Opinion
Nos. 02-09-266-CR, 02-09-268-CR
Delivered: June 17, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
Appealed from the 371st District Court of Tarrant County.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.
OPINION
In two points, appellant Joseph P. Dangelo appeals the trial court's denials of his preconviction applications for a writ of habeas corpus. We affirm in part and reverse and remand in part.
Background Facts
In 2004, a grand jury indicted appellant with four sex-related felony offenses against a child who was younger than fourteen years old. In February 2008, appellant received written admonishments, waived statutory and constitutional rights, and pled guilty only to injury to a child, which is not by statutory language a sex-related offense and which, as charged in appellant's amended indictment, is a third-degree felony.See Tex. Penal Code Ann. § 22.04(a)(3), (f) (Vernon Supp. 2009). The trial court deferred adjudication of appellant's guilt for injury to a child and placed him on community supervision for seven years. The original terms of appellant's community supervision prohibited him from contacting the complainant of his crime in any manner and precluded his unsupervised access to any child under seventeen years old (except for one specifically designated child); the terms did not require him to complete sex offender treatment. However, in May 2008, the trial court signed an amendment to appellant's community supervision terms. The amendment included provisions that precluded his participation in several sex-related acts and required him to "assume responsibility for [his] offense," submit to a sex offender treatment evaluation "as directed by the supervision officer," complete psychological sex offender counseling, and "[s]ubmit to . . . and show no deception on any polygraph examination . . . as directed by the Court or supervision officer." The trial court signed another amendment in January 2009 that required appellant to restart his sex offender treatment "with PSY as directed by the supervision officer" but dismissed the State's petition for the trial court to proceed to adjudication of his guilt. Appellant filed objections to the amended terms. On March 4, 2009, appellant's counsel sent a letter to Psycho Therapy Services; the letter stated in part,Certainly we object to any required treatment programs which lie outside those required to and have no relationship to the crime which [appellant] pled to, or relate to conduct which is not itself criminal, or requires conduct that is not reasonably related to the future criminality of Mr. Dangelo and does not serve the statutory ends of his deferred adjudication.
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Mr. Dangelo has no objections to polygraph examinations which in the course of your program he may be subjected to. However, Mr. Dangelo has Fifth Amendment protection against making any incriminating statements and has a right to so state, relating to any conduct for which he has not pled or for which he is not on deferred adjudication. Thus, he will not answer any questions relating to sexual conduct which he did not commit and for which he has not been accused.An affidavit from appellant was attached to the letter; the affidavit states that he had been told by one of Psycho Therapy Service's employees that "as part of the Sexual Treatment Program [appellant] was required to admit any sexual offense." The affidavit also explains that appellant had been notified that if he did not intend to answer questions regarding sexual offenses, he should not attend the therapy session. On March 27, 2009, appellant filed an application for a writ of habeas corpus, asking the court to "dismiss the added conditions of probation." In the application, he contended that the trial court's community supervision conditions violate his rights against compelled self-incrimination under the Texas and federal constitutions and that the trial court's requiring him to undergo sex offender treatment is not authorized by the code of criminal procedure because he did not plead guilty to a sex-related offense. On July 10, 2009, the trial court declared that appellant's bond was insufficient and ordered a warrant to be issued for his arrest because of his failure to submit to a polygraph exam; he was arrested the same day. Five days later, appellant filed two more applications for writs of habeas corpus. Those applications asserted that he had a constitutional right not to answer the questions that were proposed to be asked in the polygraph exam. Appellant attached a July 9, 2009 letter to both applications that was addressed from The Polygraph Science Center to a probation officer regarding appellant's refusal to submit to the exam. The letter explained that appellant's probation officer had referred him to the center for the exam and that appellant had arrived at the center but had refused to answer the following questions: (1) "Since you have been on probation, have you had [sic] violated any of the conditions?"; (2) "Since you have been on probation, have you had sexual contact with any persons younger than 17?"; (3) "Since you have been on probation, have you tried to isolate any child for sexual purposes?"; and (4) "Since you have been on probation, have you intentionally committed any sexual crimes?" The State filed responses to appellant's writ applications, attaching offense reports and other documents that detailed the sexually-related alleged facts that resulted in his original four sex offense charges. In June 2009, the State filed proposed findings of fact and conclusions of law, and the next month, the trial court adopted those findings and conclusions, denied appellant's writ applications, and stated that his bond was insufficient and that he would be released from jail only to take the scheduled polygraph exam. Appellant filed notices of these appeals.
Standard of Review
Although appellant filed his writ applications under multiple constitutional and statutory provisions, we must review the applications under article 11.072 of the code of criminal procedure, which "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." Tex. Code Crim. Proc. Ann. art. 11.072, § 1 (Vernon 2005); see Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008) ("[I]t is clear that the Legislature intended Article 11.072 to provide the exclusive means by which the district courts may exercise their original habeas jurisdiction . . . in cases involving an individual who is either serving a term of community supervision or who has completed a term of community supervision."). Habeas corpus is an extraordinary writ used to challenge the legality of one's restraint. Tex. Code Crim. Proc. Ann. art. 11.01 (Vernon 2005); Ex parte Bennett, 245 S.W.3d 616, 618 (Tex. App.-Fort Worth 2008, pet. ref'd). Absent a clear abuse of discretion, we must affirm the trial court's decision on whether to grant the relief requested in a habeas corpus application. Ex parte Chamberlain, 306 S.W.3d 328, 331 (Tex. App.-Fort Worth 2009, pet. filed) (applying the abuse of discretion standard to a writ application that was filed under article 11.072); Ex parte Karlson, 282 S.W.3d 118, 127-28 (Tex. App.-Fort Worth 2009, pet. ref'd); Ex parte Bruce, 112 S.W.3d 635, 639 (Tex. App.-Fort Worth 2003, pet. dism'd). In reviewing the trial court's decision, we view the evidence in the light most favorable to the ruling and accord great deference to the trial court's findings and conclusions. Karlson, 282 S.W.3d at 127; see Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006).Appellant's Fifth Amendment Right
In his first issue, appellant contends that the trial court's decision to declare his bond insufficient (and to therefore incarcerate him) because he refuses to answer the questions that were proposed in the polygraph exam violates his right to remain silent and not incriminate himself under the Texas and federal constitutions. Trial courts have wide discretion to impose reasonable community supervision terms that are in the defendant's, the victim's, and society's best interests. See Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006); Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999) (describing the granting of supervision as a " privilege, not a right"), cert. denied, 529 U.S. 1088 (2000); Belt v. State, 127 S.W.3d 277, 280 (Tex. App.-Fort Worth 2004, no pet.) (explaining that we review imposition of community supervision conditions under an abuse of discretion standard); see also Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995) (stating that there "is no fundamental right to receive probation"), cert. denied, 516 U.S. 1050 (1996). Requiring a polygraph examination may be a reasonable condition of community supervision. See Ex parte Renfro, 999 S.W.2d 557, 560 n. 4 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd); see also Leonard v. State, No. 11-09-00032-CR, 2010 WL 1491863, at *2 (Tex. App.-Eastland Apr. 15, 2010, pet. filed) ("Polygraph examinations are regularly imposed as a condition of community supervision for sex offenders."). The Texas legislature has explained that the purpose of the community supervision statute is to remove "from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems of community supervision in the public interest." Tex. Code Crim. Proc. Ann. art. 42.12, § 1 (Vernon Supp. 2009) (emphasis added). Thus, the trial court's broad authority to create community supervision terms does not extend to imposing terms that violate a defendant's constitutional rights as balanced with the goals of the defendant's probation. See Flores, 904 S.W.2d at 131 (examining the constitutionality of a trial court's community supervision decision); Tamez v. State, 534 S.W.2d 686, 692 (Tex. Crim. App. 1976) (invalidating a probation condition because it was unconstitutional); see also Briseño v. State, 293 S.W.3d 644, 648 (Tex. App.-San Antonio 2009, no pet.) (stating that a community supervision condition "is not necessarily invalid simply because it affects [the defendant's] ability to exercise constitutionally protected rights") (quoting Lee v. State, 952 S.W.2d 894, 900 (Tex. App.-Dallas 1997, no pet.) (en banc)). As the Supreme Court stated in Griffin v. Wisconsin,To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy "the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions."
These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. . . . Supervision, then, is a "special need" of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. That permissible degree is not unlimited, however. . . .483 U.S. 868, 874-75, 107 S. Ct. 3164, 3169 (1987) (citation omitted) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972)). The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V; see Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008) (explaining that the Fifth Amendment applies in state court proceedings); Chapman v. State, 115 S.W.3d 1, 5 (Tex. Crim. App. 2003) ("It is a fundamental tenet of Texas and federal constitutional jurisprudence that every person has the right to avoid self-incrimination by exercising the privilege provided him by the Fifth Amendment and the Texas Constitution."). The Fifth Amendment privilege not only extends to answers that would in themselves support a conviction, "but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute." Ohio v. Reiner, 532 U.S. 17, 20, 121 S. Ct. 1252, 1254 (2001) (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818 (1951)). The United States Supreme Court has examined a probationer's Fifth Amendment right against compelled self-incrimination.See Minnesota v. Murphy, 465 U.S. 420, 422, 104 S. Ct. 1136, 1139 (1984). The Court's opinion revealed the following background facts. Prosecutors charged Murphy for criminal sexual conduct, but he pled guilty to a reduced charge of false imprisonment, and the trial court placed him on a three-year probation term. Id. at 422, 104 S. Ct. at 1139. Conditions of his probation required him to participate in sex offender treatment and be truthful with his probation officer "in all matters." Id. He eventually told a sex offender counselor that he had previously committed a murder that was unrelated to the charge he had pled guilty to, and the counselor told Murphy's probation officer of the confession. Id. at 423, 104 S. Ct. at 1140. At Murphy's next meeting with his probation officer, the officer informed Murphy about the information that she had received, and Murphy admitted that he had committed the murder. Id. at 424, 104 S. Ct. at 1140. Based on the admission, a grand jury indicted him for murder. Id. at 425, 104 S. Ct. at 1141. Murphy sought to suppress testimony about his confession on Fifth Amendment grounds, and although the trial court denied his motion to do so, the Minnesota Supreme Court reversed. Id. at 425, 104 S. Ct. at 1141. In reversing the Minnesota Supreme Court, the United States Supreme Court stated that the Fifth Amendment prohibition against compelled self-incrimination "not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant" but also "`privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'" Id. at 426, 104 S. Ct. at 1141 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322 (1973)). In the course of ultimately deciding the case on the ground that Murphy did not timely assert his Fifth Amendment rights, the Court explained,
A defendant does not lose [ Fifth Amendment protection] by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted. . . .
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. . . If [a defendant asserts Fifth Amendment rights], he "may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him" in a subsequent criminal proceeding.Id. at 426, 429, 104 S. Ct. at 1141-42, 1143 (quoting Maness v. Meyers, 419 U.S. 449, 473, 95 S. Ct. 584, 598 (1976) (White, J., concurring)). While the Court therefore indicated that a probationer's Fifth Amendment right against compelled self-incrimination would be violated by authorities requiring him to answer questions "that would incriminate him in a pending or later criminal prosecution," it also stated,
The situation would be different if the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding. If, for example, a residential restriction were imposed as a condition of probation, it would appear unlikely that a violation of that condition would be a criminal act. Hence, a claim of the Fifth Amendment privilege in response to questions relating to a residential condition could not validly rest on the ground that the answer might be used to incriminate if the probationer was tried for another crime. Neither, in our view, would the privilege be available on the ground that answering such questions might reveal a violation of the residential requirement and result in the termination of probation. Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding. Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer. It follows that whether or not the answer to a question about a residential requirement is compelled by the threat of revocation, there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings.
. . . [N]othing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation. . . .Id. at 435 n. 7, 104 S. Ct. at 1146 n. 7 (citations omitted) (emphasis added). Thus, if a condition of a defendant's probation requires the defendant to admit to an offense that could lead to criminal charges independent of those that the defendant is serving probation for, the defendant has a Fifth Amendment right to not answer such questions. But to the extent that a state asks questions only about probation violations that do not comprise independent offenses, the defendant does not have a Fifth Amendment right to not answer those questions. Id.; see Chapman, 115 S.W.3d at 6 (stating that a probationer has a right "against self-incrimination concerning statements that would incriminate him for some other offense"); Bridwell v. State, 804 S.W.2d 900, 906 (Tex. Crim. App. 1991) (citing Murphy for the proposition that the privilege against self-incrimination is "not available to [a] probationer questioned by [a] probation officer"); see also United States v. Locke, 482 F.3d 764, 767 (5th Cir. 2007) (holding that the defendant's Fifth Amendment right against compelled self-incrimination had not been infringed because his answers to a polygraph examination "could not serve as a basis for a future criminal prosecution. A probationer may only invoke the Fifth Amendment privilege if a truthful answer would incriminate the probationer by exposing him to prosecution for a different crime.") (emphasis added). As explained above, appellant's first point is based in part on the trial court's incarcerating him because of his refusal to answer the following questions on Fifth Amendment grounds: (1) "Since you have been on probation, have you had [sic] violated any of the conditions?"; (2) "Since you have been on probation, have you had sexual contact with any persons younger than 17?"; (3) "Since you have been on probation, have you tried to isolate any child for sexual purposes?"; and (4) "Since you have been on probation, have you intentionally committed any sexual crimes?" The first question asks only about community supervision violations, not about independent criminal activity, and appellant therefore does not have a Fifth Amendment right to not answer the question. See Murphy, 465 U.S. at 435 n. 7, 104 S. Ct. at 1146 n. 7. Thus, to the extent that the trial court's denials of appellant's writ applications could be based on his refusal to answer the first question, we overrule appellant's first point. The State has conceded, and we conclude, that the second and fourth questions ask about independent crimes rather than mere community supervision violations and that under the authority cited above, appellant has a Fifth Amendment right to not answer those questions. Thus, to the extent that the trial court's denials of appellant's writ applications may be based on his refusal to answer those two questions, we sustain appellant's first point. The State argues that question three inquires whether appellant committed "a mere probation violation" and that the question poses "no realistic threat of incrimination." However, we conclude that question three exceeds asking only about a violation of appellant's community supervision and provides at least a link in the chain to appellant's responsibility for an independent offense. See Reiner, 532 U.S. at 20, 121 S. Ct. at 1254. The penal code states that a person commits the offense of criminal attempt "if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Penal Code Ann. § 15.01(a) (Vernon 2003); see Yalch v. State, 743 S.W.2d 231, 233 (Tex. Crim. App. 1988). We conclude that "tr[ying] to isolate any child" could qualify as an "act amounting to more than mere preparation" and that "for sexual purposes" could serve as "specific intent to commit an offense" such as attempted indecency with a child, attempted sexual assault of a child, attempted sexual performance by a child, or other attempted offenses that involve a defendant's act and sexual intent with regard to children. See Tex. Penal Code Ann. § 15.01(a), `(21.11(a), 22.011(a)(2), 43.25(b) (Vernon Supp. 2009); cf. Laster v. State, 275 S.W.3d 512, 516, 522-23 (Tex. Crim. App. 2009) (holding that the evidence was sufficient to prove attempted aggravated kidnapping when a defendant briefly grabbed a young girl by her waist and pulled her with the inferred purpose to secrete her). Thus, even while giving great deference to the trial court's conclusion that appellant cannot refuse to answer question three on Fifth Amendment grounds, we must overrule that conclusion. To the extent that appellant's first point challenges the trial court's denials of his writ applications as related to his refusal to answer question three, we hold that the trial court abused its discretion by denying the applications and sustain the point. Similarly, appellant also argues in his first point that, separate from the polygraph examination, the remaining part of the sex offender counseling program that the trial court ordered him to participate in requires him to admit to the "sexual crime for which the counselor believes he is being counseled" and all other sexual crimes. Terms of appellant's community supervision state that he must "[a]ssume responsibility for [his] offense" and must complete psychological counseling, treatment, and aftercare sessions for sex offenders. One of the trial court's findings of fact states, "As part of treatment, [appellant] is required to admit and discuss the facts of this offense." Under the reasoning explained above, to the degree that the trial court's community supervision conditions require appellant to discuss the underlying facts of offenses, if discussion of those facts would expose appellant to criminal responsibility for a crime different than the bodily injury to a child offense that he pled guilty to, we hold that his Fifth Amendment right against compelled self-incrimination also applies in that circumstance. Thus, we also sustain this part of appellant's first point and hold that the trial court abused its discretion by denying his writ applications to the extent that his sex offender counseling would require him to admit to new crimes.See Murphy, 465 U.S. at 435, 104 S. Ct. at 1146. In summary, we hold that appellant may not be compelled, over the invocation of his Fifth Amendment right, to participate in any portion of the objected-to community supervision conditions, including the general requirement of sex offender counseling and the specific requirement of answering questions two through four of the planned polygraph examination, that would provide a link to his criminal prosecution for any offense unrelated to the injury to a child offense that he pled guilty to. We sustain appellant's first point to the extent that the trial court's community supervision conditions require him to so participate.