COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00147-CR

DEVANY CHARONE SNEED APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

TRIAL COURT NO. 1095599D

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OPINION

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Appellant Devany Charone Sneed appeals from a judgment adjudicating 

her guilty of assault causing bodily injury to a public servant in retaliation for an 

official duty. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (West Supp. 2015). 

Directing us to our opinion in Rains v. State, 678 S.W.2d 308 (Tex. App.—Fort 

Worth 1984, pet. ref’d), Sneed complains that her due process and due course of 

law rights as guaranteed by the federal and state constitutions were violated 
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because the allegations relied upon by the State to revoke her community 

supervision were the same allegations that the State had previously included in a 

petition to adjudicate her guilt and that the trial court had already considered in

amending her conditions of community supervision. Sneed failed to preserve this

issue for appellate review. Therefore, we will affirm.

In May 2008, the trial court placed Sneed on seven years’ deferred 

adjudication community supervision upon her plea of guilty to assault causing 

bodily injury to a public servant. The trial court ordered Sneed to comply with 

numerous written terms and conditions. In August 2013, October 2013, April 

2014, and June 2014, the trial court supplemented or amended the terms or 

conditions of Sneed’s community supervision, ordering that she be confined in 

jail for a number of days, that she complete a substance abuse assessment or 

other program, or that she be subject to “[e]lectronic monitoring/home 

confinement.”

In March 2015, the State filed a petition to proceed to adjudication, alleging 

that Sneed had violated her community supervision (1) by committing DWI on or 

about January 12, 2015, and (2) by consuming alcohol on or about January 12, 

2015, June 3, 2014, May 25, 2014, July 26, 2013, and March 19, 2014. The 

record does not contain any hearing on the State’s petition, but on April 7, 2015, 

the trial court supplemented or amended Sneed’s community supervision to 

include electronic monitoring by SCRAM.
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Shortly thereafter, on April 17, 2015, the State filed its first amended 

petition to proceed to adjudication. The amended petition alleged the same six

violations that were contained in the March 2015 petition but also that Sneed had 

used THC on April 8, 2015. At a subsequent hearing on the petition, Sneed 

pleaded true to the allegations that she had committed DWI on or about 

January 12, 2015, and that she had consumed alcohol on or about January 12, 

2015, June 3, 2014, and May 25, 2014—paragraphs 1, 2(A), 2(B), and 2(C) of 

the amended petition. The State waived the allegations that Sneed had 

consumed alcohol on or about July 26, 2013 and March 19, 2014, and had used 

THC on or about April 8, 2015—paragraphs 2(D), (E), and (F). The trial court 

found paragraphs 1, 2(A), 2(B), and 2(C) true based upon Sneed’s pleas of true

and adjudicated her guilty.

In Rains, we held in part that the trial court had abused its discretion by 

revoking Rains’s probation for failing to report to his probation officer because the

trial court had considered the same ground at a previous revocation hearing and

reinstated Rains’s probation with modifications. Id. at 309. Our holding

principally relied upon Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. [Panel 

Op.] 1981), an opinion in which the court of criminal appeals concluded that 

Rogers had been denied due process because, after once modifying and 

continuing his probation upon the State’s motion to revoke, which alleged six 

different violations, the trial court proceeded to revoke his probation in the 

absence of allegations and proof of a subsequent violation. Id. at 249, 251.
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Sneed’s argument is certainly well taken, but we are compelled to instead 

turn our attention to a different part of the Rogers opinion. On the State’s second 

motion for rehearing, the court of criminal appeals held that Rogers had failed to 

preserve his due process argument. Id. at 263‒65 (op. on reh’g). It explained,

The record in the case at bar shows that neither appellant nor 

his attorney voiced any objections to the procedure used by the trial 

judge. Indeed they urged it. The record shows that appellant pled 

true to the charges of violating his probation, entered into a 

stipulation of the evidence, and then testified to the circumstances 

surrounding the violations of his probationary conditions. . . .

. . . .

Despite several opportunities, no objection was made by the 

defense as to the procedure used in this probation revocation.

It is a general rule that appellate courts will not consider any 

error which counsel for accused could have called, but did not call, 

to the attention of the trial court at the time when such error could 

have been avoided or corrected by the trial court. . . .

This general rule also applies to constitutional questions. . . .

. . . .

. . . Thus, in the present case, since appellant failed to voice 

any due process objection to the procedures used by the trial court, 

we hold that he waived his complaint. Thus, the State’s motion for 

rehearing is granted and the order revoking appellant’s probation is 

affirmed.

Id. at 264‒65 (citations omitted). The court of criminal appeals continues to 

require a defendant to preserve an argument that the procedure used to revoke

her community supervision failed to comply with due process. See Tapia v. 

State, 462 S.W.3d 29, 37 (Tex. Crim. App. 2015) (confirming that Tapia had 
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preserved his due process argument in the trial court before considering the 

State’s argument that the court of appeals had improperly relied upon Rogers to 

reverse the trial court’s revocation decision).

To preserve a complaint for our review, a party must have presented to the 

trial court a timely request, objection, or motion that states the specific grounds 

for the desired ruling if they are not apparent from the context of the request, 

objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 

670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016); Sanchez 

v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet. ref’d). Further, 

the trial court must have ruled on the request, objection, or motion, either 

expressly or implicitly, or the complaining party must have objected to the trial 

court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 

259, 263 (Tex. Crim. App. 2013). A reviewing court should not address the 

merits of an issue that has not been preserved for appeal. Ford v. State, 305 

S.W.3d 530, 532 (Tex. Crim. App. 2009).

Here, Sneed pleaded true to four of the State’s allegations, and when the 

trial court asked if there was any legal reason why she should not be sentenced, 

her trial counsel said, “No, Your Honor, we have produced all the evidence that 

we would produce.” Sneed raised no objection or argument either at the hearing 

on the State’s first amended petition to proceed to adjudication or in her

subsequent motion for new trial that her due process and due course of law 

rights were violated because the grounds that the State relied upon to revoke her
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community supervision (and that it had not waived) were the same grounds that 

the trial court had previously considered in amending her conditions of 

community supervision. Sneed therefore forfeited this issue for appellate review. 

See Tex. R. App. P. 33.1(a)(1); Rogers, 640 S.W.2d at 264‒65; see also Fuller v. 

State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008), cert. denied, 555 U.S. 1105 

(2009) (“We have consistently held that the failure to object in a timely and 

specific manner during trial forfeits complaints about the admissibility of

evidence. This is true even though the error may concern a constitutional right of 

the defendant.” (footnotes omitted)). Accordingly, we overrule Sneed’s only 

issue and affirm the trial court’s judgment adjudicating her guilt.

/s/ Bill Meier

BILL MEIER

JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DAUPHINOT, J., concurs with opinion.

GABRIEL, J., concurs without opinion.

PUBLISH

DELIVERED: May 19, 2016