      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-04-00175-CR
                                         NO. 03-04-00178-CR



                                 Robert Joe Donaldson, Appellant

                                                    v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
      NOS. 8931 & 9233, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING



                              MEMORANDUM OPINION


                The district court adjudicated Robert Joe Donaldson guilty of three counts of

aggravated sexual assault of a child and revoked his community supervision for the offenses of

indecency with a child by exposure and sexual performance by a child.1 See Tex. Pen. Code Ann.

§§ 22.021(a)(i)(B) (West Supp. 2004-05); 21.11(a) (West 2003); 43.25(b) (West Supp. 2004-05).

Donaldson was sentenced to sixty-four years in prison for the aggravated assault convictions, to be

served consecutively with ten years for the violation of his community supervision. He appeals both

the adjudication of guilt and the revocation of his community supervision contending (1) that there

is legally and factually insufficient evidence to support the State’s allegations, (2) that the trial court

erred by admitting evidence of a polygraph examination, and (3) that the trial court abused its


        1
          As part of a plea agreement, Donaldson had pleaded guilty to all charges in exchange for
ten years’ deferred adjudication and ten years’ shock probation.
discretion by denying his motions to quash the State’s motions to adjudicate guilt and revoke

community supervision. We affirm the district court’s judgments.


                                 FACTUAL BACKGROUND

               Donaldson pleaded guilty to committing several sexual offenses stemming from his

abuse of an eight-year-old girl. As part of the agreement, he was placed on ten years’ deferred

adjudication for some of the offenses and ten years’ shock probation for others. Among the

conditions of his community supervision were that Donaldson:


       Attend, participate and complete a psychiatric and/or psychological counseling
       program, with a licensed sex offender provider, as directed by the Probation Officer
       and pay the cost of same. Remain in said program until successfully discharged by
       the sex offender provider.


He was also required to “abide by all treatment rules of the sex offender provider.”

               By all accounts, Donaldson generally complied with the terms and conditions of his

community supervision. The State’s allegations focused on Donaldson’s unsuccessful discharge

from the sex offender treatment program. Probation officer Jeanette Murray testified that Donaldson

was discharged from the sex offender treatment program because he did not abide by all of the rules

of the provider. She did not know what rules were violated.

               Polygraph examiner Gordon Bake testified about two examinations of Donaldson

ordered by Donaldson’s therapist as part of the treatment program. Bake testified that the first

polygraph examination indicated that Donaldson was deceptive when asked whether he had violated

the rules of his treatment and was keeping the violations secret from his therapist. Donaldson was



                                                2
found deceptive on two questions in the second polygraph examination: (1) whether he told his

therapist about “all deviant sexual outlets” he had used since starting treatment, and (2) whether he

had “any new victims of any deviant sex act since being in treatment.” Bake stated that he

confronted Donaldson with the results of the second polygraph examination, and that Donaldson

admitted that he had not been truthful with his therapist regarding the number of times that he had

masturbated while thinking deviant thoughts. These included thoughts of his eight-year-old victim.

Donaldson denied having any new victims.

               Donaldson’s therapist, Dr. Mathew Ferrara, also testified about why he discharged

Donaldson from treatment. Dr. Ferrara gave several reasons:


       Well, I think the—first and foremost, I didn’t see he was making any progress in the
       treatment. I didn’t get the feeling that his behaviors were changing outside of
       treatment.

       In the treatment groups, I guess the second reason would be he didn’t appear to be
       participating, fully participating. I had to prompt him quite a bit to talk. I think the
       failed polygraphs were an indication of deception, and I considered those as well. I
       think his direct admissions to me about why he failed the polygraphs were
       admissions that he was still engaging in deviant sexual behavior while in group.

       And it was my assessment, based on everything I knew about him, that that suggested
       he was a—that he was a continuing risk and he wasn’t benefitting from treatment and
       supervision.


On cross examination, Dr. Ferrara confirmed that Donaldson had made some progress in treatment,

never missed a required session, and paid for all of the treatment.

               Donaldson introduced a discharge summary signed by Dr. Ferrara. The discharge

summary indicates that Donaldson’s was an “unsuccessful early discharge.” It notes that Donaldson



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attended all sessions, completed assignments as required, but that he “appeared to have difficulty

changing behavior outside of therapy.” Under the section “Summary of Issues Resolved/Unresolved

at Time of Discharge” Dr. Ferrara wrote:


       He failed two maintenance polygraphs regarding rule violation. He has not clarified
       rules he has broken.


The discharge summary recommends “increased sanctions.” Dr. Ferrara explained that his other

reasons for discharging Donaldson may have been written in his notes, but he did not bring them

with him to court.

                Following the hearing, the district court found the State’s allegations true, but

reserved judgment on whether to adjudicate guilt and revoke Donaldson’s community supervision.

A second hearing was held in which the details of the underlying offenses were developed and victim

impact testimony was heard. At the conclusion of that hearing, the district court adjudicated

Donaldson guilty, revoked his community supervision, and sentenced him to serve consecutive

sentences of ten and sixty-four years in prison.2


       2
          Although Donaldson’s sentence is within the statutory range and consistent with the
severity of the offense, we do not condone the arbitrary manner in which the district court appears
to have made that determination. The district court explained the sentence:

           Cause No. 8931 was the deferred adjudication case, a first degree felony. It has
           a range of punishment of not less than five nor more than 99 years or life. The
           victim at the age of the offense was eight years old. Eight years squared is 64
           years, and that is the sentence of the defendant, Mr. Donaldson, in Cause No.
           8931.

The age of a defendant is clearly relevant to sentencing, but squaring the age is not. The district
court’s rote calculation would assess a lesser punishment for the assault of a younger child. In

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                                           DISCUSSION

Deferred Adjudication

               We will first address those issues raised in Donaldson’s appeal of his adjudication

of guilt of the offense of aggravated sexual assault of a child. Pursuant to a plea agreement,

Donaldson was placed on community supervision and adjudication of guilt was deferred. See Tex.

Code Crim. Proc. art. 42.12, § 5(a) (West 2004-05). The statute clearly states that no appeal may

be taken from a court’s determination to proceed with an adjudication of guilt. See id. § 5(b). The

court of criminal appeals has held that the statute means what it says, and that the determination to

proceed with an adjudication of guilt is one of “absolute nonreviewable discretion.” Olowosuko v.

State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (citing Williams v. State, 592 S.W.2d 931, 932-

33 (Tex. Crim. App. 1979)); Atchison v. State, 124 S.W.3d 755, 757-58 (Tex. App.—Austin 2003,

pet. ref’d). Accordingly, we overrule the issues raised in Donaldson’s appeal in our cause number

03-04-175-CR.


Revocation of Community Supervision

               Donaldson challenges the district court’s revocation of his community supervision

contending that (1) the evidence was legally and factually insufficient to support the trial court’s

finding that the allegations in the State’s motion to revoke were true, (2) the trial court erred by

admitting evidence of a polygraph test, and (3) the trial court abused its discretion by overruling his

motion to quash the State’s motion to revoke his community supervision.



determining the appropriate sentence, the trier of fact must consider all relevant evidence and tailor
the sentence to the particular offense and defendant. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.
Crim. App. 1999).

                                                  5
    Legal and Factual Sufficiency

               In his first and second issues, Donaldson contends that the evidence was legally and

factually insufficient to support the district court’s judgment. In a proceeding to revoke community

supervision, the State has the burden of proving by a preponderance of evidence that the defendant

violated the terms of his community supervision. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.

App. 1993). We review a trial court’s order revoking community supervision for an abuse of

discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The trial court abuses

its discretion when the State fails to show by a preponderance of the evidence that the defendant

violated a condition of his community supervision as alleged. Id. The violation of a single condition

of community supervision is sufficient to support the revocation. Moore v. State, 605 S.W.2d 924,

926 (Tex. Crim. App. 1980).

               In a legal sufficiency review, all the evidence is reviewed in the light most favorable

to the verdict; it is assumed that the trier of fact resolved conflicts in the testimony, weighed the

evidence, and drew reasonable inferences in a manner that supports the verdict. Griffin v. State, 614

S.W.2d 155, 159 (Tex. Crim. App. 1981) (citing Jackson, 443 U.S. at 318-19). In a factual

sufficiency review, all the evidence is considered equally, including the testimony of defense

witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex.

App.—Austin 1992, no pet.). Although due deference still must be accorded the fact finder’s

determinations, particularly those concerning the weight and credibility of the evidence, the

reviewing court may disagree with the result in order to prevent a manifest injustice. Johnson v.

State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The evidence will be deemed factually insufficient



                                                 6
to sustain the judgment if the State’s proof is too weak or the contrary evidence is too strong to

support the finding of a violation of community supervision by a preponderance of the evidence.

See Zuniga, 144 S.W.3d at 484-85; Johnson, 23 S.W.3d at 11. In conducting a legal or factual

review, we consider all the evidence, rightly or wrongly admitted. See Camarillo v. State, 82 S.W.3d

529, 537 (Tex. App.—Austin 2002, no pet.).

               Donaldson contends that the State’s evidence was legally and factually insufficient

because the “only indication of anything [Donaldson] did wrong was that he failed [two] polygraph

examinations.” However, we may consider the polygraph results for the purposes of sufficiency

review. See id. Furthermore, Dr. Ferrara testified that Donaldson was also discharged because he

did not adequately participate in group therapy and he directly admitted that he was still engaging

in deviant sexual behavior. Polygraph examiner Bake testified that Donaldson admitted that he had

not been truthful with Dr. Ferrara in reporting the number of times he had masturbated while

thinking deviant thoughts—including thoughts about his eight-year-old victim. Based on this record,

a reasonable trier of fact could find by a preponderance of the evidence that Donaldson violated the

conditions of his community supervision. Nor do we find the State’s evidence so weak, or the

contrary evidence too strong to support the finding of a violation of community supervision by a

preponderance of the evidence. We overrule Donaldson’s first and second issues.


    Polygraph Evidence

               Donaldson next contends that the trial court erred by admitting evidence of polygraph

examinations ordered by Dr. Ferrara. The court of criminal appeals has long held that the results of

a polygraph test are inadmissible for all purposes. See Ross v. State, 133 S.W.3d 618, 625 (Tex.

                                                 7
Crim. App. 2004); Shiflet v. State, 732 S.W.2d 622, 630 (Tex. Crim. App. 1985). “The ‘result’ of

a polygraph examination is the conclusion based on the machine’s graphic indications as to whether

the defendant was lying or telling the truth.” Id. at 766. “[T]he mere mention of a polygraph

examination does not automatically constitute reversible error.” Marcum v. State, 983 S.W.2d 762,

765 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). Courts have recognized an exception to the

rule where a party has opened the door for the introduction of the results of a polygraph test. Hoppes

v. State, 725 S.W.2d 532, 536 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see also Lucas v.

State, 479 S.W.2d 314, 315 (Tex. Crim. App. 1972); Long v. State, 10 S.W.3d 389, 399 (Tex.

App.—Texarkana 2000, pet. ref’d).

               Donaldson objected to the mention of the polygraph examination at the outset of

polygraph examiner Bake’s testimony and was granted a running objection. On direct examination,

the State elicited testimony regarding the examination procedures but did not elicit any testimony

about questions asked while Donaldson was being monitored by the polygraph machine. Rather, the

State’s inquiry was limited to Donaldson’s post-test admission that he had not been truthful with Dr.

Ferrara. This was not a “result” of a polygraph examination. See Marcum, 983 S.W.2d at 766. The

Texarkana court of appeals recently explained:


       Statements made during a polygraph pretest interview, during the polygraph
       examination itself, or during an interview after the examination may be admissible
       evidence, but the proper procedure for introducing such evidence before the jury is
       to redact from such evidence all references to the polygraph examination.


Wright v. State, 154 S.W.3d 235, 239 (Tex. App.—Texarkana 2005, pet. ref’d) (citing procedure

employed in Hoppes, 725 S.W.2d at 536). Although no redaction was done in this case, it would

                                                  8
make little sense in a bench trial to require the State to redact information that the judge was already

aware of at the time he made the ruling admitting the evidence.

               It was not until Donaldson’s cross-examination of Bake that the results of the

polygraph examination were introduced. Bake then testified for the first time that Donaldson was

found to be deceptive on two questions and that one of the questions was whether he had “any

violations of his behavior contract that [he was] keeping secret from Dr. Ferrara.” The State later

clarified that the other question was whether Donaldson had any new victims. Donaldson cannot

now complain about the admission of evidence of the results of his polygraph examination when he

opened the door through his own cross-examination of Bake. See Lucas v. State, 479 S.W.2d at 315;

Long, 10 S.W.3d at 399; Hoppes, 725 S.W.2d at 536. Because the State’s initial references to the

polygraph examination were not error, and Donaldson opened the door to any further evidence of

the results of the polygraph test, we overrule his third issue.


    Motion to Quash

               In his fourth issue, Donaldson contends that the district court abused its discretion

by overruling his motion to quash the State’s motion to revoke his community supervision.

Donaldson argues that the State’s motion was so vague and indefinite that it did not apprise him with

what he was charged, thus rendering him unable to prepare a defense. The allegations in a motion

to revoke community supervision need not be stated with the same particularity as in an indictment.

Labelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App. 1986). Due process only requires a motion

to revoke community supervision give the defendant fair notice of the violation asserted as would

enable him to prepare a defense. See id. at 108. To determine whether a motion to revoke provided

                                                   9
the necessary notice, we first decide whether some requisite item of notice is absent. See id. at

10708. If we find that the motion did not provide adequate notice, we must then determine whether,

in the context of the case, the lack of notice had an impact on the defendant’s ability to prepare a

defense and the extent of such impact. Id. at 108 (adopting harm analysis set forth in Adams v. State,

707 S.W.2d 900, 903 (Tex. Crim. App. 1986)).3

               The State’s motion alleged that Donaldson violated the terms and conditions of his

probation because he (1) “was unsuccessfully discharged from [the] Sex Offender group by Dr.

Matthew Ferrara on March 31, 2003,” and (2) “failed to abide by the rules of the sex offender

provider.” Donaldson responded in his motion to quash that the allegations did not specify what

rules he failed to comply with and what he “failed to do that resulted in the unsuccessful completion

of sex offender treatment.” At the beginning of the trial, the district court overruled the motion to

quash, but encouraged the State to clarify its allegations. The State responded and specifically stated

that its allegations were not based on the results of the polygraph:


       The Court: And is this because of the bad polygraph?

       [The State]: No, your Honor. He failed to successfully participate in group, so he
                    was terminated. Now, I don’t believe that was based on the polygraph


       3
           A question has been raised whether the Adams standard survives the enactment of the
harmless error provision of the rules of appellate procedure. See 43A George E. Dix and Robert O.
Dawson, Texas Practice: Criminal Practice and Procedure § 43.570 at 768 (2d ed. 2001). However,
the court of criminal appeals adopted the Adams harm standard in Labelle v. State, an opinion dated
after the enactment of the former rules of appellate procedure. See 720 S.W.2d 101, 104 (Tex. Crim.
App. 1986). The former rules contained a harmless error standard that would otherwise have applied
to the error found in that case. See Tex. R. App. P. 81(b)(2) (Tex. Crim. App. 1986). As such, we
presume that the court of criminal appeals intended a separate harm analysis for errors relating to the
lack of fair notice in a motion to revoke probation.

                                                  10
                     results. Now it may be based on some information that was received
                     from the interview along with the polygraph, but it was not based
                     upon—the polygraph was not the reason for his termination from the
                     provider.


Donaldson again raised the issue of notice following the State’s direct examination of Bake and

asked for a continuance:


       We have very, very broad allegation[s] against Mr. Donaldson about what he was
       supposed to have done wrong. He didn’t complete the sexual offender program.

       I have volumes of things that Mr. Donaldson has given me that he does have copies
       of. And I couldn’t really figure out why were in trial today, other than that he may
       have failed a polygraph, which I thought of [as] inadmissible. So I’m sitting here
       now, all right, how do I defend these statements that he’s supposed to have made that
       allegedly are different minutely from earlier statements that he made.


The trial court refused to continue the trial, but recessed the case for lunch to allow defense counsel

to interview Bake and review his reports.

               In Labelle, the court of criminal appeals held that a motion to revoke probation did

not provide sufficient notice. See 720 S.W.2d at 106. The motion alleged that Labelle violated his

probation by committing an offense against the law of the State. Id. at 103. Specifically, it alleged

that he intentionally removed and destroyed a governmental record from the El Paso County Court

Residential Treatment Center on February 18, 1981. Id. The court of criminal appeals faulted the

motion for not identifying the record removed, explaining that “specifying which document is

involved is necessary to the defendant’s ability to adequately prepare for the case.” Id. at 106. The

court based this conclusion on a review of several prior cases holding motions to revoke probation

insufficient. See Matte v. State, 572 S.W.2d 547, 549 (Tex. Crim. App. 1978) (motion alleging false

                                                  11
statement made to firearms dealer but did not specify which statement was false); Garner v. State,

545 S.W.2d 178, 179 (Tex. Crim. App. 1977) (motion alleged theft on a specific date but did not

describe the offense); Campbell v. State, 456 S.W.2d 918, 921-22 (Tex. Crim. App. 1970) (motion

alleged “injurious or vicious habits” but did not identify the specific habit).

                The motion at issue in this case contained two related allegations—Donaldson was

discharged from therapy and Donaldson failed to abide by the rules of his provider. The motion did

not identify what rules Donaldson had violated or the reason for his discharge. Donaldson’s counsel

was left to sort through the incomplete records in his client’s possession and guess what the State’s

case might be.4 We hold that the State’s motion did not provide the fair notice necessary for the

preparation of a defense. See Labelle, 720 S.W.2d at 106.

                We next determine whether the lack of fair notice, in the context of the case, had an

impact on Donaldson’s ability to present a defense. See id. at 108. Donaldson’s brief does not cite

Labelle or Adams and does not point to any action, even in hindsight, that could have been taken had

his counsel had fair notice of the State’s case. At trial, Donaldson’s counsel made it clear that he

did not have fair notice and that he was under the mistaken impression that the State’s case was

solely about failed polygraphs. However, the State clarified its allegations at the beginning of trial,

and Donaldson was permitted time to review documents and interview the State’s witness regarding

the admissions made by his client. From this record, we cannot conclude that the lack of fair notice




        4
          It also appears from the record that the discovery was limited in this case. Donaldson’s
counsel was not permitted to view his client’s probation file, did not have access to Dr. Ferrara’s file,
and was not given the reports documenting the admissions forming the heart of the State’s case until
the day of trial.

                                                   12
had an impact on Donaldson’s ability to prepare a defense sufficient to prejudice his substantial

rights. See Labelle, 720 S.W.2d at 108; Adams, 707 S.W.2d at 904. Accordingly, we overrule

Donaldson’s fourth issue.


                                        CONCLUSION

              Having overruled all of Donaldson’s issues, we affirm the district court’s judgments.




                                            Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton: Opinion by Justice B. A. Smith;
    Concurring Opinion by Justice Pemberton

Affirmed

Filed: August 24, 2005

Do Not Publish




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