YOLANDA EVETTE MCNEAL v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Moseley

Pursuant to an open plea agreement, Yolanda Evette McNeal entered a plea of guilty to the offense of forgery by check.   The trial court accepted the plea, found the evidence substantiated her guilt, but deferred adjudication of guilt and placed her on community supervision for three years and assessed a $750 fine.   In a single issue, McNeal claims the trial court abused its discretion by ordering her to participate in the Substance Abuse Felony Punishment (SAFP) program.

The background and facts of the case are well known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.  Tex.R.App. P. 47.2(a), 47.4.   We affirm.

A trial court may order participation in a SAFP program if it makes an affirmative finding that (1) drug or alcohol abuse significantly contributed to the commission of the crime or violation of community supervision;  and (2) the defendant is a suitable candidate for treatment, as determined by the suitability criteria established by the Texas Board of Criminal Justice.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 14(b)(3) (West Supp.2011).   McNeal argues the trial court did not make the affirmative findings required to place her in the SAFP program and the findings cannot be implied from the record.

However, a defendant who fails to object to conditions of probation at trial affirmatively accepts them and is barred from complaining about them for the first time on appeal.   See Tex.R.App. P. 33.1(a);  Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.App.1999).   The only exceptions that have been recognized involve situations where the probationer has effectively been denied the opportunity to object, such as modification of the conditions of probation without a hearing.   See Rickels v. State, 108 S.W.3d 900, 902 (Tex.Crim.App.2003).

Because McNeal had the opportunity to object to the SAFP program as a condition of her probation and failed to do so, she has waived her right to complain of that condition on appeal.   We overrule appellant's issue.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

YOLANDA EVETTE MCNEAL, Appellant

No. 05–11–01155–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 194th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–42158–M).

Opinion delivered by Justice Moseley, Justices Morris and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 4, 2012.

/Jim Moseley/

JIM MOSELEY

JUSTICE

JIM MOSELEY JUSTICE