## In the Court of Appeals Second Appellate District of Tex as

at Fort Worth

___________________________ No. 02

- 23

- 0030 5

- CR

________ ___________________

On Appeal from Criminal District Court No. 3

Tarrant County, Texas Trial Court No

. 1608962

Before Womack, Wallach, and Walker, JJ. M emorandum Opini on by Justice Walker 

### Q UENTIN 

### G ERARD 

### B ONAKIES 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
In 2019 , Appellant Quentin Gerar d Bonakies pleaded gu ilty to the offense of assault family violence with a previous conviction

. See Tex. Penal Code Ann. § 22.01 ( b ) (2)(A)

. The trial court entered an o rder deferring adjudication of guilt and placing Bonakies on community s upervision for three years

. In 2020, the State filed a Petit ion to Proceed to Adjudication , alleging that
Bonakies had violated s everal terms and conditions of his comm unity supervision

. The S tate amended its peti tion in 2022 , and in 2023, Bonakies pleaded true to paragraphs four, five, and six of the State’s amended petition

. The trial court then adjudicated Bonakies guilty of th e original offen se and senten ced him to four years in
the Texas Department of Criminal Justice. In what he frames as a single issue , Bonakies compla in s tha t the trial court’s failure to conduct a hearing on whether to adjudicate him guilty violated his co n s t i tutional a nd statutory rights

. We will affirm.
I. I NT RODU CTION
The facts of Bonakies ’ s underlying offense

— and of his violations of the terms
and conditions of his communit y supervision

— are not pertinent to his appeal. We
will brie fly summarize the pertinent facts and incorporate more details in to our analysis as needed.
At the hearing on the State’s First Amended Petit ion , both the State and the
defense announced ready

. Bonakies said to the trial court, “ Excuse me. May I sp eak before yo u begin, p lease ?” The trial court ask ed Bonakies what he would like to say

.3

Bonakies told the trial court , “ I don ’ t quite understand everything that ’ s going on right now, and I just don ’ t want to set myself up for failure

. ” T he trial cour t suggested that he “ take a minute ” to consult with his defense counsel , 1 to which
Bonakies replied, “ Yes, sir. He ’ s went over it with me three times already. And I
don ’ t really tru ly agree with everythi ng that ’ s going on

. ” Bona kies said tha t he would
like to te ll the trial cou rt his side of the story , and the trial court told him , “ I’ll be happy to listen to you when it [ ’ ] s time for that

. ” The trial court the n con firmed that
both the State and the defense were ready t o proceed wit h the hearing

. The State told the trial court that it was waiving all but paragraphs four, five,
and six of its amended petition

. Bonakies entered a plea of “ true ” to paragraphs fo ur, five, and six , and the trial court stated , “ Bec ause you ’ ve pled true to those allegations,
I find that they are true [,] and I will finally find you guilty of the offense of assault family

-- of a family or household member with a previous conviction pu rsuant to your plea of guilty on Oct ob er 29th of 20 19

. ” The State then rested , and Bonakies
testified in his own defens e . After Bonakies had testified , the trial court asked if there wa s any legal reason

w hy sentence should not be pronounced

. Both the S tate and the defense responded
in the negative , and the trial court then sentenced Bonakies to four years in the Texas

1 Bonakies’s attorney in the trial court i s not the same attorney re presenting him
on appeal

. Al l reference s in this opinion to Bonakies’s “ counsel ” refer only to the attorney who represented hi m in t he trial court

.4

Department of Criminal Justice

. Bonakies timely appealed th e J udgment Adjudicating
G uilt

. II. ANALYSIS
Bonakie s a r g

ues on a ppeal that the trial court violated due process , his right to
counsel , and Article 42A.108(b) of the Texas Code of Criminal Proc edure by failing to conduct a hearing to dete rmine whet her the trial court sh ould grant the State’s
amended petitio n . The State counters that , “ contrary to Bonakies’ [s] assertion, the trial court did conduct an adjudication hearing pursuant to Article 42A .108(b) at which Bonakies and his counsel w ere present , ” and in a ny event, his appellate complaint conc ern ing the pr ocedure used by the t rial court in conducting the hearing
is wa ived because he failed to preserve his complaint by objecting at the hearing or raising it in a motion for new trial

. We hold that Bonakies forfeited hi s compl aint that
the trial court violated due process and Article 42A.108 by not raising it in the trial
court and that his ot her complaints did not have to b e pre s erved for our re view but
have no merit

. A. F ORF E I TURE OF E RROR To meet the requirements of due p rocess, the f inal revocation of de ferred adjudication community supervision must be preceded by a hearing, where the probationer is entitled to written notice of the claimed violations of his prob ation,
disclosure of t he evidence against him, an opportunit y to be heard in person and to
pre sent witnesses and documentary evidence, a neutral hearing body, and a written5

statement by the fact finder as to the evidence relied on an d the reasons for revok ing probation. 2 Ex pa rte Carmona , 185 S.W.3d 492, 495 (Tex. Crim. App. 2 006) ; s ee Gagnon
v. S carpelli , 411 U.S. 778, 786, 93 S. Ct. 1756, 1761

– 62 (1973)

. Article 42A.108 of the
Texas Code of Criminal Procedure provides that a defen dant accus ed of violati ng a condition of his deferred adjudication community superv ision “ is ent

itled to a hearing
li mited to a determination by the court of whether the court will proceed with an adjudication of guilt on the original charge

. ” Tex. Code C rim. P ro c . A nn.

a rt. 42 A.108(b).
Bonakies contends that the trial court denied h im these righ ts when it did not

co nduct a hearing to determine whether to proceed to adjudication on the original charge. He complains that the trial court “ only engaged in a cursory colloquy before adjudi cating [

him ] guilty and proceeding to the punishmen t hearing

. ” In so do i ng , he
contends , the trial court denied him the opportunity to present “substantial reasons which justified or mitigated [ his ] violation [ s ] and ma d e r evocation inappropriat e.” See Gagnon , 411 U.S. a t 790 , 93 S. Ct. at 1764

. B ut Bonakies never mad e these complaints
in the tria l cour t
. To preserve a complaint for our review, a party must have presented to the trial

court a t imely request, objecti on, o r motion sufficiently stating the specific grounds, if
not ap parent from the conte xt, for the desired ruling. Tex. R. App. P. 33.1(a)(1);

2 “Community supervision” a nd “probat ion” are synonymous and generally used interchangeably

. Hongpathoum v. St at e , 578 S.W.3d 213, 214 n.1 (Tex. App.

— Fort Worth 2019, no pet.) ; see Euler v. State , 218 S.W.3d 88, 89 n.1 (Tex. Crim. Ap p. 200 7)

.6

Montelongo v. State , 623 S.W.3d 819, 822 (Tex. Crim. App. 2021) . Further, the party

must obtain an express or i mplic it adverse trial

- court ruling or object to the trial
court’s refusal to rule. Tex . R. App. P. 33.1(a)(2); Dixon v. State , 595 S.W.3d 216, 223 (Tex. Crim. App. 2020)

. Generally, a defendant forfeits constitutional errors by fail ing to object at trial

. Go lliday v. State , 560 S.W.3d 664, 670

– 71 (Tex. Crim. App. 2018) ; Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ; Ander son v. State , 301 S.W.3d 276, 27 9

– 80 (Tex. Crim. App. 2009)

. And , as this court has recognized , “[ t ] he court of criminal appea ls continues to require a defe nda nt to preserve an argument that the procedure used to revoke h [ is ] community supervision failed to comply with due process

. ” Snee d v. State , 493 S.W.3 d 218, 220 (Tex. App.

— Fort Worth 2016, no pet .) ; s ee Tapia v. State , 462 S.W.3d 29, 37 ( Tex. Crim. App. 2 015 )

. Bonakies contends that he did preserve hi s complaint for our review

. As his

“ timely request, objection, or mot ion, ” he points to so mething he said to the trial court prior to e ntering his true pleas : “ I don ’ t reall y truly agree with eve rything that ’ s going on. So, because I feel if I talk to you and I tell you about my situation, I still feel like you [ ’ re ] trying to s end me to the peniten tiary. So, I

-- and I don ’ t believe I
deserv e it. ”
He also directs us to hi s defense cou nsel ’ s statement , “We planned on doing
this what w e called a true but hearing. But we’re going through with that rather than
try to work out a plea ba rgain, all right.” Even construi ng these statemen ts liberally as

a “ request, objection, or m otion , ” neither Bonakies no r his counsel mentioned due7

process or Article 42A.108

. To preserve a complaint for our re view, the complaining
party ’ s request, objection, or motion must s tate “ the grounds f or the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific ground s were apparent from the

context
. ” T ex. R. App. P. 33.1(a)(1)(A)

. Bonakies conte nd s that the trial court’s statement, “That is why we’ r e he re. We’re here to have a hearing on your situation and to come up with a resolution for
it , ” shows that the trial court “ understood ” hi s comments “ to amount to a request for
a hea ring

. ” But nothing in the record shows that the trial court understood Bonakies

to be request

ing a hearing based on due process or Article 42A.108(b)

. Nor were those spe cific grounds apparen t from the context

. 3 To reverse the trial c o urt ’ s judgment on a le g al claim that was never presented in the tria l court would violate

“ o rdinary notions of procedural default

. ” N eal v. Sta te , 150 S.W.3d 169, 179 (Tex.
Crim . App. 2 00 4)

.

3 Bonakies h ad ample opportunity prior to enteri ng his plea to invoke his due process r ights and Artic le 42 A .108. After c on firming that the State and defense were both ready to proceed, the trial court asked Bonakies ’ s defense c ounse l, “ Do you feel l ike you need any more time with Mr. Bonakie s to expla in the proceedings here today ? ” Counsel respon ded, “ I feel like I ’ ve done a thorough job of explaining it. If he has questions, I ’ ll be happy to answer them

. ” Before Bonakies entered his plea, t he tri al court con firmed that he had reviewe d a c opy of the State ’ s First Amended P etition to Proceed to Adjudi ca tion , w as familiar with the al legations that it contain ed , and had discussed those allegations with his counsel

. And, immediately following th e tria l court ’s oral finding of gu ilt, Bonakies d id not object when the t rial court asked t he S tate if it ha d any evidence it wanted “ to present for punishment

. ”8

Because Bonakies di d not make a timely request, objection, or m otion o n due
process or Ar ticle 42A.108 grounds in the trial court, he has not preserved t hi s complaint for appellate review

. See Tex. R. App. P. 33.1(a)(1)(A); see also Rogers v. State , 6 40 S.W.2d 248, 26 5 (Tex. Crim. App. [Panel Op.] 1981) ( second op. o n reh’g ) ( hold i ng appellant waived his due process complaint by failing to voice any due
proc ess objection to the procedures used by the trial court )

. To the e xt ent tha t Bonakies’s lone a ppellate issue relies on the trial court’s alleged violations of d ue
process or Ar t

icle 42A.108(b) , we overrule it

. B. N O V IOLATION OF W AIVABLE - O NLY OR S YSTEMI C R IGHTS
Bonakies ra ises other appellate complaints that he did not raise i n t he trial

court
. He contends that th e trial court ’s forgoing of the adjudication h earing violated
h is rights to counsel , to be sentenced after consideration of the entire applicable ra nge of punishment , and to be sentenced legally

. T he right to assistance of counsel, including effective assistance of counsel, at a
critical stage of cr iminal proceedin g s and the right to be sentenced after con sideration
of the ent ire applicable range of punishment are waivable

- only ri ghts that must be
i mplemented unless expressly waived

. Gilley v. State , 418 S.W.3d 114, 119 (Tex. Crim. App. 2014) (

right to counsel at a critical stage of the proceedings ) ; Grado v. State , 445 S.W.3d 736, 738

– 39 (Tex. Crim. App. 2014) ( right to be senten ced by a judge
wh o considers the entire range of puni shment )

. The right to be sentenced legally is an
absolute or systemi c right that a t r ial court must follow even if the parties wish9

otherwise. Bur

g v. State , 592 S.W.3d 444, 449, 451 (Tex. Crim. App. 2 020); see Garza v

. State , 435 S.W.3d 258, 260 (Tex. C rim. App. 2014) ( discussing the different

“ categories ” of rights acco rding to Marin v . State , 851 S.W.2d 275 , 278

– 80 (Tex. Crim. App. 1 993) , overruled in part on ot her grounds by Cain v. State , 947 S.W.2d 262 (Te x. Crim

. App. 1997 ) , and e xplaining their relation to the pr eservation requirements ).
Rule 33.1 “does not apply to rights which a re waivable only or to absolute systemic requirements , th e violation of which may still be raised for the first time on appeal .” Sta te v. Dunbar

, 297 S .W.3d 777, 780 (Tex. Crim. App. 20 09); see Peyronel v.
State , 465 S.W.3d 650, 652 (Tex. Crim. App. 2015 ) ; Grado , 445 S.W.3d at 743 ; Reyes v.
State , 361 S.W.3d 22 2, 229 (Tex. App.

— For t Worth 2012, pet. ref’ d). Therefore,
Bonakies did not need to preserve hi s appellate complaints that the trial court denied him these rights

. The trial court did not deny Bon a kies his right to counsel

. The record ref lect s that Bonakies was r epresented by counsel at every critical stage o f the proceedings

. The counsel who r epresented him in the t rial court was app ointed November 18,
2020

— five days after the State filed its or i ginal petition

— and the record ref lects no la p s e in his represe ntati on prior to Bonakies ’ s appeal

. 4 Bona kies ’ s right

- to

- counsel complaint is wholly unavailing

.

4 In addition, we note that , after sentencing Bonakies , the trial court informed him of his r ights to appeal and to a court

- appointed lawyer a nd free appell ate record if he w as indigen t , and it obtained his defense c ounsel ’ s assurance that he would go over these rights with Bonakies

.10

Bonakies ’ s complaint th at the trial court “ did not consider the ful l range of dispositions ” is likewise unavailing

. A trial court ’ s arbitrary refusal to consider the

en tire range of punishmen t constitutes a denial of due process. Grado , 445 S.W.3d at
739

. Bonakies correctly a r g ues on appeal that the tria l cour t could have continued,

ext ended, or modif

i ed his deferred adjudication co mm unity supervisio n but then
makes th e argument th at “ the tr ial court did not consider this available punishment. ” Absent a clear showing of bias, a trial court ’ s actions will be presumed to have b een

correct
. Brumit v. St

a te , 206 S.W.3d 639, 645 (Tex. Crim. Ap p. 2006)

. Having
p reviously deferred sent encing Bonakies , the trial court was “ free to consider the full range of offen se

- appropriate punishment, ” Weed v. State , 891 S.W.2d 22, 24

– 25 (Tex.
A pp.

— Fort Worth 1995, no pe t
. ), and nothing sh o w s that it did not

. Moreover, the t rial court did not lose its power to modify, revoke, or continue
Bonakies’s deferred adjudication community supervision when it orally foun d him guilty , see Cruz v. State , No. 2

- 02

- 148

- CR, 2003 WL 212 83178, at *1 (Tex. App.

— Fort Worth June 5, 2003, pet. ref’d) ( mem. op., not designated for publication) ( collecting

c ases ) , and the record does n ot reflect that t he trial court re fused to consider any of
the evidence that Bonakies offered

. During t he evid entiary hearing on the motion to revoke, Bo naki es ’ s counsel called him as a witness , the State never object ed to any of the que stions that he was asked, and Bonak ie s did not call any othe r witnesses to testify on his behalf. Thus, the record shows that th e trial court provided Bonakies an opportu n ity to present any evidence he wish ed to offer and appropri at e ly considere d11

the entire appli cable range of pu ni shment for his offense

. See Davidson v. State , No. 09

- 11

- 00660

- CR, 2013 WL 395885, at *3 (Tex. App.

— B eaumont Jan. 30, 2013, no pet.) (mem. op., not designated for publication )

. Finally , Bonakies was senten ced legall y . His fou r

- year sentence w as withi n the
statutory r ange of punishment for his third

- degree felony , see Tex. Penal Code Ann. §§ 12. 34 , 22. 01 (

b )(2)(A) , and it was pronounced in his p resence
. See Burg , 592 S.W. 3d
at 450

– 52 (analyzing w hat is and is not an “illegal se ntence ”). Before p ronouncing

sentence , th e trial court asked the parties if they had “ any legal reason why sentence
shou ld not be pronounced at this time , ” and bo th sides responded, “ N o . ”
A ccording

ly , we overrule the remain d er of Bon aki es ’ s sole issue.

I II
. CONCLUSION
Ha ving overruled Bonakies ’s only issue, we affirm the tria l court ’ s judgment. /s/ Brian Walker
Brian Walker Ju s tice
Do Not Pu blish Tex. R. App. P. 47.2(b)
Deliv ered : June 6, 2024