NO. 07-00-0210 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MAY 22, 2002

______________________________ ALVIN MARK

EILAND, APPE LLANT V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 268 TH DISTRICT COURT OF FORT BEND COU NTY; NO. 31,794; HON ORABLEP. K. R EITER, JU DGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. In three po ints, app ellant Alvin M ark Eiland challenges his conviction of aggravated ass ault and the resulting punishment of a two-year

pro bat ed s ent enc e in the Institutional Division of the Departm ent of Crim inal Justice. In those points, appellant argues the trial court rev ers ibly

err ed in 1) adm itting evidence of extraneous off enses that prej udiced the jury against him , 2) failing to follow the jury’s verdict on punishm ent, and 3) including2

unr eas ona ble conditions in probating his sen te nc e. Fo r r ea so ns we l at er re co un t, we affirm the j udgme nt of the trial court. In support of his first point contention, appellantreferences thr ee instances. The first i nstance was the adm ission of testimony from the com plai nant that she was also the victimof a 1991 assault by appellant w hich, she averred, arose from a com ment she m ade w hile at dinner with him

. Afte r dinner, w hile in her car o n a dark road, appellant slapped her in the face, she s truck back, and when she did so, he pulled out a sm all cali ber pistol, madeher sit on her hands, and told h er n ever to hit him again. A ppellant’s only trial objection to thi s testimony was to its relevancy. Appella nt’s second reference is to tes timony by the com plainant about an alleged 1997 assault upon her by appellant. This gave rise to an assau lt charge an d a protecti ve order, which was later dro ppe d at

her req ues t. Ap pella nt’ s on ly t rial o bj ect ion to th is testimony

was t hat one of th e qu estions was leading, which wasoverruled, and that another question did not accurately reflect the evidence. Thatobjection w as never ruled on by the trial court. Appellant’s third reference is to tes timony th at the com plainant’s son wasa witness to the 1997 assault and to another in 1991. There was no t rial objection to this testi mony. In arg um ent

und er t his point, appellant does not specifically pursue his rel evancy question but, rather, asserts thatthe adm ission of the testimo ny was“improper.” In that1 Later references to rule nu m bers are to those Rul es of Evidence, unl ess otherwise specifically noted. 3 connection , Texas Rule of Evidence 401 1 provides tha t “releva nt” eviden ce is “evi dence hav in g any tendency to m ake the ex istence of any fact th at is of consequence toth e determ ination of the action m ore probable or less probable than it would b e with out the evidence.” Rule 402 provi des that “[a]l l rel evant evi dence is a dmissible, except as otherwise provided by Constitution, by statute , by these rules, or by ot her rules prescribed pursuant to statutory authority.” Itis well establ ished that a trial court has broad discretion in determining the admissibility of e vide nceand its rulin g sh ould not be reversed on appeal absent a clear abuse of discretion. Allri dge v. State , 850 S.W.2d 471, 492 (Tex.Crim .App. 1991). Un der the broad defi nition of relevant evidence, we cannot say the trial court abused its discretion in its evident determination that the evidence in question w as relevant. W ith reference to appellant’s appellate com plaint tha t th e ev iden ce w as im pro per ly pre j udic ial, the record does not show that he m ade any trial objection on that b asis. Texas Ruleof Ap pellate Procedure 33.1 provides that to preserve a com plaint for appellate review, the record m ust show that a trial objection w as m ade with sufficient specificity to make the trial court aware of t he com plaint and the objection m ust be ruled on by the court. See a lso Flemi

ng v. State , 956 S.W.2d 620, 623 (Tex.App.--E astland 1997, pet. ref’d)

. The proper m anner of

preserving com plaints of the nature appellant attem pts to raise here wasex plica ted in t he s em inal case of Mon tgomery v. State , 810 S.W.2d 3724

(Tex.Crim .App. 1990). By failing to follow that procedure, appellant failed to p res erv e his qu es ti on fo r o ur re vi ew. In addition, w

e have carefully ex

am ined the re cord and are of the opinion thateven assum ing arguen do the testimon y was erroneously adm itted, its admission w as not sufficient to deprive appellant of a substantial right. See Tex. R. A pp. P. 44.2(b). See also Johnson v. State , 889 S.W .2d 12 ( Tex.App.- -Sa n Antonio 1 994, no pet.); Reynolds v. State , 744 S.W.2d 156 (Tex.App.--Am arillo 1987, pet. ref’d). Appel lant’s f irst poin t is overruled. Appella nt’s second and third poi nt c hallenges are addressed to the condition of probation that directs him to pay delinquent child support in the total amount of $16,200 in mo nthly installments of $800, w ith the remainder, if any, to be paid before the expiration of the proba t ion p erio d. I n hissecond iss ue, app ellan t co nte ndstha t by inse rtin g th is co ndition, the trial judge failed “to follow the j ury verdict on punishm ent by eff ectivel y changing th e punishment assessed.” In his third point, he conte nds the addition of the child sup por

t co ndit ion w

as e rro r be cau se it

am ounted to an “im position of unr eas ona ble conditions of probation against Appellant contrary to [the] j ury’s punishm ent.” As we understand appellant’s second poin t ar gum ent , it

is that a lthough th e trial j ury heard testimon y about his deficiency in child s upport p aym ents, in recom mending probation, “th e j ury

ass ess ed p rob atio n w itho ut a ny cond ition outsideof t hat set for th in the basic cond itio ns in Articl e 42.12.” Thus, he rea son s, b y ad ding as a co ndit ion of his5

probation that hepay $80 0 each m onth toward arreara ge and ha ve a ll arr ear agepaid before the expiration of his two- year probation, the trial court “essentially changed the punishment assessed several days prior by the jury” and in doing so reversibly erred. The only authority appellant cit es in sup por t of this propositi on is “ Johnson v. St ate , 477 S.W.2d 972.” However, w e have been unable to locate any such case in Volume 477 of the S outhw

estern Reporter, 2 nd series. However, in considering appellant’s argument, we note that Texas Code of Criminal Procedure article 42.12 sets out the bas ic conditions of probation. Tex. Co de Crim. P roc. Ann. art. 42. 12 (Vernon Supp. 200 2). In relevant part, section 11( a) of the statute pr ovides: The court having jurisdiction of the cas e shall de termine the termsand conditions of probation and m ay, at any tim e, during the period of probation alter or modify the conditions . . . . Term s and conditions of probation may include, bu t sha ll not

be li m ited to t he cond ition s th at t he d efe nda nt s hall

. . . . (the su bsection goes on to list var ious cond itions to beset ou t). Thus, bythe term s of the statuteitself, the trial court was authorized to im pose additional terms and condition s. In his third point, appellant argues that the imposition of the condition that required himto pay an arrearage in child support was unreasonable. As w e ha ve noted in our discussion of

app ellan t’s

second poin t, t he s tat uteaut hor izesthetria l cou rt, in the exercise of its rea son ablediscretion, to impose conditions upon a probationer in addition to those spe cifi cally

set out in the statute. Indeed, Leblanc v. State , 9 08 S.W .2 d 5 73 , 5 74 -7 5 ( Te x.6

App.-- Fort

W orth 1995, no pet.), and Lacy v. S tate, 875 S.W.2d 3, 5 (Tex.App.--Tyler 1994, pet. ref’d), the two cases cite d by a ppellant in connection with his third point, explicate thesta nda rdsby w hich thevali d ity o f such additional and non-specified conditions may be judged. Itis axiom atic that a pro bat ione r is subjec t to limitations fromwhich ordinary citizens are free. Simpson v. State , 772 S.W.2d 276, 280-81 (Tex.App.--A marillo 1989, no pet. ). Eve n so, a probationer continues to enj oy a significant degree of privacy, and an y restricti on upon a proba tioner’s oth erw ise i nvio lableconstitutional rights can be justified only to the ex

tent actually necessitated by the leg itimate dem ands of the probation process. Thus, proper

probationary conditions are those that contribute significantly both to the rehabilitation of the convicted person and to the protection of society. Id. at 280-81. A trial court abuses its discretion in imposing a non-statutory condition of probation if it has all th ree of the fol lowing chara cteristi cs: 1) it has no relationship to the crime; 2) it relates to conduct that is not of itself criminal; and 3) it forbids or

req uire s c ond uct

tha t is not

rea son ably

related tothe fut ure criminality of th e defenda nt or does not serve t he statutory ends of probation. Leblanc , 908 S.W.2d at 574-75; Lacy , 875 S.W.2d at 5.7

Itis in the light of this explication that we m ustexam ine the court-imposed condition thatrequires appellant to pay the accrued delinquentchil d su ppo rt o f $1 6,2 00 in m ont hly installments of $800 per month. Initi ally, th e c on di ti on ha s n o r el at i on sh i p t o t he cr i me of aggravated ass ault

which g averiseto t he p rob atio n. A ltho ugh thefailu re to pa y c hild sup port m ay b e pu nish ableby con tem pt p roc eed ings , inc ludin g th e po ssi bili ty o f confinement

in a county jail until the deli nquency i s caught u p, f or t he p urp ose s of

this disc uss ion, w e w ill assum e that t he non-p aym ent of c hild support is not of itself criminal in nature. How eve r, a s s tated in article 42.12, the purpose of pr obation i s to serve “the best interest of justice, the publ ic, and the defendant.” Tex . Code Crim . Proc. Ann . art. 42.12 (Vernon Supp. 2002). It is cer tainl y in the best interest of justice and thepublic to re quire a father to support his children to the best of his ability. Indeed, it is also in the interest of the defendant that he do s o to protect him self from being guilty of contempt of court by failing to obey court-ordered child support paym ents to eradicate unexcused delinquen cies in ma king s uch paym ents. That being so, w e cannot say that the trial court abused its discretion in imposing the paym ent of delinquent child support as a condition of allowing appellant to serve his sentence without actua lly being confined in a penal institution. Appellant’s second and third points are overruled. In summ ary, all of appellant’s points are overruled and the judgm entof the trial court is affirmed.8 John T. Boyd Chief Justi ce Do not publish.