Opinion issued December 6, 2018




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-17-00379-CR
                            ———————————
                        WILLIAM ROMAN, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 232nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1456483



                                  OPINION

      William Roman appeals from the trial court’s denial of his motion to quash

the State’s motion to adjudicate guilt, contending that a condition of his deferred-

adjudication community supervision violated the Second Amendment of the United
States Constitution. Because Roman failed to preserve this issue for appellate

review, we affirm.

                                BACKGROUND

      After pursuing his girlfriend with a gun, Roman was charged with aggravated

assault of a family member, a second-degree felony.            TEX. PENAL CODE

§ 22.02(a)(2).   Roman pleaded guilty to a reduced charge of assault of a family

member, a class A misdemeanor, and received two years of deferred-adjudication

community supervision. Among other conditions, Roman’s community supervision

prohibited him from possessing a firearm:

      During the term of supervision, [Roman] is strictly prohibited from
      shipping, transporting, possessing, or purchasing a firearm, altered
      firearm, or ammunition, or attempting to ship, transport, possess,
      receive, or purchase a firearm, altered firearm, or ammunition.

      Six months into Roman’s community-supervision term, a police officer

making a traffic stop observed Roman throw a handgun from his car window.

Roman was charged with unlawfully carrying a weapon in a motor vehicle.

      The State moved to adjudicate Roman’s guilt in this case, alleging that he had

violated the community-supervision condition prohibiting him from possessing a

firearm. The trial court dismissed the unlawful-weapon charge in light of the

pending motion to adjudicate.

      Roman moved to quash the State’s motion to adjudicate his guilt. At the

hearing, Roman conceded that he possessed a handgun, but he argued that the
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community-supervision condition that prohibited him from possessing a firearm

violated his right to possess a handgun under the Second Amendment. Absent that

invalid condition, he further contended, he would not have been charged with

unlawfully carrying a weapon.

      The trial court denied Roman’s motion to quash. Roman reserved his right to

appeal that ruling, and otherwise pleaded true to violating his community-

supervision conditions.      The trial court revoked the community supervision,

adjudicated Roman’s guilt, and assessed his punishment at 120 days in jail.

                      DENIAL OF MOTION TO QUASH

      In his sole issue on appeal, Roman contends that the trial court erred in

denying his motion to quash the State’s motion to adjudicate guilt, because the

condition of his supervision requiring him to refrain from possessing a firearm

violated his Second Amendment right. The State responds that Roman did not

preserve this claimed error for our review.

      We review a trial court’s ruling on a motion to quash a charging instrument

de novo. Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010); see State v.

Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (explaining that de novo review

applies when legal question’s resolution does not turn on evaluation of witness

credibility and demeanor).




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I.    Applicable Law

      Roman did not challenge the condition barring his possession of a firearm at

the initial hearing when he pleaded guilty to the assault charge. Roman contends

that he was not required to invoke his Second Amendment right at that stage of the

proceedings.

      The preservation requirements that apply to an alleged constitutional violation

depend on the nature of the right allegedly infringed. The Texas Court of Criminal

Appeals has divided these rights into three categories:

      1.       absolute, systemic requirements and prohibitions which cannot
               be waived;
      2.       rights of litigants which must be implemented by the system
               unless expressly waived; and
      3.       rights of litigants which are to be implemented upon request.

Ex parte Heilman, 456 S.W.3d 159, 162 (Tex. Crim. App. 2015) (quoting Marin v.

State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)). “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 [Texas] Rule [of Appellate Procedure] 33.1(a).” Mendez v.

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

      An absolute right is one that “seek[s] to vindicate an interest that is so

indispensable to the correct operation of the criminal-justice system that the

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enforcement of the statute is not even optional with the parties.” Ex parte Beck, 541

S.W.3d 846, 854 n.9 (Tex. Crim. App. 2017).

      Intermediary rights include those rights that must be expressly waived or else

attach to the proceedings. In Grado v. State, 445 S.W.3d 736 (Tex. Crim. App.

2014), the Court determined that the right to be punished after consideration of the

full range of punishment is a right that must expressly be waived. Id. at 740–41. It

observed that:

      Failing to consider all available punishment carries an unacceptable
      risk of undermining the principle that the judicial system applies
      equally the range of punishment to all offenders. A contrary conclusion
      has the potential of shaking the public’s perception of the fairness of
      our judicial system and breeding suspicion of the fairness and accuracy
      of judicial proceedings.

Id. at 741. Because the right was “a significant feature of our judicial system,” and

“qualitatively more substantive” than rights it had found forfeitable, the Court held

that the defendant’s claim was not procedurally defaulted. Id. at 741–44.

      In contrast, constitutional rights that a defendant must invoke are those that

“by and large, have been evidentiary or procedurally based.” Id. at 741. They

include, among others, the Fifth Amendment privilege against self-incrimination,

Johnson v. State, 357 S.W.3d 653, 658 n.3 (Tex. Crim. App. 2012); and

confrontation and compulsory process, Anderson v. State, 301 S.W.3d 276, 280

(Tex. Crim. App. 2009); see also Gutierrez v. State, 380 S.W.3d 167, 175–76 &


                                         5
nn.39–40 (Tex. Crim. App. 2012) (remarking that “most federal constitutional rights

are in fact subject to either waiver or forfeiture,” and citing cases in which appellants

waived challenges to community-supervision conditions that allegedly violated

rights to due process and free exercise of religion). If a condition of community

supervision implicates a right that must be invoked, and the defendant is notified of

a condition which implicates this right at a hearing at which he has an opportunity

to object, then the defendant forfeits any later complaint about the condition. Dansby

v. State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014) (citing Speth v. State, 6

S.W.3d 530, 534–35 (Tex. Crim. App. 1999)).

II.   Analysis

      Roman correctly recognizes the general rule that a defendant who is fairly

notified of the conditions of community supervision and has the opportunity to

object to those conditions forfeits any later complaint, as long as the conditions do

not involve a systemic right or prohibition. See id. Roman contends that his Second

Amendment challenge to the community-supervision condition prohibiting him

from possessing a firearm implicates a systemic right and constitutes an

“intolerable” constitutional violation not subject to waiver.

      Roman directs us to District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct.

2783 (2008), which recognized the Second Amendment right to possess a firearm

for self-defense as a personal right. Id. at 624–28, 128 S. Ct. at 2814–17. There,


                                           6
however, the Court specifically noted that that right “is not unlimited.” Id. at 626,

128 S. Ct. at 2816. It cautioned that “nothing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by felons and the

mentally ill, or laws forbidding the carrying of firearms in sensitive places . . ., or

laws imposing conditions and qualifications on the commercial sale of arms.” Id. at

626–27, 128 S. Ct. at 2816–17. The Court held that the District of Columbia’s

complete prohibition on the possession of handguns in the home for self-defense was

unconstitutional. Id. at 635, 128 S. Ct. at 2821–22. The question before this court,

however, does not concern whether a Second Amendment right exists, but instead

whether Roman was required to invoke it in the trial court and object to the firearm

prohibition as a violation of that right before accepting the conditions of his

community supervision.

      In contending that his Second Amendment right is not one that he can waive,

Roman likens his claim to those addressed in Gutierrez v. State, 380 S.W.3d 167

(Tex. Crim. App. 2012). Gutierrez had her community supervision revoked because

she failed to comply with a condition requiring her to either legalize her immigration

status or leave the country. Id. at 169. Gutierrez appealed the revocation order,

contending that the condition violated the United States’ Constitution’s Supremacy

Clause, which gave the federal government exclusive authority over immigration




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matters, and the Texas Constitution’s absolute prohibition on banishment as

punishment. Id. at 169, 176.

       The State contended that Gutierrez had waived any complaint by accepting

the requirement as a condition of community supervision. Id at 172–73. The Court

rejected this contention.   See id. at 175–77.     It concluded that, by requiring

Gutierrez’s self-deportation, the state trial court impermissibly intruded on the

federal government’s immigration authority and violated the Texas Constitution’s

“explicit and unqualified” prohibition from using banishment as punishment. See

id. Gutierrez’s complaints thus were not subject to ordinary principles of waiver or

procedural default. See id. at 176–77.

      Unlike the rights addressed in Gutierrez, the trial court’s restriction of

Roman’s personal right to a firearm does not call the court’s authority into question.

Roman’s claim has more in common with Ex parte Beck, 541 S.W.3d 846 (Tex.

Crim. App. 2017), in which the Court of Criminal Appeals held the defendant could

not raise his constitutional challenge for the first time on habeas review. See id. at

860. Beck was arrested and charged with the offenses of online solicitation of a

minor and engaging in an improper relationship with a student.            Id. at 848.

According to the terms of a plea bargain, the State dismissed the online-solicitation

charge. Beck pleaded guilty to the improper-relationship charge, forfeited his

teaching license, and agreed not to apply for any future teaching licenses in the


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United States. Id. at 848–49. The trial court sentenced him to 10 years’ confinement,

suspended for 10 years, and placed him on community supervision. Beck made no

objection to the constitutionality of the improper-relationship statute before the trial

court and did not appeal his conviction or sentence. Id. at 849.

      After Beck entered his guilty plea, the Court of Criminal Appeals declared the

online-solicitation-of-a-minor statute unconstitutional in violation of the First

Amendment. See id. at 849–50 (citing Ex parte Lo, 424 S.W.3d 10, 14, 26–27 (Tex.

Crim. App. 2013)). Pointing to the similarity between the online-solicitation statute

and the teacher-student-relationship statute underlying his guilty plea, Beck

attempted to raise a facial First Amendment challenge to the latter statute’s validity.

The Court, however, found substantial differences that prevented Lo’s invalidation

of the online-solicitation statute from automatically rendering the teacher-student-

relationship statute invalid. Id. at 858–59.

       The Court recognized the presumption that statutes are constitutional unless

declared otherwise, and it observed that no binding authority had yet declared the

teacher-student-relationship statute invalid. Id. at 853, 859–60. The trial court’s

authority was not called into question because of Beck’s conviction under the statute;

thus, the Court concluded that Beck’s constitutional challenge fell within the

category of rights that may be forfeited by failing to object to the conditions of




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supervision. Id. at 860; Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.

2009).

      Roman complains that he had no choice but to accept the condition prohibiting

him from possessing a firearm to avoid incarceration and, therefore, he did not

bargain for it. This complaint lacks merit. The placement of a defendant on

community supervision occurs in the form of a contract between the trial court and

a defendant. Dansby, 448 S.W.3d at 447. Community supervision thus is not a right,

but a contractual privilege, and conditions “thereof are terms of the contract entered

into between the trial court and the defendant.” Id. Conditions not objected to are

affirmatively accepted by the defendant as terms of the contract. Id. By entering

into the contractual relationship without objection, a defendant affirmatively waives

any rights limited by the contract’s terms.   Id. A defendant must simply take or

leave the conditions of supervision in considering whether to enter the plea

agreement. See Gutierrez, 380 S.W.3d at 179.

      Absent the plea agreement, Roman would have been tried for the second-

degree felony offense originally charged. A guilty finding on that charge would

have rendered Roman permanently ineligible to lawfully carry a handgun, and it

would have subjected him to greater punishment.             See TEX. GOV’T CODE

§ 411.172(a)(3); TEX. PENAL CODE § 12.33 (requiring imprisonment for term “of not

more than 20 years or less than 2 years” for individual adjudged guilty of second-


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degree felony). Because Roman pleaded guilty to misdemeanor assault of a family

member, he would not have been permitted to carry a firearm for five years after the

successful completion of and release from community supervision even absent the

challenged term.     See TEX. PENAL CODE § 46.04(b)(2); TEX. GOV’T CODE

§§ 411.171(4), 411.172(a)(8). Roman’s guilty plea also would independently

support the complainant’s application for a protective order. Such a protective order

would disqualify Roman from lawfully carrying a weapon for the duration of the

order’s validity.   See TEX. FAM. CODE §§ 82.001–82.043; TEX. GOV’T CODE

§ 411.172(a)(12); see also 18 U.S.C. § 922(g)(8), (9) (disallowing gun possession

by individuals subject to court orders restraining them from harassing, stalking, or

threatening intimate partner, as well as individuals “who ha[ve] been convicted in

any court of a misdemeanor crime of domestic violence”); TEX. FAM. CODE § 71.004

(defining “family violence”). Roman’s challenge based on a lack of consideration

for the plea bargain thus is unavailing.

      Roman does not dispute that he was aware of and accepted the firearm ban,

among other conditions, in exchange for a two-year term of deferred-adjudication

community supervision instead of incarceration. Roman does not suggest that any

perceived coercion precluded him from making a timely objection before accepting

the condition. Because he agreed to comply with the conditions of community

supervision and made no timely objection, Roman affirmatively waived any


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complaint to the limitations they imposed. See Dansby, 448 S.W.3d at 447 (citing

Speth, 6 S.W.3d at 534–35). We therefore hold the trial court did not err in denying

Roman’s motion to quash.

III.   Propriety of Revocation

       In a motion to revoke community supervision, the State need prove only one

sufficient ground by a preponderance of the evidence to support revocation. Akbar

v. State, 190 S.W.3d 119, 122–23 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Roman stipulated to violating the conditions of community supervision as alleged in

the State’s motion and pleaded true to the State’s motion. Roman’s stipulations and

plea provide a sufficient basis for the trial court to find by a preponderance of the

evidence that Roman violated the community-supervision condition prohibiting him

from possessing a firearm. Because the record supports the trial court’s finding that

Roman violated this condition, we need not address his challenge to the finding that

he violated the condition requiring that he commit no offense against any state or

federal law. See id.

                                 CONCLUSION

       We hold that, because Roman waived his right to challenge the

constitutionality of the conditions of his community supervision, the trial court did

not err in denying Roman’s motion to quash. We further hold that the record




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demonstrates a sufficient factual basis for the trial court’s order revoking his

community supervision. We therefore affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).




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