### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00705- CR

P hill ip Joel Ram os, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. CR-03 -72 7, H ONO RAB LE CHARLES R. RAMSAY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Ph il lip Ra mos pleade d g uilty to the crime of attempted sexual perf ormanc e by a child , and pursuant to a plea-bar g ain agr eeme nt, he was place d o n community supervision. Subsequent
to his conviction, the State alleg ed that Ramos had violated the terms of his community supervision in severa l way s and moved to re voke his community supervision. After

conducting a hea

ring , the district court revoke d Ramos’s community supervision, and Ramos appeal s the district court’s judgme nt. We will affirm the district court’ s judgme nt revoking his community supervision.

BACK GR OUND
I n 2004, Ramos pleade d g uilty to the crime of attempted sexual perf orm an ce b y a child. See Tex. Penal C ode Ann. §§ 15.01 (setting out circ umstances in which person is g uilty of attempt), 43.25(b) (West 2011) (def ining o ff en s e of sexual perf

ormanc e by child). After Ramos pleade d g uilty , the district court imposed a se ntence of imprisonment for ten y ear s but placed himon community supervision. One of the t erms of Ramos’s c ommunity supervision requir ed him to “[a]void the use of any sexually provoca tive materia ls.” I n addition to that require ment, Ramos was also obliga ted to perf

orm community service , pay court costs, and make monthly pay ments for child support, a fine , community -super vision fees, a

nd sexual-assault-prog ram fe es. Approxim ately six y ear s afte r Ramos pleade d g uilty , he sent a text messag e to his exwife, Christina Finley , containing a picture depicting a naked woman straddled over a man’s ere ct penis with fec es on the woman’s buttocks. After re ceiving the text , Finley repor ted t he ex chang e to Ramos’s probation offic er, B rittany Martinez, and also e -mailed Mar tinez a copy

of the imag e. Subsequent to Martinez being notified about the picture, the State moved to revoke
Ramos’s community supervision, and the district court schedule d a hear ing. I n addition to alleg ing that Ramos violated t h e t er ms of his community supervision by possessing and sending the photogr aph, the State claimed that Ramos fa i l ed to pay his court costs, failed to perf orm his community -ser

vice obliga tions, a

nd failed to make monthly pay ments for his fine, his c o mm u n it y s u p e r v i s i o n f e e s , h is c h il d

- s u

p p o r t o b li g a ti o n , a n d h is s e xu a l- a s s a

u lt

- p r o g r a m f e e s . D u r in g th e h e a

r in g ,

v a r io u s w it n e s s e s w e r e c a ll e d to th e s ta n d

. A f te r h e a r in g th e te s ti mo ny o f th e w it n e s s e s a n d a r g u me n ts from both sides, the district court found t hat R amos had violated the conditions of his community supervision and re voked his community supervision. Ramos appea ls the district court’s judg ment revoking his community supervision.

DISCUSSIO N
I n h is a p p e a l, Ra mo s r a is e s tw o is s u e s . F ir s t, h e a r g u e s th a t th e te r m o f h is c o mm

u n it y supervision prohibiting him from using any sexually provoca tive materia ls is improper. Second, he

2contends that the district court err ed by revoking his community supervision beca use his inadver

tent transmission of the picture to his ex-wife did not constitute an intentional violation of his community supervision and be cause the State fa iled to prove a ny other violation.
Challenge to Term of Community Supervision was Not Preserved for Appeal

As mentioned above, Ramos challeng es the propriety of one of t h e t er m s of his community supervision. That t erm re quired Ramos to “a void the us e of any sexually provoca tive materia ls including but not limit ed to: written materia l (i.e., books, mag azines), video materia ls (i.e., movies, cable television channe ls, etc.) , satell i t e t ra n smissi ons, internet or other computer informat i o n . ” I n his appea l, Ramos insists that the require ment listed above is too vag ue and ambig uous to be enfor ced.

Placement on community supervision “is a privilege , not a rig ht,” and a trial court’s decision to bestow the benef it onto a defe ndant “is wh o l l y discretionar y and nonrevie wable.” 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 discre tion when deter mining conditions of community supervision); Tex. Code Crim. Proc. Ann. art. 42.12 § 11(a) (West Supp. 2012) (explaining that trial court “may impose any

rea sonable condition that is desig ned to protec t or restore the community , protec t or restore th e victim, or punish, reha

bilitate, or ref

orm the defe ndant”)

. I n fac t, when a trial court order s place ment

on community supervision, the court and the defe ndant essentiall y cr ea t e a ty pe of contra ctual

arr ang ement under which the trial court ag ree s to extend clemenc y provided that t h e defe ndant

c o mp li e s w it

h c e r ta in r e q u ir e me n ts

. F

lo u r n o y v
. S ta te , 5 8 9 S. W. 2 d 7 0 5 , 7 0 7 ( T e x. Cr im

. A p p . 1 9 7 9 )

. Acc ording ly , the conditions of community supervision are the “ter ms of the contr ac t en t ere d into

3betwee n the trial court and the defe ndant.” Speth , 6 S.W .3d at 534. “A defe ndant who benef its from the contra ctual privileg e of probation, the g ranting of which does not involve a sy stemic rig ht

or prohibition, must complain at trial to c onditions that he finds objectionable.” Id. I f a defe ndant does not object to a condition of community supervision at the trial court, he “af firmatively waives
any rig hts encr oache d upon by the terms of the contra ct.” Id. ; see Tex. R. App. P. 33.1(a) (re quiring defe ndant to make timely and specific objection to prese rve issue for appea l); see also Gutierrez v. State , 380 S.W .3d 167, 175 (Tex. Crim. App. 2012) (re cog nizi ng that defe ndants waive “many , if
not most, appellate complaints–-eve n most constitutional complaints—about particula r conditions of community

supervision by failing to obje ct at trial” but also stating that defe ndant ca nnot ag ree to submit to condition that just ice sy stem finds intolerable)

.

Ramos doe s not a ssert and the rec ord does not show that any objection to the terms of his community supervision was made to the district court. Acc ording ly , Ramos waived any rig ht
to challeng e the term of his community supervision instructing him to avoid the use of any sexually
p r o v o c a ti v e ma te r ia ls

. Cf

. H a r t v
. S ta te , 2 6 4 S. W. 3 d 3 6 4 , 3 6 8 ( T e x. A p p . — E a s tl a

n d 2 0 0 8 , p e t. r e f

’ d ) (dete rmining that complaint that condition violate d appellant’ s constitutional rig ht to fre e exercise of religion not prese rved for appeal); Belt v. Sta te , 127 S.W .3d 277, 282 (Tex. App.—For t Worth 2004, no pet.) (conc luding that d e f e n d ant did not prese rve due-pr ocess complaints beca use he did not
prese nt to trial court due-pr ocess objection reg arding terms of community supervision). There fore ,
we ove rrule his fir st issue on appea l.

District Court

Did Not Abuse its Discretion by Rev oking Community Superv ision
I n his second issue on appea l, Ramos insists that his transmission of the picture to his ex-wife did not constitute an int entional vi olation of t he t er m s of hi s community supervision. As
4support for this asser tion, Ramos notes that all three of the witnesses that testified during the hear ing stated that Ramos had told them that he did not intend to send the picture to his ex-wife. I n addition,
Ramos also points to testimony reg arding a poly g raph that he took that indicated that he was being truthful when he denied intentionally sending the photo to his ex-wife. Moreove r, Ramos contends that the testi m o n y p re s ented during the hear ing does not support revoc ation on any of the other
g rounds alleg ed by

the State. During a revoc ation proce eding , the State has the burden of establishing the alleg ed

v io la ti o n s b y a p r e p o n d e r a

n c e o f th e e v id e n c e . Co b b v
. S ta te , 8 5 1 S. W. 2 d 8 7 1 , 8 7 3 ( T e x. Cr im

. A p p . 1993). That burden is satisfied i f t h e gre ater weig ht of t he credible evidence cre ates a rea sonable belief that a violation occur red. Ricke ls v. State , 202 S.W .3d 759, 764 (Tex. Crim. App. 2006). I n deciding whether the allega tions are true, “ the t rial court is the s ole t rier of fac ts, and the judge of the cre dibilit y of the witnesses and the weig ht to be g iven the testimony .” Bec ker v. State , 33 S.W .3d
6 4 , 66 (Tex. App.—El Paso 2000, no pet.). A trial court has wide discretion when deter minin g whether to “modify , revoke , or continue the probation” wh en co n sidering a motion to revoke

. Ex parte Tarver , 725 S.W .2d 195, 2 0 0 (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) (ex plaining that “[a]t any time during the period of community supervision the judge may issue a war rant for violation of any of the conditions of the community supervision and c ause the defe ndant to be ar rested” ).
I n light of this broad discretion, we revie w a trial court’s decision to revoke under an abuse- of-discr etion standard of revie w. Ricke ls , 202 S.W .3d at 763. Under that standard, an abuse of discretion occur s “only when the trial judge ’s decision was so clea rly wrong as to lie outside the

5zone within which rea sonable minds might dis ag ree .” Cantu v. State , 842 S.W .2d 667, 682 (Tex.

Crim. App. 1992 ). I n re v iewing the t rial court’s decision, we view the evidenc e in the l ight most favor able to the ruling and defe r to the trial court’s assessment of the witnesses’ cre dibilit y and the weig ht to g ive to their testimony

. Mauney v. State , 107 S.W .3d 693, 695 (Tex. App.—Austin 2003,

no pet.). I f more than one violation is alleg ed and found by the trial court, the trial court’s decision
to revoke will be upheld if the evidenc e is sufficie nt for any of the alleg ed g rounds. Dunavin v. State , 611 S.W .2d 91, 101 (Tex. Crim. App. 1981).

D u r in g th e r e v o c a

ti o n h e a r in g , th r e e w it n e s s e s te s ti f

i e d : M a r t i n e z ; R o s a li n d a V a zq

u e z, who was also a probation office r for Ramos; and Scott Sie gel , wh o wa s Ramos’s sex-offende rtrea tment provider. I n challeng ing the revoc ation, Ramos corr ectly p oints out that all three of t he witnesses testified that Ramos did not intend to send the photo to his ex-wife. I n fac t, Martinez also testified that afte r she confr onted Ramos a bout the picture, he said “that he sent it by mistake afte r

a friend of his br other’s sent the picture to him. He explained tha t he tried to delete it, a nd instead of deleting it, he forwa

rded it to his ex-wife.” I n 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 di d testify t h at R am o s explained to them that he did not intend to send the photo to his ex-wife and did mention that Ramos’s poly g raph results wer e consistent with that proposition, they also provided testimony indicating that Ramos intended a use

o f th e p h o to

. Sp e c if

ic a ll y , V a s q

u e z te s ti f ie d th a t w h e n s h e a s k e d Ra

mo s h o w h e o b ta in e d th e p ic tu r e , Ramos told her that he was discussing “i n ap p ropriate pictures” with one of his cousins and that he told his cousin that he h ad a p icture that he intended to send to a “par ticular person” but that

6he acc identally sent it to his ex-wife instead. L ater , Vasque z clar ified t h at Ramos told her that

someone had text ed him a copy of the imag e and that he intended to forwa rd it to someone else. I n her tes timony , she also rela ted that she did not reme mber Ramos ever mentioning that he had inadver tently sent the imag e while try

ing to de lete it. Onc e Va s q u ez conclude d her testimony , Siege l was called to the stand. I n his testimony , Siege l rela ted that Ramos claimed that he and his friends try “to g ross eac h other out, and that was the—the orig in of t his picture was t hat it was—there was nothing sexual about it. I t was

m o re disgusting .” When descr ibing how Ramos obtained the picture, Si eg el t estified that R am o s stated that a friend “sent him the text ” and that he decide d “to forwa rd it to another person . . . in an eff ort to

. . . g ross him out.” During his testimony , Siege l was asked if Ramos had stated that he had orig inally intended to delete the imag e befor e text ing it, and Siege l answe red, “I don’t reme mber him
say ing that he was about to delete it.” When descr ibing the poly g raph results, Siege l explained that
Ramos was only asked whether he intended to send the imag e to his ex-wife and ag ree d that Ramos was not aske d to answer

whether he intentionally

possessed the imag e. Al though Siege l testified that nothing in Ramos’s history indicated that th e p h o t o would be arousing to him, Siege l did admit that the imag e might be sexu al l y provoca tive for

some people. That sentiment was echoe d in Martinez’s testimony when s h e d es cr i b ed the photo

as “pr et t y g raphic and sexual in nature ” and stated that the picture was sexually provoca tive.
Moreove r, Siege l te stified that he did not believe that it wa s appropr iate for Ramos to possess that kind of imag e, to discuss it with others, or to send it to others g iven the ty pe of offe nse that Ramos had committed in the past.

7I n li g h t o f th e p r e c e d in g , w e c a nn o t c o n c lu d e th a

t th e d is tr ic t c o u

r t a b u s e d it s d is c r e ti o n by deter mining that Ramos violated the terms of his community supervision by using sexually
provoca tive materia ls. Given that a single violation can support a revoc ati on order , we need not addre ss the evidenc e perta ining to the other alleg ed violations. Acc ording ly , we overr ule Ramos’s second issue on a

ppeal.

CONCLUSION Having overr

uled Ramos’s two issues on appea l, we aff irm the judgme nt of the district court.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: May

2, 2013 Do Not Publish

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