NO. 0425-98







Womack, J., filed a concurring opinion, in which McCormick, P.J., and Keller and Holland, JJ., joined.

In State v. Ross, 953 S.W.2d 748 (Tex. Cr. App. 1997), the Court held that the meaning of "sentence" in Code of Criminal Procedure article 42.02 should be used in construing another statute which gives the State the right to appeal a "sentence [that] is illegal."(1) In a dissenting opinion, I gave my reasons for believing that "sentence" has different meanings in different contexts, and that it was a mistake to use the article 42.02 meaning out of its context. See 953 S.W.2d at 752.(2)

Today the Court uses the article 42.02 definition of "sentence" to decide, not what a statute means, but what our own judges meant when we held that a defect in a sentence could be raised for the first time on appeal. See Heath v. State, 817 S.W.2d 335, 336 (Tex. Cr. App. 1991).(3) Does our holding today mean that some appellants who have in the past been able to complain for the first time on appeal about void sentences, may no longer be able to do so if the error was not in the part of the judgment that article 42.02 defines as the "sentence"? For example, in Heath v. State, supra, we allowed an appeal from a revocation of probation to raise for the first time the trial court's authority to have granted probation to begin with. A question about that authority is certainly not part of the article 42.02 "sentence," so I suppose it no longer may be raised for the first time on appeal.

With all respect, I maintain that this is no way to decide what sort of issues may be raised for the first time on appeal.

Whether an error is, or is not, in the part of the judgment defined as a "sentence" in article 42.02 has nothing to do with the question. The relevant concerns include the policy behind requiring that objections be made in the trial court at the earliest opportunity. First, it is not judicially economical for appellate courts to correct errors years after the event when the trial court could have corrected the problem immediately if the offended party raised the problem when it arose. Second, there are social costs when sentences that have been imposed after the revocation of probation go unexecuted during the pendency of an appeal that is based on complaints about the conditions. Third, it is a natural expectation that a party with a bona fide complaint about a harmful error would raise the complaint as soon as the error was committed. Finally, injustice may result if a trial court makes decisions about sentencing with the reasonable understanding that a party has no objection to the decision, but the party is thereafter able to void some aspects of the punishment decision. (The colloquial term is "sandbagging the trial judge.")(4) Because of these policies, I agree that the court of appeals erred in holding that the appellant could raise these points for the first time on appeal. If the appellant thought these conditions were unauthorized, he should have objected in the trial court.

I also want to record my disagreement with the Court's continuing to describe probation as contractual, like a grant of clemency. See ante at ___-___ (slip op. at 6-8). Executive clemency is contractual because it requires acceptance by the convicted person. Probation may be imposed on a defendant who does not wish it, see Roberson v. State, 852 S.W.2d 508, 512 (Tex. Cr. App. 1993), and it is therefore not contractual. A court (especially one that has imposed probation that was not requested) now has a number of alternatives to revocation for the recalcitrant probationer -- as the statute says, community supervision involves "a continuum of programs and sanctions." (5) These include "shock probation,"(6) community-based programs,(7) community corrections facilities,(8) in-patient treatment for substance abuse,(9) house arrest by electronic monitoring,(10) confinement in jail,(11) confinement in a substance abuse treatment facility operated by the Department of Criminal Justice (which looks a lot like a prison),(12) and "any [other] reasonable condition that is designed to punish, rehabilitate, or reform the defendant."(13) It is the very ability of the trial court to put a defendant through such a continuum that would make the defendant refuse to enter the contract, and inspire the court to impose probation.

I concur in the judgment of the Court.

En banc.

Delivered December 1, 1999.


1. Tex. Code Crim. Proc. art. 44.01(b).

2. In my Ross dissent I cited a number of statutes in which "sentence" cannot mean what it means in article 42.02. See 953 S.W.2d at 753. Today the Court, ironically, quotes another statute that demonstrates the same point: Tex. Code Crim. Proc. art. 42.01. See ante at ___ n.4 (slip op. at 4 n.4). When article 42.01 says, "The sentence served shall be based on the information contained in the judgment," "sentence" cannot have the meaning it has in article 42.02: "that part of the judgment that orders that the punishment be carried into execution in the manner prescribed by law." When a defendant is serving a sentence, he is not serving a part of a judgment; he is serving a punishment. In article 42.01, as in most contexts, "sentence" means "punishment," not "part of a judgment."

3. In this case the court below cited its earlier decision of Martinez v. State, 874 S.W.2d 267, 267 (Tex. App. -- Houston [14th Dist.] 1994), which in turn followed Heath, supra.

4. "The generally acknowledged policies of requiring specific objections are two-fold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony." Zillender v. State, 557 S.W.2d 907, 908 (Tex. Cr. App. 1977).

5. Tex. Code Crim. Proc. art. 42.12, 2(2), quoted by the Court ante at ___ n.3 (slip op. at 4 n.3.

6. Tex. Code Crim. Proc. art. 42.12, 6 & 7.

7. Id., 11(a)(10).

8. Id., 11(a)(12).

9. Id., 11(a)(15).

10. Id., 11(a)17.

11. Id., 12.

12. Id., 14.

13. Id., 11(a).