KENNETH BAZE v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

KENNETH BAZE, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-08-00672-CR

Decided: January 28, 2010

Before Justices Bridges, Lang, and Lang-Miers

OPINION

Opinion By Justice Bridges

Kenneth Baze appeals following his adjudication of guilt for injury to a child in each case.   In six points of error, appellant contends the trial court erred by refusing to certify his right to appeal and by violating his due process rights in each case.   We dismiss the appeal in cause no.   05-08-00672-CR and affirm the trial court's judgment in cause no.   05-08-00673-CR.

Background

Appellant waived a jury and pleaded nolo contendere to two injury to a child offenses.   See Tex. Penal Code Ann. § 22.04(a)(3) (Vernon Supp.2009).   Pursuant to plea bargain agreements, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $1500 fine in each case.   The State later moved to adjudicate guilt in each case, alleging appellant violated the conditions of his community supervision.   In a hearing on the motions, appellant pleaded true to the allegations.   In cause no.   05-08-00672-CR, the trial court denied the motion to adjudicate and issued an order extending community supervision for five years.   In cause no.   05-08-00673-CR, the trial court found the allegations in the motion true, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment.

Cause No. 05-08-00672-CR

In his second, fourth, and sixth points of error, appellant contends the trial court erred by refusing to certify his right to appeal from the order continuing community supervision, and violated his due process rights by accepting his involuntary plea of true and by extending the period of community supervision.

A trial court's order extending the period of community supervision is a modification of the conditions of community supervision and is not an appealable order.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 22(a)(2) (Vernon Supp.2009);  Davis v. State, 195 S.W.3d 708, 710-11 (Tex.Crim.App.2006).   Thus, we do not have jurisdiction to address appellant's complaints.   We dismiss the appeal.

Cause No. 05-08-00673-CR

Right of Appeal

In his first point of error, appellant contends the trial court erred by refusing to certify his right to appeal from the order adjudicating guilt.   The record shows the trial court certified appellant's right to appeal on November 4, 2009.   Thus, this issue is moot.   We overrule appellant's first point of error.

Involuntary Plea

In his third point of error, appellant contends the trial court violated his due process rights by accepting his involuntary plea of true to the allegations in the State's motion to adjudicate.   Specifically, appellant contends his plea was involuntary because he did not understand that condition (R) required him to submit to sex offender treatment, and he was never told he could withdraw his plea of true.   The State responds that appellant has waived this issue because he failed to object in the trial court and, alternatively, appellant's plea of true was voluntary.

Condition (R) required appellant to complete a sex offender clinical assessment and “continue in treatment/counseling for sex offenders until released by the Court if deemed necessary.”   Appellant did not complain about condition (R) at the time he was placed on community supervision.   Thus, appellant's complaint comes too late, and has been waived as a matter of law.   See Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.App.1999).   Moreover, the record shows appellant understood he would be required to undergo a sex offender evaluation and follow whatever recommendations that came from it.   Additionally, the trial court was not required to tell appellant he could withdraw his plea of true.   See Gutierrez v. State, 108 S.W.3d 304, 309 (Tex.Crim.App.2003) (statute authorizing withdrawal of guilty or nolo contendere plea in felony cases does not apply to proceedings to revoke community supervision).   We overrule appellant's third point of error.

Condition of Community Supervision

In his fifth point of error, appellant contends the trial court violated his due process rights by revoking his community supervision when he was placed under sex offender restrictions absent a sex offender conviction.   Appellant asserts that he was treated as a sex offender although he did not enter a plea for any type of sex offense.   The State responds that appellant has waived this issue because he failed to object in the trial court and, alternatively, a single violation is sufficient to support revocation.

We have already concluded that conditions of community supervision imposed at the time of the original sentencing may not be appealed at a revocation hearing, unless they were objected to when originally imposed.  Speth, 6 S.W.3d at 534;  see also Hull v. State, 67 S.W.3d 215, 217 (Tex.Crim.App.2002).   Moreover, appellant pleaded true to violating five conditions of community supervision.   A plea of true to any violation, standing alone, supports revocation of community supervision.   See Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. [Panel Op.] 1979).   We overrule appellant's fifth point of error.

Conclusion

In cause no.   05-08-00672-CR, we dismiss the appeal for want of jurisdiction.   In cause no.   05-08-00673-CR, we affirm the trial court's judgment.

DAVID L. BRIDGES JUSTICE

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