PD-0427-24 08/21/2024
The First Court erred by creating a new Marin Category 1 prohibition and holding, in direct contradiction to Speth, that a defendant can complain for the first time on appeal about payments ordered as conditions of community supervision.
Even though he had not complained of the probation condition when it was imposed, Steele argued on appeal that requiring him (a DWI defendant) to pay money to a women’s shelter exceeded the trial court’s statutory authority for such payments: Tex. Code Crim. Proc. Art. 42A.651 (permitting payments that “relate[] personally to the rehabilitation of the defendant” and for restitution). The court of appeals held that Art. 42A.651’s language that a trial court “may not order” payments other than those listed in the statute made the issue (under Marin v. State, 871 S.W.2d 275 (Tex. Crim. App. 1993)) an absolute prohibition that could not be affirmatively waived or forfeited by inaction. It acknowledged that Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999), characterized community supervision as a “contractual privilege” and that complaints about conditions were ordinarily waived if the defendant agreed to supervision without objection. But it noted that other cases had held that Speth did not control where the condition violates an absolute prohibition. It then struck the condition.
The State argues that this is not an absolute prohibition, which it contends is something a court may not do under any circumstance (like hold court away from the county seat or convict a defendant under a law that has been declared unconstitutional). Because there are fact patterns that would have made the trial court’s order lawful (e.g., his DWI caused damage to the shelter or the shelter ran a program to aid drunk driving victims), it was not an absolute prohibition. And the court of appeals erred to assume based on the shelter’s name that it was unauthorized here; Steele had the obligation as the appealing party to bring a record showing it was unrelated to his rehabilitation and not a restitution payment. The State also argues Speth involves the exact issue as in Steele’s case—illegal probation conditions, which can be waived (or contracted away) to obtain the benefits of probation. The exception for conditions “the criminal justice system simply finds intolerable” is inapplicable here.
