Donald Alfonso Dickerson v. The State of Texas--Appeal from 336th District Court of Fannin County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00043-CR

______________________________

DONALD ALFONSO DICKERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 336th Judicial District Court

Fannin County, Texas

Trial Court No. 21247

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

On May 13, 2005, Donald Alfonso Dickerson pled guilty to burglary of a habitation. Pursuant to a plea agreement, the trial court deferred a finding of guilt and placed Dickerson on community supervision for ten years. A few months later, the State filed a motion to proceed to an adjudication of Dickerson's guilt. Dickerson was arrested and released from jail on a $5,000.00 personal bond. On December 16, 2005, however, the trial court found the $5,000.00 bond insufficient and revoked Dickerson's bond. Dickerson was again arrested and remained in jail pending a hearing on the motion to adjudicate. After considering the parties' evidence and argument at a January 27, 2006, hearing, the trial court formally adjudicated Dickerson's guilt and assessed his punishment at ten years' imprisonment.

Dickerson now appeals raising three points of error. The State contends we lack jurisdiction to consider any of Dickerson's appellate issues. We affirm the trial court's judgment.

I. Jurisdiction

The State contends we lack jurisdiction to consider any of Dickerson's appellate issues. Dickerson first alleges the evidence is legally insufficient to support the trial court's decision to revoke his bond pending a hearing on the State's motion to adjudicate guilt. Dickerson erroneously labels his second issue as a challenge to the factual sufficiency of the evidence to support the trial court's decision to revoke his bond; the true substance of that issue is an attack on the factual sufficiency of the evidence supporting the trial court's decision to adjudicate guilt. Dickerson's third point of error challenges the propriety of the personal bond's conditions of pretrial release.

If a trial court defers a finding of guilt and releases a defendant to community supervision, and if the State files a motion with the trial court alleging the defendant has violated the terms of the community supervision contract with the trial court, then the defendant may be arrested and detained as provided by Section 21 of Article 42.12 of the Texas Code of Criminal Procedure.

The defendant is [then] entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred.

Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2006) (emphasis added).

Dickerson's first and third issues on appeal relate to events occurring nearly a month before the trial court proceeded to adjudicate Dickerson's guilt. Because these issues do not relate to the trial court's decision to adjudicate his guilt, we conclude we are not without jurisdiction to consider the merits of Dickerson's first and third points of error.

Nevertheless, the State is correct with respect to Dickerson's second point of error, which challenges the factual sufficiency of the evidence to support the trial court's decision to proceed to an adjudication of guilt. We are clearly without jurisdiction to consider such an issue. Cf. Fluellen v. State, 71 S.W.3d 870, 872 (Tex. App. Texarkana 2002, pet. ref'd). We, therefore, overrule Dickerson's second point of error.

II. Legal Sufficiency of the Trial Court's Decision To Revoke Dickerson's Bond

In his first point of error, Dickerson contends the evidence is legally insufficient to support the trial court's decision to revoke Dickerson's $5,000.00 personal bond pending a hearing on the State's motion to adjudicate Dickerson's guilt. The trial court's docket sheet shows the trial court declared Dickerson's personal bond to be insufficient December 16, 2005. The trial court issued no written ruling explaining its reason for that decision. There is, however, nothing in the record to show Dickerson objected to this ruling between the time of his arrest and the time of the January hearing. And, when the trial court reconvened the proceedings in Dickerson's case on January 27, Dickerson again failed to object to the trial court's decision to either revoke or raise the personal bond.

"As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . ." Tex. R. App. P. 33.1(a). Dickerson did not raise this issue at the trial court level. Accordingly, he has failed to preserve this issue for our review.

We further note that a challenge to a trial court's bail setting is more properly presented by way of an application for writ of habeas corpus. See, e.g., Ex parte Lewis, Nos. 2-06-018-CR, 2-06-081-CR, 2006 Tex. App. LEXIS 4976, at *1 3 (Tex. App. Fort Worth June 8, 2006, no pet.) (mem. op.) (not designated for publication) (appeal of habeas application seeking bond reduction); Smith v. State, 161 S.W.3d 191, 192 (Tex. App. Texarkana 2005, no pet.) (appeal of pretrial habeas application seeking bond reduction). The record contains no evidence that Dickerson ever applied for an application for writ of habeas corpus to challenge the trial court's bail setting. Instead, Dickerson waited until after forty days from the trial court's action declaring the personal bond insufficient, until after the trial court had conducted a hearing on the State's motion to adjudicate guilt, and until Dickerson had filed his notice of appeal regarding the trial court's decision to adjudicate guilt, before he first attempted to raise this issue.

Finally, the decision to grant a personal bond lies within the sound discretion of the reviewing magistrate. Tex. Code Crim. Proc. Ann. art. 17.03(a) (Vernon 2005). Dickerson has presented no argument or authority regarding why, in his case, the trial court's decision constitutes an attempt to use bail as an instrument of oppression. Such a showing on appeal would, however, be a prerequisite to finding error in the trial court's decision. Cf. Hayden v. State, 155 S.W.3d 640, 648 (Tex. App. Eastland 2005, pet. ref'd).

For these reasons, we overrule Dickerson's first point of error.

III. The Propriety of Dickerson's Conditions of Personal Bond

In his final point of error, Dickerson challenges the legality of the conditions of pretrial release imposed by the trial court on Dickerson and other defendants who appear in the 336th Judicial District Court of Texas. The purpose of bail is to assure the presence of the accused at trial. Tex. Code Crim. Proc. Ann. art. 17.01 (Vernon 2005); Stack v. Boyle, 342 U.S. 1, 5 (1951). Therefore, "the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant." Stack, 342 U.S. at 5.

Dickerson's appellate brief contains a laundry list of conditions he claims were placed on his release pending a hearing on the State's motion to adjudicate. Dickerson has also included in his brief's appendix what appears to be a page of bond conditions imposed by the 336th Judicial District Court in a case styled State of Texas v. Kirk Jarrell. However, neither the laundry list nor the Jarrell bond conditions appear in the official record of this case. Appellate issues should be confined to alleged errors evidenced by the actual, official record in the case. Accordingly, these alleged facts are not a part of the record before us, and we may not consider them for any purpose. We now turn to a review of the true contents of the official appellate record.

The record before us does not include the personal bond contract between the trial court and Dickerson. Instead, the only evidence in the record before us of any bond conditions imposed by the trial court comes from the trial court's docket sheet. That instrument records that the court required Dickerson to, as a condition of his release, (1) be accepted by, and attend, a Veteran's Affairs program for post-traumatic stress disorder, bipolar disorder, and drug rehabilitation; (2) report periodically to a community supervision officer; and (3) have no contact with his wife. With respect to the first condition, a magistrate may, in appropriate cases, release a defendant on a personal bond with the condition that the defendant submit to inpatient or outpatient mental health treatment. Tex. Code Crim. Proc. Ann. art. 17.032(b) (Vernon 2005). The record also affirmatively shows Dickerson wanted to attend the V.A. treatment program. With respect to the second condition, the trial court could have reasonably assumed that requiring Dickerson to continue to report to his community supervision officer (which was already a proper requirement of community supervision) would enable the court to keep abreast of Dickerson's progress with the V.A. treatment program, as well as any changes in Dickerson's employment or residency. With respect to the final condition, a magistrate may impose "any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community." Tex. Code Crim. Proc. Ann. art. 17.40 (Vernon 2005). Dickerson's wife, Deneen Dickerson, is the complainant in this case. In short, we cannot say the record before us supports a finding that the trial court imposed any illegal or unconstitutional conditions of pretrial release. We overrule Dickerson's final point of error.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: August 4, 2006

Date Decided: August 25, 2006

Do Not Publish