Lovill v. State
Lovill v. State
Opinion of the Court
OPINION
delivered the opinion of the Court
The Corpus Christi Court of Appeals held that Amber Lovill’s selective prosecution complaint was preserved because, among other things, everyone understood her complaint and she presented a selective prosecution complaint in a motion for a new trial.
Background
The State charged Lovill with two counts of forgery. In January 2005, pursuant to a plea agreement, Lovill pled guilty to the charges and filed an application for probation. After accepting Lo-vill’s pleas and finding her guilty, the trial judge sentenced Lovill to two years’ confinement in a state-jail facility. The judge also ordered Lovill to pay a $1,000 fine and $700 in restitution. In accordance with the plea agreement, the judge suspended the term of imprisonment and placed Lo-vill on community supervision for three years. The trial judge directed Lovill to comply with several terms and conditions while under supervision. Some of those terms and conditions required Lovill to:
• “Avoid injurious or vicious habits and or [sic], avoid the use of ... narcotics or any other controlled substances and submit to testingblood analysis/uri-nanalysis [sic] as directed ...”
• “REPORT TO THE CSCD [ (Community Supervision and Corrections Department) ] OFFICER AS DIRECTED and at least once a month”;
• Pay a number of fees associated with her supervision;
• “Participate in the SPECIALIZED CASELOAD for SUBSTANCE ABUSE Program;” and
• “[Satisfactorily participate in a screening/assessment for substance abuse and submit to any counseling, urinanalysis [sic], and/or any diversionary program as determine[d] within the CSCD’s TREATMENT ALTERNATIVE TO INCARCERATION PROGRAM (TAIP).”
The State filed its first motion to revoke Lovill’s supervision in September 2005. Lovill entered pleas of true to several allegations contained in the motion, including the allegation that she failed to comply with CSCD’s TAIP because of non-attendance. The trial judge did not revoke Lo-vill’s supervision but sanctioned her and amended the terms and conditions of her supervision. The judge specifically ordered Lovill to serve a term of confinement in the county Substance Abuse Treatment Facility (SATF). The terms and conditions of Lovill’s supervision were amended to include special conditions associated with the SATF term of confinement.
On July 17, 2007, the State filed a second motion to revoke Lovill’s supervision. The State alleged that Lovill failed to comply with the terms and conditions of her supervision by: (1) using amphetamine; (2) failing to report to her CSCD officer in the months of May, June, and July 2007; (3) failing to attend the SATF aftercare program as directed; and (4) failing to pay fines, restitution, costs, and fees. At the revocation hearing, Lovill entered pleas of true to all four allegations. The judge accepted the pleas and allowed the parties to present evidence.
The State called Sandra Garza, Lovill’s community-supervision officer. When asked about the Probation Department’s recommendation, Garza stated, “The recommendation is that she be sanctioned to the Substance Abuse Felony Punishment Facility [ (SAFPF) ], special needs unit.” Garza cited Lovill’s use of drugs as a reason and stated that Lovill should be placed in a special needs unit because of her pregnancy. On cross-examination, Garza stated that LovilFs use of drugs and pregnancy “drove this violation report” and that Lovill’s pregnancy was a “high
Lovill’s defense attorney called Lovill to testify. She maintained that she would like to continue community supervision and be placed in “CASA,” an outpatient drug-treatment facility, so that she would be able “to keep her baby” with her. When asked about an alternative, Lovill stated that she would “take the year state jail.”
In summation, Lovill’s attorney asked the judge to reject Garza’s recommendation:
Your Honor, on behalf of Ms. Lovill, I would ask the Court to continue her on probation. It is obvious probation would have worked with her, but for the fact that she is pregnant and they decide to revoke her and send her off to SAFP[F] without even giving Ms. Lovill an opportunity to maybe work with probation even though she is pregnant. She is willing to go to CASA or some other treatment facility that is local; so she can have her baby and not to have to go to prison, Your Honor. She had like a year left or so on her probation, so she would like to try to and finish out her probation and put this case behind her. She understands that that was poor judgment in her case with testing positive ....
In the alternative, if the Court sees fit to revoke her, she would like to do one year and not have to go to SAFP[F] at all.
In response, pointing to Lovill’s drug use while pregnant, the State asked the trial judge to follow Garza’s recommendation.
The judge found that Lovill violated the terms and conditions of her supervision. But instead of revoking her supervision, the judge extended her term of supervision and ordered her to a SAFPF for three to twelve months.
Lovill filed a motion for a new trial alleging that she was subjected to selective prosecution, because of her pregnancy, in violation of the Equal Protection Clauses to the United States and Texas Constitutions, the Due Process Clause to the United States Constitution, the Texas Constitution’s due course of law provision, and the Texas Equal Rights Amendment. After holding a hearing, the trial judge denied the motion. Lovill filed a motion to amend the conditions of her probation, which the trial judge denied. Lovill then sought ha-beas corpus relief under Article 11.072, arguing that she had been selectively prosecuted because of her gender. The trial judge denied relief, finding that the State did not move to revoke Lovill’s supervision because of her pregnancy.
Court of Appeals
Lovill appealed the trial judge’s denial of her 11.072 application for a writ of habeas corpus to the Thirteenth Court of Appeals.
State’s Petition for Discretionary Review
We granted seven grounds from the State’s Petition for Discretionary Review. The sole ground for review that we address is whether the court of appeals erred in concluding that Lovill’s selective prosecution complaint was preserved by a specific and timely complaint at trial. Because our resolution of this case is responsive to only one of the grounds for review that we granted and it is not necessary for us to address the other grounds, we dismiss the remaining grounds for review.
Analysis
Texas Rule of Appellate Procedure 33.1, which establishes the requirements for preserving a complaint for appellate review, governs this case.
Consistent with our preservation jurisprudence, in Gawlik v. State, we held that Gawlik did not preserve his selective prosecution complaint for appellate review because he failed to object on this basis at trial.
Here, we must determine whether the court of appeals erred in holding that Lovill’s complaint was specific and timely as required by Rule 33.1. Based on the particular facts and circumstances here, we conclude that the court erred. First, Lovill’s statements during the revocation hearing were not specific enough to apprise the trial judge that she was complaining about gender-based selective prosecution in violation of her constitutional rights. Lovill did contend that but for her pregnancy, the Probation Department would not have reported her failure to comply with the terms and conditions of her supervision to the District Attorney’s Office. Continuing, she asserted that the District Attorney would not have moved to revoke her supervision if she had not been pregnant. However, at no time did Lovill challenge the legality of the entire revocation proceeding on the basis of gender-based selective prosecution or discrimination.
Next, we conclude that the court of appeals erred in holding that Lovill’s complaint was timely. The first time that she specifically informed the trial judge that she was challenging the constitutionality of the revocation proceedings based on selective prosecution, as required by Rule 38.1, was in her motion for a new trial. But this was not the first time that the basis of her complaint was apparent. The factual basis underlying her legal complaint became apparent when Garza testified at the revocation proceedings. Lovill took the factual basis into consideration at that time when arguing for lesser punishment. However, as stated above, she did not assert a particular legal theory and did not use the requisite specificity. Further, the court of appeals erred in relying on our decision in Satterwhite to conclude that a motion for a new trial claiming selective prosecution is sufficient for preservation purposes.
Conclusion
We conclude that the court of appeals erred in holding that Lovill’s selective prosecution complaint was preserved for appellate review. As a result, we reverse the court of appeals’s judgment and affirm the trial judge’s decision to deny Lovill’s 11.072 application, although for a different reason than that stated by the trial judge.
JOHNSON, J., filed a concurring opinion in which WOMACK and COCHRAN, JJ„ joined.
. Lovill v. State, 287 S.W.3d 65, 76-77 (Tex.App.-Corpus Christi 2008).
. Lovill, 287 S.W.3d at 69.
. Id. at 74-77.
. Id. at 76-77.
. Id. at 76.
. Id.
. Id.
. Id.
. Id.
. Id. (citing Satterwhite v. State, 726 S.W.2d 81, 84 (Tex.Crim.App. 1986)).
. Tex.R.App. P. 33.1; see also TexCode Crim. Proc. Ann. art. 11.072, § 8; Tex.R.App. P. 1.1 ("These rules govern procedure in appellate courts and before appellate judges and post-trial procedure in trial courts in criminal cases.”); Tex.R.App. P. 31.1 ("Filing the Record; Submission”); Tex.R.App. P. 31.2 ("Hearing”); Tex.R.App P. 31.3 ("Orders on Appeal”).
. Tex.R.App P. 33.1(a).
. Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992)).
. Id.
. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004) (citing Euziere v. State, 648 S.W.2d 700, 703-04 (Tex.Crim.App. 1983)).
. Aguilar v. State, 26 S.W.3d 901, 906 (Tex.Crim.App. 2000) (Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App. 1999); Hollins v. State, 805 S.W.2d 475, 477 (Tex.Crim.App. 1991)).
. Gawlik v. State, 608 S.W.2d 671, 673 (Tex.Crim.App. 1980); see also United States v. Huber, 404 F.3d 1047, 1054 (8th Cir. 2005) (holding that appellant's selective prosecution claim was forfeited by his failure to lodge a timely pretrial objection); United States v. Bryant, 5 F.3d 474, 476 (10th Cir. 1993) (same).
. Gawlik, 608 S.W.2d at 673; see also Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993) (rights belonging to a litigant are subject to forfeiture).
. See United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) ("A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.”).
. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (“Even in the criminal-law field, a selective prosecution claim is a rara avis”).
. Cf. Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009); Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005); Heidelberg v. State, 144 S.W.3d 535, 543 (Tex.Crim.App. 2004).
. See Resendez v. State, No. PD-0917-08, 2009 WL 3365656, at *5, 2009 Tex.Crim.App. LEXIS 1439, at *13 (Tex.Crim.App. Oct. 21, 2009) ("Only when there are clear contextual clues indicating that the party was, in fact, making a particular argument will that argument be preserved.”).
. Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (reversing based on selective prosecution and remanding to lower court with "directions to discharge the petitioners from custody and imprisonment.”); Richard H. McAdams, Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.Kent L.Rev. 605, 653 n.144 (1998) ("The conventional remedy for such claims is a dismissal of the criminal charge .... ” and opining that "when a defendant shows that the state would not have prosecuted him but for the illegitimate factors of race, he is entitled to be free from prosecution, just as the similarly situated persons of other races were legitimately free from prosecution.”) (citing Duncan v. Perez, 445 F.2d 557 (5th Cir. 1971) (enjoining retrial); United States v. Steele, 461 F.2d 1148, 1152 (9th Cir. 1972); United States v. Crowthers, 456 F.2d 1074, 1080-81 (4th Cir. 1972); United States v. Robinson, 311 F.Supp. 1063, 1065-66 (W.D.Mo. 1969)). But see Armstrong, 517 U.S. at 461 n. 2, 116 S.Ct. 1480 ("We have never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race.”).
.Lovill, 287 S.W.3d at 76.
. Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App. 1997); Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App. 1992); Fuller v. State, 829 S.W.2d 191, 199 n. 4 (Tex.Crim.App. 1992); Marin, 851 S.W.2d at 278.
. Cf. Ex parte Medellin, 223 S.W.3d 315, 322 (Tex.Crim.App. 2006); Ex parte Dutchover, 779 S.W.2d 76, 77 (Tex.Crim.App. 1989).
Concurring Opinion
concurring in which WOMACK and COCHRAN, JJ., joined.
Appellant was placed on community supervision in January 2005. The first motion to revoke was filed in September 2005, nine months later. One of the allegations in that motion was that she had failed to complete drug treatment. The trial judge modified the terms of appellant’s supervision and continued her on community supervision, again requiring her to participate in a drug-treatment program. Twenty-two months later, in July 2007, appellant was back in court on a second motion to revoke her community supervision, and once again, the allegations in the motion included failure to complete drug treatment, plus failure to report, failure to comply with financial obligations, and use of an illegal substance.
The expected judicial response to this pattern of behavior is revocation, but the trial judge elected to again extend the period of supervision and to require appellant to enter a locked-down treatment program. While there was some discussion in court of her pregnancy, the trial judge was very clear that appellant was in court because of her drug use and failure to fulfill other obligations imposed by the terms of her supervision. Appellant’s community-supervision officer was also clear that appellant was in court because of her drug use. The recommendation of treatment in a special-needs unit is a common and appropriate response to any defendant with special medical needs, such as diabetics, those with certain disabilities or chronic diseases, and pregnant females.
Appellant’s community-supervision officer stated on cross-examination that appellant’s drug use and pregnancy “drove this violation report” and that the pregnancy concerned her, but there is no evidence in the record that appellant faced revocation became of the pregnancy. Under these facts, only if she were revoked because of the pregnancy would she have a legitimate claim of selective prosecution. If her urine samples had been clear of drugs, if she had reported as required, and if she had fulfilled her financial obligations, it is doubtful that a motion to revoke would have been filed. Her pregnancy was incidental to the motion to revoke, not causative.
I concur in the judgment of the Court.
Reference
- Full Case Name
- Amber LOVILL, Appellant, v. the STATE of Texas
- Cited By
- 386 cases
- Status
- Published