                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00017-CR
        ______________________________


 MARICELA RODRIGUEZ GUTIERREZ, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 7th Judicial District Court
                Smith County, Texas
          Trial Court No. 007-80280-99




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
                                                     OPINION

         On May 12, 2004, when Maricela Rodriguez Gutierrez was placed on community

supervision, 1 she agreed her community supervision status would subject her to twenty-nine

supervisory conditions. 2          Fifteen of those conditions were general conditions, seven were

financial, two were drug-related, two were education-related, and three were immigration-related.

Only one of those conditions—immigration-related—is at issue here.

         At the time the trial court heard the State’s motion to revoke 3 Gutierrez’ community

supervision, the sole evidence was that she had violated a single condition—that she failed to leave

the United States after not obtaining legalized immigration status by a stated deadline.


1
 Gutierrez was convicted for possession of a controlled substance, and placed on ten years’ community supervision.
Her conviction was pursuant to a plea agreement. The written order containing the conditions of her community
supervision, consistent with the oral order, required her to contact legal authorities within ten days to start proceedings
for legalization of her immigration status and complete filing of all paperwork within ninety days. The written order
then went far beyond the oral pronouncement, ordering her at the end of twelve months, if she did not obtain legal
status, to leave the country and reside ―in a location where you do have a legally authorized status.‖ It appears that,
during the following four years, she took various actions, filed the requisite paperwork, and obtained extensions from
the trial court, but did not obtain a legally authorized status in the United States or leave the country. Her counsel
stated at the revocation hearing that she had four children who were United States citizens, two of whom have Down’s
Syndrome. It appears that she sought a legalized immigration status based on her relationship with a person legally
within this country.
2
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
3
 In July 2010, the State filed a motion to revoke. The State alleged two violations, but abandoned its claim that she
had failed to file the requisite paperwork to seek legal status. The State proceeded based on her failure to meet one
requirement of the conditions of her community supervision: in the absence of obtaining permission from the federal
authorities to remain formally in the country, she broke the terms of her community supervision by failing to leave the
country and reside in a location where she had a legally authorized status. She pled true to the allegation. The trial
court revoked her community supervision and sentenced her to five years’ confinement.

                                                            2
Interestingly, the State did not allege that she had violated condition number one, obeying the law.

Finding only that condition sixty was violated—her failure to leave the country after failing to get

legal status by a stated deadline—the trial court revoked Gutierrez’s community supervision

December 1, 2010.

       On appeal, Gutierrez argues that the term requiring that she leave the United States was

void and, thus, cannot support her revocation. Because the federal government has exclusive

jurisdiction to deport or accept immigrants, we must agree. Thus, we reverse the revocation and

render judgment that Gutierrez’s community supervision not be revoked on this basis.

       Two major principles collide in this appeal.

       The first major principle is that, under Texas law, 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. Therefore, conditions to which the defendant does not

object are affirmatively accepted as terms of the contract. Speth v. State, 6 S.W.3d 530, 534 (Tex.

Crim. App. 1999). They are part of the judgment, but not part of the sentence. Id. Consistent

with that concept, under Texas law, a defendant is sentenced, but the sentence is suspended and the

defendant is placed on community supervision pursuant to the conditions of community

supervision.

       The other major principle in this case—the one that must have supremacy here—is that the

regulation of immigration is unquestionably exclusively a federal power. De Canas v. Bica, 424



                                                 3
U.S. 351, 354 (1976). This has been recognized explicitly by the Texas Court of Criminal

Appeals. See Hernandez v. State, 613 S.W.2d 287, 290 (Tex. Crim. App. 1981) (op. on reh’g).

         At the time her community supervision was imposed, Gutierrez made no objection that the

terms and conditions were unlawful, and did not appeal from that judgment. Under normal

conditions, a defendant cannot complain about community supervision conditions for the first time

on appeal from revocation. Speth, 6 S.W.3d at 535; Lindley v. State, 331 S.W.3d 1, 5 (Tex.

App.—Texarkana 2010, no pet.).4 One exception to this general rule that appellant relies on is

that for a ―void judgment,‖ which is a nullity and can be attacked at any time. See Nix v. State, 65

S.W.3d 664, 667–69 (Tex. Crim. App. 2001); Crume v. State, 342 S.W.3d 241 (Tex.

App.—Beaumont 2011, no pet.); Martinez v. State, 194 S.W.3d 699, 701 (Tex. App.—Houston

[14th Dist.] 2006, no pet.).             Under that exception, where an original judgment imposing

community supervision is void, there is no judgment imposing community supervision, and,

accordingly, nothing to revoke. Nix, 65 S.W.3d at 668–69. As discussed below, there is also a

question of whether a condition that is void may be enforced—under more than one theory of law.

         Here, the judgment itself cannot be considered void. The conditions of community

supervision ancillary to the judgment contain a term that, if directly attacked, would certainly be

found unlawful. A void judgment, however, is a different creature.

4
 An appeal from an order revoking community supervision is limited to the propriety of the revocation. Corley v.
State, 782 S.W.2d 859, 860, n.2 (Tex. Crim. App. 1989). In such appeals, the court has allowed defendants the
opportunity to raise errors made at the plea hearing but, as in all other collateral attacks on a judgment, the defendant is
restricted to pleading and proving fundamental error that makes the judgment void. Traylor v. State, 561 S.W.2d 492,
494 (Tex. Crim. App. 1978).

                                                             4
       But a judgment is void only in very rare situations—usually due to a lack of
       jurisdiction. In civil cases, a judgment is void only when there was ―no
       jurisdiction of the parties or property, no jurisdiction of the subject matter, no
       jurisdiction to enter a particular judgment, or no capacity to act as a court.‖ This
       rule is essentially paralleled in criminal cases. A judgment of conviction for a
       crime is void when (1) the document purporting to be a charging instrument (i.e.
       indictment, information, or complaint) does not satisfy the constitutional requisites
       of a charging instrument, thus the trial court has no jurisdiction over the defendant,
       (2) the trial court lacks subject matter jurisdiction over the offense charged, such as
       when a misdemeanor involving official misconduct is tried in a county court at law,
       (3) the record reflects that there is no evidence to support the conviction, or (4) an
       indigent defendant is required to face criminal trial proceedings without appointed
       counsel, when such has not been waived, in violation of Gideon v. Wainwright.
       While we hesitate to call this an exclusive list, it is very nearly so.

Nix, 65 S.W.3d at 668. Under that description, we cannot agree that the judgment in this case is

void. At most, the one condition used to revoke Gutierrez’ community supervision was outside

the authority or power of the trial court to impose. As it could be easily severed from the entirety

of the judgment, such a fact does not make the entire judgment void.

       Factually, this situation is very similar to that described in Hernandez. See Hernandez,

613 S.W.2d at 290. As in Hernandez, Gutierrez did not appeal from the order placing her on

community supervision, but instead appeals from the revocation of community supervision. As

in Hernandez, community supervision was revoked based on a single alleged violation of the

conditions of supervision—the condition requiring the alien defendant to leave the United States.

In both cases, we have a state court intruding into an area exclusively within the authority of the

federal government—and at that, within the authority of the executive branch, not even of the

federal judiciary.


                                                 5
         In Hernandez, the Texas Court of Criminal Appeals did not discuss the contractual nature

of conditions of community supervision.5 It also did not apply any theory of preservation of error.

The high court instead directly addressed the issue, focusing on the trial court’s total lack of

authority to impose any such condition and noting that the only reasons for revoking community

supervision in that case were violations of conditions the trial court had no power to impose in the

first place.

         After providing a concise explanation of the supremacy of the national power over

immigration, naturalization, and deportation based on the Supremacy Clause of the United States

Constitution, the court held that the conditions of community supervision ordering Hernandez to

remain in the Republic of Mexico and not to re-enter the United States without prior written

consent of the trial court were void. Based on that determination, the high court then held that,

since community supervision was revoked only for violations of these two conditions, the

revocation could not stand. Hernandez, 613 S.W.2d at 290.

         The sole distinction between these cases lies in the fact that Gutierrez, unlike Hernandez,

did not go to Mexico and then return. In the present case, Gutierrez did not obey the trial court’s

directive to go to Mexico unless she obtained legal status allowing her to lawfully remain in the

United States—and the court found that she had violated a term of her community supervision by


5
 At that time, as now, the courts recognized that, when a trial court grants community supervision, the court and the
probationer have a contractual relationship, and the conditions of community supervision should be clearly set forth in
the court’s judgments and orders so that the probationer and the authorities know the conditions with certainty.
McDonald v. State, 442 S.W.2d 386, 387 (Tex. Crim. App. 1969).

                                                          6
failing to leave. Although the distinction does exist, it is a distinction that makes no difference.

        Accordingly, the outcome of this appeal turns solely on whether, despite Hernandez, we

conclude that this issue was waived.

        The State properly acknowledges the authority of the Federal government over all matters

involving immigration and deportation. The State’s argument is based on concepts of waiver and

preservation. In short, the State argues that, since Gutierrez did not complain about an unlawfully

imposed condition at the time it was imposed, she cannot complain about it now. There is support

for that position. In Speth, a 1999 decision, it was recognized that a trial court abuses its

discretion by imposing unlawful conditions on community supervision. Speth, 6 S.W.3d at 534.

        Thus, by entering into the contractual relationship without objection, a defendant
        affirmatively waives any rights encroached upon by the terms of the contract. A
        defendant who benefits from the contractual privilege of probation, the granting of
        which does not involve a systemic right or prohibition, must complain at trial to
        conditions he finds objectionable.

Id. As the exact language used is of some importance, we quote:

        We do not hold that a trial court does not abuse its discretion by imposing
        conditions that are unreasonable or violate constitutional rights or statutory
        provisions. But such defects must be timely objected to in order to be raised on
        appeal.

Id. at 534 n.10. That language categorically states that, even violations of constitutional rights

must be objected to, else the defendant risks waiver.6



6
 This language would not assist a party in understanding how or when to seek relief when a court later adds new
conditions or amends conditions already in existence.

                                                      7
        In this case, the trial court did not inform Gutierrez of the existence of this condition in

open court during the plea proceeding. Thus, it would be impossible to have objected at trial.

The condition was imposed as one of the written conditions, which were signed by the defendant

and judge on the date of the judgment: May 12, 2004. The record, however, also contains no

later effort to bring the error to the trial court’s attention.

        Hernandez has not been discussed or otherwise addressed by a Texas court, except in 1997,

when the San Antonio Court of Appeals, in an unpublished opinion, simply noted that, if a

noncitizen defendant went to his or her native country, but then re-entered the United States

illegally, he or she would violate the law, and that violation could violate the terms of community

supervision. See Mancha v. State, No. 04-95-00849-CR, 1997 WL 214823, at *2–3 (Tex.

App.—San Antonio Apr. 30, 1997, no pet.) (mem. op., not designated for publication).

Hernandez, therefore, remains controlling authority requiring reversal of this case, unless we

determine that Speth and its progeny overruled the analysis sub silentio.

        After examining the two cases, we do not believe that Speth and Hernandez are mutually

exclusive. The language in Speth that appears to control the outcome says:

        An award of community supervision 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. Therefore, conditions not objected to are affirmatively accepted as
        terms of the contract.

Speth, 6 S.W.3d 530, 534.




                                                     8
       We do not hold that a trial court does not abuse its discretion by imposing
       conditions that are unreasonable or violate constitutional rights or statutory
       provisions. But such defects must be timely objected to in order to be raised on
       appeal.

Id. at 534 n.10. Hernandez holds that

       the conditions of probation that ordered appellant to remain in the Republic of
       Mexico and not re-enter the United States without prior written consent of the court
       are void. Since probation was revoked only for violations of these conditions, it
       was an abuse of discretion to revoke probation.

Hernandez, 613 S.W.2d at 290. According to Speth, you can contract for, and be bound by,

unconstitutional conditions of community supervision, such conditions being described by the

court as a ―defect.‖ Failure to object results in waiver of the defect. But Hernandez says the trial

court had no power to do what it did. According to Hernandez, the unlawful condition, one the

court had no authority to employ, was void and thus could not be enforced. The condition is not

merely unreasonable, and it does not merely violate a constitutional right of the defendant. It

violates the exclusive authority of the United States of America to absolutely control immigration

to, and banishment from, the United States. The condition itself violated the Supremacy Clause

of the United States Constitution.

       Accordingly, we conclude, in accordance with Hernandez, that the condition is void, and

that the revocation, premised solely on Gutierrez’ violation of that condition, cannot stand.

       We reverse the order revoking Gutierrez’ community supervision.




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                                            Josh R. Morriss, III
                                            Chief Justice

Date Submitted:   September 12, 2011
Date Decided:     October 7, 2011

Publish




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