Opinion filed April 15, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00032-CR
                                        __________

                      WILLIAM THOMAS LEONARD, Appellant

                                               V.

                               STATE OF TEXAS, Appellee


                            On Appeal from the 371st District Court

                                    Tarrant County, Texas

                                Trial Court Cause No. 0908775D


                                         OPINION

          William Thomas Leonard received deferred adjudication for injury to a child – bodily
injury.    The trial court found that he violated a condition of his community supervision,
adjudicated his guilt, and sentenced him to seven years confinement. We reverse and remand.
                                          I. Background Facts
          Leonard pleaded guilty to injury to a child – bodily injury and was sentenced to five
years deferred adjudication and a $750 fine.        The conditions of Leonard’s community
supervision required him to submit to evaluation for sex offenders and to attend and successfully
complete psychological counseling/treatment sessions for sex offenders.          Leonard was also
required to submit to polygraph exams and to show no deception on any polygraph or other
diagnostic test or evaluation.
       The State filed a petition to proceed to adjudication, alleging that Leonard had been
unsuccessfully discharged from sex offender treatment, failed to make satisfactory progress in
the timely completion of his treatment, failed to pass polygraph examinations, failed to pay a
supervision fee, and failed to pay his fine. The State waived the failed polygraph exams, unpaid
supervision fee, and unpaid fine allegations at the revocation hearing. Leonard pleaded not true
to being unsuccessfully discharged and to not making satisfactory progress in his treatment.
       The State called psychotherapist George Michael Strain as a witness.            Leonard was
referred to him for therapy. Strain testified that he discharged Leonard from treatment for failing
five polygraphs. Strain testified that he used polygraph examinations as part of sex offender
treatment and that he and other experts in his field reasonably relied upon them. Leonard
presented no evidence. The trial court found the State’s allegation that Leonard had been
unsuccessfully discharged from sex offender treatment true but found the failure to make
satisfactory progress allegation not true. The trial court found Leonard guilty of injury to a child-
bodily injury, revoked his community supervision, and sentenced him to seven years
confinement.
                                             II. Issues
        Leonard challenges his adjudication with five issues, all of which contend that the trial
court erred by considering and acting upon his polygraph test results.
                                              III. Discussion
       A. Standard of Review.
       We review an order revoking community supervision for an abuse of discretion.
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State has the burden of
showing by a preponderance of the evidence that the defendant committed a violation of the
conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.
1993). If the State fails to meet its burden of proof, the trial court abuses its discretion by
revoking community supervision. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App.
1984). The trial court is the sole judge of the credibility of the witnesses and the weight to be
given to their testimony, and the evidence is reviewed in the light most favorable to the trial

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court’s ruling. Id. at 493. Proof of one violation of the conditions of community supervision is
sufficient to support a revocation order. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(b)
(Vernon Supp. 2009).
         B. Polygraph Exams.
         This case presents an interesting paradox: courts routinely require sex offenders on
community supervision to take and pass polygraph exams – even though their mere existence, let
alone results, is inadmissible. The propriety of that practice is not at issue here. If the trial court
can order a polygraph but is prohibited from hearing any polygraph evidence, how does it
monitor compliance and is there any consequence to lying during an exam?
         Polygraph examinations are regularly imposed as a condition of community supervision
for sex offenders.1 One court has held that this is a reasonable condition,2 and Leonard concedes
that it was appropriate in his case. But Texas law is clear that the existence and results of a
polygraph examination are inadmissible for all purposes.3 The ban on polygraph evidence is
comprehensive. It applies ―[e]ven if the State and the defendant agree and stipulate to use the
results of a polygraph at trial.‖4 And it applies to revocation proceedings.5
         The State acknowledges that polygraphs are generally inadmissible but argues that
Leonard’s test results were admissible under TEX. R. EVID. 703 because Strain was an expert and
because he testified that experts in his field reasonably rely upon polygraph exams when treating
sex offenders. The State assumes that heretofore polygraph test results have been excluded
because there was insufficient evidence of reliability in each case. But in fact, polygraph test

         1
            The following cases note that taking a polygraph exam was a term or condition of community supervision: Oveal v.
State, No. 14-09-00124-CR, 2010 WL 547065 (Tex. App.—Houston [14th Dist.] Feb. 18, 2010, no pet. h.) (mem. op., not
designated for publication); Whitton v. State, No. 14-08-00611-CR, 2010 WL 307911 (Tex. App.—Houston [14th Dist.] Jan. 28,
2010, no pet.) (mem. op., not designated for publication); Henry v. State, No. 01-09-00145-CR, 2009 WL 3491051 (Tex. App.—
Houston [1st Dist.] Oct. 29, 2009, no pet.) (mem. op., not designated for publication); Stracener v. State, 06-08-00045-CR, 2009
WL 3364979 (Tex. App.—Texarkana Oct. 21, 2009, no pet.) (mem. op., not designated for publication); Wood v. State, No. 03-
08-00464-CR, 2009 WL 1364352 (Tex. App.—Austin May 14, 2009, no pet.) (mem. op., not designated for publication);
Jones v. State, Nos. 14-07-00900-CR & 14-07-00901-CR, 2009 WL 839660 (Tex. App.—Houston [14th Dist.] Mar. 31, 2009, no
pet.) (mem. op., not designated for publication); Few v. State, No. 01-01-00678-CR, 2002 WL 1869600 (Tex. App.—Houston
[1st Dist.] Aug. 15, 2002, no pet.); Brisco v. State, No. 01-00-00762-CR, 2002 WL 595075 (Tex. App.—Houston [1st Dist.]
April 18, 2002, pet. ref’d) (op. on rehearing, not designated for publication).
         2
             See Ex parte Renfro, 999 S.W.2d 557, 560 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
         3
             Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990).
         4
             Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985).
         5
           See Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007) (noting the prohibition on polygraph evidence
while discussing the evidence (including a failed polygraph exam) that was offered during a revocation proceeding).

                                                                3
results are inadmissible because the Court of Criminal Appeals has determined that, as a matter
of law, they are unreliable.6 Consequently, the trial court did not have the discretion to consider
Leonard’s test results under Rule 703.
         The State also argues that, because a polygraph exam can be a condition of community
supervision, it is only logical to require a defendant to show no deception during a test and that,
otherwise, polygraph exams will lose much of their benefit. The State cites us decisions from
several other state and federal courts that it contends support the use of polygraph tests when
determining whether to revoke community supervision. Those decisions are not binding upon
this court. Unless, and until, the Court of Criminal Appeals lifts its ban on polygraph test results,
trial courts lack the discretion to revoke an individual’s community supervision for failing an
exam.
         Finally, the State argues that Leonard was not revoked for failing a polygraph but that he
was revoked because Strain did not believe he was telling the truth and, therefore, was putting
other children at risk. The failed exams were not merely a tool Strain used as part of a larger
diagnostic process. Leonard’s test results were the sole basis for his discharge. Strain was
asked:
                     Q. Mr. Strain, why was Mr. Leonard discharged from treatment?

                     A. Because he failed five polygraphs.

                Q. And so you’re saying that was your reason for unsuccessfully
         discharging him from treatment?

                     A. That’s correct.

                     ....

                Q. Mr. Strain, to make sure on this, the – the – as you related to me
         yesterday, the sole basis for your making the discharge was because of this –
         because of the reasons that you previously stated to the prosecutor regarding
         polygraphs?

                     A. That’s correct.

                     ....



         6
             Romero v. State, 493 S.W.2d 206, 210-11 (Tex. Crim. App. 1973).

                                                               4
                Q. Okay. With – and your – your basis for your testimony of saying that
        you were concerned that he was not being completely honest with him rests
        entirely on the failure of the polygraphs; is that correct?

                    A. Yes, it does.

Leonard’s revocation was, essentially, trial by polygraph.
        The trial court abused its discretion by considering evidence of Leonard’s failed
polygraph exams when determining whether to revoke his community supervision. When that
evidence is excluded, the trial court abused its discretion by revoking Leonard’s community
supervision. Leonard’s first, second, and third issues are sustained. This holding makes it
unnecessary to address his fourth or fifth issues.
        We do not hold that polygraph exams cannot be imposed as a condition of community
supervision or used as part of a sex-offender treatment program. Even though the test results are
inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can
serve as a catalyst for further investigation.7 Nor do we hold that the failure to take a test is
inadmissible or that trial courts lack the discretion to revoke community supervision for failing
or refusing to take a court-ordered polygraph.
                                                IV. Conclusion

        The judgment adjudicating Leonard’s guilt is reversed, and the cause is remanded to the
trial court.




                                                          RICK STRANGE
                                                          JUSTICE


April 15, 2010
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




        7
            See Renfro, 999 S.W.2d at 560-61.

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