AFFIRM; and Opinion Filed August 2, 2017.




                                           S
                                Court of Appeals
                                                In The


                         Fifth District of Texas at Dallas
                                       No. 05-16-01149-CR

                            ISSA MOHAMMED BANNA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 291st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F16-24054-U

                              MEMORANDUM OPINION
                           Before Justices Francis, Brown, and Schenck
                                    Opinion by Justice Brown
       Issa Mohammed Banna appeals an order of deferred adjudication that imposed

confinement and treatment in the Substance Abuse Felony Punishment Facility (SAFPF) as a

condition of community supervision. In two issues, appellant contends the trial court lacked

authority to order him to SAFPF and abused its discretion in ordering the same. We affirm the

trial court’s order of deferred adjudication.

                                           BACKGROUND

       Appellant waived a jury and pleaded guilty to harassment of a public servant. Appellant

and the State entered into a plea agreement that appellant would “go open” to the trial court

without an agreed plea bargain as to whether SAFPF would be imposed as a condition of

community supervision. During the hearing, both appellant’s counsel and the State repeatedly

referred to information contained in the affidavit supporting appellant’s arrest warrant even
though it was never admitted into evidence. That warrant showed appellant was arrested after he

ran around naked in a neighborhood stealing mail and flags. The responding officers described

appellant as sweating profusely, muttering gibberish, and being combative.          After officers

handcuffed him, appellant spat in one officer’s face; the officer received treatment at a hospital.

After appellant was transferred to a mental hospital, he attacked the medical staff and kicked a

nurse in the chest before being placed in restraints.

       The trial court heard testimony from Abdul Banna, appellant’s brother, and from

appellant. Abdul testified appellant had spent a few years in federal prison but currently lived

with Abdul and their mother.        At the time of the hearing, appellant was on community

supervision for a drug case. Appellant wore a “drug patch” to monitor whether he had used

drugs and appellant was supposed to complete an outpatient drug treatment program as part of

his community supervision. Abdul testified that on the day of the current offense, appellant had

been acting “weird” and “different.”        Abdul became concerned enough about appellant’s

behavior that he and his mother left the house. Abdul said he did not know if appellant had taken

a drug, but he speculated that appellant was either on drugs or had gone crazy.

       Appellant denied both that he had been running around a neighborhood naked and that he

attacked anyone at the mental hospital. Appellant testified he was wearing workout shorts at the

time the officers arrested him because he had been exercising twice a day in preparation for the

Olympic track team. Appellant testified he did not remember spitting on the officer, but he

might have been “talking gibberish” as the officers reported because he may not have been “in

his right mind.” Appellant denied any drug use. He blamed his behavior on the thirty-day fast

for Ramadan. Appellant testified he spent almost five years in federal prison and said that

incarceration included a nine-month drug program. Appellant asked the trial court to be granted




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deferred adjudication community supervision with electronic monitoring and a drug patch as

community supervision conditions, but not SAFPF.

       Before rendering a decision, the trial judge stated:

                       Taking peoples mail out of their mailboxes, grabbing flags,
               asking people to suck on your private parts, kicking a nurse in the
               chest that's trying to help you, spitting in an officers face, I’m
               sorry, I find it hard to believe that fasting led to all of that.
                       And given the fact that you have admitted before to doing
               cocaine, marijuana, methamphetamine, ecstasy, Xanax, and K2 --
               and you’re currently on community supervision for
               methamphetamine -- I think I have reason to believe there’s an
               issue that we need to address and that’s what we’re going to do.


The trial court deferred adjudicating appellant’s guilt, placed him on three years’ community

supervision, and assessed a $1,500 fine. The trial court credited the fine and court costs with the

time appellant had served in jail, and ordered appellant to SAFPF as a condition of his

community supervision.

                                    TRIAL COURT AUTHORITY

       In his first issue, appellant contends the trial court lacked the authority to order him to

SAFPF as a condition of community supervision because the trial court did not make an

affirmative finding that (1) drug or alcohol abuse contributed to the commission of the offense,

and (2) appellant was a suitable candidate for SAFPF, as required by article 42.12, section

14(b)(3) of the code of criminal procedure. The State responds that appellant has failed to

preserve the complaint for appellate review and alternatively, that the trial court made

affirmative findings pursuant to article 42.12, section 14(b)(3).

       Community supervision is an arrangement in lieu of the sentence. Speth v. State, 6

S.W.3d 530, 532 (Tex. Crim. App. 1999).            A trial court’s decision to grant community

supervision is “wholly discretionary,” and the trial court also has broad discretion to determine

the conditions of community supervision. Id. at 533. “An award of community supervision is
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not a right, but a contractual privilege, and conditions thereof are terms of the contract entered

into between the trial court and a defendant.” Id. at 534. If a defendant does not object to the

community supervision conditions, those conditions are “affirmatively accepted as terms of the

contract” and the defendant waives “any rights encroached upon by the terms of the contract.”

Id. Thus, “[a] defendant who benefits from the contractual privilege of community supervision .

. . must complain at trial to conditions he finds objectionable.” Id.; Ledet v. State, 177 S.W.3d

213, 221 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (holding appellant who failed to

object to conditions of community supervision at trial or file motion for new trial could not

object to conditions for first time on direct appeal). This is consistent with the requirement of

Texas Rule of Appellate Procedure 33.1(a), which requires a defendant to make a timely and

specific objection to preserve his complaint on appeal. See TEX. R. APP. P. 33.1(a).

        There is no showing in the record that appellant objected to the complained-of condition

in the trial court. Because he did not object to the community supervision provisions in the trial

court or in a motion for new trial, appellant has failed to preserve this issue for our review. See

TEX. R. APP. P. 33.1(a); Speth, 6 S.W.3d at 534–35; Ledet, 177 S.W.3d at 221. We overrule his

first issue.

                                      ABUSE OF DISCRETION

        In his second issue, appellant contends the trial court abused its discretion in ordering

SAFPF as a condition of community supervision because there was no evidence presented that

he was under the influence of drugs or alcohol at the time of the offense.

        When a trial judge fails to make specific findings of fact and conclusions of law, we

presume that the trial court made the necessary findings to support the decision of the court. See

Ice v. State, 914 S.W.2d 694, 695 (Tex. App.—Fort Worth 1996, no pet.); Vela v. State, 871

S.W.2d 815, 816-17 (Tex. App.—Houston [14th Dist.] 1994, no pet.). We must determine

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whether the trial court’s finding, in this case the granting of community supervision with SAFPF,

is supported by the record.

       After reviewing the record, we conclude there are sufficient facts in the record to support

the trial court’s decision. At the time of the hearing, appellant was on community supervision

for possession of one gram or more but less than four grams of methamphetamine and appellant

had completed outpatient drug counseling mandated in that case. Prior to that, appellant had

served nearly five years in federal prison where he completed a nine-month in-house drug

program.   Appellant’s brother testified appellant wore a drug patch and confirmed he had

completed drug counseling, but said appellant had recently begun acting different and was either

crazy or on drugs. When asked whether a drug could have caused his brother to run around

naked and violently attack people, Abdul replied, “That’s fair to say.” Although appellant said

fasting caused his erratic behavior, the trial court as factfinder could have disagreed. Because

there is evidence in the record that appellant had used drugs in the past several years, we

conclude the record shows that SAFPF was reasonably related to the purposes of community

supervision and the protection of the public in this case. See Ice, 914 S.W.2d at 695–96. Thus,

the trial court did not abuse its discretion in ordering appellant to SAFPF.        We overrule

appellant’s second issue.

       We affirm the trial court’s order of deferred adjudication.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47

161149F.U05
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                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

ISSA MOHAMMED BANNA, Appellant                        On Appeal from the 291st Judicial District
                                                      Court, Dallas County, Texas
No. 05-16-01149-CR          V.                        Trial Court Cause No. F16-24054-U.
                                                      Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee                          Francis and Schenck participating.

        Based on the Court’s opinion of this date, the order of deferred adjudication of the trial
court is AFFIRMED.


Judgment entered this 2nd day of August, 2017.




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