Astin Chavers Clark v. State

Opinion

ACCEPTED 01-15-00325-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/13/2015 11:27:06 AM CHRISTOPHER PRINE CLERK

NO. 01-15-00325 - CR

_______________________________________________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 7/13/2015 11:27:06 AM FOR THE CHRISTOPHER A. PRINE Clerk FIRST SUPREME JUDICIAL DISTRICT OF TEXAS AT HOUSTON _______________________________________________

ASTIN CHAVERS CLARK Appellant

VS.

THE STATE OF TEXAS, Appellee _______________________________________________

Appeal in Cause Number 1297213 In the 248th District Court of Harris County, Texas _______________________________________________

BRIEF FOR APPELLANT _______________________________________________

ALLISON SECREST State Bar No. 24054622 ALLISON SECREST, P.C. 808 Travis Street, 24th Floor Houston, Texas 77002 (713) 222-1212 (713) 650-1602 (FAX)

Attorney in Charge for Appellant, ASTIN CHAVERS CLARK NAMES OF ALL PARTIES

JUDGE: Honorable Katherine Cabaniss 248th Judicial District Court

PROSECUTOR: Andrea Moseley

DEFENSE ATTORNEY: Kyle B. Johnson (Trial) 929 Preston, Suite 200 Houston, Texas 77002

Allison Secrest (Appeal) Allison Secrest, P.C. 808 Travis Street, 24th Floor Houston, Texas 77002

i TABLE OF CONTENTS

Page

NAME OF ALL PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, iii

TABLEOF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv, v

PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

POINT OF ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. . . . . . . . . . . . . . . . 3

The trial court committed reversible error by allowing the prosecutor, over a timely specific objection by defense counsel, to introduce evidence of the appellant’s failed polygraph results and statements made during custodial interrogation obtained without Miranda warnings, in violation of appellant’s Fifth Amendment rights against self-incrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

POINT OF ERROR RESTATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ARGUMENTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

(A) Overview of the testimony regarding the objected to exhibits . . . . . . . .11

(B) Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

(C) Fifth Amendment right to be free from compelled self-incrimination . . 13

(D) Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

PRAYER FOR RELIEF.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ii CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .20

iii INDEX OF AUTHORITIES PAGE CASES

Alford v. State, 358 S.W.3d 646 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . .15, 16

Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) . . . . . . . . . . . . . . . . . . .13

Chapman v. State, 115 S.W.3d 1 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 13

Dansby v. State, 398 SW.3d 233 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . .14, 15

Ex parte Renfro, 999 S.W.2d 557 (Tex. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). . . . . . . . . . . . . . . . .13, 14

Hailey v. State, 413 S.W.3d 457 (Tex. App. –Ft. Worth 2012, pet ref’d). . . . . . . . . . . . . . . .16

Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed. 409 (1984). . . . . . . . . .. . . .13, 14

Miranda v. Arizona, 384 U.S. 436, 384 U.S. 436, 86 S.Ct.1602 (1966). . . . . . . . . . . . . . . . 5, 11, 15

iv Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.]) 1980. . . . . . . . . . . . . .13

Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) . . . . . . . . . . . . . . . 15, 16

State of Texas v. Cruz, No. PD-0082-14, 2015 WL 2236982 (Tex. Crim. App. 2015) (published May 13, 2015.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . .14

CONSTITUTIONS, STATUTES AND TREATISES

U.S. CONST. AMEND. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 11, 14,17

TEX. CODE. CRIM. PROC., art. 38.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. CODE. CRIM. PROC.,art. 42.12, § 5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

TEX. PENAL CODE ANN. § 30.02(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

v NO. 01-15-00325 - CR

IN THE COURT OF APPEALS FOR THE FIRST SUPREME JUDICIAL DISTRICT OF TEXAS AT HOUSTON

ASTIN CHAVERS CLARK, Appellant

THE STATE OF TEXAS, Appellee

TO THE COURT OF APPEALS FOR THE FIRST SUPREME JUDICIAL DISTRICT OF TEXAS:

PRELIMINARY STATEMENT

This is an appeal from the conviction of the offense of burglary of a habitation,

proscribed by Tex. Penal Code § 30.02(d). The appellant was indicted on May 17,

2011. (CR 11). On November 16, 2011, a plea of “guilty” to the charges was entered

and the case was reset to November 29, 2011 for sentencing. (CR 24). The trial

court accepted the plea and an Order of Deferred Adjudication was entered on

November 29, 2011. (CR 33). The appellant was placed on a 6 year deferred

adjudication and was required to register as a sex offender (CR 33, 28). On May 18,

2012, a Motion to Adjudicate Guilt and Order was signed. (CR 66). The appellant

was remanded to custody. (CR 68). The trial court ordered the appellant to serve 15

1 days in the Harris County Jail as a condition of probation and the State dismissed the

Motion to Adjudicate Guilt on August 6, 2012. (CR 71-72).1 Another Motion to

Adjudicate Guilt and Order was signed on October 7, 2014. (CR 99-101). The State

filed a 1st Amended Motion to Adjudicated Guilt and Order which was signed on

February 2, 2015. (CR 106-108). On March 23, 2015, an Adjudication Hearing was

held before the Honorable Katherine Cabaniss. (RR). The appellant plead “true” to

most of the allegations in the Motion to Adjudicate Guilt.2 At the conclusion of the

hearing, the judge accepted the appellant’s plea of true, adjudicated him guilty and

assessed a punishment of 25 years TDCJ. (CR 114-15).3 Appellant timely filed his

written notice of appeal on the same date. (CR 118).

1 Two additional motions to adjudicate guilt were filed whereupon the appellant was remanded to custody but was not adjudicated. The State dismissed the motions to adjudicate after the trial court amended the appellant’s conditions of probation. (CR). 2 The appellant plead true to the allegations in paragraphs one through fourteen and seventeen through nineteen in the Motion to Adjudicate. (RR 7-16). The appellant pleaded not true to the allegations in paragraph fifteen, sixteen, twenty and twenty-one. (RR 13-14). 3 The brief was due June 19, 2015 but an order was entered extending the time for filing to July 13, 2015.

2 POINT OF ERROR

The trial court committed reversible error by allowing the prosecutor, over a timely specific objection by defense counsel, to introduce evidence of the appellant’s failed polygraph results and statements made during custodial interrogation obtained without Miranda warnings, in violation of appellant’s Fifth Amendment rights against self-incrimination.

STATEMENT OF FACTS

In pertinent part, the grand jury alleged that:

on or about February 24, 2011, [the defendant] did then and there unlawfully, with the intent to commit a felony, namely SEXUAL ASSAULT, remain concealed in a habitation owned by BRANDI GRAVES, a person having a greater right to possession of the habitation than the Defendant, without the effective consent of the Complainant, namely without any consent of any kind.

(CR 11).4 On November 16, 2011, the appellant appeared with counsel and entered

a plea of “guilty” to the allegation contained in the indictment. (CR 24). The trial

court accepted the plea, withheld a finding of guilt, and reset the matter for a

sentencing hearing to be conducted on November 29, 2011. (CR 33). On that date,

the appellant was placed on a six year deferred adjudication and was required to

register as a sex offender. (Id.). July 10, 2015 Subsequently, three separate Motions

to Adjudicate Guilt were filed after November 29, 2011 but the appellant was not

4 Tex. Penal Code § 30.02(d) classifies the offense as a first degree felony if “(1) the premises are a habitation; and (2) any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.

3 adjudicated. Another Motion to Adjudicate Guilt and Order was signed on October

7, 2014. (CR 99-102). The State filed a 1st Amended Motion to Adjudicate Guilt and

Order which was signed on February 2, 2015. (CR 106-108). On March 23, 2015 an

Adjudication Hearing was held before the Honorable Katherine Cabaniss. (RR). The

defense waived the reading of the motion to adjudicate and the appellant plead true

to the allegations that he violated the terms and conditions of the community

supervision. (RR 6). After a short break, the appellant stated that there were some

allegations that he did not feel comfortable pleading true to. (RR 7). The judge read

each paragraph of the motion to adjudicate, allowing the appellant to plead true or not

true. (RR 7 -16). The appellant plead true to the allegations in paragraphs one

through fourteen and seventeen through nineteen in the Motion to Adjudicate. (RR

7-16). The appellant pleaded not true to the allegations in paragraph fifteen, sixteen,

twenty and twenty-one. (RR 13-14).

The State called Ronald Russell, a licensed state polygraph examiner, who

testified that he had been conducting polygraph examinations for eleven years, nine

of which were for Harris County. (RR 23-24). He stated that he primarily worked

with probationers who were on the sex offender caseload with the purpose of

determining a probationer’s compliance with the conditions of probation. (Id.). Mr.

Russell testified that he conducted a polygraph examination of the appellant on two

4 occasions. (RR 24). The State offered three exhibits into evidence. (RR 26). Mr.

Russell stated that State’s exhibit number one was a questionnaire that was filed out

by the appellant on October 3, 2015. (RR 25). The second exhibit was a written

statement by the appellant, dated October 3, 2015, and State’s exhibit three was a

video interview of the appellant taken by Mr. Russell the same day. (Id.). He

admitted that his procedure is to give the probationer’s the questionnaire before he

conducts a polygraph examination. (Id.). He stated that he had the appellant

complete a written statement after he completed the polygraph examination and that

the video interview contained a pre-polygraph interview, as well as the polygraph

examination. (RR 26).

Defense counsel took Mr. Russell on voir dire. (Id.). He asked if his client had

to take the polygraph tests as a requirement of probation and that if he refused, if the

refusal would be a violation of probation that would send him to prison. (RR 27).

Mr. Russell agreed. (Id.). When asked if Mr. Russell Mirandized 5 his client, Mr.

Russell stated that he did not read Mr. Clark his Miranda rights, because he is not a

peace officer. (Id.). Defense counsel objected, “to the admission of this as a violation

of his Miranda rights, his rights to self-incrimination.” (Id.). Counsel asked that the

test results not be admitted into evidence stating, “[i]t’s our position that given the

5 Miranda v. Arizona 384 U.S. 436, 384 U.S. 436, 86 S.Ct.1602 (1966).

5 mandatory nature of this polygraph test, it’s tantamount to a custodial statement.”

(Id.). The objection was overruled and State’s exhibits one through three were

admitted into evidence. (Id.).

The prosecutor stated that she did not plan to offer any evidence of the results

of the polygraph but did wish to rely on the pre-polygraph interview regarding the

admissions that were before the court. (RR 28). She questioned Mr. Russell further,

and he stated that he reported the polygraph examination results to the appellant’s

probation officer and to a sex offender therapist, Mr. Raymond Johnson. (Id.). On

cross examination, defense counsel asked Mr. Russell if he was surprised with how

candid the appellant was in his honest answers and if he even volunteered information

not asked. (Id.). He admitted that appellant made numerous admissions to violations

and that was very unusual. (Id.).

The prosecutor then called Mr. Raymond Johnson, a professional counselor

who was licensed as a sex offender treatment provider. (RR 32). He testified that he

was responsible for treating the appellant and that he received information regarding

the appellant’s October 3, 2014, polygraph examination and interview. (RR 33). The

prosecutor asked, “is it a condition of him staying in your treatment that he go and get

these polygraph examinations?”, and in response, he stated,

We want to know whether or not the person is compliant with both the

6 probationary rules as well as the treatment rules, whether or not there are additional behaviors that are in line or not in line with the treatment. And the way we would know that is whether or not they comply with the polygraph. (RR 33-34).

Mr. Johnson stated that the appellant had initially made some progress but he

did not allow him to return to treatment and instructed him to go see his probation

officer after he learned the results of the polygraph. (RR 34). He testified that he did

not review the recorded interview but merely read the polygraph results. (Id.). The

prosecutor asked if he recalled the defendant admitting that he had masturbated in

public, had contact with minors, and admitted to peeping into someone’s window and

watching people. (Id.). He stated that he learned that from reading the polygraph

results and that the contract states, “that you must obey all supervision rules and

contract rules. Some behavior might be somewhat suspect, but unless they’re law

violations, just behavioral issues, we try to deal with them in therapy.” (RR 35-36).

He added that they report “law” violations to the probation officer and suspend the

defendant’s from probation so he reported this to Mariselas Contreras, the appellant’s

probation officer, because he considered exposing oneself in public to be a “law”

violation. (Id.).

On cross examination, defense counsel established that the appellant attended

the therapy sessions regularly and participated as required, and asked if answering the

7 questions honestly in the polygraph examination was considered making progress in

the treatment program. (RR 39). Mr. Johnson stated that being honest about

behavior and making disclosures would be considered “encouraging.” (Id.). Defense

counsel asked if he was aware the Mr. Clark had been sexually abused in the past.

(Id.). Mr. Johnson stated that he knew that Mr. Clark was uncomfortable living with

his surrogate parent and that he felt that he had been psychologically mistreated.

(Id.). He admitted that some people exhibit compulsions and many sex offenders

have no control over their behaviors. (Id.).

The State thereafter played State’s exhibit number three, the pre-polygraph

interview and rested. (RR 42). The defense rested without calling any witnesses.

(RR 43). The court found the allegations in the motion to adjudicate to be true as to

all of the paragraphs in the motion. (RR 44-45).

The State called Nathalie Gonzalez during the punishment phase. (RR 44).

She testified that she attended the University of Houston and lived in a dormitory on

campus at a in 2011. (RR 45). She stated that someone entered her room around 3:00

am and she awoke to someone feeling her breasts. (RR 46). When she started

yelling, the man said that he thought he was in his girlfriend’s room and got up and

left. (Id.). She stated that as a result of the incident, she does not feel safe and that

she cannot sleep unless she checks the locks on the doors. (Id.). After a very brief

8 cross examination by defense counsel, the State rested. (RR 49).

The defense called Ms. Freda Clark to testify. (Id.). She stated that the

appellant was her nephew and identified the appellant’s uncle, Pastor Jonathan Clark,

and Pastor Mosely Jones, the senior pastor of the church that appellant went to, as

being in the front row of the gallery. (RR 50). She testified that Mr. Clark’s mother

was not around much when he was an infant but that she would sometimes take him

for periods of time and they would not know where he was. (RR 52). She stated that

his mother had issues with marijuana and they did not know who Mr. Clark’s father

was. (Id.). When Mr. Clark was about four years old, he became a ward of the State

and was taken into CPS custody after they discovered that he had anal genital herpes

and had been sexually assaulted. (RR 53). She further testified that her own children

were taken away, for a brief time, while they conducted an investigation. (Id.).

Because no one in her household had a sexually transmitted disease, except Mr.

Clark, they believed that he had been sexually abused when he was taken out of the

house by his mother. (Id.). She stated that the appellant attended church regularly

and that she was shocked after seeing the video recorded interview of her nephew.

(RR 53-54). She added that he was a good kid and had lived a hard life, had always

searched for the love and affection of his mother but she wouldn’t give it to him.

(Id.). After a brief cross examination from the prosecutor, the defense rested. (RR

9 57). The prosecutor waived the right to open and reserved the right to make a closing

argument. (Id.).

The defense made a closing argument and asked the court to consider his

client’s sexual abuse at a very young age, “emotional and mental issues that somehow

manifest in compulsively acting out sexually.” (Id.). He argued that the appellant

was not a rapist or pedophile but someone who “exposes himself, masturbates, but no

indication he’s ever going to physically hurt anyone...it’s just irresistible impulses

that he can’t resist.” (Id.). Defense counsel urged the court not to punish someone for

being sick and that his client wanted help and to consider the lower end of the

punishment range. (RR 58-59).

The prosecutor argued that the appellant was given the opportunity to get help

while on probation and continued to violate the law and that there was “nothing this

Court can do to fix whatever it is that’s wrong with Astin Clark.” (RR 59-60). The

prosecutor asked the court to sentence the defendant to 40 years in prison. (Id.).

After hearing arguments of counsel, the trial court thereafter assessed punishment at

confinement for a period of (25) years.

10 POINT OF ERROR RESTATED

The trial court committed reversible error by allowing the prosecutor, over a timely specific objection by defense counsel, to introduce evidence of the appellant’s failed polygraph results and statements made during custodial interrogation obtained without Miranda warnings, in violation of appellant’s Fifth Amendment rights against self-incrimination.

ARGUMENT AND AUTHORITIES

(A) Overview of the testimony regarding the objected to exhibits

During the adjudication hearing, counsel for Mr. Clark objected to the

admission of the failed polygraph examination and other exhibits offered by the

prosecution, as a violation of Mr. Clark’s Miranda rights and rights against self-

incriminating, arguing that because these tests were mandatory in nature they

amounted to an involuntary custodial statement obtained without Miranda warnings.

(RR 27). The objection was overruled and all of the State’s exhibits were admitted

into evidence. (Id.).

The prosecutor stated to the trial court with regards to State’s exhibit number

3 that she intended to offer the first hour and nine minutes of the pre-polygraph

interview recording and did not intend to offer or publish the last thirty minutes of the

polygraph examination. (Id.). Rather than play the recording, Judge Cabaniss asked

if the prosecutor could get into evidence the content of the video recording through

11 the testimony of the witnesses. (RR 29). The prosecutor introduced evidence that the

appellant made several admissions to violating the terms of his the community

supervision during this pre-polygraph interview, as well as in his written statements,

and in the questionnaire that was obtained from him during his mandatory meeting

with the polygraph examiner. (RR 29-38).

Prior to objecting to the admission of the exhibits, counsel for Mr. Clark took

Mr. Russell on voir dire and asked, “[i]s it your understanding (sic, as) it was Mr.

Clark’s – it was a requirement of his probation that he take these polygraph tests?”

(RR 26-27). Mr. Russell stated that it was, and when asked if a refusal to take the

tests could be a violation of his probation, Mr. Russell stated that that was his

understanding, and agreed that this could lead to Mr. Clark going to prison. (RR 27).

Mr. Russell admitted that he did not Mirandize Mr. Clark before the tests, saying that

he did not do so because he is “not a peace officer.” (Id.).

(B) Standard of Review

“The central issue to be determined in reviewing a trial court’s exercise of

discretion in a community supervision revocation case is whether the defendant was

afforded due process of law.” Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim.

App. 2012). “In particular, where, as in Texas, the fact finder, if it finds a violation

of the conditions of probation, has discretion to continue the probation, the

12 probationer ‘is entitled [by due process] to an opportunity to show not only that he

did not violate the conditions [of his probation], but also that there was a justifiable

excuse for any violation or that revocation is not the appropriate disposition.’” (citing

to Black v. Romano, 471 U.S. 606, 612 (1985)).6 A trial court abuses its discretion

when the decision lies outside the zone of reasonable disagreement. Apolinar v.

State, 155 S.W. 3d 184, 186 (Tex. Crim. App. 2005). 7

(C) Fifth Amendment right to be free from compelled self-incrimination

It is well-settled that the Fifth Amendment insulates probationers from

compelled self-incrimination. Dansby v. State, 398 S.W.3d 233, 239-40 citing

Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed. 409 (1984). See

also Chapman v. State, 115 S.W.3d 1, 5-6 (Tex.Crim.App. 2003). “Supreme Court

decisions have ‘made clear’ that a state may not constitutionally carry out a threat to

6 In Gagnon v. Scarpelli, the Supreme Court enunciated the minimum requirements of due process which must be observed in community supervision revocation hearings: (1) written notice of the claimed violations of probation (2) disclosure of probationer of the evidence against him (3) opportunity to be heard in person and to present witnesses and evidence, and the right to confront and cross-examined adverse witnesses; (4) a neutral and detached hearing body; and (5) a written statement by the fact finders as to the evidence relied on and the reasons for revoking probation. Gagnon, 411 U.S. 778, 786 (1973). 7 The determination of an adjudication of guilt is reviewable in the same manner as that used to determine whether sufficient evidence supported the trial court’s decision to revoke community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b). A plea of true, standing alone, is sufficient to support the revocation of community supervision and adjudicate guilt. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).

13 revoke probation for the legitimate exercise of the Fifth Amendment privilege.”

Murphy, at 438.

While a probationer may be compelled to appear and give testimony about matters relevant to his probationary status, he cannot be “required. . . to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent. . . [I]t bears emphasis that a State may validly insist on answers to even incriminating questions and hence sensibly administer it’s probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminate a threat of incrimination. The privilege against self- incrimination must be claimed, “unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered.”

Murphy, at 427-28. The court in Dansby held that the appellant could not be

expelled from the treatment program apart from his claim of Fifth Amendment

privilege, “[w]ithout immunity, he simply may not be forced to confess to criminal

behavior in any context, whether during a polygraph examination or group therapy.”

The court reversed the judgment of the court of appeals and remanded the cause for

further appellate consideration consistent with it’s opinion. Id. At 242.

In Texas, the existence and results of a polygraph examination are inadmissable

for all purposes. Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990). But

the courts have recognized that “this is an evidentiary rule and does not preclude the

use of such tests fro investigative purposes. Ex parte Renfro, 999 S.W.2d 557, 561

(1999).

14 (D) Interrogation

The Miranda rule prohibits the admission into evidence of statements made in

response to custodial interrogation when the suspect has not been advised of certain

warnings (including that the suspect has the right to remain silent and a right to

counsel.). Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.1602 (1966). In the Miranda

context, “interrogation” means “any words or actions on the part of the police. . . that

the police should know are reasonably likely to elicit an incriminating response.”

Rhode Island v. Innis, 446 U.S. 291, 300-01 , 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)

1980). “This “should know” test is the general test for determining whether

interrogation occurs.” Alford v. State, 358 S.W.3d 646, 661 (Tex. Crim. App. 2012).

“This test focuses primarily upon the perceptions of the suspect, rather than the intent

of the police.” Innis, 446 U.S. at 301. (Emphases added).

Miranda warnings are not necessary prior to the administration of a polygraph

examination “when subject to a polygraph examination as an investigative tool alone,

a probationer is not placed in any worse position than he would otherwise be where

there no polygraph examination.” Ex parte Renfro, at 561. While private citizens

ordinarily are not regarded as law enforcement officers, “a citizen who acts as an

agent of law enforcement and interrogates a person in custody, however, is bound by

all constitutional and statutory confession rules, including Miranda and Article 38.22.

15 Hailey v. State, 413 S.W.3d 457, 474 (Tex. App.– Fort Worth 2012, pet ref’d).

Based on the record, it is fair to assume that the appellant believed that he had

no choice but to honestly answer and participate in all of the polygraph tests and

questions that Mr. Russell asked of him because refusing to answer and participate

in the questioning, would be violate the terms of his deferred adjudication resulting

in adjudication and a lengthy prison sentence. Even the state polygraph examiner,

Mr. Russell, who worked primarily with the probation department for the past eleven

years, stated that this was his understanding. (RR 26-27).

The “should know” test is the general test for determining whether

interrogation occurs.” Alford, at 661. “This test focuses primarily upon the

perceptions of the suspect, rather than the intent of the police.” Innis, 446 U.S. at

301. Recently, the Court of Criminal Appeals in Cruz, held that the officers should

have known, and did know that by asking the appellee’s name and phone number,

(without providing Miranda warnings) did not fall under the “booking exception”8

to the Miranda rule (the information later enabled the police to locate and search

appellee’s home and cell-phone records, resulting in his arrest for murder) and that

the response to those questions had incriminating value in themselves and did not

8 ‘“A question falls within the “booking” exception if, under an objective standard, “the question reasonably relates to a legitimate administrative concern.’” Alford, at 659-60.

16 simply lead to other incriminating evidence. State of Texas v. Cruz, No. PD-0082-14

at 13-14, 2015 WL 2236982 (Tex. Crim. App. 2015) (published May 13, 2015.).

Looking at the subjective point of view of the suspect, rather than the objective view

of the police is what the test focuses on to determine if interrogation occurs.

It is fair to assume that the appellant believed that any type of refusal to answer

the polygraph examiner’s questions would put him in a position where he had no

other choice but to answer these questions. Miranda warnings were not given, nor

was he informed that he had the right to assert his Fifth Amendment Right against

self-incrimination. Here the answers to the questions were not “used merely as an

investigative tool” but were used as direct evidence that the appellant had violated the

terms and conditions of his probation and resulted in his adjudication and 25 year

prison sentence.

Believing that he was not free to leave and that he was compelled to answer for

fear of automatically being adjudicated guilty and going to prison, Mr. Russell should

have known and did know that the appellant’s responses to those questions had

incriminating value, in themselves, and did not simply lead to other incriminating

evidence like the officers in Cruz, who obtained the appellant’s phone number and

name which led to his arrest for murder. Cruz, at 13-14.

Based on the testimony of the witnesses, it is fair to assume that the appellant

17 would not have plead true to any of the allegations in the State’s Motion to

Adjudicate Guilt but for his understanding that the results of all of the statements,

including the pre-polygraph interview and questionnaire which were taken in

violation of his rights against self-incrimination and in violation of his Miranda

rights, would come into evidence against him.

Reversible error is presented.

18 PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, for the foregoing reasons,

appellant respectfully prays that this Honorable Court vacate the sentence and remand

the case with instructions to conduct a new adjudication proceeding.

Respectfully submitted,

/s/ Allison Secrest _____________________________ ALLISON SECREST State Bar No. 24054622 ALLISON SECREST, P.C. 808 Travis Street, 24th Floor Houston, Texas 77002 (713) 222-1212 (713) 650-1602 (FAX)

Attorney in Charge for Appellant, ASTIN CHAVERS CLARK

19 CERTIFICATE OF COMPLIANCE

I hereby certify that Appellant’s computer-generated Legal Memorandum and

Brief contains 4,168 words (relying on the word count of the computer program) and

is in compliance with the sections covered by Texas Rule of Appellate Procedure 9.4.,

including 9.4(i)(1).

/s/ Allison Secrest _________________________________ ALLISON SECREST

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief for Appellant

has been furnished to Mr. Alan Curry, Chief of the Appellate Division, District

Attorney’s Office, 1201 Franklin, Suite 600, Houston, Texas, 77002, on this13th day

of July, 2015.

/s/ Allison Secrest _________________________________ ALLISON SECREST