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BURG, JAMES

PD-0527-18 09/12/2018

Does a failure to object to a driver’s license suspension at trial bar complaint on appeal?

A jury found Burg guilty of DWI >0.15 and recommended community supervision.  The trial court probated the sentence and suspended his driver’s license for a year. Although he did not object at the time, Burg argued on appeal that his license suspension conflicted with the statute governing suspensions for first-time DWI probationers, Tex. Transp. Code § 521.344(d).

Citing Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999), the court of appeals noted that the award of community supervision is a contractual privilege, the conditions of which are deemed agreed to by the probationer if he does not object at trial.  Because Burg did not object, he was barred from complaining of the condition on appeal.

Burg argues that his license suspension was part of his sentence, not a condition of community supervision. It appears in the judgment and not in the separate “Conditions of Community Supervision” document he agreed to.  He also points out that under Penal Code § 12.01(c), civil penalties including license suspensions may be included in the sentence. He contends that because it violates Transp. Code § 521.344(d), his license suspension was outside the statutorily applicable range of punishment. Since that is an issue that is absolute and nonwaivable, he argues he can raise it at any time.   

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