·.
RECEIVED C0 ' "T OF APPEALS MAY 1 0 Z013 L·,sA MATZ · · Ol-~l'lK, om 01 T !9
IN THE COURT OF CRIMINAL APPEALS OF TEXAS · NO. PD-0613-12
MICHAEL EDWARD DANSBY; SR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS . KAUFMAN COUNTY
PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, COCHRAN and ALCALA, JJ., joined. KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.
OPINION
The appellant argued on direct appeal that his deferred adjudication community
· supervision was revoked unconstitutionally as a penalty for invoking his Fifth Amendment
·privilege against self-incrimination by refusing to answer questions during the course of a
court-imposed sexual history polygraph examination about past sexual assault offenses. In
an unpublished opinion, the Dallas Court ofAppeals declined to reach that issue, holding that Dansby- 2
the appellant's community supervision had been legitimately revoked on another basis-that
he failed to successfully complete the court-ordered sex offender treatment program that the
sexual history polygraph was designed to facilitate. 1 We granted the appellant's petition for
discretionary review to address the appellant's contention that he was essentially discharged
from the treatment program because he refused to answer incriminating questions during the
course ofthe sexual history polygraph, and the court of appeals therefore improperly dodged r
his constitutional claim. We will reverse the judgment of the court of appeals and remand
the cal,lse for further consideration of the case not inconsistent with this opinion.
·FACTS AND PROCEDURAL HISTORY
Although originally charged with aggravated sexual assault, on July 9, 2008, the
appellant pled guilty to the lesser offense of indecency with a child for molesting his
granddaughter. The trial court placed him on five years' deferred adjudication community J '
supervision and ordered him to begin a sex offender treatment program and to submit to
polygraph examinations at the discretion of his corrimunity supervision officer. The
appellant agreed to these conditions and, over the course of the next year, faithfully attended
approximately fifty group therapy sessions and passed two "maintenance" polygraph
examinations designed to make sure that he was complying with the requirements of his
Dansbyv. State, No. 05-10-00866-CR, 2012 WL 1150530 (Tex. App.-Dallas, delivered Apr. 9, 2012) (not designated for publication). Dansby- 3
community supervision. He was also eventually required to submit to a sexual history
polygraph, and so, on April6, 2009, he appeared at polygrapher Andy Sheppard's office.
When it became clear during the preliminary conference with Sheppard that he would be
asked questions about extraneous prior sexual offenses he may have committed, however,
the appellant advised Sheppard that "his attorney told ·him not to say anything that might
result in a prosecution." Sheppard believed he "was left no other option than to terminate
the interview."
On August 18, 2009, the appellant was discharged from the sex offender treatment
program. The State subsequently filed a motion to proceed to adjudication, alleging two
. grounds for revocation of his community supervision. First, the motion alleged that the
appellant "violate[ d] condition (30) in that he refused to obtain a sexual history polygraph
as [r]equested by the Community Supervision Officer & Counselor." Second, the motion
alleged that he "violate[d] condition (36) in that [he] failed to attend and successfully
. complete the Sex Offender Treatment Program."2 The trial court convened a hearing on the
State's motion to proceed to adjudication on March 30; 2010.
Condition thirty-six required the appellant to begin an approved sex offender treatment program within ten days of being placed on deferred adjudication probation, to pay the costs of the program, abide by its rules, and "not leave the program [until] successful completion or unless you have the permission of the court or your supervising officer." Strictly speaking, the appellant did not fail to attend the program as alleged in the motion to revoke. The evidence at the hearing on the motion to revoke conclusively establishes that he attended every group and individual therapy session without fail-at least until he was involuntarily discharged from it. Nor did he "leave the program" of his own volition, as literally prohibited by the actual condition of community supervision. . Dansby- 4
Three witnesses testified at the hearing. The State's first witness was Sheppard, the
polygrapher. He testified that, mind~l of a probationer's Fifth Amendment privilege against
self-incrimination during a sexual history polygraph,
I avoid asking about any names, any specific identifiers of another victim, an address where it may have occurred. Anything that would basically put me in a position where I would have to contact a .law enforcement agency or child protective services to make a report. So, the effective way I do that is to ask for the victim's age, and the offender's age at the time that the offense occurred. Was the victim a male or a female? Was it a stranger or an acquaintance? And, no more specific than that. And, then what did the offender do to the victim and how many times. And, that gives us strictJy a chronological and a behavioral look at what the offender had done without causing the offender to have to incriminate himself.
When Sheppard explained this to the appellant at the start of the polygraph examination on
April6, 2009, the appellant "responded by telling [Sheppard that] his attorney told.him not
to say anything that might result in a prosecution." On cross-examination, Sheppard confirmed that the purpose of the sexual history polygraph was to determine the "truth and
veracity" of the appellant's statements about "[d]eviant sexual behavior, and sexual crimes"
against victims of offenses other than that for which he wa& placed on community
supervisiOn. He also acknowledged that the appellant had answered all questions
straightforwardly and truthfully during the two maintenance polygraph examinations that
Sheppard administered to him.
The State next called Linda Young, the appellant's sex offender therapist who
discharged him from the program. Young testified that certain psychological testing she Dansby- 5
conducted on the appellant suggested to her that ''truthfulness might [be] an issue" for him
and that he was mistrustful of other people, making it difficult for him ''to be open and honest
in treatment." He also displayed certain personality disorder traits that led her to suspect that
he might prove deceitful and attempt to deflect blame. The primary goal of sex offender
treatment, she maintained, is "not to have anymore [sic] victims." To this end, she insisted,
the sexual history polygraph is necessary because
it's critical to have that information because we can't- unless we know this - - · person, and unless we know how they - unless we really know how they respond, how they responded in the past because that's our best producer, a future behavior is past behavior at this point. So, we have to know these things.
Although the appellant attended therapy sessions regularly and superficially acknowledged
responsibility for his offense, Young maintained that he never took "ownership" of it:
A No, that was a boundary for [the appellant]. He acknowledged the offense and would [give] us some [underlying] beliefs that he said he had, and that was about as far as we could go because, we didn't have any history of prior negligent behavior.
Q How many times did he actually say, I did this, in group?
A I don't know. I can't tell you, but he did.
Q Was it fifty times in group that he showed up every time and said, I did this, it's my fault?
· A ·I doubt that, no. But, I mean; toward the end after- after, you know, a certain amount of time he did acknowledge - he did verbally take responsibility.
Q Now, did you ever get, at all, the next step of identifying his Dansby- 6
[underlying] beliefs?
A Not totally. Like I said, before we can really do that we have to know the person well. And, that never happened because, he didn't allow himself to be vulnerable enough to give us that kind of information.
Although Young would expect an offender of the appellant's type to have "impure thoughts"
from time to time, the appellant never admitted to fantasizing or indulging in pornography
during group sessions. He was "guarded" in therapy and "had a hard time participating in
terms of his own deviance." The appellant had himself been victimized as· a child, and
early on that was ail issue, and he felt like because of his own history that was a big reason he offended, yes. Being - feeling victimized, feeling special, · feeling unique, all of those are thinking areas that they engage in. [The appellant] engaged in quite regularly.
Q .Does [the appellant] even understand that he is a risk?
A No, I don't think so.
Q Does that concern you?
A Well, yes. It's almost like a line they have to cross. They have to fully understand that this is something- the sexual- deviance or sexual desire is something that they're probably not going to get better, it's not going to go away. And, so they have to learn to control it. And, that's really hard for them to acknowledge. They feel like they are cured, it's never going to happen again, that kind of thing.
Q Now, what kind of reaction- what is the reaction of other offenders in group to [the appellant]?
A They worked really hard athelping [the appellant] trying to help him understand about the sexual history polygraph, the sexual history itself, they gave him information from their own experiences and they are- they were quite irritated with him at the end. Dansby- 7
*** Q So, why are they irritated with [the appellant]?
A Well,.they took the sexual history polygraph, they [have] done sexual history, they have to talk about their horrible behavior, and they kind of figure if they have to they want him to as well.
Asked why she believed the appellant remained a risk to re-offend, Young replied,
A Because, he hasn't been in treatment very long and when he was in treatment he didn't comply with the requirement. So, he really didn't get a lot during that process.
Q So, did he successfully complete treatment as ordered by the court?
A No.
Q Was the not taking the polygraph [ ... ] the only reason that he got thrown out of sex offender treatment?
A No, it's not at all. He couldn't participate because he would of had to disclose information, and he was unwilling to do that. So, he was guarded and his participation was not on target in terms of his own issues, his attitude stunk there at the end, and he just wasn't getting anywhere.
·Q Can you give the Judge an example of his bad attitude?
A He just would refuse to talk. We would ask him a question and he would just sit there.
Young ·believed that the appellant's reticence was disruptive of the group because ''we
certainly spent a lot oftime with him, that might have been spent elsewhere."
On cross-examination, Young admitted that, in the last paragraph of a letter she had
written, on August 21, 2009, to inform the appellant's community supervision officer, Kirk Dansby- 8
Mann, that the appellant had been discharged from the sex offender treatment program, she
had indicated that the sexual history polygraph "is a necessary part of the treatment process."
She acknowledged that her "particuli:rr brand" · of sex offender therapy "cannot be
successfully implemented" if the appellant ''will not disclose or discuss his allegedprior acts
of sexual conduct." Nevertheless, she continued to deny that his refusal to submit to the ·
polygraph was the only reason he was discharged from the treatment program. Still, she
opined that she did not believe any treatment program could work that did not take past
sexual misconduct into account, "[b]ased on what I have seen over the last twenty years, as
far as, offenders and until they acknowledge who they are, and what they've done, and the
problems that they have, as far as being successful it's pretty trivial." On re-direct
examination, Young read aloud the balance of her letter to Mann, in which she identified
other factors in her decision to discharge the appellant:
[The appellant] spent much ofhis time in group "lying and conning." When confronted, he was highly insulted to think that anyone would believe he could have done, what in fact, he did do. [His] group participation was minimal. Occasionally, he will confront others, but provides very little information regarding his own deviance. He is very guarded and most of his replies are brief or he does not answer at all.
Such an offender, she confrimed, will not ordimirily "last very long in treatment."
The trial court then questioned Young specifically about a progress report she had
prepared regarding the appellant's treatment for the reporting period between March 30,
2009, and May 15, 2009, which included the date (April 6th) the appellant had refused to Dansby- 9
answer questions during the sexual history polygraph examination:
THE COURT: I am looking at your comments and the attorneys well know what is written there[,] they've reviewed_all this. It appears to me that you had a glimmer of hope. [The appellant] seems to understand that he is not the victim, his joumaling has improved dramatically and he is presenting the correct- I think you meant thought process. You say he's still manipulative regarding his sexual history polygraph that- you left it at that. Just from the tone, the tenor of that entry it seems you were hopeful?
THE WITNESS: There was a time, a brief time where it looked like he was going to be okay. It looked like he was going to make it.
THE COURT: Tell me in your words, what happened from that entry until the next one?
THE WITNESS: Well, I think that we kept pressing him for the polygraph, he became more and more guarded, and participation just dfopped from there.
In her last progress report regarding the appellant's treatment, for the reporting period that
spanned June 30, 2009, to August 4, 2009, Young's comments read as follows:
[The appellant] continues to resist complying with treatment- - participation is almost non-existent-h~ seems afraid he will be asked to disclose information-he cannot continue to remain in group with this lack of compliance-If he has not completed his polygraph confirming his sexual autobiography as being accurate by August 15, 2009, he will be discharged from this group. It is my concern that [the appellant] may be at risk to offend.
The appellant persisted in his refusal to submit to the sexual history polygraph examination
by the appointed date of August 15th, and three days later he was discharged.
After Young testified, the State rested, and the appellant called as his only witness his
community supervision officer, Mann. Mann initially agreed that the appellant was Dansby- 10
discharged from the sex offender treatment program "because he failed to complete a sexual
history polygraph[,]" but he immediately denied, without ~laboration, that this was ''the only
reason[.]" He admitted that "several times" an offer was made to the appellant to withdraw
the motion to revoke his community supervision if the appellant would agree in exchange to . i
"get back into counseling, take a sexual history polygraph and make progress[,]" but the
appellant refused. Asked whether that offer would have stood without the necessity of the
polygraph, Mann replied, "No, sir, because the State requires it in all of the programs."
In fmal arguments to the trial court, counsel for the appellant asserted that the State's
entire case for proceeding to adjudication was "all about the polygraph exam," and that to
revoke the appellant's community supervision would amount to an unconstitutional penalty
on his invocation of the Fifth Amendment privilege to refrain from incriminating himself.
In response, the prosecutor argued:
And, as far as, the polygraph examination, I will concede to the defense that if that is the only reason why we were here, that he was the stereotypical probationer and he just got where he wouldn't take those polygraphs, and we wouldn't even be here, if he was just saying, Fifth Amendment, I invoke it, but beyond that he's being great in participating in group and he's identifying being sexually attracted to little girls and being an excellent participant, we wouldn't be here. The bottom line is, that is one way he has failed of many. It's clear from Ms. Young thafwhen we started back here in July, of2008, we had a sixty-two year old man with a persistent deviant interest in young female children at adolescent and grade school age. With a desire to be well viewed, and a propensity to lie. With antisocial and personality disorderations [sic]. Someone prong [sic] to playing the con man and the victim. Who distrusted people and was unwilling to make disclosures. And, by August of2009, what do we have? A sixty-three year old man who has persistent deviance inte:r;est in young children and fill in the rest. And, Ms. Young testified to you that the Dansby- 11
effect of difference between the sixty~two year old Mike Dansby and the sixty- three year old Mike Dansby is effectively zero. That all of those fifty sessions of counseling yielded zip. That they barely progressed into the very first state of acknowledging his offense and that he stands before you a troubling risk to reoffend.
Without elaboration, the trial court then found that the appellant had violated both conditions
thirty and thirty-six ofbis ~eferred adjudication community supervision and entered a finding
of guilt on the indecency-with-a-child offense. A week later, after a punishment hearing, the
trial court refused to place the appellant on regular community supervision, sentencing him
instead to serve an eighteen-year sentence in the penitentiary.
In tWo points of error on appeal, the appellant argued that to revoke his deferred
adjudication community supervision and proceed to adjudicate his guilt for failing to answer
incriminating questions during the sexual history polygraph examination was tantamount to
penalizing him for asserting a valid Fifth Amendment privilege. The court of appeals held,
however, that adjudicating the appellant guilty based upon his violation of condition thirty-
six, the failure to successfully complete the sex offender treatment program, did not implicate
his Fifth Amendment privilege. 3 Because it was able to identifY a basis for revocation that
was supported by the record without implicating the appellant's Fifth Amendment privilege,
the court of appeals declined to reach the question whether the trial court had validly
proceeded to adjudication based upon the appellant's violation of condition thirty, the failure
Dansby, supra, at *5 ("Viewed in the light most favorable t!J the trial court's ruling, we conclude the trial court could have held a reasonable belief that appellant violated condition thirty-six for reasons other than invoking,his Fifth Amendment privilege."). Dansby- 12
to submit to the sexual history polygraph. 4 We granted the appellant's petition for
discretionary review in order to evaluate his contention that the coUrt of appeals erred in
concluding that the evidence supporting a violation of condition thirty.:.six constitutes a basis
for adjudication that is genuinely independent of any unconstitutional infringement upon his
Fifth Amendment privilege. We conclude that the court of appeals did err and will remand
the cause for that court to address the merits of the appellant's Fifth Amendment arguments.
THE FIFTH AMENDMENT PRIVILEGE
Under the Fifth Amendment to the United States Constitution, no person "shall be
compelled in any criminal case to be a witness against himself[]" 5 It is well settled that the
Fifth Amendment.insulates probationers from compelled self-incrimination. 6 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."7 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 m3king incriminating
!d. 5
U.S.CONST.rumend. V. 6
Minnesotav. Murphy, 465 U.S. 420,426 (1984); Chapman v. State, 115 S.W.3d 1, 5-6 (Tex. Crim. App. 2003). 7
Murphy, supra, at 438. Dansby- 13
statements and jeopardizing his conditional liberty by remaining silent." 8 It bears emphasis
"that 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. " 9 But the ' .
appellant in this case was offered no such use immunity. The State cannot reasonably have
believed that it could penalize him for invoking his Fifth Amendment privilege by revoking
his conditional liberty solely on the basis of his refusal to answer questions that would tend
to incriminate him during the course of the sexual history polygraph process-or, for that
matter, during required sex offender group therapy sessions. 10
The court of appeals avoided the constitutional issue, however, relying on this Court's
many holdings that "[t]he State is obligated to prove only one ofthe violations alleged in the
motion to revoke or proceed to judgment in order to authorize the trial court to revoke
!d. at 436. 9
!d. at 436 n.7; Chapman, supra, at 7 n.28 . . 10
Murphy, supra, at 438-39; Hoffmanv. United States, 341 U.S. 479, 486 (1951) (the Fifth Amendment privilege is to be "accorded liberal construction in favor of the right it was intended to secure[,)" and "not only extends to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute"). The privilege applies unless "it is perfectly clear . . , that the answer cannot possibly tend to incriminate the witness." G~ayson v. State, ~84 S.W.2d 691, 696 (Tex. Crim. App. 1984). As Judge Cochran has recently observed, "[t]hat is a high hurdle to jump." Ex parte Dangelo, 376 S. W.3d 776, 782 (Tex. Crim. App. 2012) (Cochran, J., concurring). Dansby-· 14
community supervision or to proceed to judgment. " 11 But this principle cannot operate to
excuse the court of appeals from addressing the appellant's asserted Fifth Amendment issue
if the one ground for revocation that it found to be supported by the evidence is equally
infected with constitutional infirmity as the ground for revocation for which it abjured
reliance. The question presently before us boils down to simply this: Was the appellant's
discharge from ·the sex offender treatment program a product of his invocation of a Fifth
Amendment privilege? 12 We hold that the court of appeals erred to conclude that it was not.
ANALYSIS
As he does here, the appellant contended on direct appeal that, "had he taken the
sexual history polygraph, he would still be in the treatment program[,]" and that "his ultimate
violation of condition thirty-six was derived from his not wanting to incriminate himself." 13
The court of appeal rejected this contention, not only because of Young's and Mann's
specific testimony that the appellant's failure to submit to the sexual history polygraph was
"not the only reason" for his discharge, but also because ''the information sought in
counseling addressed more than just subjects that might have caused appellant to incriminate
II
George E. Dix & John M. Schmolesky, 43A TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE§ 48:57, at436 & n.l (3rd ed. 2011) (citing, "e.g.," Jonesv. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. 1978); Gobeli v. State, 528 S. W.2d 223, 224 (Tex. Crim. App. 1975); Ross v. State, 523 S.W.2d 402, 404 (Tex. Crim. App. 1975)). 12
The question of whether that invocation is legitimate is not before us at this juncture. 13
Dansby, supra, at *5. Dansby- 15
himself for other crimes." 14 But, in our view, neither the fact that there were other relevant
factors contributing toYoung' s ultimate decision to discharge the appellant, nor the fact that
appellant's reticence in group therapy sessions may not have been wholly attributable to a
reasonable fear of incriminating himself, necessarily establishes that his discharge from the
sex offender treatment program occurred independently of his invocation of the Fifth
Amendment privilege. When an appellate record admits of so strong an inference as this one
does that the probationer's unwillingness to incriminate himself was the deciding factor in
discharging him from the sex offender treatment program, we cannot permit the court of
appeals to avoid addressing the constitutional issue.
The trial court found that the appellant violated both conditions thirty and thirty-six
of the appellant's conditions of community supervision. Because a trial court is authorized
. to revoke community supervision and proceed to adjudication so long as the State has
established at least one of the violations it has alleged, 15 the court of appeals limited its
review to condition thirty-six, that the appellant must successfully complete the sex offender
treatment program, and it thereby avoided the Fifth Amendment issue. But this approach can
work only if the.violation upon which the reviewing court relies to uphold the trial court's
ruling is itself unquestionably free of constitutional taint. Before the State may take
!d. 15
See note 11, ante. Dansby- 16
advantage of the rule 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, 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. If,
but for the appellant's invocation of his Fifth Amendment privilege, he would not have been
discharged from the sex offender treatment program (condition thirty-six), then his discharge
'from the program cannot constitute an independent basis for revocation that serves to obviate
the reviewing court's obligation to address the constitutionality of revoking him for refusing
to submit to incriminating questioning during the sexual history polygraph (condition thirty).
'The record must show that, even without refusing to answer what he took to be incriminating
questions, the appellant actually would have been discharged from the sex offender treatment
program. Here, the record does not.
Both Young and Mann insisted that there were _~' other reasons" for discharging the
appellant. But the existence of other factors that were relevant to inform Young's decision
is not determinative if the appellant's failure to answer incriminating questions during the
polygraph process (or, for that matter, group therapy sessions) was her motivating reason for
discharging him. If the other reasons did not, by themselves, cause Young to discharge the
appellant from the treatment program, then the fact of his discharge cannot insulate the
appellant's revocation from Fifth Amendment scrutiny. Neither Young nor Mann indicated
that the "other reasons" supporting Young's decision to discharge the appellant would have Dansby- 17
actually caused her to discharge him regardless of whether he also refused to implicate
himself in prior offenses, either .during the poiygraph or in therapy; indeed, the record
strongly suggests otherwise. Mann acknowledged that, had the appellant only agreed to
return to treatment and take the sexual history polygraph, the motion to revoke would have
been dismissed. And the ultimatum that is clearly reflected in Young's progress report of
June 30th to August 4th of2009-that the appellant submit to the sexual history polygraph or
else be summarily discharged-indicates that the appellant's steadfast refusal to confess to
the commission of earlier sex offenses was by far the single most important instance of non-
compliance, the sine qua non, that informed her decision to expel him from the treatment
program.
That the appellant was as reticent to incriminate himself during group therapy
meetings (notwithstanding the peer pressure) as he was during the sexual history polygraph
process cannot justify his expulsion from the treatment program apart from his claim ofFifth
Amendment privilege. Without immunity, he simplymay not be forced to confess to
criminal behavior in any context, whether during a polygraph examination or during group
therapy. It is trUe, as the court of appeals pointed out, that there were other, non-
incriminating disclosures that the appellant refused to make during the group therapy
sessions-for example, he refused to admit to fantasizing and indulgfug in pornography. 16
Dansby, supra, at *5. Dansby- 18
But Young never suggested that these particular non-disclosures were essential to her
decision to discharge him, and they do not rebut the strong inference from the record that it
was specifically the appellant's intransigence with respect to admitting to prior criminal
offenses that actually provoked her action. In the absence of testimony that Young would
have discharged the appellant for these deficiencies alone, quite apart from his failure also
to incriminate himself, the State has not established that his discharge presented a sufficient
basis to proceed to adjudication that was wholly independent of his · claim of Fifth
Amendment privilege. 17 Under these circumstances, the court of appeals erred to believe it
. .The dissent opens with the assertion that we are simply acting on our "belief' that Young discharged the appellant "solely because" of his invocation of his Fifth Amendment privilege. Dissenting Opinion at I. The balance pf the dissent accuses us of indulging in inappropriate fact- finding, encroaching upon the trial judge's prerogative to resolve issues of historical fact and credibility as he sees fit based upon the evidence. We reject these assertions. We do not doubt the credibility of Young and Mann, nor do we ignore their testimony that, as a matter of historical fact, "other reasons" contributed to the decision to discharge the appellant from the treatment program, causing him to violate condition thirty-six of deferred adjudication community supervision. We hold, instead, that those facts alone are not definitive. Neither Young nor Mann was asked, and the record does not otherwise establish, whether-as a matter ofhistorical fact -those other reasons would have caused Young to discharge the appellant from the program even had he submitted to the sexual history polygraph. It is this question of historical fact that determines whether revoking the appellant's community supervision was accomplished independently ofhis invocation ofthe Fifth Amendment privilege. In the absence of an answer to this definitive question on the record, the trial court may not, in the name of "discretion," speculate that Young would have discharged the appellant from the treatment program for the "other reasons" she mentioned, even if he had taken the polygraph. Wbat we hold today is that, as beneficiary of the appellate rule that, upon proof of the violation of any one · condition of probation, an appellate court may affirm a revocation order, the State bears the burden of producing a record that demonstrates an absence of constitutional infirmity in the one condition upon which it would rely. We do not purport to find as a matter of historical fact that, but for the appellant's failure to take the sex~al history polygraph, Young would not have discharged him from the sex offender treatment program. Rather, we hold as a matter of law that the State has failed to satisfy its burden to show otherwise. Dansby- 19
could eschew the constitutional issue on direct appeal.
CONCLUSION
Accordingly, we reverse the judgment of the court of appeals and remand the cause
for further appellate consideration consistent with this opinion. 18
DELIVERED: May 8, 2013 PUBLISH
The State has devoted a substantial portion of its brief in reply to the appellant's petition for discretionary review to the argument that, by failing to object to any of the conditions of deferred adjudication community supervision at the time they were imposed, or at any reasonable time thereafter, the appellant has forfeited, or should be estopped from asserting, his Fifth Amendment privilege on"--" appeal. ~ " The court of appeals did not have to address this argument on original submission, however, and nelther shall we reach it for the first time on discretionary review, leaving it to the court of appeals to resolve, if necessary, on remand. ~N THE COURT OF CRIMINAL APPEALS ~OF TEXAS
NO. PD-0613-12
MICHAEL EDWARD DANSBY, SR, Appellant
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS KAUFMAN COUNTY
KEASLER, J., filed a dissenting opinion, in which KELLER, P.J., and HERVEY, J., joined.
The linchpin of the Court's opinion is its belief that Linda Young, Mfchael Dansby's
therapist, discharged Dansby solely because he refused to submit to a sexual-history
polygraph examination required for probationers in her sex-offender treatment program. It
is apparent that this belief drives the Court's analysis and the case's final outcome. And to
stretch this belief into a rationale why the court of appeals erred in failing to review Danby's
constitutio~al claim, the Court holds that the lower co~ could not rely on the legal principle DANSBY DISSENT-2
that a single violation proved by a preponderance of the evidence is sufficient to proceed to
judgment, "if one ground for revocation that it found to be supported by the evidence is
equally infected with constitutional infirmity as the ground for revocation [the lower court
did not reach]." 1 Using its newly minted "constitutional infection theory," the Court recasts
the issue before it as a question of whether Dansby's refusal was the true reason for his
discharge; a question the Court is too willing to answer.
Two central issues prevent me from joining the Court's opinion: First, the Court's
rationale falsely assumes, without the necessary analysis or authority, that the therapist's
subjective intent in discharging Dansby is relevant and is the appropriate analysis of whether
the court of appeals should have reviewed Dansby's constitutional-violation Claim. Second,
the Court takes it upon itself to make a factual fmding that it is ill-suited to make and reaches
a conclusion that is contrary to the record.
The Court crafts an unnecessary rule that requires lower courts, in evaluating whether
a trial court has abused its discretion in revoking community supervision, to plumb the depths
of a therapist's subjective intent in choosing to discharge a probationer from treatment. The
Court concludes that, the other factors contributing to Young's decision to discharge,
including Dansby's reluctance to participate in group sessions divorced from fear of self-
incrimination, do not necessarily establish that his discharge was for a reason independent
1 Ante, op. at 13-14. DANSBY DISSENT-3
from his Fifth Amendment assertion. 2
The Court misses the mark because .it conflates the issues ·of whether Young
inappropriately discharged Dansby with whether the trial court abused its discretion. 3 In my
view, the court of appeals correctly analyzed the true issue-whether the trial court abused
its discretion. On direct appeal, Dansby framed the relevant issue as whether the trial court
abused its discretion in finding that Dansby violated conditions thirty (requiring that he
submit to polygraph examinations) and thirty-six (requiring successful completion of sex-
offender treatment). The court of appeals resolved the case by "conclud[ing] the trial court
could have held a reasonable belief that [Dansby] violated condition thirty-six for reasons
other than invoking his Fifth Amendment privilege" and therefore did not need to address
his issue relating to condition thirty. 4
· While Young's decision to discharge Dansby triggered the motion to adjudicate, it is
the trial judge alone who decides whether Dansby violated the terms of community
supervision alleged in the motion to adjudicate. 5 Young's discharging Dansby from
treatment does not mean that the trial judge had to revoke Dansby's community supervision.
2 Ante, op. at 15. 3 See generally Leonard v. State, 385 S.W.3d 570, 584-85 (Tex. Crim. App. 2012) (Keasler, J., dissenting). 4 Dansby v. State, No. 05-10-00866-CR., 2012 WL 1150530, *5 (Tex. App.-Dallas April 9, 2012) (not designated for publication). 5 . . . TEX. CODE CRIM. PROC. art. 42.12, § 10(a). DANSBY DISSENT---4
The allegation was simply that Dansby did not successfully complete sex-offender treatment.
In the abstract, there could be an infinite number of potential reasons why a probationer was
not complying with treatment, each one sufficient to support a therapist's decision to
discharge a probationer and a judge's decision to revoke or adjudicate. At the motion-to:
adjudicate hearing, Dansby was given an opportunity to justify the alleged reason for
discharge and in fact argued the same issue he does here, that he was discharged solely as a
result of his Fifth Amendment invocation. Young's testimony refuted this assertion. The
trial judge is "the sole trier of facts, of the credibility of the witnesses, and of the weight to
be given to particular testimony at the hearing" and can accord varying weight to a witness's
testimony or completely disregard it. 6 We have long held that 'an abuse-of-discretion
standard applies when reviewing a trial judge's revocation ofprobation. 7 A trial court abuses .
its discretion by revoking probation when the State has failed to prove a violation by a
preponderance of the evidence. 8
As the Court insists, the State now has the burden to "establish" in the record that, in
response to a hypothetical question that calls for speculation, the therapist would have
discharged a probationer solely on other grounds if the probationer merely claims his
6 See Naquin v. State, 607 S.W.2d 5_83, 586 (Tex. Crim. App. 1980). 7 Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); 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); Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). 8 Cardona, 665 S.W.2d at 493-94. DANSBY DISSENT-S
discharge was the result of invoking the Fifth Amendment privilege. The more logical rule
is that if the discharge is proven by a preponderance of the evidence and the record supports
a fmding that other legitimate grounds for discharge existed, any one of which would alone
objectively justify discharging the probationer from tre~tment, the trial court's revocation and
adjudication should be upheld. The court of appeals was correct in so holding and a prudent
appellate court will only address those claims that are dispositive of the issues before it.
Discussed in more detail below, even putting aside Dansby's refusal, there were several
alternative reasons for discharging Dansby independent of his Fifth Amendment invocation .•
and non-compliance motivated by fear of self-incrimination.
A majority of the Court definitively concludes that Dansby's refusal to submit to a
sexual-history polygraph examination out of fear that he might incriminate himself was the
deciding factor in Young's decision to discharge Dansby. How can we, sitting as a
discretionary review court, review a cold record in this context--devoid of mannerism, body
language, inflection, and all other nuance observable only by a trial judge-and confidently
conclude that Young's decision to discharge Dansby was so transparently motivated by his ,,
failure to submit to a sexual-history polygraph examination? We have clearly recognized the
superiority of a trial judge's position in determining issues of fact and credibility and
recognized our own limitations in this respect. 9 These "'Johnny[s]-on-the-Spot"' [are]
9 State v. Mendoza, 365 S.W.3d 666, 669-70 (Tex. Crim. App. 2012). DANSBY DISSENT-6
personally able to see and hear the witnesses testify." 10 Instead, we are left with testimony
and evidence presented only in its Wr-itten form, and yet from this, the Court derives Young's
subjective intent. To pretend that we are capable of rendering such a conclusion in this
context is foolhardy. Despite our limitations in making these determinations in this type of
case, I can only suppose this Court wishes to usurp the trial judge's once-exclusive role as
arbiter of witness credibility.
Moreover, the majority reaches this factual fmding despite testimony to the contrary
and makes an inherent finding that Young is not credible. Young was asked a total of three
separat~ times, by both the State and Dansby, whether Danby's refusal to take the sexual-
history polygraph examination was the only reason he was discharged from the program~
Each time~ she stated that it was not:
Q: Was the not taking the polygraph was that the only reason that he got thrown out of sex offender treatment?
A: No, it's not at all. He couldn't participate because he would of had to disclose information, and he was unwilling to do that. · So, he was guarded and his participation was not on target in terms of his own issues, his attitude stunk there at the end, and he just wasn't getting . anyWhere.
Q: Okay. And based on [Dansby's refusal to answer any questions concerning prior sexual conduct], he was excused from your counseling sessions; is that correct?
10 !d. at 669. ' '
DANSBY DISSENT-7 .
A: That's not correct.
Q: So, was the sex offender polygraph was that the only reason he got thrown out of treatment; he was just doing great otherwise? .
A: No, not at all.
In addition to her concerns and opinions about the course of Dansby's treatment and
ultimate progress, Young testified about Dansby's other behavior and .. failings that could
constitute other grounds for discharge. Among them, Dansby ( 1) had minimal or no
·improvement during his year in treatment, (2) "never fully developed underlying
beliefs-didn't let himself be vulnerable enough to give us that kind of information," (3) had
an inability to admit or self-report about sexual impulses, the use of pornography, or having
fantasies, (4) was being manipulative through lying and conning, ( 5) did not understand that
he was a risk based on his deviant sexual desire and personalitY disorder, (6) failed to
participate in group sessions by "refus[ing] to talk" when asked questions, and, (7) as a result
of his lack of participation in group sessions, was disruptive. Each one of these examples
of Dansby's non-compliance is sufficient to support the trial judge's finding of true that
Dansby unsuccessfully completed sex-offender treatment. ·
I agree with the Court that some evidence may suggest Dansby's refusal to take a
sexual-history polygraph examination could have been one among many factors considered
in deciding to discharge Dansby from treatment. However, I disagree .with the Court's . ~
conclusion that, even if we should wade into the fact-finding waters, the evidence rises to the DANSBY DISSENT-8 ' .
level to forcefully establish that Young discharged Dansby for this reason alone. Even
evaluating this evidence favorably to the Court's opinion, it depicts an ambiguous record at
best when compared to the other evidence of Dansby's non-compliance.
Lastly, although the Court expressly abstains from addressing whether Dansby's claim
of the Fifth Amendment privilege was legitimate, the Court inherently presumes that it is.
To be given any force, the Court's new rule must be understood to presume that Dansby's
Fifth Amendment assertion is valid. This is so because the Court articulates the new rule and
the State's burden by incorporating the phrases "even without refusing to answer what he
took to be incriminating" and "wholly independent of his claim of Fifth Amendment
privilege. " 11 Surely, the Court cannot beunderstood to put the State to this heightened burden
upon a probationer's mere claim of a constitutional violation whether substantiated or not.
Here, if Dansby' s reliance on the Fifth Amendmentprivilege is misplaced, there would be
no constitutional violation for revoking him solely for refusing to answer questions about his
sexual history, and therefore no other grounds for revocation to be "infected." I'
For these reasons, I dissent.
DATE FILED: May 8, 2013
PUBLISH
11 Compare ante, op. at 16 with op. at 18.