David Eric Molinar v. State ( 2010 )

Affirmed and Memorandum Opinion filed July 22, 2010

In The

Fourteenth Court of Appeals

NO. 14-08-00749-CR

David Eric Molinar, Appellant

v.

The State of Texas, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 999250

MEMORANDUM OPINION

After the trial court found David Eric Molinar violated his probation by failing to complete sex-offender counseling, it revoked his community supervision and sentenced him to ten years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.  Molinar appeals the ruling, arguing the trial court erred by (1) denying his motion for continuance; (2) denying his motion to quash; (3) admitting evidence that violated constitutional prohibitions against double jeopardy; and (4) admitting into evidence his polygraph-examination results.  He also argues that the trial court abused its discretion by revoking his community supervision for failing to admit guilt.  Molinar complains that the revocation (5) violated his constitutional right against self-incrimination and (6) was supported by insufficient evidence.  We affirm.

Facts

            In 2005, a jury found David Eric Molinar guilty of the felony offense of sexual assault of a child.  The jury assessed Molinar’s punishment at ten years’ confinement in the Institutional Division of the Texas Department of Criminal Justice, but recommended Molinar be placed on community supervision for ten years.  In 2007, the State filed a motion to revoke Molinar’s community supervision because he allegedly violated the conditions of his probation by failing to: (1) submit to sex-offender-treatment evaluation immediately upon referral; (2) attend and participate in such a program and to submit written proof to the community-supervision officer; and (3) be successfully discharged from the program.  The trial court held a hearing on the motion, and Molinar pleaded true to at least one of State’s allegations.  After hearing all the evidence, the trial court found the State’s allegations true, revoked Molinar’s community supervision, and sentenced Molinar to ten years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.  This appeal followed.   

Motion for Continuance

            Molinar complains the trial court erred by refusing to grant his motion for continuance, which he claims violated his due-process right to present a defense.  He sought the continuance to subpoena several other patients from the sex-offender-treatment program that he was attending.  Molinar wanted these witnesses to testify about his behavior during the treatment sessions.  The State contends Molinar did not preserve his issue for review because his motion for continuance was oral, and the motion should have been in writing and filed to conform to the statutory requirements.  Additionally, the State argues Molinar failed to file a motion for new trial, which is also necessary to preserve error for review.[1]

             The requirements for a continuance motion are provided in Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure.  Anderson v. State, 301 S.W.3d 276, 278–79 (Tex. Crim. App. 2009); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 2006).  The State or the defendant may seek to continue a criminal action if a written motion is filed that demonstrates sufficient cause for the delay.  Tex. Code Crim. Proc. Ann. art. 29.03.  The motion for continuance must also be sworn by a person who has personal knowledge of the facts in the motion.  Tex. Code Crim. Proc. Ann. art. 29.08.  The Court of Criminal Appeals has interpreted these statutes to require a party file a sworn, written motion for continuance to preserve the issue for appeal if the trial court denies the motion.  Anderson, 301 S.W.3d at 279; Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) (stating “motion for continuance not in writing and not sworn preserves nothing for review”). 

            Recently, the Court of Criminal Appeals was confronted with the issue of whether there is a “due process exception” to the statutory requirements for a continuance motion.  See Anderson, 301 S.W.3d at 278–80.  In reviewing the denial of an oral motion for continuance, the Corpus Christi court of appeals concluded a party may appeal the denial of a continuance if it amounted to a due-process denial, specifically the right to present a defense.  Id. at 278.  Thus, the appellate court acknowledged the procedural requirement, but overcame it by invoking a “due process exception.”  Id. at 278.  The Court of Criminal Appeals held that the Corpus Christi court erred in concluding the appellant need not preserve the error because the right to present a complete defense is subject to forfeiture if not properly preserved.  Id. at 279–80 (discussing “there is nothing to prohibit Articles 29.03 and 29.08 as operating as a rule of procedural default”).  Because there is no “due process exception” to the preservation requirements of Articles 29.03 and 29.08, the Court of Criminal Appeals held the appellant failed to preserve his claim.  Id. at 280–81.

            As in Anderson, Molinar did not file a sworn written motion for continuance.  Although Molinar received a ruling on the motion, he failed to follow the proper procedural requirements; hence, we cannot review the trial court’s denial of his motion for a continuance.  Accordingly we overrule Molinar’s first issue.         

Motion to Quash

            In his second issue, Molinar complains the trial court erred when it improperly denied his motion to quash the allegations against him in the State’s motion to revoke. Molinar claims the allegations were vague and “cannot be defended.”  The State contends Molinar failed to preserve this issue for review because his motion to quash was not in writing, as required by the Texas Code of Criminal Procedure.[2]

            All motions to set aside an information or an indictment and all special pleas and exceptions must be in writing.  Tex. Code Crim. Proc. Ann. art. 27.10 (Vernon 2006); Roy v. State, 76 S.W.3d 87, 99 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see Faulks v. State, 528 S.W.2d 607, 609 (Tex. Crim. App. 1975).  When the trial court overrules an oral motion to quash, it preserves nothing on appeal because the motion was not in writing.  See Quarles v. State, 398 S.W.2d 935, 937 (Tex. Crim. App. 1966); Crum v. State, 946 S.W.2d 349, 358 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).  Because we have only Molinar’s oral motion to quash before us, Molinar has not preserved this issue for review.  See Crum, 946 S.W.2d at 358.  Accordingly, we overrule Molinar’s second issue.   

Double Jeopardy

            In his third issue, Molinar contends the trial court violated his constitutional protections against double jeopardy.  Specifically, Molinar complains the trial court based his probation revocation on disruptive conduct, which was previously used against Molinar to jail him for fourteen days; hence, he was punished multiple times for one offense.  The State first claims Molinar waived this issue.  But it then asserts even if Molinar preserved this issue for review, Molinar’s fourteen-day stay in jail was not punishment, but a modified condition of his community supervision.

            The Double Jeopardy Clause provides three separate protections for the accused.  Brown v. Ohio, 432 U.S. 161, 165 (1977).  These protections include: (1) the protection against a second prosecution for the same offense after the accused was acquitted; (2) the protection against a second prosecution for the same offense after the accused was convicted; and (3) the protection against multiple punishments for the same offense.  Id.; Ex parte Stover, 946 S.W.2d 343, 345 (Tex. Crim. App. 1997); Ex parte Broxton, 888 S.W.2d 23, 25 (Tex. Crim. App. 1994).  Here, Molinar contends the trial court violated the third Double Jeopardy Clause protection. 

When Molinar was placed on community supervision, he signed a document entitled “Conditions to Community Supervision.”  By signing this document, Molinar agreed the court could alter or modify the conditions of his community supervision.  According to the record and the trial judge’s clarification of the record, while Molinar was on probation, “He received 14 days as a condition of his probation for his alleged disruption at group therapy, and he was given a choice of either having a hearing on the allegation or taking 14 days as a condition of his probation.  He chose after consulting with his attorney, to choose the 14 days.”  Thus, the jail time Molinar served was not a “punishment,” but a modified condition of his community supervision that he agreed to fulfill.  The “Conditions to Community Supervision” document Molinar signed informed him that his conditions could be modified; therefore, the fourteen days in jail do not constitute a punishment from which there could be any double-jeopardy implications. 

Additionally, the record reflects after Molinar completed his fourteen-day jail sentence, he was allowed to return to the sex-offender-treatment program.  Because he was never discharged after successful completion of the program, he violated one of his community-supervision conditions.  Molinar’s community supervision was revoked because he failed to submit to sex-offender-treatment evaluation, failed to attend and participate in such a program, and failed to submit written proof to his community-supervision officer that he had participated.  The trial court’s order does not indicate whether Molinar’s community supervision was revoked because of the conduct that led to the modification of his probation.  Double jeopardy does not apply. Accordingly, we overrule Molinar’s third issue on appeal. 

Polygraph

In his fourth issue, Molinar contends the trial court erred, during the revocation hearing, by admitting evidence of the results of his polygraph examination.  The State claims the evidence of Molinar’s polygraph results had previously been entered into evidence without objection; therefore, Molinar failed to properly preserve error on this issue. 

Molinar is correct that evidence of polygraph results is inadmissible for all purposes.  Woods v. State, 301 S.W.3d 327, 333 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990)).  Both the results of a polygraph examination and the “fact” of failing a polygraph examination are inadmissible.  Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007).  A party must object, however, when evidence is presented in order to preserve a complaint on appeal.  Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  The objection must be timely, proper, and specific.  Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004) (explaining how the objection must be specific unless the context makes the particular ground apparent).  The party must object as soon as “the objectionable nature of the evidence” becomes apparent.  Ethington, 819 S.W.2d at 858.  A party must object every time the inadmissible evidence is offered.  Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington, 819 S.W.2d at 858).[3] If the objection is not continuously noted, the error in the admission of evidence will be cured when the same evidence is admitted elsewhere without objection.  Valle v. State, 109 S.W.3d 500, 509–10 (Tex. Crim. App. 2003); Ethington, 819 S.W.2d at 858 (citing Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984)).  The error, therefore, would be rendered harmless.  Dickson v. State, 246 S.W.3d 733, 744 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). 

Here, before testimony about Molinar’s polygraph results was introduced, the State had entered into evidence State’s Exhibit 1, which was a letter from Molinar’s therapist Dr. Edd to Molinar’s probation officer.  In the letter, Dr. Edd stated, “On April 18, [Molinar] blandly informed the group that he failed his instant offense polygraph on April 16 and seemed not to think much of it.”  The State introduced this letter without any objection from Molinar.  Additionally, after the trial court overruled Molinar’s objection to the polygraph information, which the trial court expressly stated he would not consider if it was not admissible, Molinar did not object to subsequent questions about the polygraph information.  See Valle, 109 S.W.3d at 509–10.  Molinar’s complaint is without merit.  Accordingly, we overrule his fourth issue.     

Self-Incrimination

In his fifth issue, Molinar argues the trial court abused its discretion by revoking his community supervision because he failed to admit his guilt during treatment sessions.  Molinar complains that requiring him to make an admission of guilt violated his constitutional right to not incriminate himself.  The State contends Molinar did not invoke his privilege against self-incrimination; therefore, the right was not violated. Furthermore, the State argues the trial court did not use this evidence as a basis for revoking Molinar’s community supervision.   

            Under the Fifth Amendment Self-Incrimination Clause, no person “shall be compelled in any criminal case to be a witness against himself.”  U.S. Const. amend. V; McKune v. Lile, 536 U.S. 24, 35 (2002).  A criminal defendant does not lose this privilege because he has been convicted of a crime.  Chapman v. State, 115 S.W.3d 1, 5–6 (Tex. Crim. App. 2003).  Although Molinar claims his right against self incrimination was violated, he does not cite any cases or provide this court with any guidance in determining how the right was violated.  See Tex. R. App. P. 38.1(i).  Additionally, the trial court stated it was not using this evidence as a basis for revocation.  The fact remains Molinar’s probation was conditioned on Molinar attending and participating in the sex-offender treatment as well as being successfully discharged from the program.[4]  Without citing any authority to either explain how his Fifth Amendment rights were violated or how any of the conditions of his probation are unconstitutional, he has not adequately briefed the issue for this court to review.  See Tex. R. App. P. 38.1(i).  Therefore, we overrule his fifth issue.       

Sufficiency of the Evidence

            Molinar contends the evidence in the record does not support the trial court’s ruling to revoke his probation.  He complains the only evidence concerning his alleged disruptive behavior during the treatment sessions was from Dr. Edd.  The State argues the trial court did not abuse its discretion in revoking Molinar’s probation because Molinar pleaded “true” to at least one of the violations; hence, the plea of “true” alone is enough evidence to support the revocation.   

            We review a trial court’s decision to revoke probation for an abuse of discretion, and we examine the evidence in the light most favorable to the trial court’s findings.  Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984); see Allen v. State, 681 S.W.2d 183, 184 (Tex. App.—Houston [14th Dist.] 1984, no pet.). The State must prove every element of the ground asserted for revocation by a preponderance of the evidence.  Moore v. State, 11 S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); McCullough v. State, 710 S.W.2d 142, 145 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d).  This burden is satisfied when the great weight of credible evidence creates a reasonable belief that it is more likely than not that the defendant violated a condition of probation as alleged in the motion to revoke.  See Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.).  Furthermore, the State does not have to prove every violation alleged; one violated probation condition is enough to support a trial court’s ruling to revoke probation.  Moore, 11 S.W.3d at 498.     

            In Texas, it is well-established law that the sufficiency of the evidence of a probation revocation cannot be challenged in the face of a plea of “true.”  Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); see Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981); Jimenez v. State, 552 S.W.2d 469, 472 (Tex. Crim. App. 1977).  The record reflects Molinar pleaded “true” to at least one of the three allegations.  Because Molinar entered a plea of “true,” he cannot now challenge the sufficiency of the evidence, even though he did not plea “true” to all of the allegations.  See Rodriguez v. State, 2 S.W.3d 744, 746 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (discussing if several probation violations are alleged, the court shall revoke probation if proof of any of the allegations is sufficient). Accordingly, Molinar’s sixth issue is overruled.       

* * *

For the foregoing reasons, we affirm the trial court’s judgment.

                                                                        /s/        Jeffrey V. Brown

                                                                                    Justice

Panel consists of Justices Yates, Seymore, and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] In Harrison v. State, the Court of Criminal Appeals expressly disavowed its previous precedent requiring a motion for new trial to preserve error for a denial of a motion for continuance.  187 S.W.3d 429, 433 (Tex. Crim. App. 2005).  Hence, the State improperly relies on this proposition as an argument for how Molinar failed to preserve error.   

[2] At the beginning of the revocation proceedings, Molinar’s attorney stated he filed a motion to quash.  But the motion is not in the record on appeal and Molinar does not discuss or refer to the alleged written motion in his brief; therefore, we will only consider Molinar’s oral motion to quash.  See Tex. R. App. P. 33.1(a) (stating to present the complaint for appellate review, the record must indicate the complaint was made to the trial court by motion).

[3] There are two exceptions to the continuous-objection requirement: (1) obtain a running objection, or (2) request a hearing outside the jury’s presence.  Martinez, 98 S.W.3d at 193. 

[4] In a case similar to Molinar’s situation, the appellant claimed his probation was revoked without reason and the revocation was a violation of his due-process rights.  Pickett v. State, No. 05-98-01174-CR, 1999 WL 793397, at *1 (Tex. App.—Dallas Oct. 6, 1999, no pet.) (not designated for publication).  The State alleged the appellant was unsuccessfully discharged from two sex-offender-treatment programs, which violated a condition of his probation.  Id.  The appellant stated he attended the program, paid all the fees, and abided by all the rules, but the court noted the appellant refused to take responsibility for his offense and he continued to maintain his innocence.  Id.  In the second program, the appellant did not actively participate in the program by failing to present his sexual history, minimizing his offense, and refusing to present a relapse plan to his group.  Id. The court concluded the probation conditions not only required the appellant to attend the sessions, but the appellant needed to abide by treatment directives and continue his treatment.  Id. at *2.  Because the appellant failed to complete this condition, the court held the State successfully demonstrated the appellant violated his probation.  Id.