             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-0401-09



                              AMBER LOVILL, Appellant

                                              v.

                                 THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRTEENTH COURT OF APPEALS
                             NUECES COUNTY

       K EASLER, J., delivered the opinion of the Court in which K ELLER, P.J., M EYERS,
P RICE, W OMACK, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. J OHNSON, J., filed
a concurring opinion in which W OMACK and C OCHRAN, JJ., joined.

                                       OPINION

       The Corpus Christi Court of Appeals held that Amber Lovill’s selective prosecution

complaint was preserved because, among other things, everyone understood her complaint

and she presented a selective prosecution complaint in a motion for a new trial.1 We

disagree. Under the particular facts here, Lovill forfeited her selective prosecution complaint



       1
           Lovill v. State, 287 S.W.3d 65, 76-77 (Tex. App.—Corpus Christi 2008).
                                                                                 LOVILL—2

for appellate purposes because her revocation proceeding statements were not specific and

timely as required by Rule 33.1 of the Texas Rules of Appellate Procedure.

                                        Background

       The State charged Lovill with two counts of forgery. In January 2005, pursuant to a

plea agreement, Lovill pled guilty to the charges and filed an application for probation. After

accepting Lovill’s pleas and finding her guilty, the trial judge sentenced Lovill to two years’

confinement in a state-jail facility. The judge also ordered Lovill to pay a $1,000 fine and

$700 in restitution. In accordance with the plea agreement, the judge suspended the term of

imprisonment and placed Lovill on community supervision for three years. The trial judge

directed Lovill to comply with several terms and conditions while under supervision. Some

of those terms and conditions required Lovill to:

       •      “Avoid injurious or vicious habits and or [sic], avoid the use of . . . narcotics
              or any other controlled substances and submit to testing/blood
              analysis/urinanalysis [sic] as directed . . . ”

       •      “REPORT TO THE CSCD [(Community Supervision and Corrections
              Department)] OFFICER AS DIRECTED and at least once a month”;

       •      Pay a number of fees associated with her supervision;

       •      “Participate in the SPECIALIZED CASELOAD for SUBSTANCE ABUSE
              Program;” and

       •      “[S]atisfactorily participate in a screening/assessment for substance abuse and
              submit to any counseling, urinanalysis [sic], and/or any diversionary program
              as determine[d] within the CSCD’s TREATMENT ALTERNATIVE TO
              INCARCERATION PROGRAM (TAIP).”

       The State filed its first motion to revoke Lovill’s supervision in September 2005.
                                                                                LOVILL—3

Lovill entered pleas of true to several allegations contained in the motion, including the

allegation that she failed to comply with CSCD’s TAIP because of non-attendance. The trial

judge did not revoke Lovill’s supervision but sanctioned her and amended the terms and

conditions of her supervision. The judge specifically ordered Lovill to serve a term of

confinement in the county Substance Abuse Treatment Facility (SATF). The terms and

conditions of Lovill’s supervision were amended to include special conditions associated

with the SATF term of confinement.

       On July 17, 2007, the State filed a second motion to revoke Lovill’s supervision. The

State alleged that Lovill failed to comply with the terms and conditions of her supervision

by: (1) using amphetamine; (2) failing to report to her CSCD officer in the months of May,

June, and July 2007; (3) failing to attend the SATF aftercare program as directed; and (4)

failing to pay fines, restitution, costs, and fees. At the revocation hearing, Lovill entered

pleas of true to all four allegations. The judge accepted the pleas and allowed the parties to

present evidence.

       The State called Sandra Garza, Lovill’s community-supervision officer. When asked

about the Probation Department’s recommendation, Garza stated, “The recommendation is

that she be sanctioned to the Substance Abuse Felony Punishment Facility [(SAFPF)], special

needs unit.” Garza cited Lovill’s use of drugs as a reason and stated that Lovill should be

placed in a special needs unit because of her pregnancy. On cross-examination, Garza stated

that Lovill’s use of drugs and pregnancy “drove this violation report” and that Lovill’s
                                                                                  LOVILL—4

pregnancy was a “high concern of ours.” When asked whether the recommendation would

be the same if Lovill were not pregnant, Garza gave no definitive answer; but she stated that

the Department does “work” with some people who have tested positive for drugs. And

when asked about alternative programs, Garza maintained that Lovill would benefit more at

a SAFPF so she could get treatment.

       Lovill’s defense attorney called Lovill to testify. She maintained that she would like

to continue community supervision and be placed in “CASA,” an outpatient drug-treatment

facility, so that she would be able “to keep her baby” with her. When asked about an

alternative, Lovill stated that she would “take the year state jail.”

       In summation, Lovill’s attorney asked the judge to reject Garza’s recommendation:

               Your Honor, on behalf of Ms. Lovill, I would ask the Court to continue
       her on probation. It is obvious probation would have worked with her, but for
       the fact that she is pregnant and they decide to revoke her and send her off to
       SAFP[F] without even giving Ms. Lovill an opportunity to maybe work with
       probation even though she is pregnant. She is willing to go to CASA or some
       other treatment facility that is local; so she can have her baby and not to have
       to go to prison, Your Honor. She had like a year left or so on her probation,
       so she would like to try to and finish out her probation and put this case behind
       her. She understands that that was poor judgment in her case with testing
       positive . . . .
               In the alternative, if the Court sees fit to revoke her, she would like to
       do one year and not have to go to SAFP[F] at all.

       In response, pointing to Lovill’s drug use while pregnant, the State asked the trial

judge to follow Garza’s recommendation.

       The judge found that Lovill violated the terms and conditions of her supervision. But

instead of revoking her supervision, the judge extended her term of supervision and ordered
                                                                                  LOVILL—5

her to a SAFPF for three to twelve months.

       Lovill filed a motion for a new trial alleging that she was subjected to selective

prosecution, because of her pregnancy, in violation of the Equal Protection Clauses to the

United States and Texas Constitutions, the Due Process Clause to the United States

Constitution, the Texas Constitution’s due course of law provision, and the Texas Equal

Rights Amendment. After holding a hearing, the trial judge denied the motion. Lovill filed

a motion to amend the conditions of her probation, which the trial judge denied. Lovill then

sought habeas corpus relief under Article 11.072, arguing that she had been selectively

prosecuted because of her gender. The trial judge denied relief, finding that the State did

not move to revoke Lovill’s supervision because of her pregnancy.

                                       Court of Appeals

       Lovill appealed the trial judge’s denial of her 11.072 application for a writ of habeas

corpus to the Thirteenth Court of Appeals.2 The court of appeals rejected three separate

arguments made by the State that Lovill forfeited her right to mount a selective prosecution

complaint on appeal.3 We will review only one of the court of appeals’s forfeiture holdings

because the other forfeiture conclusions and the court’s consideration of the merits of

Lovill’s claim are not necessary to our disposition. Relevant to our disposition, the court

rejected the State’s assertion that Lovill forfeited her selective prosecution complaint because



       2
           Lovill, 287 S.W.3d at 69.
       3
           Id. at 74-77.
                                                                                  LOVILL—6

Lovill failed to object on this basis at the revocation hearing.4 The court of appeals held that

Lovill’s statements at the hearing preserved her claim for review.5 At the hearing, Lovill’s

attorney informed the trial judge that the State moved to revoke her supervision because of

her pregnancy.6 According to the court, the trial judge and the parties understood the

substance of Lovill’s complaint.7 The State responded to the argument, and the record shows

that the trial judge understood Lovill’s objection when the judge stated, “Well, I think the

fact that she tested positive is the reason we are all here, right, not for the fact that she is

pregnant.” 8 The court also determined that a selective prosecution complaint may “be raised

at various times during a criminal proceeding.” 9 Citing our decision in Satterwhite v. State,

the court observed that we reviewed Satterwhite’s selective prosecution claim that had been

raised in a motion for a new trial.10

                            State’s Petition for Discretionary Review

       We granted seven grounds from the State’s Petition for Discretionary Review. The

sole ground for review that we address is whether the court of appeals erred in concluding


       4
            Id. at 76-77.
       5
            Id. at 76.
       6
            Id.
       7
            Id.
       8
            Id.
       9
            Id.
       10
            Id. (citing Satterwhite v. State, 726 S.W.2d 81, 84 (Tex. Crim. App. 1986).
                                                                                  LOVILL—7

that Lovill’s selective prosecution complaint was preserved by a specific and timely

complaint at trial. Because our resolution of this case is responsive to only one of the

grounds for review that we granted and it is not necessary for us to address the other grounds,

we dismiss the remaining grounds for review.

                                           Analysis

       Texas Rule of Appellate Procedure 33.1, which establishes the requirements for

preserving a complaint for appellate review, governs this case.11 To preserve a complaint for

appellate review, the record must show that a specific and timely complaint was made to the

trial judge and that the trial judge ruled on the complaint.12 The specificity requirement is

met if the complaint made at trial was clear enough to the trial judge so as to permit the trial

judge to take corrective action when the complaint was made. 13 The complaining party must

have informed the trial judge what was wanted and why the party was entitled to it.14 A

complaint will not be preserved if the legal basis of the complaint raised on appeal varies




       11
         T EX. R. A PP. P. 33.1; see also T EX. C ODE C RIM. P ROC. A NN. art. 11.072, § 8;
T EX. R. A PP. P. 1.1 (“These rules govern procedure in appellate courts and before
appellate judges and post-trial procedure in trial courts in criminal cases.”); T EX. R. A PP.
P. 31.1 (“Filing the Record; Submission”); T EX. R. A PP. P. 31.2 (“Hearing”); T EX. R. A PP.
P. 31.3 (“Orders on Appeal”).
       12
        T EX. R. A PP. P. 33.1(a).
       13
           Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston
v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).
       14
            Id.
                                                                                LOVILL—8

from the complaint made at trial.15 A party’s complaint is regarded as timely when it was

“made as soon as the ground for complaint is apparent or should be apparent.” 16

       Consistent with our preservation jurisprudence, in Gawlick v. State, we held that

Gawlick did not preserve his selective prosecution complaint for appellate review because

he failed to object on this basis at trial.17   Thus, we concluded that Gawlick forfeited his

selective prosecution complaint.18

       Here, we must determine whether the court of appeals erred in holding that Lovill’s

complaint was specific and timely as required by Rule 33.1. Based on the particular facts and

circumstances here, we conclude that the court erred. First, Lovill’s statements during the

revocation hearing were not specific enough to apprise the trial judge that she was

complaining about gender-based selective prosecution in violation of her constitutional

rights. Lovill did contend that but for her pregnancy, the Probation Department would not

have reported her failure to comply with the terms and conditions of her supervision to the


       15
          Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (citing
Euziere v. State, 648 S.W.2d 700, 703-04 (Tex. Crim. App. 1983)).
       16
        Aguilar v. State, 26 S.W.3d 901, 906 (Tex. Crim. App. 2000) (Wilson v. State, 7
S.W.3d 136, 146 (Tex. Crim. App. 1999); Hollins v. State, 805 S.W.2d 475, 477 (Tex.
Crim. App. 1991)).
       17
           Gawlick v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980); see also United
States v. Huber, 404 F.3d 1047, 1054 (8th Cir. 2005) (holding that appellant’s selective
prosecution claim was forfeited by his failure to lodge a timely pretrial objection); United
States v. Bryant, 5 F.3d 474, 476 (10th Cir. 1993) (same).
       18
         Gawlick, 608 S.W.2d at 673; see also Marin v. State, 851 S.W.2d 275, 279
(Tex. Crim. App. 1993) (rights belonging to a litigant are subject to forfeiture).
                                                                                LOVILL—9

District Attorney’s Office. Continuing, she asserted that the District Attorney would not

have moved to revoke her supervision if she had not been pregnant. However, at no time did

Lovill challenge the legality of the entire revocation proceeding on the basis of gender-based

selective prosecution or discrimination.19 While not always required, when a legal claim is

rarely urged, like this one,20 the complaining party should invoke the controlling federal and

state constitutional provisions or use key legal phrases to ensure that the trial judge is

informed of the particular complaint.21 She could have used the words selective prosecution

or equal protection under the law or cited the Equal Protection Clause. But Lovill did none

of this. Her complaints went only towards mitigating the consequences that the trial judge

was considering following her pleas of true. She used the State’s consideration of her

pregnancy as way to challenge the Probation Department’s recommendation that she be

placed in a SAFPF. She asked to be placed in an out-patient drug-abuse program or to serve

a year in state jail. Her arguments for a lesser form of punishment than that recommended

by the State did not adequately inform the trial judge that the revocation proceedings, as



       19
          See United States v. Armstrong, 517 U.S. 456, 463 (1996) (“A
selective-prosecution claim is not a defense on the merits to the criminal charge itself, but
an independent assertion that the prosecutor has brought the charge for reasons forbidden
by the Constitution.”).
       20
         Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999)
(“Even in the criminal-law field, a selective prosecution claim is a rara avis.”).
       21
         Cf. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); Reyna v. State,
168 S.W.3d 173, 179 (Tex. Crim. App. 2005); Heidelberg v. State, 144 S.W.3d 535, 543
(Tex. Crim. App. 2004).
                                                                                 LOVILL—10

initiated, were discriminatory and therefore violated her constitutional rights.22 Additionally,

we disagree with the court of appeals’s assertion that the trial judge understood that Lovill

was advancing a selective prosecution complaint. Taken in context, the trial judge’s

response—“I think the fact that she tested positive is the reason we are all here, not for the

fact that she is pregnant”—indicated only his understanding that Lovill wanted the case to

be resolved in her favor. The judge’s statement does not indicate that he understood Lovill’s

arguments to be a challenge based on discriminatory selective prosecution.                 Our

determination that Lovill’s complaint lacked the requisite specificity under the circumstances

here is plainly shown when her trial complaints are compared to her subsequent, finely tuned

contentions that she presented in her motion for new trial and 11.072 application for a writ

of habeas corpus. In her motion and application, she challenged the initiation of the

proceedings on constitutional grounds, arguing that she was subjected to selective

prosecution, and contended that a dismissal of the prosecution is the only appropriate

remedy.23

       22
          See Resendez v. State, No. PD-0917-08, 2009 Tex. Crim. App. LEXIS 1439, at
*13 (Tex. Crim. App. Oct. 21, 2009) (“Only when there are clear contextual clues
indicating that the party was, in fact, making a particular argument will that argument be
preserved.”).
       23
           Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (reversing based on selective
prosecution and remanding to lower court with “directions to discharge the petitioners
from custody and imprisonment.”); Richard H. McAdams, Prosecution: Discovering the
Pitfalls of Armstrong, 73 C HI.-K ENT L. R EV. 605, 653 n.144 (1998) (“The conventional
remedy for such claims is a dismissal of the criminal charge . . . .” and opining that “when
a defendant shows that the state would not have prosecuted him but for the illegitimate
factors of race, he is entitled to be free from prosecution, just as the similarly situated
                                                                                LOVILL—11

       Next, we conclude that the court of appeals erred in holding that Lovill’s complaint

was timely. The first time that she specifically informed the trial judge that she was

challenging the constitutionality of the revocation proceedings based on selective

prosecution, as required by Rule 33.1, was in her motion for a new trial. But this was not the

first time that the basis of her complaint was apparent. The factual basis underlying her legal

complaint became apparent when Garza testified at the revocation proceedings. Lovill took

the factual basis into consideration at that time when arguing for lesser punishment.

However, as stated above, she did not assert a particular legal theory and did not use the

requisite specificity. Further, the court of appeals erred in relying on our decision in

Satterwhite to conclude that a motion for a new trial claiming selective prosecution is

sufficient for preservation purposes.24 We did not address the preservation requirement in

Satterwhite. Silence on the issue does not mean that we issued a ruling contrary to the

decision that we render today. In fact, given our prior decision in Gawlick, we could not

have made such a determination. Additionally, the systemic nature of error preservation was




persons of other races were legitimately free from prosecution.”) (citing Duncan v. Perez,
445 F.2d 557 (5th Cir. 1971) (enjoining retrial); United States v. Steele, 461 F.2d 1148,
1152 (9th Cir. 1972); United States v. Crowthers, 456 F.2d 1074, 1080-81 (4th Cir.
1972); United States v. Robinson, 311 F. Supp. 1063, 1065-66 (D. Mont. 1969)). But see
Armstrong, 517 U.S. at 461 n.2 (“We have never determined whether dismissal of the
indictment, or some other sanction, is the proper remedy if a court determines that a
defendant has been the victim of prosecution on the basis of his race.”).
       24
            Lovill, 287 S.W.3d at 76.
                                                                                LOVILL—12

not necessarily ingrained in our jurisprudence until the early 1990’s,25 years after we issued

Satterwhite.

                                         Conclusion

       We conclude that the court of appeals erred in holding that Lovill’s selective

prosecution complaint was preserved for appellate review. As a result, we reverse the court

of appeals’s judgment and affirm the trial judge’s decision to deny Lovill’s 11.072

application, although for a different reason than that stated by the trial judge.26




DATE DELIVERED: December 16, 2009
PUBLISH




       25
         Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997); Hughes v. State,
878 S.W.2d 142, 151 (Tex. Crim. App. 1992); Fuller v. State, 829 S.W.2d 191, 199 n.4
(Tex. Crim. App. 1992); Marin, 851 S.W.2d at 278.
       26
        Cf. Ex parte Medellin, 223 S.W.3d 315, 322 (Tex. Crim. App. 2006); Ex parte
Dutchover, 779 S.W.2d 76, 77 (Tex. Crim. App. 1989).
