Astin Chavers Clark v. State ( 2015 )

ACCEPTED
01-15-00324-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/12/2015 1:52:40 PM
CHRISTOPHER PRINE
CLERK
Nos. 01-15-00324-CR & 01-15-00325-CR
In the FILED IN
Court of Appeals 1st COURT OF APPEALS
HOUSTON, TEXAS
For the
11/12/2015 1:52:40 PM
First Judicial District of Texas
CHRISTOPHER A. PRINE
At Houston Clerk

Nos. 1297213 & 1297213
In the 248th District Court of
Harris County, Texas

ASTIN CHAVERS CLARK
Appellant
v.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
CARLY DESSAUER
Assistant District Attorney
ANDREA MOSELEY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: (713) 274-5826
Fax No.: 713/755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
Appellate Procedure 39.1, the State requests oral argument only if appellant requests
oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Carly Dessauer  Assistant District Attorney on appeal
Andrea Moseley  Assistant District Attorney at trial
Appellant or criminal defendant:
Astin Chavers Clark
Counsel for Appellant:
Allison Secrest  Attorney on appeal
Kyle B. Johnson  Attorney at trial
Trial Judge:
Hon. Katherine Cabaniss
ii
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .................................................... ii
IDENTIFICATION OF THE PARTIES ......................................................................... ii
TABLE OF AUTHORITIES .............................................................................................. v
STATEMENT OF THE CASE .......................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENTS ............................................................................... 3
REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 4
I. The trial court did not err when it allowed the State to admit appellant’s
statements over appellant’s Miranda and Fifth Amendment objections. ................... 4
a. Reviewing courts employ an abuse of discretion standard when
determining whether a trial court erred when revoking a defendant’s
probation or when admitting evidence. ................................................................... 5
b. The Fifth Amendment provides protection for probationers against self-
incrimination in future criminal proceedings, but a probationer generally
must invoke his Fifth Amendment right against self-incrimination or
courts will not consider his statement compelled. .................................................. 5
c. The trial court did not abuse its discretion as appellant cannot use his
Fifth Amendment right against self-incrimination from criminal
prosecution as a blanket to exclude statements regarding his probation
status. ............................................................................................................................ 8
d. The trial court did not abuse its discretion because appellant failed to
timely invoke his right against self-incrimination. .................................................. 9
i. Appellant’s Fifth Amendment right was not self-executing as he was
not subjected to custodial interrogation when he made his
statements............................................................................................................. 10
iii
ii. Appellant’s Fifth Amendment right was not self-executing as he was
not subjected to the “classic penalty situation” when he made his
statements............................................................................................................. 13
e. Even if the trial court erred in admitting appellant’s statements, the error
was harmless as appellant pleaded true to multiple violations of his
probation. ................................................................................................................... 14
CONCLUSION ................................................................................................................... 17
CERTIFICATE OF COMPLIANCE .............................................................................. 18
CERTIFICATE OF SERVICE ......................................................................................... 19
iv
TABLE OF AUTHORITIES
CASES
Canseco v. State,
199 S.W.3d 437 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) ............................ 5
Casey v. State,
215 S.W.3d 870 (Tex. Crim. App. 2007) ......................................................................... 5
Chapman v. State,
115 S.W.3d 1 (Tex. Crim. App. 2003) ................................................ 3, 6, 7, 8, 9, 10, 14
Dansby v. State,
398 S.W.3d 233 (Tex. Crim. App. 2013) ................................................ 5, 6, 8, 9, 15, 16
Dowthitt v. State,
931 S.W.2d 244 (Tex. Crim. App. 1996) ....................................................................... 12
Ex parte Dangelo,
339 S.W.3d 143 (Tex. App.—Fort Worth 2010),
aff’d, 376 S.W.3d 776 (Tex. Crim. App. 2014) ................................................................ 9
Ex parte Renfro,
999 S.W.2d 557 (Tex. App.—Houston [14th Dist.] 1999, no pet.) ....................... 8, 12
Gardner v. State,
306 S.W.3d 274 (Tex. Crim. App. 2009) ................................................................. 10, 11
Herrera v. State,
241 S.W.3d 520 (Tex. Crim. App. 2007) ....................................................................... 10
In re A.M.,
333 S.W.3d 411 (Tex. App.—Eastland 2011, pet. denied) ......................................... 12
In re Medina,
No. WR-75,835-02, 2015 WL 6722175
(Tex. Crim. App. Nov. 4, 2015) ............................................................................... 6, 8, 9
Leonard v. State,
385 S.W.3d 570 (Tex. Crim. App. 2012) ................................................................... 5, 15
Marcum v. State,
983 S.W.2d 762 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) ................. 11, 12
Minnesota v. Murphy,
465 U.S. 420 (1984)............................................................................... 5, 6, 7, 8, 9, 10, 13
v
Miranda v. Arizona,
384 U.S. 436 (1966)...................................................................................................... 7, 10
Nickerson v. State,
No. 01-14-00096-CR, 2015 WL 3982025
(Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) ..................................... 10, 11
Wilkerson v. State,
173 S.W.3d 521 (Tex. Crim. App. 2005) ................................................................... 7, 11
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii
TEX. R. APP. P. 44.2(b) ......................................................................................................... 15
TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ........................................................................................................... 18
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. V ........................................................................................................... 5
vi
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with burglary of a habitation in cause numbers 1296861
and 1297213 (1296861 CR at 13; 1297213 CR at 11). He entered a plea of guilty, but
the court deferred his adjudicated for six years (1296861 CR at 28-29, 36-37; 1297213
CR at 24-25, 33-34). The State filed several motions to adjudicate appellant’s offenses
because of violations to the terms of his probation, and a hearing was held (1296861
CR at 67-68, 75-76, 100-103, 108-111; 1297213 CR at 66-67, 73-74, 99-101, 106-08; 1
RR).1 Appellant pleaded true to numerous allegations but pleaded not true to four
allegations in the State’s Third Amended Motion to Adjudicate (1296861 CR at 117-
18; 1297213 CR at 114-15; 1 RR at 7-23). The court found that appellant violated
numerous conditions of his probation and sentenced him to confinement for twenty-
five years in prison for each offense (1296861 CR at 117-18; 1297213 CR at 114-15; 1
RR at 43-44, 61). The court certified appellant’s right to appeal, and appellant filed a
timely notice of appeal (1296861 CR at 120-22; 1297213 CR at 117-19).
STATEMENT OF FACTS
Appellant was serving six years’ probation as a condition of his deferred
adjudication (1296861 CR at 36-37; 1297213 CR at 33-34). Among the terms of his
probation, appellant was required to avoid persons or places of disreputable or
1
While appellant was on deferred adjudication community supervision, the State will refer to his
community supervision as “probation.”
1
harmful character, pay court costs and supervision fees, participate in sex offender
treatment and comply with all program rules, regulations, and guidelines until
successfully discharged or released, have no contact with any minor except if
permitted by the court, have no access to the internet through any manner or method
for any reasoning, including to view, receive, download, transmit, or possess
pornographic material on any computer, and not possess pornographic software
images or material (1296861 CR at 38-65; 1297213 CR at 35-64). The court has also
ordered appellant to submit to polygraph examinations if directed to by his probation
officer, and on October 3, 2014, appellant was interviewed by polygraph examiner
Ronald Russell regarding his compliance with the terms of his probation (1296861 CR
at 39, 44, 49, 54, 59, 64, ; 1297213 CR at 37, 42, 47, 52, 57, 62; 1 RR at 24, 25).
In a pre-polygraph questionnaire and interview, appellant admitted committing
multiple violations of his probation to Russell (State’s Ex. 1, 3). After taking the
polygraph exam, appellant volunteered to write a statement in which he further
explained several incidents of conduct that violated his probation (State’s Ex. 2).
The State filed a motion to adjudicate appellant’s guilt alleging multiple
violations of his probation as appellant admitted to Russell (1296861 CR at 108-111;
1297213 CR at 106-08). At the hearing on the motion, appellant pleaded true to
violating multiple conditions of his probation but pleaded not true to the allegation
that he exposed his penis to a minor, that he watched and talked to a girl at a park,
and that he used his phone to access internet maps and music (1 RR at 7-23).
2
The State attempted to admit appellant’s pre-polygraph questionnaire, Russell’s
video of the pre-polygraph interview with appellant, and appellant’s post-polygraph
written statement (1 RR at 26; State’s Ex. 1, 2, 3).2 Appellant objected, arguing that
the statements violated Miranda and his Fifth Amendment right (1 RR at 27). The
trial court overruled his objection (1 RR at 27).
SUMMARY OF THE ARGUMENTS
The trial court did not err in finding appellant’s statements admissible over his
objection that they violated his Fifth Amendment right. While a probationer like
appellant does not lose his Fifth Amendment right upon conviction, both the United
States Supreme Court and Court of Criminal Appeals have held that questions relating
to probation conditions do not implicate the Fifth Amendment as long as that threat
of revocation does not coerce the probationer to reveal information that could be
used in a future criminal proceeding.
Further, even if the Fifth Amendment applied, appellant waived his right to not
incriminate himself by failing to invoke its protection when making his pre and post
polygraph statements. Because the Fifth Amendment is not a “self-executing” right,
and appellant did not invoke his right before making his statements, the trial court did
not err in finding them admissible. Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App.
2003).
2
The State did not offer the polygraph examination (1 RR at 28).
3
Additionally, even if appellant had not waived his Fifth Amendment right, the
trial court would not have abused its discretion in finding appellant’s statements
admissible despite the fact that Russel did not give appellant his Miranda warnings. As
appellant was not subjected to custodial interrogation, Russel did not need to inform
appellant of his rights before interviewing him.
REPLY TO APPELLANT’S POINT OF ERROR
I. The trial court did not err when it allowed the State to admit appellant’s
statements over appellant’s Miranda and Fifth Amendment objections.
In his brief, appellant argues that the trial court committed reversible error by
allowing the State to introduce evidence of appellant’s statements over his Miranda
and Fifth Amendment objections. Appellant claims that the court abused its
discretion by admitting the statements which he alleges were made as a result of
custodial interrogation and which violated his right not to be compelled to be a
witness against himself. In making this argument, appellant overlooks that his
statements do not implicate the Fifth Amendment as they involve the conditions of
his probation, that he failed to timely assert his Fifth Amendment right, and that his
statement was not given as a result of custodial interrogation. As such, the trial court
did not abuse its discretion in finding his statement admissible and did not err in its
ruling.
4
Standard of Review
a. Reviewing courts employ an abuse of discretion standard when
determining whether a trial court erred when revoking a defendant’s
probation or when admitting evidence.
In a revocation proceeding, the trial court has the discretion to revoke a
defendant’s probation when a preponderance of the evidence supports at least one of
the State’s allegations that the defendant violated a condition of his community
supervision. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012).
Similarly, a trial court has discretion when determining the admissibility of
evidence. Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d). An abuse of discretion occurs when the trial court’s decision is so clearly
wrong as to lie outside that zone within which reasonable people might disagree. Casey
v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
Applicable Law
b. The Fifth Amendment provides protection for probationers against self-
incrimination in future criminal proceedings, but a probationer generally
must invoke his Fifth Amendment right against self-incrimination or
courts will not consider his statement compelled.
Under the Fifth Amendment, no person “shall be compelled in any criminal case
to be a witness against himself.” U.S. CONST. amend. V; see Minnesota v. Murphy, 465
U.S. 420, 426 (1984); Dansby v. State, 398 S.W.3d 233, 239 (Tex. Crim. App. 2013). “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
5
him by the Fifth Amendment and the Texas Constitution.” Chapman, 115 S.W.3d at
5.
As both the Supreme Court and Texas Court of Criminal Appeals have
recognized, a person may choose to invoke his right to remain silent and “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.”
In re Medina, No. WR-75,835-02, 2015 WL 6722175, at *5 (Tex. Crim. App. Nov. 4,
2015) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)); Chapman, 115 S.W.3d at 5
(noting that “[t]he privilege does not turn upon the type of proceeding in which its
protection is invoked, but upon the nature of the statement or admission and the
exposure which it invites”). Similarly, both Courts have held that the Fifth
Amendment insulates probationers from compelled self-incrimination regarding
future criminal prosecutions, Murphy, 465 U.S. at 426, and that the State may “not
constitutionally carry out a threat to revoke probation for the legitimate exercise of
the Fifth Amendment privilege.” Dansby, 398 S.W.3d at 240 (quoting Murphy, 465
U.S. at 426); see also Chapman, 115 S.W.3d at 6.
However, the right “against compelled self-incrimination is not ordinarily self-
executing” as a person must claim his Fifth Amendment right or he will not be
considered to have been compelled to incriminate himself. Chapman, 115 S.W.3d at 6
(quoting Murphy, 465 U.S. at 427-28). With few exceptions to this general rule, a
person must timely invoke his Fifth Amendment right to obtain its protections or be
6
barred from claiming that his statement was compelled. Murphy, 465 U.S. at 428–29;
Chapman, 115 S.W.3d at 6.
Among the exceptions, a defendant does not need to invoke his right when
subject to custodial interrogation by law enforcement when he does not first
knowingly and voluntarily waive his privilege against self-incrimination. Murphy, 465
U.S. at 429-30; see Miranda v. Arizona, 384 U.S. 436, 475 (1966). As the Supreme Court
recognized in Miranda v. Arizona, the inherent compulsion of custodial surroundings
require special safeguards as “the process of in-custody interrogation of persons
suspected or accused of crime contains inherently compelling pressures which work
to undermine the individual’s will to resist and to compel him to speak where he
would not otherwise do so freely.” Miranda, 384 U.S. at 467; see Wilkerson v. State, 173
S.W.3d 521, 526-27 (Tex. Crim. App. 2005). Thus, unless a defendant is given
Miranda warnings before waiving his rights during a custodial interrogation, his
statement is inadmissible. Murphy, 465 U.S. at 430; Miranda, 384 U.S. at 475.
Additionally, a defendant does not have to invoke his Fifth Amendment right
against self-incrimination when faced with a “classic penalty situation.” Murphy, 465
U.S. at 434-35; Chapman, 115 S.W.3d at 6. In the classic penalty situation, a defendant
is threatens with punishment for asserting his privilege against self-incrimination,
thereby depriving him of his choice to refuse to answer. Chapman, 115 S.W.3d at 6. In
such cases, the Fifth Amendment right against self-incrimination is self-executing, and
7
the statements a defendant makes are deemed compelled and thus inadmissible in
criminal prosecution. Murphy, 465 U.S. at 434-35; Chapman, 115 S.W.3d at 6-7.
Analysis
c. The trial court did not abuse its discretion as appellant cannot use his
Fifth Amendment right against self-incrimination from criminal
prosecution as a blanket to exclude statements regarding his probation
status.
The trial court did not err when it found appellant’s statements to be
admissible over his Miranda and Fifth Amendment objection. The court did not
abuse its discretion because the Fifth Amendment was not implicated when the State
admitted appellant’s statement made before and after Russell’s polygraph examination
regarding appellant’s adherence to the conditions of his probation. See Ex parte Renfro,
999 S.W.2d 557, 561 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding that
“the mere requirement” that Renfro undergo polygraph examinations as a condition
of his probation did not infringe upon his right against self-incrimination).
As both the Supreme Court and Court of Criminal Appeals have recognized,
when a probationer has been convicted of a crime, he does not lose his Fifth
Amendment protection, but the focus of that right shifts away from the crime that
has resulted in conviction to protection from future criminal prosecution. Murphy,
465 U.S. at 426; Medina, 2015 WL 6722175, at *6. The Fifth Amendment does not
prevent a probationer from being compelled “to appear and give testimony about
matters relevant to his probationary status.” Dansby, 398 S.W.3d at 240 (quoting
8
Murphy, 465 U.S. at 436). Significantly, the Court of Criminal Appeals recently
reiterated that “questions relating to probation conditions rather than criminal acts
would not implicate the Fifth Amendment provided the threat of revocation did not
coerce the probationer to reveal information that could be used in a future criminal
proceeding.” Medina, 2015 WL 6722175, at *6. Thus, to the extent that Russell
questioned appellant about possible probation violations, appellant’s Fifth
Amendment right against self-incrimination from future criminal prosecution was not
implicated. See Ex parte Dangelo, 339 S.W.3d 143, 151 (Tex. App.—Fort Worth 2010),
aff’d, 376 S.W.3d 776 (Tex. Crim. App. 2014). As such, the trial court did not abuse its
discretion.
d. The trial court did not abuse its discretion because appellant failed to
timely invoke his right against self-incrimination.
Additionally, the trial court did not abuse its discretion because appellant failed
to timely invoke his Fifth Amendment right. As the holdings in Murphy and Chapman
recognize, the right against self-incrimination is generally not “self-executing.”
Murphy, 465 U.S. at 427-29; Chapman, 115 S.W.3d at 6. Therefore appellant needed to
invoke his Fifth Amendment protection to enjoy its benefits. See Dansby, 398 S.W.3d
at 234 (stating that Dansby invoked his Fifth Amendment right not to answer
questions about other possible crimes). As State’s Exhibits 2 and 3 establish,
appellant did not inform Russell that he wished to invoke his right against self-
incrimination when facing questions that could expose him to future criminal
9
prosecution (State’s Ex. 2, 3). Because appellant failed to timely invoke his Fifth
Amendment right, he is barred from claiming that his statement was compelled.
Murphy, 465 U.S. at 428–29; Chapman, 115 S.W.3d at 6.
i. Appellant’s Fifth Amendment right was not self-executing as he was
not subjected to custodial interrogation when he made his statements.
While appellant does not address the fact that he waived his Fifth Amendment
protection by failing to invoke it, his argument regarding Russell’s lack of Miranda
warnings does not alleviate the requirement that appellant invoke his right. This is
because appellant was not subjected to custodial interrogation by Russell’s pre and
post polygraph interview.
Miranda warnings are not needed unless a person is subject to custodial
interrogation. See Murphy, 465 U.S. at 430; Miranda, 384 U.S. at 475. To determine if a
person was in custody and if Miranda warnings were needed before interrogation
occurred, courts consider whether the person was physically deprived of his freedom
in a significant way, whether a law enforcement officer told the person that he was
not free to leave, whether law enforcement officers created a situation that would lead
a reasonable person to believe that his freedom of movement has been significantly
restricted, and whether law enforcement officers had probable cause to arrest the
person. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009); Nickerson v. State,
No. 01-14-00096-CR, 2015 WL 3982025, at *4 (Tex. App.—Houston [1st Dist.] June
30, 2015, no pet.); see Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007)
10
(“The Supreme Court has defined ‘custodial interrogation’ as ‘questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.’”). None of these facts apply
to appellant’s case.
Appellant was not physically deprived of his freedom of movement in any way,
as State’s Exhibit 3 shows (State’s Ex. 3). See Gardner, 306 S.W.3d at 294); Nickerson,
2015 WL 3982025, at *4. He was not interacting with law enforcement officers, as
Russell was not a peace officer or acting as the agent of an officer. See Wilkerson, 173
S.W.3d at 527-28 (noting that Miranda only applies to custodial interrogation
conducted by law enforcement officers or their agents); see also Marcum v. State, 983
S.W.2d 762, 766 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding that
Marcum was not subject to custodial interrogation because his polygraph examiner
was not a peace officer). Appellant was free to leave at any time, and was not in a
situation that would have led a reasonable person to believe his freedom of movement
had been significantly restricted. See Gardner, 306 S.W.3d at 294); Nickerson, 2015 WL
3982025, at *4. Most importantly, appellant was not under arrest when he made his
statements, and no probable cause existed to arrest appellant. Id.
Additionally, appellant submitted to the polygraph examination as a court
ordered condition of his probation but was not required to give his pre or post
polygraph statements. See Marcum, 983 S.W.2d at 766 (holding that since Marcum was
required by the court to take polygraph tests as a condition of his probation, he was
11
not subjected to custodial interrogation); see also Dowthitt v. State, 931 S.W.2d 244, 255
(Tex. Crim. App. 1996) (noting that “custody does not occur merely because [a]
suspect submits to and fails a polygraph test”). Indeed, several Courts of Appeals
have held that requiring a probationer to submit to a polygraph examination does not
subject him to custodial interrogation, even when that probationer admits to
committing other crimes during his interview. In re A.M., 333 S.W.3d 411, 416-17
(Tex. App.—Eastland 2011, pet. denied) (holding that A.M. was not subject to
custodial interrogation during pre-polygraph interview in which A.M. admitted to
sexually abusing his sister); Renfro, 999 S.W.2d at 561 (holding that no Miranda
warnings were needed when the polygraph required for Renfro’s probation was used
to investigate Renfro’s compliance with the terms of his probation); Marcum, 983
S.W.2d at 766 (holding that Marcum was not subject to custodial interrogation when
making a statement to a polygraph examiner about two crimes he had committed).
Appellant’s case is almost identical that that addressed by the Fourteenth Court
of Appeals in Marcum v. State. Marcum was on probation and admitted to sexually
abusing two children during a post-polygraph interview. Marcum, 983 S.W.2d at 765,
766. When the State admitted his statement at a hearing to revoke his probation,
Marcum argued that the statement was inadmissible because he had not received
Miranda warnings. Id. at 766. In rejecting his argument, the Court held that since the
polygraph examination was a requirement of Marcum’s probation, since there was no
probable cause to arrest Marcum even after he made his statement, since there was
12
“no apparent intent to arrest [Marcum] because the interview was simply a condition
of [his] probation,” and since the examiner was not a peace officer, Marcum was not
subject to custodial interrogation and Miranda warnings were not required. Id.
Like Marcum, appellant was not in custody when he made his pre and post-
polygraph statements. As such, Russell did not need to give appellant Miranda
warnings, and the trial court did not abuse its discretion in overruling his Miranda
objection.
ii. Appellant’s Fifth Amendment right was not self-executing as he was
not subjected to the “classic penalty situation” when he made his
statements.
While appellant does not directly mention the other situation in which a
defendant’s Fifth Amendment right against self-incrimination would be self-executing,
he does argue that as taking polygraph examinations was a condition of his probation,
his pre and post-polygraph statements were compelled. Appellant’s Br. 16-17. When
appellant argues that he could have believed that he had no choice but to honestly
answer Russell’s questions, appellant casts his dilemma as a situation that mirrors the
“classic penalty situation.” However, both the Supreme Court and Court of Criminal
Appeals have distinguished the “classic penalty situation” from the situation of a
probationer being required to honestly answer questions regarding his probation
status or have his probation revoked. Murphy, 465 U.S. at 427-28 (holding that the
condition of community supervision that required Murphy to report to his probation
13
officer and be truthful did not convert his statements into compelled self-
incrimination nor place Murphy in a worse position than an ordinary witness who is
compelled to appear and tell the truth under “the pain of contempt”); Chapman, 115
S.W.3d at 6, 7 (“[T]he normal probation conditions, such as a stipulation that the
probationer appear and discuss matters that affect his probationary status, does not
relieve him of the responsibility to assert his privilege if he fears that his answers may
incriminate him.”).
Because the requirement that appellant undergo polygraph examinations
regarding his probationary status did not relieve him of the responsibility to assert his
right against self-incrimination if he feared that his answers may incriminate him,
appellant’s Fifth Amendment right was not self-executing and he had to invoke it or
else be barred from claiming that his statements were compelled. See Chapman, 115
S.W.3d at 7. As such, his answers were not compelled and appellant waived his right
to invoke his Fifth Amendment right. Therefore, the trial court did not abuse its
discretion in overruling his objection, and this Court should uphold appellant’s
conviction.
e. Even if the trial court erred in admitting appellant’s statements, the error
was harmless as appellant pleaded true to multiple violations of his
probation.
Assuming for the sake of argument that the trial court did err when it allowed
the State to admit the evidence of appellant’s pre and post-polygraph statements, the
14
error was harmless. As the trial court could have revoke appellant’s probation on the
basis of the multiple violations that appellant pleaded true, this Court can determine
beyond a reasonable doubt that the alleged error did not contribute to appellant’s
revocation. See TEX. R. APP. P. 44.2(b) (“If the appellate record in a criminal case
reveals constitutional error that is subject to harmless error review, the court of
appeals must reverse a judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contribute to the
conviction or punishment.”); see also Leonard, 385 S.W.3d at 576.
This Court can determine that any error in admitting appellant’s statements was
harmless because the trial court was authorized to revoke appellant’s probation as
along as the State established at least one of the violations it alleged. See Dansby, 398
S.W.3d at 241 (stating that “a revocation may stand on appeal so long as the evidence
supports a finding that at least one of the conditions of community supervision was
violated” and “it must demonstrate from the record that the one violation upon which
it relies on appeal is supportable independent of whatever constitutional taint arguably
inheres in the other”). Appellant pleaded true to multiple violations alleged (RR at 7-
23, 43-44).
As the record establishes, before the State put on any evidence, appellant
pleaded true to the allegations in paragraphs number one through fourteen and
seventeen through nineteen for cause number 1296861 and one through seven and
nine through twelve for cause number 1297213 (RR at 7-23). Thus, there are multiple
15
violations supported by appellant’s pleas that are independent from the
“constitutional taint” he argues about on appeal. Dansby, 398 S.W.3d at 241. As the
record supports the trial court’s decision revoking appellant’s probation, appellant was
not harmed by the admission of his statements.
Because the trial court could revoke appellant’s probation on the basis of his
pleas of true alone, this record allows this Court to determine beyond a reasonable
doubt that if the trial court erred by allowing the evidence of his statements to be
admitted over appellant’s Miranda and Fifth Amendment objections, the error did not
contribute to appellant’s revocation. As such, this Court should overrule appellant’s
sole point of error and affirm his conviction.
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CONCLUSION
The State of Texas respectfully urges the Court to overrule appellant’s point of
error and affirm his conviction.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 274-5826
State Bar No. 24069083
dessauer_carly@dao.hctx.net
curry_alan@dao.hctx.net
17
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 3,685 words, based upon the representation provided by the word
processing program that was used to create the document. TEX. R. APP. P. 9.4(i).
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 274-5826
State Bar No. 24069083
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CERTIFICATE OF SERVICE
The State will serve a copy of the foregoing instrument to appellant’s attorney
though TexFile:
Allison Secrest
Attorney at Law
808 Travis Street, 24th Floor
Houston, Texas 77010
Allison@allisonsecrestlaw.com
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 274-5826
State Bar No. 24069083
Date: November 12, 2015
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