                                                                                       ACCEPTED
                                                                                   01-15-00324-CR
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                             11/12/2015 1:52:40 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK


             Nos. 01-15-00324-CR & 01-15-00325-CR
                               In the                           FILED IN
                        Court of Appeals                 1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                              For the
                                                         11/12/2015 1:52:40 PM
                  First Judicial District of Texas
                                                         CHRISTOPHER A. PRINE
                            At Houston                            Clerk

                   
                    Nos. 1297213 & 1297213
                  In the 248th District Court of
                      Harris County, Texas
                   
                  ASTIN CHAVERS CLARK
                             Appellant
                               v.
                   THE STATE OF TEXAS
                              Appellee
                   
                 STATE’S APPELLATE BRIEF
                   
                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas
                                                 CARLY DESSAUER
                                                 Assistant District Attorney
                                                 ANDREA MOSELEY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 Tel.: (713) 274-5826
                                                 Fax No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
                 STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State requests oral argument only if appellant requests

oral argument.

                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of

the names of all interested parties is provided below.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Carly Dessauer  Assistant District Attorney on appeal

             Andrea Moseley  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Astin Chavers Clark

      Counsel for Appellant:

             Allison Secrest  Attorney on appeal

             Kyle B. Johnson  Attorney at trial

      Trial Judge:

             Hon. Katherine Cabaniss




                                           ii
                                              TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .................................................... ii

IDENTIFICATION OF THE PARTIES ......................................................................... ii

TABLE OF AUTHORITIES .............................................................................................. v

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENTS ............................................................................... 3

REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 4

I. The trial court did not err when it allowed the State to admit appellant’s
   statements over appellant’s Miranda and Fifth Amendment objections. ................... 4
    a. Reviewing courts employ an abuse of discretion standard when
       determining whether a trial court erred when revoking a defendant’s
       probation or when admitting evidence. ................................................................... 5
    b. The Fifth Amendment provides protection for probationers against self-
       incrimination in future criminal proceedings, but a probationer generally
       must invoke his Fifth Amendment right against self-incrimination or
       courts will not consider his statement compelled. .................................................. 5
    c. The trial court did not abuse its discretion as appellant cannot use his
       Fifth Amendment right against self-incrimination from criminal
       prosecution as a blanket to exclude statements regarding his probation
       status. ............................................................................................................................ 8
    d. The trial court did not abuse its discretion because appellant failed to
       timely invoke his right against self-incrimination. .................................................. 9
         i. Appellant’s Fifth Amendment right was not self-executing as he was
            not subjected to custodial interrogation when he made his
            statements............................................................................................................. 10



                                                                    iii
         ii. Appellant’s Fifth Amendment right was not self-executing as he was
             not subjected to the “classic penalty situation” when he made his
             statements............................................................................................................. 13
    e. Even if the trial court erred in admitting appellant’s statements, the error
       was harmless as appellant pleaded true to multiple violations of his
       probation. ................................................................................................................... 14
CONCLUSION ................................................................................................................... 17

CERTIFICATE OF COMPLIANCE .............................................................................. 18

CERTIFICATE OF SERVICE ......................................................................................... 19




                                                                 iv
                                      TABLE OF AUTHORITIES

CASES
Canseco v. State,
  199 S.W.3d 437 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) ............................ 5
Casey v. State,
  215 S.W.3d 870 (Tex. Crim. App. 2007) ......................................................................... 5
Chapman v. State,
  115 S.W.3d 1 (Tex. Crim. App. 2003) ................................................ 3, 6, 7, 8, 9, 10, 14
Dansby v. State,
  398 S.W.3d 233 (Tex. Crim. App. 2013) ................................................ 5, 6, 8, 9, 15, 16
Dowthitt v. State,
  931 S.W.2d 244 (Tex. Crim. App. 1996) ....................................................................... 12
Ex parte Dangelo,
  339 S.W.3d 143 (Tex. App.—Fort Worth 2010),
  aff’d, 376 S.W.3d 776 (Tex. Crim. App. 2014) ................................................................ 9
Ex parte Renfro,
  999 S.W.2d 557 (Tex. App.—Houston [14th Dist.] 1999, no pet.) ....................... 8, 12
Gardner v. State,
  306 S.W.3d 274 (Tex. Crim. App. 2009) ................................................................. 10, 11
Herrera v. State,
  241 S.W.3d 520 (Tex. Crim. App. 2007) ....................................................................... 10
In re A.M.,
   333 S.W.3d 411 (Tex. App.—Eastland 2011, pet. denied) ......................................... 12
In re Medina,
   No. WR-75,835-02, 2015 WL 6722175
   (Tex. Crim. App. Nov. 4, 2015) ............................................................................... 6, 8, 9
Leonard v. State,
  385 S.W.3d 570 (Tex. Crim. App. 2012) ................................................................... 5, 15
Marcum v. State,
 983 S.W.2d 762 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) ................. 11, 12
Minnesota v. Murphy,
  465 U.S. 420 (1984)............................................................................... 5, 6, 7, 8, 9, 10, 13



                                                            v
Miranda v. Arizona,
  384 U.S. 436 (1966)...................................................................................................... 7, 10
Nickerson v. State,
  No. 01-14-00096-CR, 2015 WL 3982025
  (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) ..................................... 10, 11
Wilkerson v. State,
 173 S.W.3d 521 (Tex. Crim. App. 2005) ................................................................... 7, 11
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii
TEX. R. APP. P. 44.2(b) ......................................................................................................... 15
TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ........................................................................................................... 18
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. V ........................................................................................................... 5




                                                                  vi
TO THE HONORABLE COURT OF APPEALS:

                            STATEMENT OF THE CASE

       Appellant was charged with burglary of a habitation in cause numbers 1296861

and 1297213 (1296861 CR at 13; 1297213 CR at 11). He entered a plea of guilty, but

the court deferred his adjudicated for six years (1296861 CR at 28-29, 36-37; 1297213

CR at 24-25, 33-34). The State filed several motions to adjudicate appellant’s offenses

because of violations to the terms of his probation, and a hearing was held (1296861

CR at 67-68, 75-76, 100-103, 108-111; 1297213 CR at 66-67, 73-74, 99-101, 106-08; 1

RR).1 Appellant pleaded true to numerous allegations but pleaded not true to four

allegations in the State’s Third Amended Motion to Adjudicate (1296861 CR at 117-

18; 1297213 CR at 114-15; 1 RR at 7-23). The court found that appellant violated

numerous conditions of his probation and sentenced him to confinement for twenty-

five years in prison for each offense (1296861 CR at 117-18; 1297213 CR at 114-15; 1

RR at 43-44, 61). The court certified appellant’s right to appeal, and appellant filed a

timely notice of appeal (1296861 CR at 120-22; 1297213 CR at 117-19).

                               STATEMENT OF FACTS

       Appellant was serving six years’ probation as a condition of his deferred

adjudication (1296861 CR at 36-37; 1297213 CR at 33-34). Among the terms of his

probation, appellant was required to avoid persons or places of disreputable or

1
 While appellant was on deferred adjudication community supervision, the State will refer to his
community supervision as “probation.”


                                               1
harmful character, pay court costs and supervision fees, participate in sex offender

treatment and comply with all program rules, regulations, and guidelines until

successfully discharged or released, have no contact with any minor except if

permitted by the court, have no access to the internet through any manner or method

for any reasoning, including to view, receive, download, transmit, or possess

pornographic material on any computer, and not possess pornographic software

images or material (1296861 CR at 38-65; 1297213 CR at 35-64). The court has also

ordered appellant to submit to polygraph examinations if directed to by his probation

officer, and on October 3, 2014, appellant was interviewed by polygraph examiner

Ronald Russell regarding his compliance with the terms of his probation (1296861 CR

at 39, 44, 49, 54, 59, 64, ; 1297213 CR at 37, 42, 47, 52, 57, 62; 1 RR at 24, 25).

       In a pre-polygraph questionnaire and interview, appellant admitted committing

multiple violations of his probation to Russell (State’s Ex. 1, 3). After taking the

polygraph exam, appellant volunteered to write a statement in which he further

explained several incidents of conduct that violated his probation (State’s Ex. 2).

       The State filed a motion to adjudicate appellant’s guilt alleging multiple

violations of his probation as appellant admitted to Russell (1296861 CR at 108-111;

1297213 CR at 106-08). At the hearing on the motion, appellant pleaded true to

violating multiple conditions of his probation but pleaded not true to the allegation

that he exposed his penis to a minor, that he watched and talked to a girl at a park,

and that he used his phone to access internet maps and music (1 RR at 7-23).

                                             2
          The State attempted to admit appellant’s pre-polygraph questionnaire, Russell’s

video of the pre-polygraph interview with appellant, and appellant’s post-polygraph

written statement (1 RR at 26; State’s Ex. 1, 2, 3).2 Appellant objected, arguing that

the statements violated Miranda and his Fifth Amendment right (1 RR at 27). The

trial court overruled his objection (1 RR at 27).

                            SUMMARY OF THE ARGUMENTS

          The trial court did not err in finding appellant’s statements admissible over his

objection that they violated his Fifth Amendment right. While a probationer like

appellant does not lose his Fifth Amendment right upon conviction, both the United

States Supreme Court and Court of Criminal Appeals have held that questions relating

to probation conditions do not implicate the Fifth Amendment as long as that threat

of revocation does not coerce the probationer to reveal information that could be

used in a future criminal proceeding.

          Further, even if the Fifth Amendment applied, appellant waived his right to not

incriminate himself by failing to invoke its protection when making his pre and post

polygraph statements. Because the Fifth Amendment is not a “self-executing” right,

and appellant did not invoke his right before making his statements, the trial court did

not err in finding them admissible. Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App.

2003).


2
    The State did not offer the polygraph examination (1 RR at 28).


                                                   3
               Additionally, even if appellant had not waived his Fifth Amendment right, the

     trial court would not have abused its discretion in finding appellant’s statements

     admissible despite the fact that Russel did not give appellant his Miranda warnings. As

     appellant was not subjected to custodial interrogation, Russel did not need to inform

     appellant of his rights before interviewing him.

                        REPLY TO APPELLANT’S POINT OF ERROR

I.      The trial court did not err when it allowed the State to admit appellant’s
        statements over appellant’s Miranda and Fifth Amendment objections.

               In his brief, appellant argues that the trial court committed reversible error by

     allowing the State to introduce evidence of appellant’s statements over his Miranda

     and Fifth Amendment objections.            Appellant claims that the court abused its

     discretion by admitting the statements which he alleges were made as a result of

     custodial interrogation and which violated his right not to be compelled to be a

     witness against himself.       In making this argument, appellant overlooks that his

     statements do not implicate the Fifth Amendment as they involve the conditions of

     his probation, that he failed to timely assert his Fifth Amendment right, and that his

     statement was not given as a result of custodial interrogation. As such, the trial court

     did not abuse its discretion in finding his statement admissible and did not err in its

     ruling.




                                                   4
                                 Standard of Review

   a. Reviewing courts employ an abuse of discretion standard when
      determining whether a trial court erred when revoking a defendant’s
      probation or when admitting evidence.

      In a revocation proceeding, the trial court has the discretion to revoke a

defendant’s probation when a preponderance of the evidence supports at least one of

the State’s allegations that the defendant violated a condition of his community

supervision. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012).

      Similarly, a trial court has discretion when determining the admissibility of

evidence. Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d). An abuse of discretion occurs when the trial court’s decision is so clearly

wrong as to lie outside that zone within which reasonable people might disagree. Casey

v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).

                                   Applicable Law

   b. The Fifth Amendment provides protection for probationers against self-
      incrimination in future criminal proceedings, but a probationer generally
      must invoke his Fifth Amendment right against self-incrimination or
      courts will not consider his statement compelled.

   Under the Fifth Amendment, no person “shall be compelled in any criminal case

to be a witness against himself.” U.S. CONST. amend. V; see Minnesota v. Murphy, 465

U.S. 420, 426 (1984); Dansby v. State, 398 S.W.3d 233, 239 (Tex. Crim. App. 2013). “It

is a fundamental tenet of Texas and federal constitutional jurisprudence that every

person has the right to avoid self-incrimination by exercising the privilege provided


                                           5
him by the Fifth Amendment and the Texas Constitution.” Chapman, 115 S.W.3d at

5.

      As both the Supreme Court and Texas Court of Criminal Appeals have

recognized, a person may choose to invoke his right to remain silent and “not to

answer official questions put to him in any other proceeding, civil or criminal, formal

or informal, where the answers might incriminate him in future criminal proceedings.”

In re Medina, No. WR-75,835-02, 2015 WL 6722175, at *5 (Tex. Crim. App. Nov. 4,

2015) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)); Chapman, 115 S.W.3d at 5

(noting that “[t]he privilege does not turn upon the type of proceeding in which its

protection is invoked, but upon the nature of the statement or admission and the

exposure which it invites”).       Similarly, both Courts have held that the Fifth

Amendment insulates probationers from compelled self-incrimination regarding

future criminal prosecutions, Murphy, 465 U.S. at 426, and that the State may “not

constitutionally carry out a threat to revoke probation for the legitimate exercise of

the Fifth Amendment privilege.” Dansby, 398 S.W.3d at 240 (quoting Murphy, 465

U.S. at 426); see also Chapman, 115 S.W.3d at 6.

      However, the right “against compelled self-incrimination is not ordinarily self-

executing” as a person must claim his Fifth Amendment right or he will not be

considered to have been compelled to incriminate himself. Chapman, 115 S.W.3d at 6

(quoting Murphy, 465 U.S. at 427-28). With few exceptions to this general rule, a

person must timely invoke his Fifth Amendment right to obtain its protections or be

                                            6
barred from claiming that his statement was compelled. Murphy, 465 U.S. at 428–29;

Chapman, 115 S.W.3d at 6.

      Among the exceptions, a defendant does not need to invoke his right when

subject to custodial interrogation by law enforcement when he does not first

knowingly and voluntarily waive his privilege against self-incrimination. Murphy, 465

U.S. at 429-30; see Miranda v. Arizona, 384 U.S. 436, 475 (1966). As the Supreme Court

recognized in Miranda v. Arizona, the inherent compulsion of custodial surroundings

require special safeguards as “the process of in-custody interrogation of persons

suspected or accused of crime contains inherently compelling pressures which work

to undermine the individual’s will to resist and to compel him to speak where he

would not otherwise do so freely.” Miranda, 384 U.S. at 467; see Wilkerson v. State, 173

S.W.3d 521, 526-27 (Tex. Crim. App. 2005). Thus, unless a defendant is given

Miranda warnings before waiving his rights during a custodial interrogation, his

statement is inadmissible. Murphy, 465 U.S. at 430; Miranda, 384 U.S. at 475.

      Additionally, a defendant does not have to invoke his Fifth Amendment right

against self-incrimination when faced with a “classic penalty situation.” Murphy, 465

U.S. at 434-35; Chapman, 115 S.W.3d at 6. In the classic penalty situation, a defendant

is threatens with punishment for asserting his privilege against self-incrimination,

thereby depriving him of his choice to refuse to answer. Chapman, 115 S.W.3d at 6. In

such cases, the Fifth Amendment right against self-incrimination is self-executing, and




                                           7
the statements a defendant makes are deemed compelled and thus inadmissible in

criminal prosecution. Murphy, 465 U.S. at 434-35; Chapman, 115 S.W.3d at 6-7.

                                        Analysis

   c. The trial court did not abuse its discretion as appellant cannot use his
      Fifth Amendment right against self-incrimination from criminal
      prosecution as a blanket to exclude statements regarding his probation
      status.

      The trial court did not err when it found appellant’s statements to be

admissible over his Miranda and Fifth Amendment objection. The court did not

abuse its discretion because the Fifth Amendment was not implicated when the State

admitted appellant’s statement made before and after Russell’s polygraph examination

regarding appellant’s adherence to the conditions of his probation. See Ex parte Renfro,

999 S.W.2d 557, 561 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding that

“the mere requirement” that Renfro undergo polygraph examinations as a condition

of his probation did not infringe upon his right against self-incrimination).

      As both the Supreme Court and Court of Criminal Appeals have recognized,

when a probationer has been convicted of a crime, he does not lose his Fifth

Amendment protection, but the focus of that right shifts away from the crime that

has resulted in conviction to protection from future criminal prosecution. Murphy,

465 U.S. at 426; Medina, 2015 WL 6722175, at *6. The Fifth Amendment does not

prevent a probationer from being compelled “to appear and give testimony about

matters relevant to his probationary status.” Dansby, 398 S.W.3d at 240 (quoting


                                            8
Murphy, 465 U.S. at 436).       Significantly, the Court of Criminal Appeals recently

reiterated that “questions relating to probation conditions rather than criminal acts

would not implicate the Fifth Amendment provided the threat of revocation did not

coerce the probationer to reveal information that could be used in a future criminal

proceeding.” Medina, 2015 WL 6722175, at *6. Thus, to the extent that Russell

questioned appellant about possible probation violations, appellant’s Fifth

Amendment right against self-incrimination from future criminal prosecution was not

implicated. See Ex parte Dangelo, 339 S.W.3d 143, 151 (Tex. App.—Fort Worth 2010),

aff’d, 376 S.W.3d 776 (Tex. Crim. App. 2014). As such, the trial court did not abuse its

discretion.

   d. The trial court did not abuse its discretion because appellant failed to
      timely invoke his right against self-incrimination.

       Additionally, the trial court did not abuse its discretion because appellant failed

to timely invoke his Fifth Amendment right. As the holdings in Murphy and Chapman

recognize, the right against self-incrimination is generally not “self-executing.”

Murphy, 465 U.S. at 427-29; Chapman, 115 S.W.3d at 6. Therefore appellant needed to

invoke his Fifth Amendment protection to enjoy its benefits. See Dansby, 398 S.W.3d

at 234 (stating that Dansby invoked his Fifth Amendment right not to answer

questions about other possible crimes).         As State’s Exhibits 2 and 3 establish,

appellant did not inform Russell that he wished to invoke his right against self-

incrimination when facing questions that could expose him to future criminal


                                            9
prosecution (State’s Ex. 2, 3). Because appellant failed to timely invoke his Fifth

Amendment right, he is barred from claiming that his statement was compelled.

Murphy, 465 U.S. at 428–29; Chapman, 115 S.W.3d at 6.

     i. Appellant’s Fifth Amendment right was not self-executing as he was
        not subjected to custodial interrogation when he made his statements.

      While appellant does not address the fact that he waived his Fifth Amendment

protection by failing to invoke it, his argument regarding Russell’s lack of Miranda

warnings does not alleviate the requirement that appellant invoke his right. This is

because appellant was not subjected to custodial interrogation by Russell’s pre and

post polygraph interview.

      Miranda warnings are not needed unless a person is subject to custodial

interrogation. See Murphy, 465 U.S. at 430; Miranda, 384 U.S. at 475. To determine if a

person was in custody and if Miranda warnings were needed before interrogation

occurred, courts consider whether the person was physically deprived of his freedom

in a significant way, whether a law enforcement officer told the person that he was

not free to leave, whether law enforcement officers created a situation that would lead

a reasonable person to believe that his freedom of movement has been significantly

restricted, and whether law enforcement officers had probable cause to arrest the

person. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009); Nickerson v. State,

No. 01-14-00096-CR, 2015 WL 3982025, at *4 (Tex. App.—Houston [1st Dist.] June

30, 2015, no pet.); see Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007)


                                           10
(“The Supreme Court has defined ‘custodial interrogation’ as ‘questioning initiated by

law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.’”). None of these facts apply

to appellant’s case.

       Appellant was not physically deprived of his freedom of movement in any way,

as State’s Exhibit 3 shows (State’s Ex. 3). See Gardner, 306 S.W.3d at 294); Nickerson,

2015 WL 3982025, at *4. He was not interacting with law enforcement officers, as

Russell was not a peace officer or acting as the agent of an officer. See Wilkerson, 173

S.W.3d at 527-28 (noting that Miranda only applies to custodial interrogation

conducted by law enforcement officers or their agents); see also Marcum v. State, 983

S.W.2d 762, 766 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding that

Marcum was not subject to custodial interrogation because his polygraph examiner

was not a peace officer). Appellant was free to leave at any time, and was not in a

situation that would have led a reasonable person to believe his freedom of movement

had been significantly restricted. See Gardner, 306 S.W.3d at 294); Nickerson, 2015 WL

3982025, at *4. Most importantly, appellant was not under arrest when he made his

statements, and no probable cause existed to arrest appellant. Id.

       Additionally, appellant submitted to the polygraph examination as a court

ordered condition of his probation but was not required to give his pre or post

polygraph statements. See Marcum, 983 S.W.2d at 766 (holding that since Marcum was

required by the court to take polygraph tests as a condition of his probation, he was

                                          11
not subjected to custodial interrogation); see also Dowthitt v. State, 931 S.W.2d 244, 255

(Tex. Crim. App. 1996) (noting that “custody does not occur merely because [a]

suspect submits to and fails a polygraph test”). Indeed, several Courts of Appeals

have held that requiring a probationer to submit to a polygraph examination does not

subject him to custodial interrogation, even when that probationer admits to

committing other crimes during his interview. In re A.M., 333 S.W.3d 411, 416-17

(Tex. App.—Eastland 2011, pet. denied) (holding that A.M. was not subject to

custodial interrogation during pre-polygraph interview in which A.M. admitted to

sexually abusing his sister); Renfro, 999 S.W.2d at 561 (holding that no Miranda

warnings were needed when the polygraph required for Renfro’s probation was used

to investigate Renfro’s compliance with the terms of his probation); Marcum, 983

S.W.2d at 766 (holding that Marcum was not subject to custodial interrogation when

making a statement to a polygraph examiner about two crimes he had committed).

      Appellant’s case is almost identical that that addressed by the Fourteenth Court

of Appeals in Marcum v. State. Marcum was on probation and admitted to sexually

abusing two children during a post-polygraph interview. Marcum, 983 S.W.2d at 765,

766. When the State admitted his statement at a hearing to revoke his probation,

Marcum argued that the statement was inadmissible because he had not received

Miranda warnings. Id. at 766. In rejecting his argument, the Court held that since the

polygraph examination was a requirement of Marcum’s probation, since there was no

probable cause to arrest Marcum even after he made his statement, since there was

                                           12
“no apparent intent to arrest [Marcum] because the interview was simply a condition

of [his] probation,” and since the examiner was not a peace officer, Marcum was not

subject to custodial interrogation and Miranda warnings were not required. Id.

      Like Marcum, appellant was not in custody when he made his pre and post-

polygraph statements.    As such, Russell did not need to give appellant Miranda

warnings, and the trial court did not abuse its discretion in overruling his Miranda

objection.

    ii. Appellant’s Fifth Amendment right was not self-executing as he was
        not subjected to the “classic penalty situation” when he made his
        statements.

      While appellant does not directly mention the other situation in which a

defendant’s Fifth Amendment right against self-incrimination would be self-executing,

he does argue that as taking polygraph examinations was a condition of his probation,

his pre and post-polygraph statements were compelled. Appellant’s Br. 16-17. When

appellant argues that he could have believed that he had no choice but to honestly

answer Russell’s questions, appellant casts his dilemma as a situation that mirrors the

“classic penalty situation.” However, both the Supreme Court and Court of Criminal

Appeals have distinguished the “classic penalty situation” from the situation of a

probationer being required to honestly answer questions regarding his probation

status or have his probation revoked. Murphy, 465 U.S. at 427-28 (holding that the

condition of community supervision that required Murphy to report to his probation



                                          13
officer and be truthful did not convert his statements into compelled self-

incrimination nor place Murphy in a worse position than an ordinary witness who is

compelled to appear and tell the truth under “the pain of contempt”); Chapman, 115

S.W.3d at 6, 7 (“[T]he normal probation conditions, such as a stipulation that the

probationer appear and discuss matters that affect his probationary status, does not

relieve him of the responsibility to assert his privilege if he fears that his answers may

incriminate him.”).

      Because the requirement that appellant undergo polygraph examinations

regarding his probationary status did not relieve him of the responsibility to assert his

right against self-incrimination if he feared that his answers may incriminate him,

appellant’s Fifth Amendment right was not self-executing and he had to invoke it or

else be barred from claiming that his statements were compelled. See Chapman, 115

S.W.3d at 7. As such, his answers were not compelled and appellant waived his right

to invoke his Fifth Amendment right. Therefore, the trial court did not abuse its

discretion in overruling his objection, and this Court should uphold appellant’s

conviction.

   e. Even if the trial court erred in admitting appellant’s statements, the error
      was harmless as appellant pleaded true to multiple violations of his
      probation.

      Assuming for the sake of argument that the trial court did err when it allowed

the State to admit the evidence of appellant’s pre and post-polygraph statements, the



                                           14
error was harmless. As the trial court could have revoke appellant’s probation on the

basis of the multiple violations that appellant pleaded true, this Court can determine

beyond a reasonable doubt that the alleged error did not contribute to appellant’s

revocation. See TEX. R. APP. P. 44.2(b) (“If the appellate record in a criminal case

reveals constitutional error that is subject to harmless error review, the court of

appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.”); see also Leonard, 385 S.W.3d at 576.

      This Court can determine that any error in admitting appellant’s statements was

harmless because the trial court was authorized to revoke appellant’s probation as

along as the State established at least one of the violations it alleged. See Dansby, 398

S.W.3d at 241 (stating 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” and “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”). Appellant pleaded true to multiple violations alleged (RR at 7-

23, 43-44).

      As the record establishes, before the State put on any evidence, appellant

pleaded true to the allegations in paragraphs number one through fourteen and

seventeen through nineteen for cause number 1296861 and one through seven and

nine through twelve for cause number 1297213 (RR at 7-23). Thus, there are multiple

                                           15
violations supported by appellant’s pleas that are independent from the

“constitutional taint” he argues about on appeal. Dansby, 398 S.W.3d at 241. As the

record supports the trial court’s decision revoking appellant’s probation, appellant was

not harmed by the admission of his statements.

      Because the trial court could revoke appellant’s probation on the basis of his

pleas of true alone, this record allows this Court to determine beyond a reasonable

doubt that if the trial court erred by allowing the evidence of his statements to be

admitted over appellant’s Miranda and Fifth Amendment objections, the error did not

contribute to appellant’s revocation. As such, this Court should overrule appellant’s

sole point of error and affirm his conviction.




                                           16
                                   CONCLUSION

      The State of Texas respectfully urges the Court to overrule appellant’s point of

error and affirm his conviction.

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas

                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 274-5826
                                                    State Bar No. 24069083
                                                    dessauer_carly@dao.hctx.net
                                                    curry_alan@dao.hctx.net




                                         17
                      CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 3,685 words, based upon the representation provided by the word

processing program that was used to create the document. TEX. R. APP. P. 9.4(i).




                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 274-5826
                                                    State Bar No. 24069083




                                         18
                         CERTIFICATE OF SERVICE

      The State will serve a copy of the foregoing instrument to appellant’s attorney

though TexFile:

Allison Secrest
Attorney at Law
808 Travis Street, 24th Floor
Houston, Texas 77010
Allison@allisonsecrestlaw.com

                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 274-5826
                                                    State Bar No. 24069083




Date: November 12, 2015




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