Ex Parte Renfro

999 S.W.2d 557, 1999 Tex. App. LEXIS 6047, 1999 WL 605583
CourtCourt of Appeals of Texas
DecidedAugust 12, 1999
Docket14-99-00339-CR
StatusPublished
Cited by45 cases

This text of 999 S.W.2d 557 (Ex Parte Renfro) 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 Renfro, 999 S.W.2d 557, 1999 Tex. App. LEXIS 6047, 1999 WL 605583 (Tex. Ct. App. 1999).

Opinions

MAJORITY OPINION

MAURICE E. AMIDEI, Justice.

Charles Anthony Renfro (Appellant) pled guilty to the third degree felony offense of indecency with a child. See Tex. Penal Code Ann. § 21.11(a)(2) (Vernon 1994). Upon conviction, Appellant received community supervision for a term of ten years. See TexUode ÜRiM. Proo. Ann. art. 42.12, § 3(b) (Vernon Supp.1999). Approximately five years into the term of his community supervision, the conditions of Appellant’s community supervision were amended to require Appellant submit to a polygraph examination to assist in treatment, planning, and case monitoring.1 Appellant challenged the amendment by filing an application for writ of habeas corpus in the district court. In its habeas corpus judgment, the district court denied Appellant’s supplicated relief. On appeal to this Court, Appellant assigns two points of error, contending that (1) the condition of community supervision requiring him to submit to a polygraph examination is unreasonable as applied to him, and (2) the condition of community supervision requiring him to submit to a polygraph examination violates his Fifth Amendment privilege against self-incrimination. We affirm.

I.

Although it is not necessary for an applicant for a writ of habeas corpus to be actually confined in jail, the applicant must suffer some restraint to justify the issuance of the writ. Ex parte Sealy, 870 S.W.2d 663, 666 (Tex.App.-Houston [1 st Dist.] 1994, no pet.); see also Ex parte Calhoun, 127 Tex. 54, 91 S.W.2d 1047, 1048 (Tex.1936). It has been held that community supervision was a sufficient restraint on liberty to permit relief by writ of habeas corpus where the terms and conditions of community supervision required the applicant, as here, to report to a probation officer at least once a month and prohibited him from traveling outside Harris County without permission from the trial court. Id.; see also Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.App.1977).

II.

In his first point of error, Appellant contends that the condition of his community supervision2 requiring him to submit to a polygraph examination should have been removed by the district court because such condition is unreasonable as applied to him. Appellant argues that the purpose of the polygraph examination is to benefit a probationer who is receiving sex offender counseling. He asserts that because he completed sex offender counseling in October 1997, requiring him to submit to a polygraph examination will serve no valid purpose in his case.

We note that the district court possesses wide discretion in selecting conditions of community supervision. Marcum v. State, 983 S.W.2d 762, 768 (Tex.App.-Houston [14 th Dist.] 1998, pet. ref'd); see [560]*560also Fielder v. State, 811 S.W.2d 131, 134 (Tex.Crim.App.1991). The specific condition of which Appellant complains provides that the Appellant is ordered to “[s]ubmit to any program of psychological and physiological assessment at the direction of your HCCS & CD3 officer, including ... polygraph, to assist in treatment, planning and case monitoring.” We are unable to conclude that the sole purpose of the polygraph examination is to benefit sex offender counseling. Indeed, the condition expressly states that one of its purposes is to provide “case monitoring.” This purpose is broad enough to encompass more than just sex offender counseling. Consequently, Appellant’s argument that the community supervision condition is unreasonable as applied to him because he already completed sex offender counseling is without merit. We find no abuse of discretion. See id. Point overruled.

III.

In his second point of error, Appellant contends that the district court erred in not removing the polygraph condition of his community supervision because requiring him to submit to such an examination as a condition of community supervision is in violation of his Fifth Amendment privilege against self-incrimination.

Community supervision conditions must be reasonably related to the treatment of the probationer and the protection of the general public. Marcum, 983 S.W.2d at 768. A condition of community supervision is invalid if it contains all three of the following characteristics: (1) it has no relationship to the crime; (2) it relates to conduct that is not in itself criminal; and (3) it forbids or requires conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of community supervision. Id.

Applying these rules to the instant case, we find that the polygraph condition is valid.4 Appellant pled guilty to a sex crime committed upon minor females. One condition of community supervision is that Appellant not have any contact with any minor under the age of seventeen unless specifically permitted by the court. As indicated in the testimony on Appellant’s habeas corpus application, compliance with that condition is difficult to enforce. The polygraph condition helps to monitor compliance and is therefore reasonably related to Appellant’s criminal offense. See id. Also, because this condition is aimed at deterring and discovering criminal conduct most likely to occur during unsupervised contact with minor females, the condition is reasonably related to future criminality. See id.

[561]*561Appellant contends that the condition is unreasonable as a method to monitor his compliance with the conditions of his community supervision because polygraph examination results are unreliable. In Texas, the existence and results of a polygraph examination are inadmissible for all purposes. Tennard v. State, 802 S.W.2d 678, 683 (Tex.Crim.App.1990); Cardenas v. State, 960 S.W.2d 941, 947 (Tex.App.-Texarkana 1998, pet. ref'd). However, this is an evidentiary rule and does not preclude the use of such tests for investigative purposes. Polygraph tests are commonly used as investigative tools. See 3A WigmoRE on Evtoenoe § 999, at 946 (Chadbourn Rev.1970); see also People v. Miller, 208 Cal.App.3d 1311, 1315, 256 Cal.Rptr. 587, 589 (1989); see generally Marcum, 983 S.W.2d at 766. As we understand it, the polygraph condition was imposed on Appellant as a condition of community supervision not to gather possible evidence for use during a trial but solely to serve as a catalyst for further investigation.

Appellant also contends that the polygraph condition violates his privilege against self-incrimination. Appellant misconstrues the nature of the privilege. The privilege against self-incrimination is not self-executing; it must be claimed. Minnesota v. Murphy, 465 U.S. 420, 427-28, 104 S.Ct. 1136, 1142-43, 79 L.Ed.2d 409 (1984).

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Bluebook (online)
999 S.W.2d 557, 1999 Tex. App. LEXIS 6047, 1999 WL 605583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-renfro-texapp-1999.