TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00705-CR

Phillip Joel Ramos, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-03-727, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

PhillipRamos pleaded guilty to the crime of attempted sexual performance bya child,

and pursuant to a plea-bargain agreement, he was placed on community supervision. Subsequent

to his conviction, the State alleged that Ramos had violated the terms of his community supervision

in several ways and moved to revoke his community supervision. After conducting a hearing, the

district court revoked Ramos’s community supervision, and Ramos appeals the district court’s

judgment. We will affirm the district court’s judgment revoking his community supervision.

BACKGROUND

In 2004, Ramos pleaded guilty to the crime of attempted sexual performance by a

child. See Tex. Penal Code Ann. §§ 15.01 (setting out circumstances in which person is guilty of

attempt), 43.25(b) (West 2011) (defining offense of sexual performance by child). After Ramos

pleaded guilty, the district court imposed a sentence of imprisonment for ten years but placed him
on community supervision. One of the terms of Ramos’s community supervision required him to

“[a]void the use of any sexually provocative materials.” In addition to that requirement, Ramos was

also obligated to perform community service, pay court costs, and make monthly payments for child

support, a fine, community-supervision fees, and sexual-assault-program fees.

Approximately six years after Ramos pleaded guilty, he sent a text message to his exwife, Christina Finley, containing a picture depicting a naked woman straddled over a man’s erect

penis with feces on the woman’s buttocks. After receiving the text, Finley reported the exchange

to Ramos’s probation officer, Brittany Martinez, and also e-mailed Martinez a copy of the image.

Subsequent to Martinez being notified about the picture, the State moved to revoke

Ramos’s community supervision, and the district court scheduled a hearing. In addition to alleging

that Ramos violated the terms of his community supervision by possessing and sending the

photograph, the State claimed that Ramos failed to pay his court costs, failed to perform his

community-service obligations, and failed to make monthly payments for his fine, his communitysupervision fees, his child-support obligation, and hissexual-assault-program fees. Duringthe hearing,

various witnesses were called to the stand. After hearing the testimony ofthe witnesses and arguments

from both sides, the district court found that Ramos had violated the conditions of his community

supervision and revoked his community supervision.

Ramos appeals the district court’s judgment revoking his community supervision.

DISCUSSION

In his appeal, Ramosraisestwo issues. First, he arguesthat the term of his community

supervision prohibiting him from using any sexually provocative materials is improper. Second, he

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contends that the district court erred by revoking his community supervision because his inadvertent

transmission of the picture to his ex-wife did not constitute an intentional violation of his community

supervision and because the State failed to prove any other violation.

Challenge to Term of Community Supervision was Not Preserved for Appeal

As mentioned above, Ramos challenges the propriety of one of the terms of his

community supervision. That term required Ramos to “avoid the use of any sexually provocative

materials including but not limited to: written material (i.e., books, magazines), video materials

(i.e., movies, cable television channels, etc.), satellite transmissions, internet or other computer

information.” In his appeal, Ramos insists that the requirement listed above is too vague and

ambiguous to be enforced.

Placement on community supervision “is a privilege, not a right,” and a trial court’s

decision to bestow the benefit onto a defendant “is wholly discretionary and nonreviewable.”

Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999); see also id. at 533 (stating that trial courts

also have broad discretion when determining conditions of community supervision); Tex. Code

Crim. Proc. Ann. art. 42.12 § 11(a) (West Supp. 2012) (explaining that trial court “may impose any

reasonable condition that is designed to protect or restore the community, protect or restore the

victim, or punish, rehabilitate, or reform the defendant”). In fact, when a trial court orders placement

on community supervision, the court and the defendant essentially create a type of contractual

arrangement under which the trial court agrees to extend clemency provided that the defendant

complies with certain requirements. Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979).

Accordingly, the conditions of community supervision are the “terms of the contract entered into

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between the trial court and the defendant.” Speth, 6 S.W.3d at 534. “A defendant who benefits

from the contractual privilege of probation, the granting of which does not involve a systemic right

or prohibition, must complain at trial to conditions that he finds objectionable.” Id. If a defendant

does not object to a condition of community supervision at the trial court, he “affirmatively waives

any rights encroached upon by the terms of the contract.” Id.; see Tex. R. App. P. 33.1(a) (requiring

defendant to make timely and specific objection to preserve issue for appeal); see also Gutierrez v.

State, 380 S.W.3d 167, 175 (Tex. Crim. App. 2012) (recognizing that defendants waive “many, if

not most, appellate complaints–-even most constitutional complaints—about particular conditions

of community supervision by failing to object at trial” but also stating that defendant cannot agree

to submit to condition that justice system finds intolerable).

Ramos does not assert and the record does not show that any objection to the terms

of his community supervision was made to the district court. Accordingly, Ramos waived any right

to challenge the term of his community supervision instructing him to avoid the use of any sexually

provocative materials. Cf. Hart v. State, 264 S.W.3d 364, 368 (Tex. App.—Eastland 2008, pet. ref’d)

(determining that complaint that condition violated appellant’s constitutional right to free exercise

of religion not preserved for appeal); Belt v. State, 127 S.W.3d 277, 282 (Tex. App.—Fort Worth

2004, no pet.) (concluding that defendant did not preserve due-process complaints because he did not

present to trial court due-process objection regarding terms of community supervision). Therefore,

we overrule his first issue on appeal.

District Court Did Not Abuse its Discretion by Revoking Community Supervision

In his second issue on appeal, Ramos insiststhat his transmission of the picture to his

ex-wife did not constitute an intentional violation of the terms of his community supervision. As

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support for this assertion, Ramos notes that all three of the witnesses that testified during the hearing

stated that Ramos had told them that he did not intend to send the picture to his ex-wife. In addition,

Ramos also points to testimony regarding a polygraph that he took that indicated that he was being

truthful when he denied intentionally sending the photo to his ex-wife. Moreover, Ramos contends

that the testimony presented during the hearing does not support revocation on any of the other

grounds alleged by the State.

During a revocation proceeding, the State has the burden of establishing the alleged

violations by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.

1993). That burden is satisfied if the greater weight of the credible evidence creates a reasonable

belief that a violation occurred. Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006). In

deciding whether the allegations are true, “the trial court is the sole trier of facts, and the judge of

the credibility of the witnesses and the weight to be given the testimony.” Becker v. State, 33 S.W.3d

64, 66 (Tex. App.—El Paso 2000, no pet.). A trial court has wide discretion when determining

whether to “modify, revoke, or continue the probation” when considering a motion to revoke.

Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986); Hart, 264 S.W.3d at 372; see

Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (West Supp. 2012) (explaining that “[a]t any time

during the period of community supervision the judge may issue a warrant for violation of any of the

conditions of the community supervision and cause the defendant to be arrested”).

In light of this broad discretion, we review a trial court’s decision to revoke under an

abuse-of-discretion standard of review. Rickels, 202 S.W.3d at 763. Under that standard, an abuse

of discretion occurs “only when the trial judge’s decision was so clearly wrong as to lie outside the

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zone within which reasonable minds might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.

Crim. App. 1992). In reviewing the trial court’s decision, we view the evidence in the light most

favorable to the ruling and defer to the trial court’s assessment of the witnesses’ credibility and the

weight to give to their testimony. Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003,

no pet.). If more than one violation is alleged and found by the trial court, the trial court’s decision

to revoke will be upheld if the evidence is sufficient for any of the alleged grounds. Dunavin v.

State, 611 S.W.2d 91, 101 (Tex. Crim. App. 1981).

Duringthe revocation hearing,threewitnessestestified: Martinez;RosalindaVazquez,

who was also a probation officer for Ramos; and Scott Siegel, who was Ramos’s sex-offendertreatment provider. In challenging the revocation, Ramos correctly points out that all three of the

witnesses testified that Ramos did not intend to send the photo to his ex-wife. In fact, Martinez also

testified that after she confronted Ramos about the picture, he said “that he sent it by mistake after

a friend of his brother’s sent the picture to him. He explained that he tried to delete it, and instead

of deleting it, he forwarded it to his ex-wife.” In addition, Martinez testified that Ramos insisted that

he had only had his phone for three months and did not know how to use it.

Although the other two witnesses did testify that Ramos explained to them that he

did not intend to send the photo to his ex-wife and did mention that Ramos’s polygraph results were

consistent with that proposition, they also provided testimony indicating that Ramos intended a use

of the photo. Specifically, Vasquez testified that when she asked Ramos how he obtained the picture,

Ramos told her that he was discussing “inappropriate pictures” with one of his cousins and that

he told his cousin that he had a picture that he intended to send to a “particular person” but that

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he accidentally sent it to his ex-wife instead. Later, Vasquez clarified that Ramos told her that

someone had texted him a copy of the image and that he intended to forward it to someone else. In

her testimony, she also related that she did not remember Ramos ever mentioning that he had

inadvertently sent the image while trying to delete it.

Once Vasquez concluded her testimony, Siegel was called to the stand. In his

testimony, Siegel related that Ramos claimed that he and his friends try “to gross each other out, and

that was the—the origin of this picture was that it was—there was nothing sexual about it. It was

more disgusting.” When describing how Ramos obtained the picture, Siegel testified that Ramos

stated that a friend “sent him the text” and that he decided “to forward it to another person . . . in an

effort to . . . gross him out.” During his testimony, Siegel was asked if Ramos had stated that he had

originally intended to delete the image before texting it, and Siegel answered, “Idon’t remember him

saying that he was about to delete it.” When describing the polygraph results, Siegel explained that

Ramos was only asked whether he intended to send the image to his ex-wife and agreed that Ramos

was not asked to answer whether he intentionally possessed the image.

Although Siegel testified that nothing in Ramos’s history indicated that the photo

would be arousing to him, Siegel did admit that the image might be sexually provocative for

some people. That sentiment was echoed in Martinez’s testimony when she described the photo

as “pretty graphic and sexual in nature” and stated that the picture was sexually provocative.

Moreover, Siegel testified that he did not believe that it was appropriate for Ramos to possess that

kind of image, to discuss it with others, or to send it to others given the type of offense that Ramos

had committed in the past.

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In light ofthe preceding, we cannot conclude that the district court abused its discretion

by determining that Ramos violated the terms of his community supervision by using sexually

provocative materials. Given that a single violation can support a revocation order, we need not

address the evidence pertaining to the other alleged violations. Accordingly, we overrule Ramos’s

second issue on appeal.

CONCLUSION

Having overruled Ramos’s two issues on appeal, we affirm the judgment of the

district court.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: May 2, 2013

Do Not Publish

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