                                                                       PD-1370-14
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                   Transmitted 2/18/2015 11:33:14 AM
                                                     Accepted 2/19/2015 10:23:44 AM
                    NO. PD-1370-14                                      ABEL ACOSTA
                                                                                CLERK
          COURT OF APPEALS NO. 08-12-00291-CR


                          IN THE
                COURT OF CRIMINAL APPEALS
                        OF TEXAS



                     SEAN MICHAEL KELLY,
                           Appellant

                               vs.
                     THE STATE OF TEXAS,
                           Appellee.



                   MOTION FOR REHEARING
                        (TRAP 79.1)


On Appeal from the 415st Judicial District Court of Parker County,
                              Texas
                       in Cause No. 15133
             Hon. Graham Quisenberry, Presiding


                                         L. PATRICK DAVIS
                                         SBN 00795775
                                         115 N. Henderson Street
                                         Fort Worth, Texas 76102
                                         (817)870-1544
       February 19, 2015                 (817)870-1589     fax

                                         ATTORNEY FOR APPELLANT




        ----.. . .--..v•&.------.---- --------                     -~-      --~--
TO THE JUDGES OF THE HONORABLE COURT OF CRIMINAL APPEALS:

NOW COMES SEAN MICHAEL KELLY, Appellant herein, and files this his

Motion for Rehearing pursuant to Rule 79.1 of the Texas Rules of

Appellate Procedure and would show the following:

       This Court refused discretionary review on February 4, 2015.

Appellant respectfully asks this Court to reconsider its decision.

In its motion to revoke probation, the State alleged that Appellant

was unable to abide by the conditions of his probation because he

violated one condition:

       (cc)    The    Defendant     shall        attend,   participate,        ln     and

       successfully complete a sex offender counseling program with

       a therapist who is registered with the Interagency Council on

       sex    offender       treatment     and     approved    by    the     Community

       Supervision     officer.    This     will    include    any testing,         group

       sessions and after-care prescribed by the counselor and the

       Defendant shall pay all costs for this program.

(C.R., Vol. 1, p.43).

       The    State alleged in its motion that Appellant                   "failed to

successfully complete a sex offender counseling program."                       (C.R.,

Vol.   1, p.43).      In support of this allegation,              the State offered

one    exhibit,      over    Appellant's     objection,       through      Appellant's

probation officer,          Steven Dover,    of a letter dated June 6,              2012,

from Ezio Leite,       a licensed sex offender provider and counselor,

that stated inter a2ia that Appellant had been discharged from his

sex    offender      treatment     program        for   failing     four     polygraph
examinations 1 and attached the actual polygraph examination results

from the various examinations.                 (R.R.,     Vol.    2,    p.38,     SX-1).       In

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

reh'g), this Court held that the results of polygraph examinations

for sex offenders on probation are not reliable and,                              therefore,

inadmissible as evidence to revoke probation. Id. at 583. It should

be    noted    that   Leonard      II    was   not      available        at    the      time   of

Appellant's revocation hearing.

       In the case at bar, the trial court abused its discretion by

considering       evidence        of    Appellant's        failed        polygraphs        when

determining whether to revoke Appellant's community supervision.

When    said    evidence     is    excluded,      there     was        nothing     to    revoke

Appellant's community supervision.                   Accordingly,         the trial court

abused its discretion in revoking Appellant's probation for failing

polygraph examinations as this issue was addressed and resolved by

this Court in Leonard II and, as stated above, was not available to

Appellant at the time of his revocation hearing.                        The El Paso Court

completely disregarded Leonard II in upholding the trial court's

action.

       In the case at bar, the trial court heard evidence that did

not    support the State's allegations contained in its motion to

revoke probation and revoked Appellant's probation.                           (R.R., Vol. 2,

p. 73).       The trial court then, on its own motion, heard additional



         Appellant also specifically asked for a Rule 705 hearing before Leite
testified and was denied by the trial court. TEX. R. EVID. 705. (R.R., Vol. 2,
pp. 39, 43) .




                  ----~...- -..~...
                                 ~-.------- r----
evidence to determine sentencing.                 Appellant timely and properly

objected to the improper bifurcation. TEX. R. APP. P. 33.1(a).                         It

is well    founded that bifurcated proceedings are proper only in

cases tried before a jury on a plea of not guilty. TEX. CODE CRIM.

PROC. ANN.       art.    37. 07, §2 (a) (Vernon 2012) ; Barfield v.           State,   63

S.W.3d 446, 449-50          (Tex. Crim. App. 2001).

        The El Paso Court unjustifiably attempts to extend Barfield to

encompass probation revocation proceedings in order to uphold the

judgment of the trial court.             There is absolutely no authority that

would allow the El Paso Court to take such action.                     This Honorable

Court     must     sustain         Appellant's    objection      to    the     improper

bifurcation for the reasons stated herein, strike the testimony of

Leite on recall and reverse the judgment of the El Paso Court as a

matter of law for the improper bifurcation of Appellant's probation

revocation proceeding.

        For this Court to           just remain silent and leave this issue

squarely on the shoulders of the Supreme Court of the United States

to decide is just wrong.              "Our criminal justice system makes two

promises     to    its    citizens:     a   fundamentally       fair   trial    and    an

accurate result.          If either of those two promises are not met, the

criminal     justice       system     itself    falls    into   disrepute     and   will

eventually be disregarded." Jacobson v. State, 398 S.W.3d 195, 200

(Tex. Crim. App. 2013), quoting, Ex parte Thompson, 153 S.W.3d 416,

421   (Tex. Crim. App.        2005) (Cochran,      J.,   concurring).        This Court

protected Leonard,          but     now turns    its back on Kelly and allows




                              ..
                        ------.....,~..--------,----
                                  ...~
conviction by polygraph. U.S. CONST. amend. XIV; United States v.

Scheffer, 523 U.S. 303, 118 S.Ct. 1261 (1998) (for the proposition

that polygraph examinations are unreliable).            Accordingly,        this

Court's    decision   to   refuse    discretionary   review   is    absolutely

baffling in light of Leonard II.

        Counsel believes that Appellant's case deserves a second look

and as such, counsel hereby certifies that this Motion is grounded

in well-settled law from the Supreme Court of the United States as

cited above and that said Motion is brought in good-faith and not

for delay.

                                    PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable

Court    grant   this Motion   for   Rehearing and after a         full   review

hereon reverse the judgment of the Court of Appeals for the reasons

stated herein and for any other relief Appellant may be                   justly

entitled.

                                          RESPECTFULLY SUBMITTED,




                                          L.   4;tr.?:a~~---------
                                          SBN 00795775
                                          115 N. Henderson Street
                                          Fort Worth, Texas   76102
                                          (817)870-1544
                                          (817)870-1589   fax

                                          ATTORNEY FOR APPELLANT
                        CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing

document was sent via facsimile to Hon. Don Schnebly, Parker County

District   Attorney,   117   Fort   Worth   Highway,   Weatherford,   Texas

76086, and Hon. Matthew Paul, State Prosecuting Attorney, P.O. Box

12405, Austin, Texas 78711 on February 18, 2015.
