                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00329-CR

                   EX PARTE JULIE ANN VON TUNGELN



                          From the 18th District Court
                            Johnson County, Texas
                           Trial Court No. F43117-A


                         MEMORANDUM OPINION


      In 2009, Appellant Julie Ann Von Tungeln pleaded guilty to two counts of sexual

assault of a child under a plea bargain that included the following terms: ten years’

deferred adjudication community supervision, 180 days in county jail with work release,

a $2,000 fine, sex-offender terms and conditions, and standard community supervision

terms and conditions.    One of the standard terms and conditions of community

supervision that Appellant agreed to be subject to is Condition 3: “Avoid association

with persons who have criminal records and those of disreputable or harmful character.”

Appellant initialed and signed the felony community supervision order, along with

signing the “Order of Deferred Adjudication: Community Supervision” and the plea
agreement.

           In May of 2013, Appellant (without the trial court’s approval) and Steven

Alsobrook filed a Formal Declaration and Registration of Informal Marriage, see TEX. FAM.

CODE ANN. §§ 2.401, 2.402 (West 2006), but they had it immediately annulled when they

learned that Alsobrook’s divorce was not final. Alsobrook, like Appellant, was also on

felony community supervision.1 On June 19, 2013, the State filed its First Amended

Motion to Proceed with an Adjudication of Guilt; it alleged in part that Appellant violated

Condition 3, “to-wit: on or about May 24, 2013 the defendant married Steven Alsobrook,

who has an extensive criminal history and is currently on felony probation for Family

Violence in Dallas County, Texas.”2 After Appellant agreed to two weeks in jail as a

condition of probation for the alleged violations, the State withdrew its motion to

adjudicate.

           On August 27, 2013, and again without the trial court’s approval,3 Appellant and

Alsobrook filed a second Formal Declaration and Registration of Informal Marriage.

After filing several unsuccessful motions to modify her community supervision terms

and conditions so that she could associate with Alsobrook, Appellant filed the instant

habeas application and raised constitutional complaints about Condition 3’s application

to her spouse. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 3(c) (West 2015). The trial


1
 Upon learning that Alsobrook had a criminal record, Appellant would have been in violation of Condition
3 by associating with him. See Gill v. State, 593 S.W.2d 697, 698 (Tex. Crim. App. [Panel Op.] 1980).

2
 The State also alleged that Appellant had associated with another man with a criminal background over
a two-year period. Other alleged violations were: drinking alcohol on two occasions; travelling more than
100 miles without permission; and twice having unsupervised contact with children.

3
    Appellant filed a motion to modify after the filing of the second Declaration.

Ex parte Von Tungeln                                                                              Page 2
court entered an order finding that Appellant was manifestly not entitled to relief and

denied the habeas application as frivolous. This appeal followed.

       Appellant asserts two issues: (1) the trial court abused its discretion and violated

Appellant’s constitutional rights because Condition 3 is unconstitutional as applied to

Appellant because it violates Appellant’s rights to privacy, due process, and equal

protection; and (2) the trial court violated Appellant’s constitutional rights because

Condition 3 is unconstitutional as applied to Appellant because it violates Appellant’s

First Amendment right of association.        Because the habeas court determined that

Appellant’s application was frivolous and that Appellant was manifestly not entitled to

relief, we review de novo the habeas court’s order. Ex parte Skelton, 434 S.W.3d 709, 717

(Tex. App.—San Antonio 2014, pet. ref’d).

       An award of community supervision is not a right, but a contractual privilege, and

its conditions are terms of the contract entered into between the trial court and the

defendant. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). A trial court has

broad discretion in determining the conditions to be imposed. Id. at 533; see also Butler v.

State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006). “The judge may impose any reasonable

condition that is designed to protect or restore the community, protect or restore the

victim, or punish, rehabilitate, or reform the defendant.” TEX. CODE CRIM. PROC. ANN.

art. 42.12, § 11(a) (West Supp. 2014). One of the statutory conditions that a trial court may

include is that the defendant shall: “Avoid persons or places of disreputable or harmful

character.” Id. art. 42.12, § 11(a)(3). This condition is presumptively reasonable. See

Mitchell v. State, 420 S.W.3d 448, 450 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Ex parte Von Tungeln                                                                   Page 3
             A condition of probation is invalid if it has all three of the following
       characteristics:

              (1) it has no relationship to the crime;

              (2) it relates to conduct that is not in itself criminal; and

              (3) it forbids or requires conduct that is not reasonably related to the
              future criminality of the defendant or does not serve the statutory
              ends of probation.

       Lacy v. State, 875 S.W.2d 3, 5 (Tex. App.—Tyler 1994, pet. ref’d) (citations
       omitted); accord Marcum v. State, 983 S.W.2d 762, 768 (Tex. App.—Houston
       [14th Dist.] 1998, pet. ref’d). A community supervision “condition is not
       necessarily invalid simply because it affects [the defendant’s] ability to
       exercise constitutionally protected rights.” Lee v. State, 952 S.W.2d 894, 900
       (Tex. App.—Dallas 1997, no pet.) (en banc). A condition that is “reasonably
       related to the purposes of probation” is permissible. Id. “Reasonably
       related” hinges on three factors: “(1) the purposes sought to be served by
       probation; (2) the extent to which constitutional rights enjoyed by law-
       abiding citizens should be accorded to probationers; and (3) the legitimate
       needs of law enforcement.” Macias v. State, 649 S.W.2d 150, 152 (Tex.
       App.—El Paso 1983, no pet.) (quoting United States v. Tonry, 605 F.2d 144,
       150 (5th Cir. 1979), abrogation on other grounds recognized by United States v.
       Tex. Tech Univ., 171 F.3d 279, 287 (5th Cir. 1999)); accord Lee, 952 S.W.2d at
       900.

Briseño v. State, 293 S.W.3d 644, 647-48 (Tex. App.—San Antonio 2009, no pet.); see also Ex

parte Alakayi, 102 S.W.3d 426, 432 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

       A probationer has diminished constitutional rights, including a diminished right

to privacy. In re D.L.C., 124 S.W.3d 354, 365 (Tex. App.—Fort Worth 2003, no pet.) (citing

Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709 (1987)).

       [R]ehabilitation is [not] the sole goal of probation. A second primary goal
       of probation is protecting society. Knights, 534 U.S. at 119, 122 S.Ct. 587; see
       TEX. CODE CRIM. PROC. ANN. art. 42.12 sec. 11(a) (Vernon Supp. 2008)
       (stating judge may impose any reasonable condition of probation designed
       to protect the community). Probationers are “more likely than the ordinary
       citizen to violate the law.” Knights, 534 U.S. at 120, 122 S.Ct. 587; Griffin, 483

Ex parte Von Tungeln                                                                        Page 4
       U.S. at 880, 107 S.Ct. 3164. … Probationers therefore “do not enjoy ‘the
       absolute liberty to which every citizen is entitled, but only ... conditional
       liberty properly dependent on observation of special [probation]
       restrictions.’ “ Griffin, 483 U.S. at 874, 107 S.Ct. 3164 (quoting Morrissey v.
       Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “These
       restrictions are meant to assure that the probation serves as a period of
       genuine rehabilitation and that the community is not harmed by the
       probationer’s being at large.” Griffin, 483 U.S. at 875, 107 S.Ct. 3164.

Townes v. State, 293 S.W.3d 227, 231 (Tex. App.—San Antonio 2009, no pet.).

       We agree with the State that the purpose of Condition 3 is to assist Appellant’s

rehabilitation and reformation by preventing her from associating with persons with

criminal records and disreputable or harmful character. As quoted above, probationers

are more likely than the ordinary citizen to violate the law, and the State’s goal of

protecting society is furthered by preventing felons on community supervision from

associating with each other. See id.

       Appellant had the burden of proving facts entitling her to the requested relief.

Alakayi, 102 S.W.3d at 432. The record shows that Appellant twice began relationships

with men with criminal records, that Appellant twice “married” Alsobrook without court

approval (including once while a motion to adjudicate was pending and after having

been arrested and released on bond), and that Appellant allegedly violated other terms

and conditions. Based on the record, we cannot say that Appellant met her burden, and

we cannot say that the trial court erred or abused its discretion in denying Appellant’s

habeas application. See id. at 432-33 (upholding community-supervision conditions that

restricted defendant’s access to his son and also prevented defendant from living with

his wife as long as she was living with their son, against defendant’s constitutional


Ex parte Von Tungeln                                                                     Page 5
complaint pertaining to his right to association with his family); see also In re Pate, No. 12-

11-00406-CV, 2012 WL 1142477 (Tex. App.—Tyler Mar. 30, 2012, orig. proceeding) (mem.

op.) (imprisoned husband did not establish constitutional infirmity of wife’s community-

supervision condition that prevents her from communicating with him).

       We overrule Appellant’s two issues and affirm the trial court’s order.




                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray dissents with a note)*
Affirmed
Opinion delivered and filed August 6, 2015
Do not publish
[CR25]

      *(Chief Justice Gray dissents from the opinion and judgment of the Court. A
separate opinion will not be issued.)




Ex parte Von Tungeln                                                                     Page 6
