Opinion issued December 13, 2012.




                                     In The
                             Court of Appeals
                                    For The
                         First District of Texas

                             NO. 01-12-00018-CR
                                  ____________


                  IN RE JOSÉ ARMANDO CASAS, Relator



            Original Proceeding on Petition for Writ of Mandamus


                         MEMORANDUM OPINION

      Relator José Armando Casas requests mandamus relief from the trial court’s

October 20, 2011 order. In that order, the trial court extended the period of

community supervision to one additional year—the maximum allowed under the

circumstances—in place of a two-year extension it had erroneously imposed by an
October 7, 2011 order. Casas contends that the trial court lacked jurisdiction to

enter the October 20 order because the October 7 order was legally incorrect, and

Casas’s term of community service had otherwise expired before the trial court

signed the October 20 order. Casas claims that the October 20 order operates as an

illegal restraint on his liberty.1 For the reasons that follow, we disagree and deny

the requested relief.

                                    Background

      In October 2009, Casas pleaded guilty to the misdemeanor offense of

indecent exposure.2     See TEX. PENAL CODE ANN. § 21.08 (West 2011).                In

accordance with Casas’s agreement with the State, the trial court deferred

adjudication, placed Casas on one year of community supervision, and assessed a

$2000 fine, of which $1600 was probated. On September 15, 2010, the trial court

signed an order extending the period of community supervision by another year.

On October 7, 2011, four days before Casas’s term of community supervision was

due to expire, the trial court signed a “3rd Amended Conditions of Community

Supervision, and noted that it was “[a]mended to extend probation two [2] years


1
      We dismissed Casas’s separate appeal from this order for want of jurisdiction. See
      Casas v. State, No. 01-11-010550-CR, 2012 WL 1893748 (Tex. App.—Houston
      [1st Dist.] May 24, 2012, no pet.).
2
      Original proceeding from the County Criminal Court at Law No. 8, Harris County,
      Texas, Trial Court Case No. 1589399, The Honorable Jay Karahan, presiding.
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due to Defendant’s lack of progress in Sex Offender Treatment.” As he had with

the prior orders setting forth the conditions and amended conditions for community

supervision, Casas appeared before the trial court and signed the October 7 order.

      On October 20, 2011, Casas moved to set aside the October 7 modification

of community supervision order and discharge him from community supervision.

Citing article 42.12, section 22 of the Texas Code of Criminal Procedure, Casas

contended that the trial court lacked the authority to extend the community

supervision for two more years and, because the valid term of community

supervision had already expired, the trial court lacked jurisdiction over his person.

The trial court denied Casas’s motion in part and ordered that “[t]he modification

is to extend to a maximum [of] 3 (three) years, community supervision—extend

only 1 year from Oct. 10, 2011.”

                                    Discussion

Standard for Entitlement to Mandamus Relief

      To be entitled to mandamus relief in a criminal case, a relator must show

that he has no adequate remedy at law to redress his alleged harm, and that what he

seeks to compel is a ministerial act, not involving a discretionary or judicial

decision. State ex rel. Young v. Sixth Judicial Dist. Ct. App., 236 S.W.3d 207, 210

(Tex. Crim. App. 2007) (orig. proceeding).


                                         3
Deferred Adjudication

      Article 42, section 5 of the Texas Code of Criminal Procedure addresses

community supervision in cases where the trial court has deferred adjudication.

TEX. CODE CRIM. PROC. ANN.          ART.   42.12, § 5(a).    It provides that, in a

misdemeanor case like this one, the initial period of community supervision may

not exceed two years, “but the trial court may increase the maximum period of

supervision in the manner provided by Section 22(c) or 22A of this article.” Id.

Section 22 allows the trial court to continue or modify community supervision if,

after a hearing, the trial court determines that the defendant violated a condition of

community supervision. TEX. CODE CRIM. PROC. ANN. § 22(a). Subsection (c)

provides that “[t]he judge may extend a period of community supervision under

this section as often as the judge determines is necessary, but . . . except as

otherwise provided by this subsection, the period of community supervision in a

misdemeanor case may not exceed three years.” Id. § 22(c).

Analysis

      Casas relies on the Court of Criminal Appeals’ decisions in Ex parte

McCain, 67 S.W.3d 204 (Tex. Crim. App. 2002), and Ex parte Seidel, 39 S.W.3d

221 (Tex. Crim. App. 2001), in contending that, because the trial court lacked any

authority to extend his community supervision by two years, the trial court’s



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October 7 order is void. McCain and Seidel, however, are inapposite; they concern

a conviction and a judgment of dismissal, respectively—not community

supervision orders. See McCain, 67 S.W.3d at 210 n.16; Seidel, 39 S.W.3d at 224.

“[I]mposition of a sentence is profoundly different from the granting of community

supervision.” Speth v. State, 6 S.W.3d 530, 532–33 (Tex. Crim. App. 1999); see

Harris v. State, 185 S.W.3d 524, 525 (Tex. App.—Amarillo 2006, no pet.) (noting

that, when law does not authorize punishment, sentence imposing that punishment

is void, but community supervision “is separate and distinct from the sentence, and

therefore, an unlawful grant of community supervision is not subject to the rules

that govern unlawful sentences”).         The law constrains the assessment of

punishment; “[a]n award of community supervision,” on the other hand, 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.” Speth, 6 S.W.3d at 534.

“[C]onditions not objected to are affirmatively accepted as terms of the contract,”

so that a defendant waives the objectionable condition by failing to raise it first in

the trial court. See id.

       Casas did not waive his complaint, but he failed to alert the trial court to his

objection when he signed the “Third Amended Conditions of Community

Supervision.” Casas’s delay in moving to correct the probation term set by the


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October 7 order until after the prior community supervision order expired did not

deprive the court of jurisdiction to correct the objectionable condition. Cf. Ex

parte Williams, 65 S.W.3d 656, 657–58 (Tex. Crim. App. 2001) (holding that trial

court’s order granting community supervision where defendant was statutorily

ineligible for community supervision was not void or illegal). That order extends

Casas’s community supervision for an additional year, making a total of three

years’ community supervision—a length of time permitted under the statute.3 See

Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977).

                                   Conclusion

      We hold that he trial court continued to have jurisdiction over Casas when it

signed the October 20 modification order. We further hold that the trial court did

not subject Casas to an illegal restraint by signing the October 20 order. We deny

Casas’s request for mandamus relief.




                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).

3
      A trial court’s order extending community supervision for an additional year
      constitutes a “modification of the conditions of community supervision.” TEX.
      CODE CRIM. PROC. ANN. art. 42.12, § 22(a)(2) (West Supp. 2012).
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