Kelly, Sean Michael

• Court: Court of Appeals of Texas
• Decided: February 19, 2015
• Docket: PD-1370-14
• Status: Published

Opinion

PD-1370-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/18/2015 11:33:14 AM Accepted 2/19/2015 10:23:44 AM NO. PD-1370-14 ABEL ACOSTA CLERK COURT OF APPEALS NO. 08-12-00291-CR

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

SEAN MICHAEL KELLY, Appellant

vs. THE STATE OF TEXAS, Appellee.

MOTION FOR REHEARING (TRAP 79.1)

On Appeal from the 415st Judicial District Court of Parker County, Texas in Cause No. 15133 Hon. Graham Quisenberry, Presiding

L. PATRICK DAVIS SBN 00795775 115 N. Henderson Street Fort Worth, Texas 76102 (817)870-1544 February 19, 2015 (817)870-1589 fax

ATTORNEY FOR APPELLANT

----.. . .--..v•&.------.---- -------- -~- --~-- TO THE JUDGES OF THE HONORABLE COURT OF CRIMINAL APPEALS:

NOW COMES SEAN MICHAEL KELLY, Appellant herein, and files this his

Motion for Rehearing pursuant to Rule 79.1 of the Texas Rules of

Appellate Procedure and would show the following:

This Court refused discretionary review on February 4, 2015.

Appellant respectfully asks this Court to reconsider its decision.

In its motion to revoke probation, the State alleged that Appellant

was unable to abide by the conditions of his probation because he

violated one condition:

(cc) The Defendant shall attend, participate, ln and

successfully complete a sex offender counseling program with

a therapist who is registered with the Interagency Council on

sex offender treatment and approved by the Community

Supervision officer. This will include any testing, group

sessions and after-care prescribed by the counselor and the

Defendant shall pay all costs for this program.

(C.R., Vol. 1, p.43).

The State alleged in its motion that Appellant "failed to

successfully complete a sex offender counseling program." (C.R.,

Vol. 1, p.43). In support of this allegation, the State offered

one exhibit, over Appellant's objection, through Appellant's

probation officer, Steven Dover, of a letter dated June 6, 2012,

from Ezio Leite, a licensed sex offender provider and counselor,

that stated inter a2ia that Appellant had been discharged from his

sex offender treatment program for failing four polygraph examinations 1 and attached the actual polygraph examination results

from the various examinations. (R.R., Vol. 2, p.38, SX-1). In

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

reh'g), this Court held that the results of polygraph examinations

for sex offenders on probation are not reliable and, therefore,

inadmissible as evidence to revoke probation. Id. at 583. It should

be noted that Leonard II was not available at the time of

Appellant's revocation hearing.

In the case at bar, the trial court abused its discretion by

considering evidence of Appellant's failed polygraphs when

determining whether to revoke Appellant's community supervision.

When said evidence is excluded, there was nothing to revoke

Appellant's community supervision. Accordingly, the trial court

abused its discretion in revoking Appellant's probation for failing

polygraph examinations as this issue was addressed and resolved by

this Court in Leonard II and, as stated above, was not available to

Appellant at the time of his revocation hearing. The El Paso Court

completely disregarded Leonard II in upholding the trial court's

action.

In the case at bar, the trial court heard evidence that did

not support the State's allegations contained in its motion to

revoke probation and revoked Appellant's probation. (R.R., Vol. 2,

p. 73). The trial court then, on its own motion, heard additional

Appellant also specifically asked for a Rule 705 hearing before Leite testified and was denied by the trial court. TEX. R. EVID. 705. (R.R., Vol. 2, pp. 39, 43) .

----~...- -..~... ~-.------- r---- evidence to determine sentencing. Appellant timely and properly

objected to the improper bifurcation. TEX. R. APP. P. 33.1(a). It

is well founded that bifurcated proceedings are proper only in

cases tried before a jury on a plea of not guilty. TEX. CODE CRIM.

PROC. ANN. art. 37. 07, §2 (a) (Vernon 2012) ; Barfield v. State, 63

S.W.3d 446, 449-50 (Tex. Crim. App. 2001).

The El Paso Court unjustifiably attempts to extend Barfield to

encompass probation revocation proceedings in order to uphold the

judgment of the trial court. There is absolutely no authority that

would allow the El Paso Court to take such action. This Honorable

Court must sustain Appellant's objection to the improper

bifurcation for the reasons stated herein, strike the testimony of

Leite on recall and reverse the judgment of the El Paso Court as a

matter of law for the improper bifurcation of Appellant's probation

revocation proceeding.

For this Court to just remain silent and leave this issue

squarely on the shoulders of the Supreme Court of the United States

to decide is just wrong. "Our criminal justice system makes two

promises to its citizens: a fundamentally fair trial and an

accurate result. If either of those two promises are not met, the

criminal justice system itself falls into disrepute and will

eventually be disregarded." Jacobson v. State, 398 S.W.3d 195, 200

(Tex. Crim. App. 2013), quoting, Ex parte Thompson, 153 S.W.3d 416,

421 (Tex. Crim. App. 2005) (Cochran, J., concurring). This Court

protected Leonard, but now turns its back on Kelly and allows

.. ------.....,~..--------,---- ...~ conviction by polygraph. U.S. CONST. amend. XIV; United States v.

Scheffer, 523 U.S. 303, 118 S.Ct. 1261 (1998) (for the proposition

that polygraph examinations are unreliable). Accordingly, this

Court's decision to refuse discretionary review is absolutely

baffling in light of Leonard II.

Counsel believes that Appellant's case deserves a second look

and as such, counsel hereby certifies that this Motion is grounded

in well-settled law from the Supreme Court of the United States as

cited above and that said Motion is brought in good-faith and not

for delay.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable

Court grant this Motion for Rehearing and after a full review

hereon reverse the judgment of the Court of Appeals for the reasons

stated herein and for any other relief Appellant may be justly

entitled.

RESPECTFULLY SUBMITTED,

L. 4;tr.?:a~~--------- SBN 00795775 115 N. Henderson Street Fort Worth, Texas 76102 (817)870-1544 (817)870-1589 fax

ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE

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

document was sent via facsimile to Hon. Don Schnebly, Parker County

District Attorney, 117 Fort Worth Highway, Weatherford, Texas

76086, and Hon. Matthew Paul, State Prosecuting Attorney, P.O. Box

12405, Austin, Texas 78711 on February 18, 2015.