Opinion filed February 11, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-09-00304-CV
                                         __________

                     IN THE MATTER OF A.M., A JUVENILE


                          On Appeal from the County Court at Law

                                       Erath County, Texas

                                  Trial Court Cause No. JV01303


                                          OPINION
       The trial court found that A.M. engaged in delinquent conduct and committed him to the
Texas Youth Commission for an indeterminate period of time not to exceed his twenty-first
birthday. In two appellate issues, A.M. contends that the trial court erred by denying his motion
to suppress evidence. We affirm.
                                        Background Facts
       In 2008, A.M. was charged with aggravated sexual assault of his twelve-year-old sister.
At that time, A.M. was fourteen years old. Pursuant to a plea bargain agreement, the 2008
aggravated sexual assault charge was reduced to a charge of indecency with a child by exposure,
and A.M. was placed on probation for two years. The conditions of probation required A.M. to
participate in sex offender treatment. As part of that treatment, A.M.’s therapist required him to
take a monitoring polygraph examination. On August 6, 2009, A.M. took the examination.
During the interview part of the examination, A.M. told the polygraph examiner that he had
engaged in sexual contact with his sister five times since the beginning of his probation period.
On August 17, 2009, the State filed an original adjudication petition alleging that, on or about
May 15, 2009, A.M. had committed the offense of aggravated sexual assault of his sister.
       A.M. filed a motion to suppress the statements that he had made to the polygraph
examiner. Following a hearing, the trial court denied the motion. A.M. then pleaded “true” to
the allegations in the State’s petition and, in a stipulation of evidence, judicially confessed that
he had committed the alleged offense. The trial court entered an adjudication-hearing judgment
in which it found that A.M. had committed the offense of aggravated sexual assault of a child
and adjudicated A.M. as having engaged in delinquent conduct. The trial court also entered an
order committing A.M. to the Texas Youth Commission.
                                         Issues on Appeal
       Appellant contends that the trial court erred by denying his motion to suppress for two
reasons. In his first issue, he argues that the condition of his probation requiring him to take the
polygraph examination placed him in a “classic penalty situation” as described in Minnesota v.
Murphy, 465 U.S. 420, 434-35 (1984), and that, therefore, his statements to the polygraph
examiner were compelled and inadmissible. In his second issue, he argues that the disclosure of
his polygraph examination results to the district attorney’s office for the purpose of obtaining a
new conviction against him violated his due process rights because he was led to believe that the
results would be disclosed only to the probation department and his father.
                                        Standard of Review
       We review the ruling on a motion to suppress in a juvenile case using the same abuse of
discretion standard that applies to such motions in adult criminal cases. In re R.J.H., 79 S.W.3d
1, 6 (Tex. 2002). We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total deference to
the trial court’s determination of historical facts. Valtierra, 310 S.W.3d at 447. The trial court is
the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their
testimony. Id.; Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). When, as here, no
findings of fact were requested or filed, we view the evidence in the light most favorable to the

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trial court’s ruling and assume that the trial court made implicit findings of fact supported by the
record. Valtierra, 310 S.W.3d at 447; Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App.
2005); State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000). Second, we review
de novo the trial court’s application of law to facts. Hubert, 312 S.W.3d at 559; Valtierra, 310
S.W.3d at 447.
                                    The Suppression Hearing
       The record shows that Bryan Perot was a polygraph examiner with Wood & Associates
Polygraph Service in Arlington, Texas. Perot testified that he performed polygraph examinations
for sex offender treatment.     He said that various types of polygraph examinations were
administered, including original offense examinations, sexual history examinations, monitoring
examinations, maintenance examinations, and specific issue examinations. Perot described in
detail the procedures that were used in administering polygraph examinations, and he said that
the same procedures were used for all types of examinations.
       Perot testified that A.M.’s therapist, Linda Baley, and his probation officer, Angela Hunt,
sent A.M. to take a monitoring polygraph examination.           Perot said that the purpose of a
monitoring examination was “to make sure there [had] been no re-offense or high-risk behavior
that could lead to a re-offense.” During a monitoring examination, the person was asked whether
he or she had engaged in sexual contact with a child during the relevant time period. A.M.’s
monitoring examination was to cover the time period between the date his probation began and
the date of the examination.      Hunt testified that Baley required the monitoring polygraph
examination as part of A.M.’s treatment.
       On August 6, 2009, Perot administered a polygraph examination to A.M. Perot testified
that, before administering the examination, he told A.M. that the examination was voluntary and
that he did not have to take it if he did not want to take it. Perot also explained the examination
procedure to A.M. and reviewed the provisions of a release with him before administering the
examination. Perot testified that A.M. signed the release before taking the examination. In part,
the release provided, “I understand that this examination is voluntary and I have the right to
refuse the examination.”     Perot believed that A.M. was capable of understanding and did
understand that taking the examination was voluntary.
       The release also provided that, if A.M. chose to take the examination, it would consist of
three parts. In the first part, Perot would interview A.M. about the areas and subject matter in

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question. In the second part, Perot would administer the actual polygraph examination. In the
third part, Perot would inform A.M. of his opinion as to A.M.’s truthfulness during the
examination. The release also provided that Wood’s Polygraph would release the examination
results to Linda Baley, Erath County Juvenile Services, and A.M.’s father and “to no one else
without [A.M.’s] consent.” According to Perot’s testimony, he told A.M. that he could be
required by law, such as by subpoena or court order, to release the examination results to other
parties.
           Perot proceeded to perform the interview part of the polygraph examination. During the
interview, Perot defined “sexual contact” and asked A.M. whether he had engaged in sexual
contact. A.M. told Perot that he had engaged in sexual contact with his sister five times while on
probation. Based on A.M.’s statements, Perot changed the examination to a specific issue
examination about A.M.’s sexual contact with his sister. Perot formulated polygraph questions
and administered them to A.M.          Perot believed that A.M. was truthful in answering the
questions.
           Hunt testified that she started working with A.M. in July 2008. Hunt said that A.M. had
learning disabilities. However, Hunt believed that he would have understood what was meant by
“[t]his test is voluntary” and “[y]ou don’t have to take it if you don’t want to.” Hunt believed
that A.M. was told that Baley recommended the polygraph examination as part of his treatment
program. Hunt said that Baley advised A.M. to be honest and to provide information during the
examination. Hunt testified that she did not tell A.M. that his probation would be revoked if he
did not take the polygraph examination.
           A.M. submitted an affidavit in support of his motion to suppress. According to the
affidavit, Baley told A.M. that he had to take a polygraph examination and that he had to tell the
truth. A.M. stated in the affidavit that he was never told he could refuse to take a polygraph
examination or refuse to answer any questions during the examination. A.M. also stated that he
thought he would get into trouble if he refused to take the examination or answer questions
during the examination. He stated that, “[f]rom Ms. Baley, [he] understood [that he] could go to
TYC if [he] refused to take the exam or [f]ailed the exam.” He also stated that he would have
refused to take the polygraph examination if he could have done so without getting into more
trouble.



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                                                   Analysis
       In his first issue, A.M. contends that his statements to Perot were compelled. The State
may not compel a person to make an incriminating statement against himself. U.S. CONST.
amend. V; TEX. CONST. art. I, § 10. A criminal defendant does not lose this constitutional
protection against self-incrimination merely because he has been convicted of a crime. Murphy,
465 U.S. at 426; Chapman v. State, 115 S.W.3d 1, 5 (Tex. Crim. App. 2003). A person who is
on probation has a right against self-incrimination concerning statements that would incriminate
him for some other offense. Murphy, 465 U.S. at 426; Chapman, 115 S.W.3d at 5-6.
       As a general rule, the privilege against self-incrimination is not self-executing. Murphy,
465 U.S. at 428-29. With few exceptions to this general rule, a person must timely invoke the
privilege to obtain its protections. Otherwise, the person may not claim that his statement was
compelled. Murphy, 465 U.S. at 428-29, 434; Chapman, 115 S.W.3d at 6.
       The privilege against self-incrimination is self-executing when a person is subjected to a
custodial interrogation by law enforcement officers. Murphy, 465 U.S. at 429-30. Statements
made by a suspect during a custodial interrogation are inadmissible unless the suspect was given
a Miranda1 warning and knowingly and intelligently waived his privilege against self-
incrimination and his right to counsel. Murphy, 465 U.S. at 430; Miranda, 384 U.S. at 475.
However, requiring a probationer to submit to a polygraph examination does not subject the
person to custodial interrogation. Ex parte Renfro, 999 S.W.2d 557, 561 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d); Marcum v. State, 983 S.W.2d 762, 766 (Tex. App.—Houston [14th
Dist.] 1998, pet. ref’d). Therefore, the probationer need not be given Miranda warnings before
administering the polygraph examination. Marcum, 983 S.W.2d at 766.
       Another exception to the general rule is the “classic penalty situation.” Murphy, 465 U.S.
at 434-35; Chapman, 115 S.W.3d at 6. If a person is placed in a classic penalty situation, the
privilege against self-incrimination is self-executing, the person’s statements are deemed
compelled, and the statements are inadmissible in a criminal prosecution. Murphy, 465 U.S. at
434-35; Chapman, 115 S.W.3d at 6-7. In the classic penalty situation, the State threatens a
person 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 the probation context, a
classic penalty situation is created if the State, either expressly or by implication, asserts that

       1
        Miranda v. Arizona, 384 U.S. 436 (1966).
                                                      5
invocation of the privilege against self-incrimination would lead to a revocation of probation.
Murphy, 465 U.S. at 435. To determine the issue, courts must inquire “whether [the person’s]
probation conditions merely required him to appear and give testimony about matters relevant to
his probationary status or whether they went farther and required him to choose between making
incriminating statements and jeopardizing his conditional liberty by remaining silent.” Id. at 436;
Chapman, 115 S.W.3d at 7-8.
       As the sole judge of the credibility of the witnesses, the trial court was free to believe
Perot’s and Hunt’s testimony and to disbelieve A.M.’s statements in his affidavit. Valtierra, 310
S.W.3d at 447; Garza, 213 S.W.3d at 346. According to Perot, he told A.M. that the polygraph
examination was voluntary and that he could refuse to take it. A.M. signed a release indicating
that he understood these facts, and Perot believed that A.M. understood them. Hunt believed that
A.M. would have understood the explanation that the test was voluntary and that he did not have
to take it. Hunt testified that she did not tell A.M. his probation would be revoked if he did not
take the examination. Based on the evidence, the trial court could have reasonably concluded
that the State did not expressly or impliedly threaten A.M. with revocation of his probation if he
exercised his privilege against self-incrimination and that, therefore, the State did not place A.M.
in a classic penalty situation. Murphy, 465 U.S. at 435-36; Chapman, 115 S.W.3d at 6-7.
Therefore, A.M.’s privilege against self-incrimination was not self-executing. Murphy, 465 U.S.
at 434; Chapman, 115 S.W.3d at 11. Because A.M. did not invoke his privilege against self-
incrimination, his statements to Perot were not compelled within the meaning of the Fifth
Amendment. Chapman, 115 S.W.3d at 3. A.M.’s first issue is overruled.
       In his second issue, A.M. argues that his statements to Perot were involuntary because the
State used trickery or deception to obtain them. Trickery or deception may render a statement
involuntary if “the method was calculated to produce an untruthful confession or was offensive
to due process.” Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997); Harty v. State,
229 S.W.3d 849, 855 (Tex. App.—Texarkana 2007, pet. ref’d). The release that A.M. signed in
connection with the polygraph examination provided that Wood’s Polygraph would disclose the
examination results to Linda Baley, Erath County Juvenile Services, and A.M.’s father and “to
no one else without [A.M.’s] consent.” Relying on this language, A.M. contends that the State
tricked or deceived him into making the statements to Perot by leading him to believe that the
results of the polygraph examination would be disclosed only to the probation department and

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his father and not to the prosecutor. A.M. asserts that “[t]his deception [was] offensive to due
process.”
       A.M. did not raise this issue in the trial court. Therefore, he failed to preserve the issue
for our review. TEX. R. APP. P. 33.1; Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App.
2005). However, even if he had preserved error, we would conclude that the trial court did not
err by denying his motion to suppress. The release expressly authorized Wood’s Polygraph to
disclose the polygraph examination results to the probation department. Perot explained to A.M.
that he could be required by law to release the examination results to other parties. There was no
evidence that the probation department promised not to disclose the examination results. Absent
an express or implied promise to the contrary, a probation officer is duty bound to report
wrongdoing by the probationer when it comes to her attention. Murphy, 465 U.S. at 432. Based
on the evidence, the trial court could have reasonably concluded that the State did not engage in
trickery or deception. Additionally, A.M. did not present any evidence that he would not have
made the statements to Perot but for a promise that they would not be disclosed to parties other
than those listed in the release. A.M.’s second issue is overruled.
                                        This Court’s Ruling
       The trial court’s order is affirmed.




                                                              TERRY McCALL
                                                              JUSTICE
February 11, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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