) (disavowing the notion that an “unlawful grant of probation

constitutes an illegal or void sentence”); 10 Speth v. State, 6 S.W.3d 530, 534

(Tex. Crim. App. 1999) (stating that the granting of community supervision “does

not involve a systemic right or prohibition”), cert. denied, 529 U.S. 1088 (2000);

State v. Enriquez, 47 S.W.3d 177, 179 (Tex. App.—El Paso 2001, no pet.)

(holding that the State could not complain for the first time on appeal that a

community supervision order was unauthorized); see also Lewis v. State, No. 12-

11-00314-CR, 2013 WL 839788, at *2–4 (Tex. App.—Tyler Mar. 6, 2013, no pet.)

(mem. op., not designated for publication) (citing Enriquez and refusing to modify

a judgment that included a statutorily-unauthorized grant of community

supervision when the State raised the issue for the first time on appeal); Wiley v.

State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003, pet. ref’d) (recognizing

the court of criminal appeals’s holding that “illegal sentences and unauthorized




      10
         In Williams, the court of criminal appeals overruled a prior decision in
which the court had held that an unauthorized probation order constituted an
illegal sentence that could be complained about for the first time on appeal. See
65 S.W.3d at 658 (overruling Heath v. State, 817 S.W.2d 335, 339 (Tex. Crim.
App. 1991) (plurality op. on reh’g)). Williams forecloses appellant’s argument
that any unauthorized form of probation created a “void” judgment.


                                        8
probation orders are two different things”). 11 Because he did not, we hold that he

forfeited the argument.

      Likewise, we conclude that appellant forfeited his separation of powers

argument by not raising it in the trial court. See Tex. R. App. P. 33.1(a)(1).

While the court of criminal appeals has stated that a “penal statute’s . . .

compliance with the separation of powers section of our state constitution” is a

systemic requirement, see Henson v. State, 407 S.W.3d 764, 768 (Tex. Crim.

App. 2013), cert. denied, 134 S. Ct. 934 (2014), 12 appellant does not contend

that a penal statute violated separation of powers but that his own plea bargain

did so.    He has not directed us to authority establishing that a fact-specific

separation of powers challenge that is unconnected with the validity of legislation

may be brought for the first time on appeal. In contexts other than challenges to

the facial validity of penal code provisions, courts have held that separation of

      11
        While appellant cites a case from the court of criminal appeals for the
proposition that the legislature must authorize any form of community
supervision, the court there specifically declined to address matters related to
error preservation. See Busby v. State, 984 S.W.2d 627, 628 n.3, 629 (Tex.
Crim. App. 1998).
      12
          Our sister courts have challenged the continuing validity of this statement
in light of the court of criminal appeals’s decision in Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009) (holding that a defendant may not raise a facial
challenge to the validity of a statute for the first time on appeal). See Moland v.
State, No. 01-10-00869-CR, 2012 WL 403885, at *9 (Tex. App.—Houston [1st
Dist.] Feb. 9, 2012, pet. ref’d) (mem. op., not designated for publication) (stating
that in Karenev, the court “overruled [an] earlier decision . . . in which it held that
a separation of powers challenge to a penal statute could be raised for the first
time on appeal”); Wilkerson v. State, 347 S.W.3d 720, 724 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d).


                                          9
powers arguments must be preserved in the trial court. See Russell v. State, No.

02-11-00478-CR, 2013 WL 626983, at *2 (Tex. App.—Fort Worth Feb. 21, 2013,

pet. ref’d) (mem. op., not designated for publication); Boone v. State, 60 S.W.3d

231, 236 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d), cert. denied, 537

U.S. 1006 (2002).

      Finally, we conclude that appellant forfeited his due process arguments by

not raising them in the trial court. See Tex. R. App. P. 33.1(a)(1); Anderson v.

State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (“[N]umerous constitutional

rights, including those that implicate a defendant’s due process rights, may be

forfeited for purposes of appellate review unless properly preserved.”); Holmes v.

State, 380 S.W.3d 307, 308–09 (Tex. App.—Fort Worth 2012, pet. ref’d); Belt v.

State, 127 S.W.3d 277, 282 (Tex. App.—Fort Worth 2004, no pet.).

      Comparing appellant’s briefing to his arguments in the trial court, we

conclude that the only objection at trial that comports with his arguments on

appeal is that the “no offenses reported” language in the plea bargain agreement

is unconstitutionally vague.    We will therefore address this argument.      See

Yazdchi, 428 S.W.3d at 844.

      In the trial court, at the time of his sentencing, appellant argued,

            When we look at the language that was written into these two
      waivers, when it says, if no offenses reported, we believe that the
      term “reported” is unconstitutionally vague and it was not the intent
      of [appellant] to merely have an offense reported. . . . [W]hat if it
      was a prior offense that took place prior to [the date of appellant’s
      plea] and it was just now reported subsequent? Would he be in


                                         10
      trouble and violate the terms and conditions then? . . . A
      commission of an offense is something that [appellant] has more
      control over because he would be in control of himself. And it would
      be commit no new offense versus having no control over whether
      someone else reports something. He could be in Canada and
      someone down here could file a report and under the terms of this
      written agreement he would still be in violation of the agreement and
      not eligible for the plea that’s written here. And certainly [appellant]
      would want to exercise his constitutional right to a trial to see if in
      fact the report was valid or just a phony or faulty report.

             Therefore, [appellant’s] position was that he would have not
      under any circumstances agree[d] to just having the mere report of
      an alleged offense trigger his not being able to have the reduction to
      a class C.

      The trial court, however, indicated that appellant had previously expressed

understanding of the condition in his plea bargain, stating,

      I will put on the record that when I do these type[s] of pleas I go
      through my standard questioning with the defendant, his name, what
      he is charged with, whether he realizes he has the right to waive a
      jury trial, the fact that he has signed a plea bargain, [and] if he
      understands what he signed and agreed to. In cases like this I go
      into the fact [that] it’s a very unique plea bargain, [and] if he
      understands exactly what the plea bargain is, then I ask the
      defendant if [he] plead[s] guilty or not guilty. And [in] both of these
      cases [appellant] pled no contest to each case then I asked him if he
      pled freely and voluntarily and he stated he did. Then the case was
      recessed. [Emphasis added.]

      We have repeatedly held, in the context of community supervision

conditions, that a defendant who does not object to the alleged vagueness or

ambiguity of a condition at the time it is imposed forfeits any objection to the

condition when it is later enforced. See Overstreet v. State, No. 02-12-00361-

CR, 2013 WL 2339606, at *3 (Tex. App.—Fort Worth May 30, 2013, no pet.)

(mem. op., not designated for publication); Ogbeide v. State, Nos. 02-11-00146-


                                        11
CR, 02-11-00147-CR, 2012 WL 3736309, at *2–3 (Tex. App.—Fort Worth Aug.

30, 2012, no pet.) (mem. op., not designated for publication); Camacho v. State,

No. 02-03-00032-CR, 2004 WL 362376, at *1 (Tex. App.—Fort Worth Feb. 26,

2004, no pet.) (mem. op., not designated for publication).

      We are convinced that the same principle should apply here.           Having

agreed in January 2013, with the assistance of counsel, to the “no offenses

reported” condition; having confirmed with the trial court that he understood what

he had agreed to; and having proceeded under the terms of the plea bargain for

several months, apparently anticipating the benefit of the bargain he made,

before being charged with another misdemeanor offense in May 2013; we

conclude that appellant could not argue for the first time in November 2013 that

the condition was vague or ambiguous. See Tex. R. App. P. 33.1(a)(1) (requiring

a timely objection); Overstreet, 2013 WL 2339606, at *3; see also Yazdchi, 428

S.W.3d at 844 (stating that to preserve error, the complaining party “must make

the complaint at the earliest possible opportunity”); Mays v. State, 318 S.W.3d

368, 388 (Tex. Crim. App. 2010) (establishing that a constitutional vagueness

complaint may be forfeited for lack of a timely objection), cert. denied, 131 S. Ct.

1606 (2011); Albritton v. State, 676 S.W.2d 717, 720 (Tex. App.—Fort Worth

1984, no pet.) (rejecting an appellant’s argument that the terms of his community

supervision were vague when the appellant testified that he understood the terms

when community supervision was imposed).




                                        12
      For all of these reasons, we conclude that appellant did not properly

preserve any of his appellate arguments in the trial court. See Tex. R. App. P.

33.1(a)(1). We therefore overrule both of appellant’s issues.

                                  Conclusion

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

judgments.

                                                  PER CURIAM

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

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

DELIVERED: January 15, 2015




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