COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ SEAN MICHAEL KELLY, No. 08-12-00291-CR § Appellant, Appeal from § v. 415th District Court § THE STATE OF TEXAS, of Parker County, Texas § Appellee. (TC # 15133) §
OPINION
In a single point of error, Sean Michael Kelly, challenges the trial court’s decision to
revoke his probation for the offense of criminal solicitation with intent to commit sexual assault.
For the reasons that follow, we affirm.
FACTUAL SUMMARY
Kelly pled guilty in 2005 to the offense of criminal solicitation of a minor with intent to
commit sexual assault and received a probated sentence of ten years’ incarceration and a $5,000
fine. One of the conditions of Kelly’s probation was that he attend, participate in, and
successfully complete a sex offender counseling program. The State filed a motion to revoke
Kelly’s probation in June 2012, alleging that he had “failed to successfully complete [the] sex
offender counseling program.” The trial court conducted a hearing on the motion on
September 5, 2012. THE REVOCATION HEARING
The State’s first witness was Kelly’s probation officer, Steven Dover, who testified that
he sought to revoke Kelly’s probation because Kelly had been discharged from the court-ordered
counseling program without successfully completing it. The decision to expel Kelly was made
by Kelly’s third-party treatment provider, Ezio Leite. The State then called Leite, who testified
that “there was a combination of factors that led [him] to discharge [Kelly]” from the program.
Leite did not detail what these factors were, although a letter he had previously sent to Dover
explained that Kelly was expelled because he had not “cleared” four polygraph examinations he
was required to undergo as part of treatment. Failing the polygraph exams represented a change
in Kelly’s overall pattern of behavior that Leite could neither understand nor explain, despite
having discussed it with Kelly in individual therapy sessions. Leite further indicated that Kelly
had a history of being secretive, and that this, coupled with Kelly’s “continuous inability to
demonstrate truthfulness on the aforementioned [polygraph] tests indicates that he is not in
compliance with [the terms of his] treatment . . . .” Defense counsel objected numerous times
during the hearing that the results of the polygraph examinations were inadmissible and that the
trial court could not revoke Kelly’s probation for the failed polygraphs alone.1
The trial court bifurcated the revocation hearing into “guilt” and “punishment” stages. At
the conclusion of the guilt phase, the trial court found the State’s sole revocation allegation true.
The State then re-called Leite during the punishment phase, and inquired whether there were any
reasons he doubted Kelly’s truthfulness other than the failed polygraph examinations. Leite then
detailed the combination of factors leading to Kelly’s expulsion from treatment that he had
alluded to in his earlier testimony. During the course of his treatment, Kelly had been involved
1 Kelly’s counsel’s objected to both the contents of Leite’s letter and his testimony on the basis that the polygraph evidence was unreliable and inadmissible. Although counsel requested a hearing on the reliability of Leite’s opinions pursuant to Rule of Evidence 705(c), the trial court denied the request.
2 in a secret sexual affair with a woman while he was engaged to marry another woman. Leite
became aware of sexual actions Kelly took towards his wife without her consent while she was
sleeping. Leite also administered a penile plethysmograph test to determine whether Kelly had
made any progress towards discriminating between women and girls in terms of sexual arousal.
This testing revealed that Kelly continued to have an equal or similar sexual response to both.
)Based on all of these things, Leite concluded, without objection, that Kelly was a “risk to
society in terms of sexually reoffending.” At the conclusion of this evidence, the trial court
revoked Kelly’s probation and sentenced him to a ten years’ incarceration.
STANDARD OF REVIEW
In his single point of error, Kelly contends that the trial court abused its discretion by
revoking his probation based upon the inadmissible results of his failed polygraph examinations.
A trial court has discretion to revoke a criminal defendant’s probation when a preponderance of
the evidence supports the State’s allegation that the defendant violated a condition of probation.
Rickels v. State, 202 S.W.3d 759, 763-64 (Tex.Crim.App. 2006), quoting Scamardo v. State, 517
S.W.2d 293, 298 (Tex.Crim.App. 1974). While defendants are not entitled to probation as a
matter of right, once a defendant is placed on probation in lieu of other punishment, this
conditional liberty “should not be arbitrarily withdrawn by the court . . . .” DeGay v. State, 741
S.W.2d 445, 449 (Tex.Crim.App. 1987). Accordingly, courts of appeal review orders revoking
community supervision under the abuse of discretion standard. Leonard v. State, 385 S.W.3d
570, 576 (Tex.Crim.App. 2012). In a case such as this, however, where the decision to revoke
arises from the discretion of a third-party therapist to expel a probationer from a court-ordered
counseling program, appellate courts “must also examine the third party’s use of its discretion to
ensure that it was used on a basis that was rational and connected to the purposes of community
3 supervision.” Id. at 577, citing TEX.CODE CRIM.PROC.ANN. art. 42.12, § 11(a). This requisite
applies here because Kelly’s probation was conditioned upon his successful completion of the
therapy program, as determined by his treatment provider.
ANALYSIS
Kelly correctly argues that the results of polygraph testing cannot constitute the sole basis
of a probation revocation. In Leonard v. State, the Court of Criminal Appeals reaffirmed its
earlier pronouncements regarding the unreliability and inadmissibility of polygraph testing and
held that a trial court abuses its discretion by admitting expert testimony that relies exclusively
on polygraph results. Leonard, 385 S.W.3d at 582. Like the instant case, Leonard was also a
sex offender probation revocation case in which the decision to expel the Leonard from court-
ordered treatment was made by a third-party therapist. Id. at 577. Unlike this case, however, the
only reason advanced by the therapist in support of his decision to expel Leonard from treatment
was Leonard’s failure of polygraph testing.2 Id. at 583.
Although the results of Kelly’s polygraph testing were advanced as one reason for his
expulsion from the counseling program, other reasons were also given. Regarding Kelly’s
undisclosed unfaithfulness to his fiancée, Leite explained that one of the components of Kelly’s
problem is his secretiveness about his sexual behavior. Leite encouraged Kelly to be truthful
with his fiancée about the affair, but Kelly refused to do. The import of Kelly’s nonconsensual
sexual conduct towards his sleeping wife is obvious, as is his failure to show improvement in
plethysmographic testing. Taken together, these matters demonstrate that Kelly did not put into 2 The Leonard court expressly did not consider whether requiring a defendant to submit to polygraph testing in the first instance is a reasonable condition of community supervision. Leonard, 385 S.W.3d at 582.
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ SEAN MICHAEL KELLY, No. 08-12-00291-CR § Appellant, Appeal from § v. 415th District Court § THE STATE OF TEXAS, of Parker County, Texas § Appellee. (TC # 15133) §
OPINION
In a single point of error, Sean Michael Kelly, challenges the trial court’s decision to
revoke his probation for the offense of criminal solicitation with intent to commit sexual assault.
For the reasons that follow, we affirm.
FACTUAL SUMMARY
Kelly pled guilty in 2005 to the offense of criminal solicitation of a minor with intent to
commit sexual assault and received a probated sentence of ten years’ incarceration and a $5,000
fine. One of the conditions of Kelly’s probation was that he attend, participate in, and
successfully complete a sex offender counseling program. The State filed a motion to revoke
Kelly’s probation in June 2012, alleging that he had “failed to successfully complete [the] sex
offender counseling program.” The trial court conducted a hearing on the motion on
September 5, 2012. THE REVOCATION HEARING
The State’s first witness was Kelly’s probation officer, Steven Dover, who testified that
he sought to revoke Kelly’s probation because Kelly had been discharged from the court-ordered
counseling program without successfully completing it. The decision to expel Kelly was made
by Kelly’s third-party treatment provider, Ezio Leite. The State then called Leite, who testified
that “there was a combination of factors that led [him] to discharge [Kelly]” from the program.
Leite did not detail what these factors were, although a letter he had previously sent to Dover
explained that Kelly was expelled because he had not “cleared” four polygraph examinations he
was required to undergo as part of treatment. Failing the polygraph exams represented a change
in Kelly’s overall pattern of behavior that Leite could neither understand nor explain, despite
having discussed it with Kelly in individual therapy sessions. Leite further indicated that Kelly
had a history of being secretive, and that this, coupled with Kelly’s “continuous inability to
demonstrate truthfulness on the aforementioned [polygraph] tests indicates that he is not in
compliance with [the terms of his] treatment . . . .” Defense counsel objected numerous times
during the hearing that the results of the polygraph examinations were inadmissible and that the
trial court could not revoke Kelly’s probation for the failed polygraphs alone.1
The trial court bifurcated the revocation hearing into “guilt” and “punishment” stages. At
the conclusion of the guilt phase, the trial court found the State’s sole revocation allegation true.
The State then re-called Leite during the punishment phase, and inquired whether there were any
reasons he doubted Kelly’s truthfulness other than the failed polygraph examinations. Leite then
detailed the combination of factors leading to Kelly’s expulsion from treatment that he had
alluded to in his earlier testimony. During the course of his treatment, Kelly had been involved
1 Kelly’s counsel’s objected to both the contents of Leite’s letter and his testimony on the basis that the polygraph evidence was unreliable and inadmissible. Although counsel requested a hearing on the reliability of Leite’s opinions pursuant to Rule of Evidence 705(c), the trial court denied the request.
2 in a secret sexual affair with a woman while he was engaged to marry another woman. Leite
became aware of sexual actions Kelly took towards his wife without her consent while she was
sleeping. Leite also administered a penile plethysmograph test to determine whether Kelly had
made any progress towards discriminating between women and girls in terms of sexual arousal.
This testing revealed that Kelly continued to have an equal or similar sexual response to both.
)Based on all of these things, Leite concluded, without objection, that Kelly was a “risk to
society in terms of sexually reoffending.” At the conclusion of this evidence, the trial court
revoked Kelly’s probation and sentenced him to a ten years’ incarceration.
STANDARD OF REVIEW
In his single point of error, Kelly contends that the trial court abused its discretion by
revoking his probation based upon the inadmissible results of his failed polygraph examinations.
A trial court has discretion to revoke a criminal defendant’s probation when a preponderance of
the evidence supports the State’s allegation that the defendant violated a condition of probation.
Rickels v. State, 202 S.W.3d 759, 763-64 (Tex.Crim.App. 2006), quoting Scamardo v. State, 517
S.W.2d 293, 298 (Tex.Crim.App. 1974). While defendants are not entitled to probation as a
matter of right, once a defendant is placed on probation in lieu of other punishment, this
conditional liberty “should not be arbitrarily withdrawn by the court . . . .” DeGay v. State, 741
S.W.2d 445, 449 (Tex.Crim.App. 1987). Accordingly, courts of appeal review orders revoking
community supervision under the abuse of discretion standard. Leonard v. State, 385 S.W.3d
570, 576 (Tex.Crim.App. 2012). In a case such as this, however, where the decision to revoke
arises from the discretion of a third-party therapist to expel a probationer from a court-ordered
counseling program, appellate courts “must also examine the third party’s use of its discretion to
ensure that it was used on a basis that was rational and connected to the purposes of community
3 supervision.” Id. at 577, citing TEX.CODE CRIM.PROC.ANN. art. 42.12, § 11(a). This requisite
applies here because Kelly’s probation was conditioned upon his successful completion of the
therapy program, as determined by his treatment provider.
ANALYSIS
Kelly correctly argues that the results of polygraph testing cannot constitute the sole basis
of a probation revocation. In Leonard v. State, the Court of Criminal Appeals reaffirmed its
earlier pronouncements regarding the unreliability and inadmissibility of polygraph testing and
held that a trial court abuses its discretion by admitting expert testimony that relies exclusively
on polygraph results. Leonard, 385 S.W.3d at 582. Like the instant case, Leonard was also a
sex offender probation revocation case in which the decision to expel the Leonard from court-
ordered treatment was made by a third-party therapist. Id. at 577. Unlike this case, however, the
only reason advanced by the therapist in support of his decision to expel Leonard from treatment
was Leonard’s failure of polygraph testing.2 Id. at 583.
Although the results of Kelly’s polygraph testing were advanced as one reason for his
expulsion from the counseling program, other reasons were also given. Regarding Kelly’s
undisclosed unfaithfulness to his fiancée, Leite explained that one of the components of Kelly’s
problem is his secretiveness about his sexual behavior. Leite encouraged Kelly to be truthful
with his fiancée about the affair, but Kelly refused to do. The import of Kelly’s nonconsensual
sexual conduct towards his sleeping wife is obvious, as is his failure to show improvement in
plethysmographic testing. Taken together, these matters demonstrate that Kelly did not put into 2 The Leonard court expressly did not consider whether requiring a defendant to submit to polygraph testing in the first instance is a reasonable condition of community supervision. Leonard, 385 S.W.3d at 582. Nonetheless, the Council on Sex Offender Treatment, which was created by the Texas Legislature for the express purpose of “develop[ing] treatment strategies for sex offenders” and “set[ting] standards for treatment of sex offenders,” has affirmatively endorsed polygraph testing as an approved treatment standard. TEX.OCC.CODE ANN. § 110.151 (West 2012); 22 TEX.ADMIN.CODE ANN. § 810.64(d)(18). As such, polygraph testing may be imposed as a sex offender probation condition pursuant to TEX.CODE CRIM.PROC.ANN. art. 42.12, § 11(i)(West Supp. 2013).
4 practice the skills taught in therapy. Successful completion of a court-ordered sex offender
treatment program necessarily requires more than mere participation in the program; it requires
improvement, or--at the very least--demonstration of an attempt to improve through
implementation of the skills imparted in therapy. See, e.g., Figgins v. State, 528 S.W.2d 261,
262-63 (Tex.Crim.App. 1975); Ott v. State, 690 S.W.2d 337, 339 (Tex.App.--Eastland 1985, pet.
ref’d). We cannot conclude based on this record that no rational basis related to the goals of
probation supported Ezio Leite’s decision to expel Kelly from treatment.
Regarding the trial court’s decision to bifurcate the proceeding, Kelly argues for the first
time in his reply brief that the court was limited to considering the evidence advanced during the
first stage of the hearing. More precisely, Kelly argues that the hearing should not have been
bifurcated in the first instance, and thus that the evidence introduced during the second stage
should not have been admitted or considered. Generally, issues may not be raised for the first
time in a reply brief. See TEX.R.APP.P. 38.3; Barrios v. State, 27 S.W.3d 313, 322 (Tex.App.--
Houston [1st Dist.] 2000, pet. ref’d). Nonetheless, analysis of this issue does not alter the
outcome.
As Kelly correctly asserts, guilt/punishment bifurcation is statutorily required only in
cases tried before a jury on a plea of not guilty. See TEX.CODE CRIM.PROC.ANN. art. 37.07, § 2
(West Supp. 2013); and Barfield v. State, 63 S.W.3d 446, 449-50 (Tex.Crim.App. 2001). The
purpose of bifurcation is to protect a defendant from a jury’s consideration of punishment
evidence while the question of guilt is still open. Id.; see also Karl v. State, No. 02-08-00243-
CR, 2008 WL 5194300, at *1 (Tex.App.--Fort Worth Dec.11, 2008, no pet.)(mem. op., not
designated for publication), citing Davis v. State, 968 S.W.2d 368, 372 (Tex.Crim.App. 1998).
The Court of Criminal Appeals has also recognized the necessity of bifurcating a hearing to
5 revoke community supervision granted in connection with a deferred adjudication of guilt
pursuant to TEX.CODE CRIM.PROC.ANN. art. 42.12, § 5. See Issa v. State, 826 S.W.2d 159, 161
(Tex.Crim.App. 1992). We are aware of no authority authorizing bifurcation of a revocation
hearing where guilt of the underlying offense has been previously adjudicated. The Court of
Criminal Appeals has mandated the consideration of evidence introduced during the punishment
stage of an irregularly bifurcated non-jury trial in determining the evidentiary sufficiency of
guilt. Barfield v. State, 63 S.W.3d at 450-51 (holding that “court of appeals erred to limit its
consideration of the evidence to that which was introduced at the ‘guilt’ stage of [a] non-jury
trial”). We can see no meaningful distinction between a non-jury trial and a revocation hearing
for purposes of this requisite.
Criminal bench trials and probation revocation hearings are both unitary proceedings.
The decision of a trial court in a unitary proceeding “is not fixed until it renders judgment on
guilt and punishment after all the evidence and arguments have been heard.” Id. at 451, citing
Jones v. State, 797 S.W.2d 33, 34 (Tex.Crim.App. 1990). There was thus no significant
difference between the bifurcated stages of Kelly’s hearing, and we are bound to consider the
evidence presented during both stages in determining whether the revocation of Kelly’s
probation was improper. Id. For the same reason, we find no merit in Kelly’s assertion that he
was harmed by bifurcation. For all of these reasons, we overrule the sole point of error and
affirm the judgment of the trial court below.
August 6, 2014 ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)