Ex Parte Dangelo

339 S.W.3d 143, 2010 WL 5118650
CourtCourt of Appeals of Texas
DecidedFebruary 24, 2011
Docket02-09-00266-CR, 02-09-00268-CR
StatusPublished
Cited by18 cases

This text of 339 S.W.3d 143 (Ex Parte Dangelo) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Dangelo, 339 S.W.3d 143, 2010 WL 5118650 (Tex. Ct. App. 2011).

Opinions

OPINION ON REHEARING

TERRIE LIVINGSTON, Chief Justice.

We grant the State’s motion for rehearing, we withdraw the opinion issued in this case on June 17, 2010, and we substitute the following opinion in its place. In two points, appellant Joseph P. Dangelo appeals the trial court’s denials of his precon-viction applications for a writ of habeas corpus. We affirm in part and reverse and remand in part.

[146]*146Background Facts

In 2004, a grand jury indicted appellant with four sex-related felony offenses against a child who was younger than fourteen years old. In February 2008, appellant entered into a plea agreement in which he received written admonishments, waived statutory and constitutional rights, and pled guilty only to injury to a child, which is not by statutory language a sex-related offense and which, as charged in appellant’s amended indictment, is a third-degree felony.1 See Tex. Penal Code Ann. § 22.04(a)(3), (f) (Vernon Supp. 2010). The trial court deferred adjudication of appellant’s guilt for injury to a child and placed him on community supervision for seven years.

The original terms of appellant’s community supervision prohibited him from contacting the complainant of his crime in any manner and precluded his unsupervised access to any child under seventeen years old (except for one specifically designated child); the terms did not require him to complete sex offender treatment.2 However, in May 2008, the trial court signed an amendment to appellant’s community supervision terms.3 The amendment included provisions that precluded his participation in several sex-related acts and required him to “[ajssume responsibility for [his] offense,” submit to a sex offender treatment evaluation “as directed by the supervision officer,” complete psychological sex offender counseling, and “[s]ubmit to ... and show no deception on any polygraph examination ... as directed by the Court or supervision officer.” The trial court signed another amendment in January 2009 that required appellant to restart his sex offender treatment “with PSY as directed by the supervision officer” but dismissed the State’s petition for the trial court to proceed to adjudication of his guilt.4 Appellant filed objections to the amended terms.

On March 4, 2009, ■ appellant’s counsel sent a letter to Psycho Therapy Services; the letter stated in part,

Certainly we object to any required treatment programs which lie outside those required to and have no relationship to the crime which [appellant] pled to, or relate to conduct which is not itself criminal, or requires conduct that is not reasonably related to the future criminality of Mr. Dangelo and does not serve the statutory ends of his deferred adjudication.
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Mr. Dangelo has no objections to polygraph examinations which in the course [147]*147of your program he may be subjected to. However, Mr. Dangelo has Fifth Amendment protection against making any incriminating statements and has a right to so state, relating to any conduct for which he has not pled or for which he is not on deferred adjudication. Thus, he will not answer any questions relating to sexual conduct which he did not commit and for which he has not been accused.

An affidavit from appellant was attached to the letter; the affidavit states that he had been told by one of Psycho Therapy Services’ employees that “as part of the Sexual Treatment Program [appellant] was required to admit any sexual offense.” The affidavit also explains that appellant had been notified that if he did not intend to answer questions regarding sexual offenses, he should not attend the therapy session.

On March 27, 2009, appellant filed an application for a writ of habeas corpus, asking the court to “dismiss the added conditions of probation.” In the application, he contended that the trial court’s community supervision conditions violate his rights against compelled self-incrimination under the Texas and federal constitutions and that the trial court’s requiring him to undergo sex offender treatment is not authorized by the code of criminal procedure because he did not plead guilty to a sex-related offense.

On July 10, 2009, the trial court declared that appellant’s bond was insufficient and ordered a warrant to be issued for his arrest because of his failure to submit to a polygraph exam; he was arrested the same day. Five days later, appellant filed two more applications for writs of habeas corpus. Those applications asserted that he had a constitutional right not to answer the questions that were proposed to be asked in the polygraph exam.

Appellant attached a July 9, 2009 letter to both applications that was addressed from The Polygraph Science Center to a probation officer regarding appellant’s refusal to submit to the exam. The letter explained that appellant’s probation officer had referred him to the center for the exam and that appellant had arrived at the center but had refused to answer the following questions: (1) “Since you have been on probation, have you had [sic] violated any of the conditions?”; (2) “Since you have been on probation, have you had sexual contact with any persons younger than 17?”; (3) “Since you have been on probation, have you tried to isolate any child for sexual purposes?”; and (4) “Since you have been on probation, have you intentionally committed any sexual crimes?”

The State filed responses to appellant’s writ applications, attaching offense reports and other documents that detailed the sexually-related alleged facts that resulted in his original four sex offense charges. In June 2009, the State filed proposed findings of fact and conclusions of law, and the next month, the trial court adopted those findings and conclusions, denied appellant’s writ applications, and stated that his bond was insufficient and that he would be released from jail only to take the scheduled polygraph exam.5 Appellant filed notices of these appeals.

Standard of Review

Although appellant filed his writ applications under multiple constitutional and [148]*148statutory provisions, we must review the applications under article 11.072 of the code of criminal procedure, which “establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.” Tex.Code Crim. Proc. Ann. art. 11.072, § 1 (Vernon 2005); see Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex.Crim.App.2008) (“[I]t is clear that the Legislature intended Article 11.072 to provide the exclusive means by which the district courts may exercise their original habeas jurisdiction ... in cases involving an individual who is either serving a term of community supervision or who has completed a term of community supervision.”).

Habeas corpus is an extraordinary writ used to challenge the legality of one’s restraint. Tex.Code Crim. Proc. Ann. art. 11.01 (Vernon 2005); Ex parte Bennett, 245 S.W.3d 616, 618 (Tex.App.Fort Worth 2008, pet. ref'd).

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Bluebook (online)
339 S.W.3d 143, 2010 WL 5118650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-dangelo-texapp-2011.