                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00067-CR


TRACY WAYNE TOW                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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      Appellant Tracy Wayne Tow was indicted on four counts of indecency with

a child by fondling. After the State amended the indictment to add a fifth count of

injury to a child, Appellant entered into a plea bargain agreement with the State.

In exchange for his plea of guilty to the offense of injury to a child, the State

recommended a fine of $500, five years’ deferred adjudication community

supervision, assignment to the sex offender caseload, and sex offender

      1
       See Tex. R. App. P. 47.4.
conditions to his supervision. The trial court accepted Appellant’s plea of guilty

and the plea bargain agreement, deferring adjudication of guilt and placing

Appellant on community supervision for a period of five years with sex offender

conditions.   Almost four years later, the State filed a petition to proceed to

adjudication. Appellant entered a plea of ―not true‖ to each of the allegations in

the State’s petition. The trial court adjudicated Appellant guilty and sentenced

him to eight years’ confinement.

      Appellant brings four issues on appeal, arguing that the judgment in this

case should be modified to reflect that he entered a plea of ―not true‖ to the

allegations in the State’s petition to proceed to adjudication, his original plea was

involuntary and therefore the trial court erred by denying his motion to withdraw

his plea, the trial court should have granted his motion to modify the terms and

conditions of supervision, and the trial court erred in finding paragraphs 6 (a), (b),

and (c) true because the State failed to prove the allegations as alleged and

failed to prove that he was able to pay. Because the trial court did not abuse its

discretion in adjudicating Appellant’s guilt, we affirm the trial court’s judgment as

modified.

I. Voluntariness of Plea

      In his second issue, Appellant contends that his original plea of guilty was

involuntary and that he should have been allowed to withdraw it. After the State

filed its petition to proceed to adjudication, Appellant filed a motion to withdraw

his original plea of guilty, alleging that his original plea had been involuntary


                                          2
because he had entered into the plea bargain not because he was guilty but

because he was afraid he would be found guilty of the offense of indecency with

a child. Appellant argues that, while a defendant is on deferred adjudication

community supervision, he may properly file a motion to withdraw his plea, and

appellate courts may review the trial court’s decision on the motion for an abuse

of discretion.2 Here, Appellant waited almost four years to ask to withdraw his

plea. And when he did ask to withdraw his plea, it was to avoid adjudication, not

to allow the trial court to proceed to adjudication.

      The Texas Court of Criminal Appeals has stated that when a defendant

enters an open plea of guilty in a bench trial, he ―may withdraw his guilty plea as

a matter of right without assigning reason until such judgment has been

pronounced or the case has been taken under advisement.‖3 The Dallas Court of

Appeals has held that once the trial court has admonished the defendant,

accepted the defendant’s plea, found that the evidence substantiates the

defendant’s guilt, and placed the defendant on deferred adjudication community

supervision, the trial court has ―taken the case under advisement.‖4 Once the

      2
       See Labib v. State, 239 S.W.3d 322, 331 (Tex. App.—Houston [1st Dist.]
2007, no pet.).
      3
       Murray v. State, 302 S.W.3d 874, 883 (Tex. Crim. App. 2009).
      4
        Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.—Dallas 1993, no
pet.); see Crumpton v. State, 179 S.W.3d 722, 724 n.5 (Tex. App.—Fort Worth
2005, pet. ref’d) (relying on Thompson in case not involving community
supervision); Perkins v. State, No. 02-07-00258-CR, 2008 WL 2002739, at *1
(Tex. App.—Fort Worth May 8, 2008, pet. ref’d) (same).


                                          3
trial court has taken a case under advisement, whether to allow a defendant to

withdraw his plea is a matter within the sound discretion of the trial court. That is,

the trial court is not required to allow the defendant to withdraw his plea.5 Rather

than concluding that the trial court has taken the case under advisement during

the entire period of community supervision, we believe that it makes more sense

to hold that once the trial court has admonished the defendant, accepted the

defendant’s plea, found that the evidence substantiates the defendant’s guilt, and

placed the defendant on deferred adjudication community supervision, the trial

court has accepted and complied with the plea bargain agreement.

      Appellant appears to argue that an Alford plea may be withdrawn at any

time.6 An Alford plea is a guilty plea pursuant to which the defendant maintains

his innocence but admits that the State has enough evidence to likely secure a

conviction.7 If Appellant did, indeed, enter an Alford plea, there is no evidence

that the trial court refused to accept the plea bargain agreement or that Appellant

was misled or improperly induced into entering the plea—that he did so because

exculpatory evidence was hidden, that he was not properly advised by trial



      5
       Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009).
      6
       North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
      7
        Alford     Plea     Law     and    Legal   Definition, USLEGAL.COM,
http://definitions.uslegal.com/a/alford-plea/ (last visited Jan. 11, 2012);
Stephanos Bibas, Harmonizing Substantive Criminal Law Values and Criminal
Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev.
1361, 1372 (2003).

                                          4
counsel, or that newly discovered evidence has been found.8 Rather, he argues

that he should be allowed to withdraw his plea because it was an Alford plea and

because he was placed on deferred adjudication community supervision

pursuant to the plea bargain agreement. Because Appellant has cited no ground

for setting aside his plea of guilty that is supported by the law, we overrule

Appellant’s second issue.

II. Refusal to Modify Appellant’s Terms and Conditions of Supervision

      In his third issue, Appellant argues that the trial court erred when it denied

his motion to modify the terms and conditions of supervision. On January 7,

2011, after the State had filed its petition to proceed to adjudication, Appellant

filed a motion to modify the terms and conditions of his community supervision.

Essentially, he asked to be removed from the sex offender caseload. Appellant

argued below, as he argues here, that the conditions of supervision of which he

complains violate his rights under the due process clause of the Fourteenth

Amendment to the Constitution of the United States. The State points out that

Appellant’s plea bargain agreement allowed him to plead guilty to the offense of

injury to a child in exchange for agreeing to be placed on the sex offender

caseload and to comply with the requirements of that caseload.            Appellant

concludes his argument by stating, ―Appellant contends it was fundamentally

unfair to send him to prison for an offense the complainant was no longer

      8
       See Moore, 295 S.W.3d at 332; Coronado v. State, 25 S.W.3d 806, 810
(Tex. App.—Waco 2000, pet. ref’d).


                                         5
accusing him of and for not complying with probationary conditions for a sexual

offense for which, in any event, he never pled guilty.‖

          When Appellant entered his plea of guilty, the plea agreement included a

provision that he be placed on the sex offender caseload and comply with the

conditions mandated by the sex offender caseload. Article 42.12, section 11(a)

provides,

          The judge of the court having jurisdiction of the case shall determine
          the conditions of community supervision and may, at any time during
          the period of community supervision, alter or modify the conditions.
          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.9

          Because community supervision is a contractual relationship between the

trial court and the offender, only the trial court may determine the conditions of

community supervision. The trial court may not delegate this task to anyone

else,10 nor may the parties usurp the trial court’s authority to determine the

conditions of community supervision.11          While the attorneys may recommend

conditions of community supervision to the trial court, they may not bind the trial

court to their recommendation.12

          9
          Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (West Supp. 2011).
          10
              Pierce v. State, 67 S.W.3d 374, 379–80 (Tex. App.—Waco 2001, pet.
ref’d).
          11
        Cortez v. State, 971 S.W.2d 100, 101–02 (Tex. App.—Fort Worth 1998,
no pet.).
          12
              Id. at 102.


                                            6
      To allow the lawyers, through plea bargaining, to restrict the trial court’s

ability to determine the conditions of community supervision would seriously limit

the trial court’s ability to modify the conditions as necessary throughout the

course of the probationary period.13        Realistically, the plea bargain rarely

provides for all the standard conditions of probation. For example, to hold that

the parties determine the conditions of community supervision and bind the trial

court to those agreed on in the plea bargain would, in this case, mean that

Appellant was not required to avoid persons of disreputable or harmful character,

to support his dependents, or to report to his probation officer because those

terms were not included in the plea bargain agreement.

      While the plea agreement cannot not bind the trial court, it can constitute a

written waiver of objection to certain specific terms or conditions of community

supervision. By agreeing in the plea bargain agreement to being placed on the

sex offender caseload, Appellant placed before the trial court a written waiver of

objection to that condition of community supervision.       Such waiver may be

accomplished by plea bargain.14 The question of whether an agreed-to condition

becomes unreasonable with change of circumstance and, thereby, renders

continuation of that condition an abuse of discretion is not before this court, and

we do not address it here.


      13
        Id.
      14
        See Tex. Code Crim. Proc. Ann. art. 1.14(a) (West 2005).


                                        7
      Without more than Appellant has shown this court, we cannot say that it is

fundamentally unfair to expect him to comply with the terms of his plea bargain

agreement after it was accepted by the trial court and after he benefited from the

plea bargain by receiving the agreed-upon probated sentence.15 We overrule

Appellant’s third issue.

III. Sufficiency of the Evidence to Prove Allegations in the Petition to
Proceed to Adjudication

      In his fourth issue, Appellant argues that if this court determines that the

trial court should have removed the sex offender conditions from the

requirements of his community supervision, the only allegations remaining in the

petition to proceed to adjudication are violations of the terms and conditions of

his community supervision by failure to make certain payments.

      The Texas Court of Criminal Appeals has held that when a defendant

agrees to certain terms and conditions of probation as part of a plea bargain

agreement, the defendant is bound by that agreement unless he objects in open

court at the time those conditions are imposed.16 We do not understand the

Speth rule to mean that the parties can limit the trial court’s ability to amend

conditions of community supervision through a plea bargain.            Rather, a


      15
        See Speth v. State, 6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999), cert.
denied, 529 U.S. 1088 (2000); Ex parte Shoe, 137 S.W.3d 100, 102–03 (Tex.
App.—Fort Worth 2004), pet. dism’d as improvidently granted, 235 S.W.3d 782
(Tex. Crim. App. 2007).
      16
        Speth, 6 S.W.3d at 534–35.


                                        8
defendant may agree, as part of a plea bargain agreement, to a condition of

community supervision that is more onerous than the standard conditions usually

imposed. Here, Appellant affirmatively agreed to be placed on the sex offender

caseload and comply with its rules as part of his plea bargain agreement.

      For the sake of clarity, however, we must discuss the requirement of the

sex offender caseload that Appellant ―assume responsibility for [his] offense.‖

Appellant’s offense was injury to a child. There is no evidence that Appellant did

not accept responsibility for that offense.   To the extent the State contends

Appellant failed to comply with the conditions of the sex offender caseload by

refusing to admit that he was guilty of sexual offenses against children, we reject

that argument. Appellant cannot be required to admit his guilt with respect to an

offense of which he has not been convicted or for which he has not been placed

on community supervision.17

      Appellant candidly admits that there was conflicting evidence about

whether he accessed Facebook and about whether he had a cell phone capable

of Internet access. There was also evidence that he accessed Facebook in late

February or early March 2009.

      Proof by a preponderance of the evidence of any one of the alleged

violations of the community supervision conditions is sufficient to support a


      17
        See Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141–42
(1984) (citing Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322 (1973), and
Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S. Ct. 1551, 1557 (1976)).


                                        9
revocation order.18 Because both the plea bargain agreement and court order

establishing the conditions of community supervision required Appellant to

comply with the conditions of the sex offender caseload, and because the State

proved that he failed to comply with those conditions, specifically the conditions

regarding accessing Facebook, we hold that the State sustained its burden to

prove Appellant violated the conditions of community supervision as alleged in

paragraph 5 of the petition to proceed to adjudication. We therefore hold that the

trial court did not abuse its discretion by revoking Appellant’s community

supervision and overrule his fourth issue.

IV. Modifying the Judgment to Reflect Appellant’s Pleas of “Not True”

      The record reflects that Appellant did, indeed, plead ―not true‖ to the

allegations in the State’s petition. The State candidly agrees that the judgment

should be corrected. We therefore sustain Appellant’s first issue, in which he

complains of this matter, and modify the judgment by deleting the pleas of ―true‖

to the allegations in the State’s petition to proceed to adjudication and inserting

instead pleas of ―not true‖ to those allegations.

V. Conclusion

      Having sustained Appellant’s first issue and overruled his three remaining

issues, we affirm the trial court’s judgment as modified.



      18
       Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980);
Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d).


                                         10
                                      LEE ANN DAUPHINOT
                                      JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

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

DELIVERED: January 12, 2012




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