           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0340-14



                       RYLAND SHANE ABSALON, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             FROM THE THIRTEENTH COURT OF APPEALS
                         TARRANT COUNTY

             M EYERS, J., delivered the opinion of the Court, in which K EASLER,
H ERVEY, A LCALA, R ICHARDSON, and Y EARY, JJ., joined. K ELLER, P.J., and J OHNSON
and N EWELL, JJ., concurred.

                                      OPINION

       In 2012, Appellant was convicted of the murder of Ginger Hayden, which occurred

in 1984. During Appellant’s trial, several people who had participated in substance-abuse

treatment with him were permitted to testify that he had confessed to them that he had

committed the murder. Appellant had filed a pretrial motion to suppress the testimony on the

ground that, because his statements were made during the course of voluntary substance-
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abuse treatment, Article 38.101 of the Texas Code of Criminal Procedure and Rule of

Evidence 509(b) made them inadmissible. The trial court, however, denied his motion

because his participation was part of a court-ordered condition of probation and, therefore,

not voluntary. The court of appeals affirmed the trial court’s ruling and we granted

Appellant’s petition for discretionary review to determine whether the court of appeals erred

in concluding his participation in the substance-abuse program was involuntary. Absalon v.

State, No. 13-12-00666-CR, 2014 Tex. App. LEXIS 1583 (Tex. App.–Corpus Christi Feb.

13, 2014).

                                     BACKGROUND

       In 1986, Appellant pled guilty to a charge of criminal mischief. He was granted

probation and, as set out in his plea agreement, one of the conditions included participation

in and completion of the Straight, Inc., substance-abuse program. He participated in the

program, and his probation expired in 1987 without any further proceedings.

       In 2009, Detective Jose Hernandez of the Fort Worth Police Department was given

the responsibility of identifying the cold cases that could benefit most from DNA testing.

One of the cases he reviewed was the murder of Ginger Hayden, which had occurred in 1984

but had gone unsolved. Several items of evidence were available for DNA analysis, so

Detective Hernandez submitted them for testing. The DNA analysis led detectives to

Appellant, who was arrested in 2010 and charged with Ginger Hayden’s murder.

       Upon Appellant’s arrest, several people who had participated in substance-abuse
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treatment with him at Straight, Inc., came forward. These individuals stated that Appellant

confessed to committing the murder during his participation in the Straight, Inc., program.

One of these individuals was Shawn Garrett, who had arranged for Appellant to stay in his

parents’ home during the program because Straight, Inc., required newcomers to go home

with participants who were further along in their treatment. The two men slept in the same

room, and Garrett testified that during some of their conversations at night, Appellant

admitted to murdering a girl. Garrett testified that Appellant told him that a girl had

embarrassed him by rejecting him, so Appellant got into her apartment through a window,

hid in her closet, and waited for her to fall asleep. Once she did, he came out of the closet,

went over to the bed, and stabbed the girl to death. Appellant told Garrett that he believed

he would never be found out because he had done such a good job covering it up. Garrett

testified that he had never told anyone what Appellant had admitted, but decided to come

forward with it after Appellant’s arrest, because he had seen Ginger Hayden’s mother on

television.

       Other Straight, Inc., participants who came forward with information were Stephanie

Knight and Michelle Valencia. They both testified that during a group session at Straight,

Inc., Appellant stood up and told the group that he had killed a girl by stabbing her multiple

times. Knight remembered more specific details about the confession, recalling that

Appellant said that he had hid in the woman’s closet and attacked her on her bed. In 2010,

Knight was contacted by police and told them her experience. Valencia contacted the police
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on her own, after seeing Appellant’s arrest in the news.

       Before the trial, Appellant filed a motion to suppress the testimony about these alleged

confessions on the grounds that they were made during the course of voluntary substance-

abuse treatment. If this were the case, the statements would be inadmissible according to

Texas Rule of Evidence 509(b) and Texas Code of Criminal Procedure article 38.101. The

trial court, however, found that, because Appellant was court-ordered to be in the Straight,

Inc., program, he was not being treated voluntarily and the testimony about his statements

during the group session was, therefore, admissible. The court also found that Appellant’s

communication with Garrett was not associated with treatment and that Garrett himself was

not “involved with the treatment of Defendant.” The trial court, therefore, denied the motion

to suppress, and the jury heard the testimony outlined above. The jury found Appellant guilty

of capital murder and sentenced him to life imprisonment.

       Appellant appealed, arguing, among other issues, that the trial court erred in admitting

the testimony about the confessions he allegedly made during his substance-abuse treatment

because he was “being treated voluntarily.” Absalon, 2014 Tex. App. LEXIS 1583 at *1.

Appellant contended that, because he voluntarily entered the plea agreement that required his

completion of the Straight, Inc., program, he was “being treated voluntarily” under article

38.101 and Rule 509(b). Id. at *28. He pointed out that he could have rejected the bargain

and proceeded to trial, but chose not to. Id.

       The court of appeals found this argument unconvincing. Because Appellant was
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ordered by a court to complete the substance-abuse program, the court of appeals could not

conclude that he was participating “voluntarily,” and held that the trial court did not abuse

its discretion in denying the motion to suppress. Id. at *28-*29.

                           ARGUMENTS OF THE PARTIES

       Appellant asserts that his participation in the program was voluntary because his plea

bargain was a contract entered into on his own volition. He argues that the court of appeals

did not consider his argument, based on Puckett v. United States, 556 U.S. 129, 137 (2009),

that plea bargains are voluntary bilateral contracts. Further, Appellant was promised by

Straight, Inc., that his statements would be confidential, and he contends that the trial court

effectively embraced these assurances as guarantor.

       Appellant goes on to argue that the court of appeals was incorrect in its reliance on

In Interest of G.K.H., 623 S.W.2d 447 (Tex. App.–Texarkana 1981), in determining that his

participation was not voluntary. Appellant explains that because In re G.K.H. was a juvenile

case and did not involve a plea bargain, it is distinguishable from his case. Here, Appellant

could have gone to trial instead of entering the plea bargain, but instead he voluntarily chose

to contract with the State for his plea bargain.

       The State, however, makes a distinction between the plea bargain and the subsequent

court-ordered condition of probation. The State points out that the plea agreement stated that

Appellant would only participate in the program, and that the requirement that he actually

complete it was added as a condition of probation, without objection, by the trial court. The
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State argues that once the court accepted the agreement and made completion of the program

a condition of probation, Appellant’s role then became an involuntary one.

       The State also asserts that, even though Appellant voluntarily entered into the plea

agreement, he was simply avoiding the harsher sentence of imprisonment. Although this

might appear to be a free choice, the State says that there was really only one option for

Appellant–to complete the program. His situation is not comparable to that of an individual

who realizes he has a substance-abuse problem and then willingly seeks help for it. Further,

the State points out, unlike a voluntary patient, Appellant had no choice but to participate in

the program or to face incarceration. Therefore, it was compelled by the trial court and not

a voluntary choice.

                                STANDARD OF REVIEW

       We give almost total deference to the trial court’s determination of questions of fact

and will affirm the ruling if it is supported by the record and is correct under any theory of

applicable law. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Romero v.

State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Mixed questions of law and fact that do

not turn on the credibility of the witness, as well as all purely legal questions will be

reviewed de novo. Id.; State v. Johnson, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011).

                                        ANALYSIS

       Article 38.101 of the Texas Code of Criminal Procedure provides that “[a]

communication to any person involved in the treatment or examination of drug abusers by
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a person being treated voluntarily or being examined for admission to voluntary treatment

for drug abuse is not admissible.” Texas Rule of Evidence 509(b) provides that

       [t]here is no physician-patient privilege in criminal proceedings. However, a
       communication to any person involved in the treatment or examination of alcohol or
       drug abuse by a person being treated voluntarily or being examined for admission to
       treatment for alcohol or drug abuse is not admissible in a criminal proceeding.

Therefore, if Appellant was participating in the Straight, Inc., program voluntarily, it might

have been error to allow his statements to be admitted during his trial.

       Appellant is correct in asserting that a plea bargain is essentially a contract between

the defendant and the State. Puckett, 556 U.S. at 137; Speth v. State, 6 S.W.3d 530, 534 (Tex.

Crim. App. 1999). Both parties must enter the agreement voluntarily and knowingly, and,

although it is not binding on the court, once a judge accepts the bargain, both parties are

bound to it. Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009); T EX. C ODE C RIM.

P ROC. art. 26.13(a)(2). Once the trial court accepts the agreement, the State may not

withdraw its offer. Moore, 295 S.W.3d at 332. However, if the court rejects the agreement,

the defendant is then allowed to withdraw his guilty plea and the State may then withdraw

its offer. T EX. C ODE C RIM. P ROC. art. 26.13(a)(2). Once the parties are bound to their plea

agreement, if the State does not meet its obligations, the defendant is entitled to a remedy.

Puckett, 556 U.S. at 137. If the defendant breaches the agreement, he would be subject to

arrest and possible imposition of a prison sentence.

       Although Appellant entered the plea-bargain “contract” voluntarily, this does not

mean that he was a voluntary participant at Straight, Inc., for the purposes of Rule 509 and
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article 38.101. When Appellant entered into the plea agreement, he was already subject to

the court’s authority because he was going to be tried on the criminal mischief charge. He

was simply making the choice between entering a plea bargain or proceeding to trial. While

he voluntarily agreed to the specific conditions of probation, including the participation in

the substance-abuse treatment, he did so only to avoid a trial and incarceration. Once the

court accepted the agreement, it ordered Appellant to participate in and complete the

program, and he would have been incarcerated if he did not do so. This is not comparable to

an individual who voluntarily enters substance-abuse treatment. Rule 509(b) and article

38.101 were meant to protect those individuals who want to better themselves and who seek

help on their own volition–not those who use substance-abuse treatment as a bargaining chip

to avoid a criminal trial.

       Further, an individual who is being treated for substance abuse voluntarily can leave

the program at any time and return to their home. If Appellant had left the program, however,

rather than returning home, he would have gone to jail. Although Appellant argues that he

voluntarily chose to attend the substance-abuse program when he easily could have chosen

to be incarcerated instead, we agree with the State that this is not actually a free choice.

When Appellant’s only alternative to participation in the program was incarceration, there

was effectively no choice at all. See Tamez v. State, 534 S.W.2d 686, 692 (Tex. Crim. App.

1976) (“The choice to reject probation and go to prison or accept the probationary condition

was really no choice at all. It was in legal effect coerced.”).
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       Finally, we do not find any support for Appellant’s argument that the trial court stood

as guarantor of the plea-bargain contract and that it “must have known” promises of

confidentiality were a feature of the Straight, Inc., program. While a breach of the agreement

would certainly have entitled Appellant to a remedy, the agreement stated nothing about

confidentiality at the substance-abuse program. While it was misleading of Straight, Inc., to

convey to Appellant that his inculpatory statements were completely confidential, it was

likely their standard practice as most patients were there voluntarily, and the court never

embraced these assurances, as Appellant claims.

                                       CONCLUSION

       Appellant’s participation in the Straight, Inc., substance-abuse program, although

bargained for as part of a plea agreement, was not voluntary for the purposes of Texas Rule

of Evidence 509(b) and article 38.101 of the Texas Code of Criminal Procedure. Therefore,

it was not error for the trial court to admit the testimony of other participants in the program

who heard Appellant admit to the murder. For the foregoing reasons, we affirm the judgment

of the court of appeals.




Delivered: April 29, 2015

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