In this appeal, appellant attacks the validity of probationary conditions imposed by the trial court after a jury verdict recommending his probation. It arises from appellant’s plea of guilty to the offense of sexual assault. The punishment, by a jury, was set at five years confinement in the Department of Corrections and a fine of $5,000. The jury recommended that the confinement portion of the sentence be probated.
In seven points, appellant says the trial court erred in requiring as a condition of probation that he (1) serve thirty days in the Dallam County Jail; (2) serve ninety days in the Moore County Residential Work Release Center; (3) meet with an alcoholic evaluation counselor to determine whether he is in need of an alcoholic rehabilitation center; (4) pay for psychological counseling and all medical expenses for the victim; (5) not change marital status without written permission of the probation officer; (6) carry an identification card and show it to *278 any law enforcement officer who stopped him; and (7) maintain his hair in a neat and orderly manner, with any mustache or beard neatly trimmed. Appellant requests that the trial court judgment be reformed to delete these conditions. We reform the judgment as hereinafter provided and, as reformed, affirm it; the condition as to restitution is set aside and the cause remanded for proper assessment of that condition.
The authority of trial judges to suspend imposition or execution of sentences and place defendants on probation stems from Texas Constitution article IV, section 11A. That provision states:
The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe, (emphasis added)
This article represents a limited grant of clemency to the courts by the people.
McNew v. State,
Since 1981, even in a case such as this where the probation is the result of a jury recommendation, the trial court is not limited to, but is rather guided by, the terms and conditions of probation enumerated in article 42.12, section 6, Texas Code Criminal Procedure Annotated (Vernon Supp.1989).
Ellis v. State,
Moreover, because the court and the probationer have a contractual relationship, the violation of which could result in the loss of the probationer’s freedom, the conditions of probation should be clear, explicit and unambiguous so that the probationer knows what is expected of him and the authorities may know with certainty the parameters of that probationer’s prescribed and permitted activities.
Johnson v. State,
Indeed, due process requires that specificity and adequate notice of the terms of probation be contained in the court’s written order granting probation.
Rains v. State,
Reiterated, the condition challenged by appellant’s first point of error is condition nineteen which requires appellant to serve thirty days in the Dallam County Jail. In
Custard v. State,
In his second point, appellant challenges the condition of probation that appellant serve ninety days in the Moore County Residential Work Release Center after serving thirty days in the Dallam County Jail. In argument under this point, appellant first invites us to reexamine our holding in
Armijo v. State,
Pointing out our holding in Armijo that the Moore County Work Release Center would also be included within the statutory definition of a “community rehabilitation center,” appellant additionally argues his placement in the center was improper because of the lack of a requisite jury finding. Supporting that premise, he points out that section 6e(a)(3) provides that a defendant may be required to serve a term in a “community rehabilitation center” if:
the trier of facts determines that the defendant did not cause the bodily injury, serious bodily injury, or death of another as a result of the commission of the offense or use a deadly weapon during the commission of or flight from the offense.
Tex.Code Crim.Proc.Ann. art. 42.12, section 6e(a)(3) (Vernon Supp.1989). Continuing, he says that since the jury as the trier of fact made no such finding and such a finding cannot be inferred from the instant indictment and the plea of guilty, the requirement contravenes the direction of the statute and is, therefore, improper. We disagree with this ingenious contention.
At the punishment hearing, the jury was charged that it might recommend probation. In that charge, the jury was told that the trial court in granting probation might require any reasonable term of probationary conditions including the requirement to remain under supervision in a community based facility. Appellant did not object to any failure to charge that the fingdings mentioned in section 6e(a)(3) must be made before supervision in a community based facility could be ordered. Absent objection on that basis, even if such a specific finding by the jury was required, a holding we do not make, no reversible error is shown.
Smith v. State,
Continuing, appellant also contends that inasmuch as appellant was convicted in Dallam County and the center is located in Moore County, it could not be a “community” based center within the purview of the statute. Again, we disagree. Article 42.12, section 6e(a)(l), Texas Code Criminal Procedure Annotated (Vernon Supp.1989), provides that a community rehabilitation center may be utilized if the district is served by a community rehabilitation center. This court may judicially note that both Dallam and Moore Counties are located within the same judicial district. Tex.R. Crim.Evid. 201. That being the case, under the statute the use of the Moore County center for a Dallam County probationer is permissible. Appellant’s second point is overruled.
In his third point, appellant argues that the trial court was without authority to require that appellant meet with an alcoholic evaluation counselor to determine if he was in need of an alcoholic rehabilitation center. A trial court’s discretion in requiring conditions of probation is broad and, generally, only circumscribed by the requirement that the conditions not contravene direction of a statute and that they have a reasonable relationship to the treatment of the accused and the protection of the public.
Tamez v. State,
In his fourth point, appellant challenges the condition of his probation that he “pay for psycological [sic] counseling and all medical expense for the victim T_ S_, for up to two years.” Appellant says the condition is invalid because there is no fixed dollar amount, it is not limited to restitution owed as a direct result of the offense, the two year period is in excess of the statutory limit of one year on psychological counseling restitution, and, al *280 though the statute does allow for future psychological restitution for a period of up to one year from the date of the order, there is no statutory provision for future medical expenses.
Article 42.12, section 6(a)(14), Texas Code Criminal Procedure Annotated (Vernon Supp.1989), provides that a probationer may be ordered to:
Pay a percentage of his income to the victim of the offense, if any, to compensate the victim for any property damage or medical expenses sustained by the victim as a direct result of the commission of the offense; ....
Section 6(f) allows a trial court, in a case such as this, to order probationers to:
[P]lay all or a part of the reasonable and necessary costs incurred by the victim for psychological counseling made necessary by the offense, upon a finding that the probationer is financially able to make payment. Any payments ordered under this subsection may not extend past one year from the date of the order.
The trial court’s discretion to require a probationer to make restitution is a broad one. However, in
Cartwright v. State,
Since the burden is upon an appellant to see that a sufficient record showing error is before this Court, Texas Rule of Appellate Procedure 50(e), and no statement of facts is included in the record, we might presume that the trial court determined that psychological counseling was made necessary by the attack and that appellant was financially able to make payment of such counseling. However, that does not overcome the fact that the probation order does not specify any definite amount appellant must pay, nor does it define any mechanics by which such an amount may be determined to be paid by him for counseling made necessary by the attack. Furthermore, it does not specify the manner in which any such amount due would be paid, i.e., installments, as the bills become due, or any other manner. All of these are matters which must be determined and supported by a factual basis. In sum, the requirement does not meet due process requirements. Moreover, the provision for payment of future medical expenses is uncertain in amount, is not limited to such expense sustained as a direct result of the offense and is for a period in excess of that permitted by the statute. Appellant’s fourth point is sustained.
In his fifth, sixth and seventh points, appellant challenges the conditions of probation that he not change his marital status without written permission of the probation officer, that he carry an identification card and show it to any law enforcement officer having lawfully stopped him for questioning or other legal action, and that he maintain his hair in a neat and orderly manner, with any mustache or beard neatly trimmed. Since appellant briefs and argues these points together, we will consider them together.
It is axiomatic that a probationer is subject to limitations from which ordinary citizens are free.
Macias v. State,
Viewed in this light, we conclude that the conditions that appellant not change his marital status without permission of his probation officer and that he maintain his hair in a neat manner are not supportable. The requirement that appellant not change his marital status relates to conduct that is not of itself criminal, is closely and intimately connected with an individual’s personal and private life, is not related to the crime for which appellant was convicted, and is not reasonably related to the future criminality of appellant. Moreover, and most seriously, it relegates to a non-judicial officer, without any judicial guidelines, the unrestricted right to make the decision about such an important and private right as an individual’s marital status. That being the case, we cannot conclude that it is reasonably calculated to contribute significantly to the rehabilitation of appellant and to the protection of society in general. As such, it exceeds the limitation upon a judge’s discretion in setting probation conditions articulated in such cases as
Tamez v. State,
Moreover, the condition that appellant maintain his hair in a “neat and orderly manner” is a condition that depends upon a subjective decision as to what is “neat and orderly.” That subjective judgment is one which would vary from mind to mind and person to person. As such, it falls short of the requirement that probation conditions be clear, explicit and unambiguous so that the probationer and the authorities know exactly what is expected of him. Appellant’s fifth and seventh points are sustained.
In his sixth point, appellant attacks the condition that he carry an identification card and show it to any law enforcement officer who might lawfully stop appellant. While the question is close, we conclude that the condition, when related to a lawful stop, is one which does not exceed the diminished expectation of privacy justifiably to be expected of a probationer being allowed to remain at conditional liberty after conviction of a crime. Appellant’s sixth point is overruled.
In summary then, appellant’s first, second, third and sixth points are overruled. Appellant’s fourth, fifth and seventh points are sustained. Citing
Ex parte Pena,
Accordingly, the judgment of conviction is reformed to delete conditions 5(d) and 14 and, as reformed, is affirmed; the condition as to restitution is set aside and the cause is remanded for a hearing to determine the amount and procedure for payment of restitution in accordance with the terms of the statute.
Thompson v. State,