WILLIAM ROMAN, Appellant V. THE STATE OF TEXAS, Appellee
NO. 01-17-00379-CR
Court of Appeals For The First District of Texas
December 6, 2018
Opinion issued December 6, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00379-CR
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WILLIAM ROMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Case No. 1456483
O P I N I O N
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.
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 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,
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).
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:
- absolute, systemic requirements and prohibitions which cannot
- be waived;
- rights of litigants which must be implemented by the system
- unless expressly waived; and
- 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
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 &
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,
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
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
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
supervision. Id. at 860; Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.
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
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
more than 20 years or less than 2 years” for individual adjudged guilty of second-
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
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
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”);
(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
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
demonstrates a sufficient
community supervision. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
Publish.