Alfred Leon Johnson v. State

NO. 12-01-00210-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS ALFRED LEON JOHNSON, § APPEAL FROM THE 173RD APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § HENDERSON COUNTY, TEXAS PER CURIAM Appellant Alfred Leon Johnson appeals the judgment of the trial court revoking his probation. In one issue, Appellant complains that the trial court impermissibly delegated its authority to the probation office to implement a condition of Appellant's community supervision, and that it abused its discretion when it revoked Appellant's probation based upon a violation of that condition. We affirm. Background Appellant was indicted for possession of a controlled substance with intent to deliver, namely cocaine, in an amount of four grams or more but less than 200 grams. Appellant pleaded guilty and the trial court assessed punishment at imprisonment for ten years, probated. The trial court approved and signed the judgment containing the requirements of Appellant's community supervision, and the judge immediately instructed the community supervision officer in the courtroom to have Appellant submit to a urinalysis on that same date. Appellant failed to provide a urine sample. The State filed a Motion to Revoke based upon Appellant's failure to provide a specimen on that date. After the trial court granted the State's motion, this appeal followed. Improper Delegation of Authority In his sole issue, Appellant challenges a term and condition of his community supervision as being a due process violation. Specifically, he contends that the requirement that he submit to drug testing is an improper delegation of authority. The condition about which he complains reads as follows: Submit, as often as requested by the supervision officer, and within two (2) hours of said request, a specimen for urinalysis testing that has not undergone any internal and/or external dilution as a mechanism to evade detection of drug use and pay the cost of each urinalysis test. Appellant argues that the trial court denied him due process and due course of law in revoking his probation because the duty and responsibility for determining conditions of probation rest squarely upon the judiciary, and not with the community supervision department. Since the implementation of this condition was so delegated, Appellant's argument continues, the condition is invalid and the trial court abused its discretion in revoking Appellant's community supervision. Appellant cites Ortega v. State, 860 S.W.2d 561 (Tex. App.-Austin 1993, no writ) in support of his proposition. In Ortega, the Austin Court of Appeals held that the condition of probation to "submit a urine specimen at the direction of the Probation Officer, daily if ordered," constituted an improper delegation of authority. Id. at 565. We respectfully disagree with the Austin court's conclusion, however. Applicable Law and Analysis We do agree that, under our law, only the court in which the defendant was tried can fix the terms and conditions of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 10(a) (Vernon Supp. 2001); McArthur v. State, 1 S.W.3d 323, 333 (Tex. App.-Fort Worth 1999, pet. ref'd). Absent enumerated exceptions, this authority may not be delegated to a supervision officer or anyone else. Tex. Code Crim. Proc. Ann. art. 42.12, § 10(a), (d); Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. 1978); McArthur, 1 S.W.3d at 333. However, "[a] court, by the very nature of its composition, is inherently incapable of directly implementing every detail of specified community supervision conditions." McArthur, 1 S.W.3d at 334; see also Vento v. State, 724 S.W.2d 948, 951 (Tex. App.-Amarillo 1987, no pet.). After prescribing, with sufficient clarity, the requisites with which a probationer must comply, a court must necessarily use other entities to carry out the details of those requisites. Salmons v. State, 571 S.W.2d 29, 30 (Tex. Crim. App. [Panel Op.] 1978); McArthur, 1 S.W.3d at 334. Article 41.12, section 11(a)(14) of the Code of Criminal Procedure specifically provides that conditions of community supervision may include requiring a defendant to submit to testing for alcohol or controlled substances. Allowing the probation officer to establish when the testing occurs introduces an element of randomness necessary to insure Appellant's compliance. The probation officer's implementation of the court's order falls far short of delegating to that officer the authority to determine or impose the conditions of Appellant's probation. We hold, therefore, that the imposition of this condition does not violate the general proposition that the duty and responsibility for determining conditions of community supervision rests upon the trial court and may not be delegated. We overrule Appellant's sole issue and affirm the judgment of the trial court. Opinion delivered May 14, 2002. Panel consisted of Davis, C.J., Worthen, J., and Griffith, J. (DO NOT PUBLISH)