STEELE, ANDREW v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0427-24
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ANDREW STEELE,
Appellant
v.
THE STATE OF TEXAS

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On State’s Petition for Discretionary Review
From the First Court of Appeals
Harris County
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YEARY, J., filed concurring opinion.

As this Court acknowledged in Speth v. State, “[we] generally
view our adversarial system as including three kinds of ‘rights’: (1)
absolute systemic requirements and prohibitions that are nonwaivable,
(2) rights of litigants that must be implemented unless expressly
STEELE – 2

waived, and (3) rights that must be insisted upon at trial or nothing is
presented for review.” 6 S.W.3d 530, 533 n.5 (Tex. Crim. App. 1999)
(citing Marin v. State, 851 S.W.2d 275, 278–80 (Tex. Crim. App.1993),
overruled on other grounds, Cain v. State, 947 S.W.2d 262, 265 (Tex.
Crim. App. 1997)). Accordingly, the very first step in our analysis ought
to be to ask which kind of “right” is at issue. See Burg v. State, 592
S.W.3d 444, 453 (Tex. Crim. App. 2020) (Keasler, J., concurring)
(criticizing the Court for refusing “to couch its conclusion in Marin’s
lexicon”). Curiously, though, the Court today does not express its
conclusion in the lexicon of Marin v. State. 1 For that reason, I can only
concur with the majority’s result.
The general rule is that an appealing party must raise a
complaint at trial before it can be raised on appeal. TEX. R. APP. P.
33.1(a)(1)(A). In other words, most rights are forfeited by inaction.
Marin, 851 S.W.2d at 278. Only “systemic requirements and

1 Perhaps this is because Speth likewise failed “to couch its conclusion

in Marin’s lexicon.” Burg v. State, 592 S.W.3d 444, 453 (Tex. Crim. App. 2020)
(Keasler, J., concurring). In Speth, it is not entirely clear whether the Court
categorized the right as Marin category two or three. See Speth v. State, 6
S.W.3d 530, 534–35 & n.11 (Tex. Crim. App. 1999) (discussing an “affirmative
waiver” but also distinguishing a case because it did not deal with procedural
default). But the notion that the right might be Marin category two is
problematic because a waiver is not usually sufficient “unless it amounts to the
‘intentional relinquishment or abandonment of a known right or privilege.’”
Marin, 851 S.W.2d at 279 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))
(emphasis added). Although Speth seems to imply that simply entering a
contract amounts to an affirmative waiver, surely there are instances in which
one accepts the imposition of a condition without an awareness of a particular
right or privilege. Under those circumstances, it can hardly be said that the
waiver is sufficient. This problem, coupled with the lack of clarity as to which
Marin category was even at issue in Speth, counsels against relying on Speth
too heavily to decide this case.
STEELE – 3

prohibitions” (Marin category one), and rights that are “so fundamental
to the proper functioning of our adjudicatory process as to enjoy special
protection” (Marin category two), are not subject to ordinary principles
of procedural default. Id. at 278–79.
To be free of a $100 payment that might not be related to the
rehabilitation of a defendant can hardly be said to be a right that is
“systemic” or “fundamental to the proper functioning of our adjudicatory
process.” 2 And the fact that such a payment might be prohibited by
mandatory language does not automatically render it Marin category
one or two. Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010).
In the absence of an objection, the record may not even reveal whether
the condition that the trial court judge imposed was prohibited. This is
starkly different than, for example, an illegal sentence, which does not
require a contemporaneous objection. Mizell v. State, 119 S.W.3d 804,
806 n.6 (Tex. Crim. App. 2003) (en banc). When an illegal sentence is
imposed, it amounts to a patent defect that a court of appeals can readily
recognize and easily cure. See e.g., Ex parte Pena, 71 S.W.3d 336, n.2
(Tex. Crim. App. 2002) (“[H]ad the jury assessed . . . a $20,000 fine, that
sentence would be void and illegal because Texas statutes only permit a
maximum of a $10,000 fine.”). Here, though, the potential illegality of
the probation condition is far from obvious, especially because it depends

2 It is entirely possible that this condition might, in fact, relate to the

rehabilitation of the defendant. But, without an objection and dialogue on the
record as to why the condition is or is not related, it is difficult to imagine how
a reviewing court can reach a determination on the merits. See Proenza v.
State, 541 S.W.3d 786, 811–16 (Tex. Crim. App. 2017) (Keller, P.J., dissenting)
(explaining that trial judges ought to have the opportunity to address and cure
potential complaints).
STEELE – 4

upon whether it “personally relates to the rehabilitation of the
defendant.” TEX. CODE CRIM. PROC. art. 42A.651(a)(3). 3 Thus, the right
at issue here, in my view, is properly categorized as Marin category
three—forfeited if not exercised. 4
I agree with the majority’s bottom line—Appellant cannot
complain for the first time on appeal about the condition requiring him
to pay $100 to a women’s shelter. But, because the majority does not
explicitly utilize Marin’s lexicon, and, like Speth, seems to treat the right

3 Perhaps, if Appellant had objected to the $100 payment condition, the

record might reflect whether it was, or was not, “personally relat[ed] to the
rehabilitation of the defendant.” Had Appellant objected, the trial court might
have explained its reasons for imposing the payment as a condition of
Appellant’s community supervision in this case. But because Appellant did not
object, and instead affirmatively agreed to that payment when he signed the
conditions of his community supervision, there is no record development on the
question. As it is, we are not well positioned on direct appeal to answer the
question presented by the requirement established in Article 42A.651(a)(3).

4 To be clear, I do not mean to suggest that defendants are without any

recourse if they otherwise “accidently,” or on account of ineffective assistance
of counsel, accept a condition of probation that turns out to be prohibited;
indeed, the Legislature imposes certain prohibitions for a reason, and those
prohibitions are not to be casually cast aside. To that end, absent a
contemporaneous objection that would allow a defendant to raise the issue on
appeal, a defendant might be entitled to attack the potentially prohibited
condition through a claim made in an application for a writ of habeas corpus.
See TEX. CODE CRIM. PROC. art. 11.072 (“Sec. 1. This article establishes the
procedures for an application for a writ of habeas corpus in a felony or
misdemeanor case in which the applicant seeks relief from an order or a
judgment of conviction ordering community supervision.”); see also Ex parte
Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) (noting that habeas corpus
is the appropriate avenue for affording relief when the record on direct appeal
would not reveal the problem).
STEELE – 5

as though it should be considered to fall within Marin category two, 5 I
can only concur with its result. See Burg, 592 S.W.3d at 453 (Keasler,
J., concurring) (observing that a refusal to utilize Marin’s explicit
framework “needlessly confuses our jurisprudence”).

FILED: December 18, 2024
PUBLISH

5 See Majority Opinion at 8 (“Consequently, he has waived his complaint.”)

(emphasis added).