Opinion issued March 8, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00324-CR & 01-15-00325-CR ——————————— ASTIN CHAVERS CLARK, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case Nos. 1296861 & 1297213
MEMORANDUM OPINION
Appellant Astin Chavers Clark appeals the trial court revoking his
community supervision and adjudicating him guilty on two counts of burglary of a
habitation. We affirm. BACKGROUND
On February 28, 2011, appellant was charged with two counts of felony
breaking into and hiding in complainant’s home with the intent to commit the
felony of sexually assault. In November 2011, and the trial court signed an order
of six years’ deferred adjudication, with multiple conditions, including registration
as a sex offender. The State alleged several times that appellant violated
conditions of his community supervision, and moved to revoke. Each time the
court modified the conditions and continued the deferred adjudication.
A. The Adjudication Proceedings
In March, 2015, a hearing was held on the State’s latest amended motions to
adjudicate guilt.
1. Appellant’s admissions that he violated certain conditions of confinement
At the beginning of the hearing, appellant pleaded “true” to several of the
alleged violations, and “not true” to others. Specifically, he pleaded true to the
allegations:
1) In violation of the supervision conditions that he avoid persons or places of disreputable or harmful character, on October 3rd, 2014, the defendant admitted to polygraph examiner Ronald Russell: - to meeting a woman on the street that he met about four months ago, and he inviting her to his residence where she smoked cocaine,
2 -to meeting a woman on the street that he met about four months ago and inviting her to his residence where she snorted what he thinks could have been cocaine, - that he met a female on the street who used marijuana in front of him on or about October 1st, 2014, and - that he picked up a woman that smoked marijuana in front of him that he met on Scott Street. 2) being $350.00 in arrears on supervision fees 3) being $457 in arrears on court costs 4) failing to pay laboratory processing fees of $295 5) failing to pay offender identification court costs of $2.50 6) failing to pay $25 Crime Stoppers Fee 7) failing to pay $25 Children’s Assessment Center fee 8) failing to pay $60 Sex Assault Program Fund fee 9) failing to pay $15 for DNA testing 10) failing to comply with the requirement that he participle in Sex Offender Treatment until successful discharge or release by the Court and instead being suspended from the Sex Offender Treatment Program 11) In violation of the supervision condition that he have no contact with minors under the age of 17, on October 3, 2014, he admitted to polygraph examiner Ronald Russell that he -held the hand of a 9-year-old boy during Bible study in August 2014, and -shook hands with minor members of his church congregation in August 2014. 12) In violation of the supervision condition that he not view, receive, download, transmit, or possess pornographic materials on any computer equipment, on October 3, 2014, he admitted to polygraph examiner Ronald Russell that he -received nude photos from a woman he met on the Quest Chat line, and -viewed the nude image of the penis of a man on a cell phone.
3 13) In violation of the supervision condition that he not access the Internet, on October 3, 2014, he admitted to polygraph examiner Ronald Russell that he input personal information online while registering for barber college without the permission of the Court.
Appellant pleaded “not true” to the allegations that he violated supervision
provisions by admitting to polygraph examiner Ronald Russel that he (1) in August
2014, exposed his penis to a girl that he was later informed was a minor, (2)
watched a 16-year-old girl on a swing at the park and talked to her, (3) accessed
the Internet on his smart phone to look at maps, and (4) accessed the Internet on his
smart phone to listen to music.
2. Testimony by Ronald Russell, polygraph examiner
Russell testified to performing polygraph tests for over 11 years, covering
about 10,000 cases. Through his nine-year contract with Harris County, he
primarily works with sex-offender probationers that are sent to him to determine
compliance with their conditions. He testified to giving appellant a pre-interview
questionnaire to complete. He then recorded a little more than an hour of a pre-
polygraph-test interview of appellant, and recorded the 30-minute polygraph test.
The State did not seek to introduce the results or recording of the polygraph
examination into evidence, but offered only the questionnaire answers and the
recording of the pre-polygraph interview, as well as a handwritten statement by
appellant made after the polygraph test. The trial court admitted each of these into
evidence at the hearing.
4 Russell testified his job was to interview appellant, perform the polygraph
examination, and then report the results to appellant’s probation officer and to his
sex-offender treatment provider, Raymond Johnson.
Appellant’s pre-interview questionnaire was dated October 3, 2014, and
asked appellant to answer “yes” or “no” about behaviors since November 29, 2011
that would indicate non-compliance with probation supervision conditions.
Of the 65 yes or no questions, he answered “yes” to the following:
1) Have you been arrested for anything new? 2) Have you violated your travel restrictions? 3) Have you been around a person using illegal drugs? 4) Have you spent time with disreputable characters? 5) Have you violated any curfews? 6) Have you committed any undetected crimes? 7) Have you violated any other general conditions? 8) Have you lied to your supervision officer? 9) Have you lied to get out of a major problem? 10) Have you lied to cover up something that you did? 11) Have you been alone, unsupervised, with a minor? 12) Have you had supervised contact with a minor? 13) Have you groomed a minor? 14) Have you exposed your genitals? (public, stranger, minor) 15) Have you engaged in touching someone without consent? 16) Have you peeped on anyone or engaged in voyeurism? 17) Have you followed or stalked a potential victim? 18) Engaged in obscene calls, 900 numbers or telephone sex? 19) Have you masturbated in a public place?
5 20) Have you possessed or viewed any pornographic material? 21) Have you used a computer including smartphone? 22) Have you committed a sex crime? 23) Have you fantasized about sex with minors?
He did not answer “yes” or “no” as to whether he had “violated [his] child
safety zone restriction” or whether he “accessed the Internet.”
The written statement entered into evidence was a document entitled
“Voluntary Non-Custodial Statement.” Russell testified that it was made after
appellant completed his polygraph examination. The statement is signed by
appellant, witnessed, and states:
My name is Astin Clark and I am 25 years of age. . . . As part of my interview with Mr. Russell, I wish to voluntarily and freely make the following admission or admissions. Mr. Russell has not promised me anything or coerced me in any way to make these admissions and I understand that (1) I am free to leave the interview room at any time; (2) that I am not in custody; (3) that I am not required to give this statement; and (4) that this statement is given freely by me in a non- custodial setting. I’ve masturbated at the washateria by exposing myself. She was an obvious woman of legal age and I fantasized to her as I masturbated. On several occasions I’ve masturbated to many women while driving. An estimated 5 women witnessed me in the act, within the year. Within the year, I peeped though the window of the apartment of a [illegible] as she washed her dishes. I didn’t masturbate but indeed peeped. Within the year, a woman I was in a sexual relationship with was asleep at my apartment, while she was asleep I began to fondle her. She later woke and we proceeded to consensual intercourse.
6 3. Testimony by Raymond Johnson
Johnson next testified. He stated that part of the sexual offender treatment
contract is that defendants consent to polygraph examinations to determine if the
person is compliant with probationary rules and treatment rules, and whether there
are additional behaviors not in line with the treatment. Johnson believed that
appellant had made some progress in his treatment, but he suspended him from
treatment and sent him back to his probation officer after reviewing the results of
appellant’s October 3, 2014 polygraph test. Although Johnson did not watch the
tape of the polygraph examination or read appellant’s pre-polygraph questionnaire,
he read several admissions of appellant’s from the exam, including appellant’s (1)
masturbating in public, (2) contact with minors, (3) viewing pornography, and (4)
peeping in people’s windows. Johnson considered these behaviors to be potential
high risk to the community.
Johnson testified that some of appellant’s behaviors may stem from his
upbringing during which he suffered some abuse.
4. Adjudication of guilt and punishment
After the tape of appellant’s pre-polygraph interview was played for the
court, it found all of the State’s pleaded violations to be “true” and the punishment
phase was held. The State called a University of Houston student who testified
that, while she was living in an all girls’ dormitory in 2011 at the age of 16, she
7 awoke in the middle of the night to discover appellant touching her breasts. He
was lying on the ground, and—after she started screaming—stated “Oh I thought
this was my girlfriend’s room” and left. The complainant testified to being left
scared and paranoid after the incident, as she had just come alone from Venezuela
five months previously to participate in a study-abroad program, and had no family
here in the United States.
Appellant’s aunt, Freda Clark, testified on appellant’s behalf. She explained
that she and appellant’s uncle raised appellant for much of his childhood because
his “mother was just not around.” Appellant’s mother had drug problems, and they
do not know who appellant’s father is. When appellant was 4 or 5 years’ old,
appellant’s mother brought appellant to his aunt and uncle complaining he was
sick. When they took appellant to the doctor, he had genital herpes, and it was
evident that he had been sexually assaulted. Child Protective Services took
custody of appellant at that point, and he was later returned to the Clarks. Clark
testified to being shocked when she watched the video of appellant’s pre-polygraph
interview and upset that “he’s been going through something and we didn’t know
or couldn’t help him.”
The court, while acknowledging that appellant had a rough childhood,
opined that—based on the evidence and appellant’s taped admissions—he is “a
8 dangerous threat to the community.” The court sentenced appellant to 25 years’
confinement, and appellant brought this appeal.
ISSUE ON APPEAL
In a single point of error, appellant argues:
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.
STANDARD OF REVIEW
The decision to proceed to an adjudication of guilt and revoke deferred
adjudication community supervision is reviewable in the same manner as a
revocation of ordinary community supervision. TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(b) (West Supp. 2013); Cantu v. State, 339 S.W.3d 688, 691 (Tex.
App.—Fort Worth 2011, no pet.). We review an order revoking community
supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d
759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984). In a revocation proceeding, the State must prove by a
preponderance of the evidence that the defendant violated at least one of the terms
and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873–74
(Tex. Crim. App. 1993). The trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony, and we review the evidence
9 in the light most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493;
Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). If the
State fails to meet its burden of proof, the trial court abuses its discretion in
revoking the community supervision. Cardona, 665 S.W.2d at 493–94. We will
affirm if there is sufficient proof of one violation. Marcum v. State, 983 S.W.2d
762, 767 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (recognizing that the
State only need prove one violation of a condition of probation and that the failure
of a defendant to report to his community supervision officer as instructed on one
occasion is sufficient grounds for adjudication of guilt).
APPLICABLE LAW
Under the Fifth Amendment to the United States Constitution, no person
“shall be compelled in any criminal case to be a witness against himself.” U.S.
CONST. amend. V. “It is well settled that the Fifth Amendment insulates
probationers from compelled self-incrimination.” Dansby v. State, 398 S.W.3d
233, 240 (Tex. Crim. App. 2013). “Supreme Court decisions have ‘made clear’
that a state may ‘not constitutionally carry out a threat to revoke probation for the
legitimate exercise of the Fifth Amendment privilege.’” Id. (quoting Minnesota v.
Murphy, 465 U.S. 420, 438, 104 S. Ct. 1136, 1148 (1984). Thus, 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
10 making incriminating statements and jeopardizing his conditional liberty by
remaining silent.” Murphy, 465 U.S. at 436, 104 S. Ct. at 1147. “A State may
validly insist on answers to even incriminating questions and hence sensibly
administer its probation system, as long as it recognizes that the required answers
may not be used in a criminal proceeding and thus eliminate the threat of
incrimination.” Id. at 435 n.7, 104 S. Ct. at 1147 n.7.
The “privilege against compelled self-incrimination is not ordinarily self-
executing.” Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003). “In all
but a few specific situations, a criminal defendant must timely assert his privilege”:
The Fifth Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been “compelled” within the meaning of the Amendment.
Id.
If a probationer does not affirmatively invoke the privilege, the question
becomes whether “‘the classic penalty situation’” exception to this general rule
applies, thereby relieving him of the responsibility to assert his privilege.” Id. In
the classic penalty situation, a person is threatened with punishment for relying
upon his Fifth Amendment privilege. Id. The Supreme Court has identified the
key inquiry in this penalty situation as “whether the accused was deprived of his
11 free choice to admit, to deny, or to refuse to answer.” Garrity v. New Jersey, 385
U.S. 493, 496, 87 S. Ct. 616, 618 (1967).
Miranda warnings are not required before a polygraph examination if the
purpose of the polygraph examination is to “to help evaluate the truthfulness” of
the defendant’s reports and compliance with supervision terms. Ex parte Renfro,
999 S.W.2d 557, 561 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). “When
subject to a polygraph examination as an investigative tool [to evaluate compliance
with supervision conditions] alone, a probationer is not placed in any worse
position than he would otherwise be were there no polygraph condition.” Id.
ANALYSIS
During the State’s direct examination of Mr. Russell, the polygraph
examiner, it moved to admit into evidence (1) appellant’s completed questionnaire,
(2) appellant’s “Voluntary Non-Custodial Statement,” and (3) Russell’s recorded
interview. Before the court ruled, appellant’s counsel requested permission to take
Russell on voir dire:
Q. Just a few things. It is your understanding it was Mr. Clark’s – it was a requirement of his probation that he take these polygraph tests? A. Yes, sir. Q. And refusal to do so could be a violation of his probation? A. That’s what I understand, yes, sir. Q. Which could then result in him going to prison?
12 A. Correct. Q. Did you Mirandize him before the test? A. No, sir. I’m not a peace officer.
Appellant’s then made the following objection.
Your Honor, just in an abundance of caution, I object to the admission of this as a violation of his Miranda rights, his right to self- incrimination. It’s our position that given the mandatory nature of this polygraph test, it’s tantamount to a custodial statement and we would ask that it not be admitted.
The trial court overruled the objection and ruled that the State’s three
exhibits were admitted.
A. Parties’ arguments
Appellant argues that he “objected to the admission of the failed polygraph
examination and other exhibits offered by the prosecution, as a violation of
[appellant’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.” According to appellant,
“Supreme Court decisions have ‘made clear’ that a state may not constitutionally
carry out a threat to revoke probation for the legitimate exercise of the Fifth
Amendment privilege.”
The State responds that the Fifth Amendment was not implicated because
appellant’s statements were solicited solely for the purpose of investigating
compliance with supervision terms (which could lead to revocation of that
13 supervision), but not for use in a future criminal prosecution. Further, the State
contends that any privilege against self-incrimination was waived by appellant’s
failure to invoke it during the pre-polygraph interview or the post-polygraph
written statement. The State also disputes that Miranda warnings were necessary,
as appellant was not in a custodial interrogation.
Finally, the State notes that there are numerous violations to which appellant
pleaded true that are unrelated to the admissions made during the pre-polygraph
questionnaire and interview, or the post-polygraph written statement. Because
appellant does not address those grounds in his brief, the State argues that we must
affirm.
B. Application of the Law
Preliminarily, we note that—despite appellant’s argument that the trial court
erred in admitting “the failed polygraph examination”—neither the polygraph
examination, nor its results, were entered into evidence. At issue here is the trial
court’s admission of the pre-polygraph questionnaire and interview and the post-
polygraph written statement. The crux of appellant’s argument is that Miranda
warnings should have been given before he was interviewed. “Statements made by
a suspect during a custodial interrogation are inadmissible unless the suspect was
given a Miranda warning and knowingly and intelligently waived [the] privilege
against self-incrimination and [the] right to counsel.” In re A.M., 333 S.W.3d 411,
14 416 (Tex. App.—Eastland 2011, pet. denied); see also Ervin v. State, 333 S.W.3d
187, 204 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (recognizing that failure
to give Miranda warnings and the warnings set forth in TEX. CODE CRIM. PROC
ANN. art. 38.22 §§ 2(a), 3(a) (West 2005) render custodial statements
inadmissible). “However, requiring a probationer to submit to a polygraph
examination does not subject the person to custodial interrogation.” A.M., 333
S.W.3d at 417; Marcum, 963 S.W.2d at 766 (“Although the examination was a
requirement of his probation, appellant was not subjected to custodial
interrogation.”).
Appellant did not invoke his Fifth Amendment rights at the polygraph
examiner’s and, in his post-polygraph statement, he acknowledged, in writing, that
that his statement was made “voluntarily and freely,” and his understanding “(1) I
am free to leave the interview room at any time; (2) that I am not in custody; (3)
that I am not required to give this statement; and (4) that this statement is given
freely by me in a non-custodial setting.”
Appellant was represented by counsel at the adjudication hearing. At the
beginning of the hearing, before the State sought to introduce any evidence from
the polygraph questionnaire, interview, or written statement, appellant pleaded true
to thirteen (some with additional sub-parts) violations of the terms of his
community supervision. Of those, four were directly related to admissions
15 appellant made to the polygraph examiner. The remainder of the violations were
independent of those exhibits later admitted related to his questionnaire, interview,
and written statement.
Proof of a single violation of a condition of deferred adjudication is
sufficient to support a trial court’s order of revocation. Moore v. State, 605 S.W.2d
924, 926 (Tex. Crim. App. [Panel Op.] 1980). Appellant’s plea of “true” to
numerous violations, including nine that he does not challenge here on appeal as
being “tainted” by his polygraph questionnaire, interview or written statement, are
sufficient to support the trial court’s adjudication of guilt. See Latigue v. State, No.
14-10-00680-CR, 2011 WL 2149418, at *2 (Tex. App.—Houston [14th Dist.] May
26, 2011, no pet.) (mem. op., not designated for publication) (“Appellant admitted
he violated curfew and failed to pay court costs and fees. Those admissions alone
are sufficient to support an adjudication of guilt.”) (citing Cardona v. State, 665
S.W.2d 492, 493–94 (Tex. Crim. App. 1984)).
When an appellant does not challenge every ground found “true” by the trial
court for adjudicating guilt, “nothing is presented for review.” Moore, 605 S.W.2d
at 924.
We overrule appellant’s sole issue.
CONCLUSION
We affirm the trial court’s judgment.
16 Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).