                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NOS. 02-09-00266-CR
                                   02-09-00268-CR


EX PARTE JOSEPH P. DANGELO


                                     ------------

        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                        OPINION ON REHEARING
                                     ------------

      We grant the State=s motion for rehearing, we withdraw the opinion issued

in this case on June 17, 2010, and we substitute the following opinion in its place.

In two points, appellant Joseph P. Dangelo appeals the trial court=s denials of his

preconviction applications for a writ of habeas corpus. We affirm in part and

reverse and remand in part.
                               Background Facts

      In 2004, a grand jury indicted appellant with four sex-related felony

offenses against a child who was younger than fourteen years old. In February

2008, appellant entered into a plea agreement in which he received written

admonishments, waived statutory and constitutional rights, and pled guilty only to

injury to a child, which is not by statutory language a sex-related offense and

which, as charged in appellant=s amended indictment, is a third-degree felony.1

See Tex. Penal Code Ann. ' 22.04(a)(3), (f) (Vernon Supp. 2010). The trial court

deferred adjudication of appellant=s guilt for injury to a child and placed him on

community supervision for seven years.

      The original terms of appellant=s community supervision prohibited him

from contacting the complainant of his crime in any manner and precluded his

unsupervised access to any child under seventeen years old (except for one

specifically designated child); the terms did not require him to complete sex

offender treatment.2 However, in May 2008, the trial court signed an amendment




      1
       Someone handwrote a fifth count on appellant=s indictment that contains
language related to the injury to a child offense. Appellant and his counsel
signed the indictment below the fifth count.
      2
        A document titled AConditions of Community Supervision,@ which appellant
signed and which was filed on February 26, 2008, states that the trial court could
Aat any time during the period of community supervision alter or modify@ the
conditions. Appellant=s brief does not contain an issue challenging the trial
court=s general authority to modify his community supervision terms.

                                         2
to appellant=s community supervision terms.3            The amendment included

provisions that precluded his participation in several sex-related acts and

required him to A[a]ssume responsibility for [his] offense,@ submit to a sex

offender treatment evaluation Aas directed by the supervision officer,@ complete

psychological sex offender counseling, and A[s]ubmit to . . . and show no

deception on any polygraph examination . . . as directed by the Court or

supervision officer.@ The trial court signed another amendment in January 2009

that required appellant to restart his sex offender treatment Awith PSY as directed

by the supervision officer@ but dismissed the State=s petition for the trial court to

proceed to adjudication of his guilt.4 Appellant filed objections to the amended

terms.

         On March 4, 2009, appellant=s counsel sent a letter to Psycho Therapy

Services; the letter stated in part,

         Certainly we object to any required treatment programs which lie
         outside those required to and have no relationship to the crime
         which [appellant] pled to, or relate to conduct which is not itself
         criminal, or requires conduct that is not reasonably related to the


         3
     The record does not show why the trial court amended appellant=s
community supervision.
         4
       The State=s first petition to proceed to adjudication was filed in December
2008. That petition is not contained in the record on appeal. In April 2009, the
State filed a second petition, alleging that appellant=s community supervision
should be revoked only because he has not completed sex offender treatment.
Appellant filed a motion to quash the petition on grounds similar to those that he
raised in the writ applications that are the subject of this appeal. The record does
not contain any order resolving the State=s second petition.

                                         3
      future criminality of Mr. Dangelo and does not serve the statutory
      ends of his deferred adjudication.

             ....

             Mr. Dangelo has no objections to polygraph examinations
      which in the course of your program he may be subjected to.
      However, Mr. Dangelo has Fifth Amendment protection against
      making any incriminating statements and has a right to so state,
      relating to any conduct for which he has not pled or for which he is
      not on deferred adjudication. Thus, he will not answer any questions
      relating to sexual conduct which he did not commit and for which he
      has not been accused.

An affidavit from appellant was attached to the letter; the affidavit states that he

had been told by one of Psycho Therapy Services’ employees that Aas part of the

Sexual Treatment Program [appellant] was required to admit any sexual offense.@

The affidavit also explains that appellant had been notified that if he did not

intend to answer questions regarding sexual offenses, he should not attend the

therapy session.

      On March 27, 2009, appellant filed an application for a writ of habeas

corpus, asking the court to Adismiss the added conditions of probation.@ In the

application, he contended that the trial court=s community supervision conditions

violate his rights against compelled self-incrimination under the Texas and

federal constitutions and that the trial court=s requiring him to undergo sex

offender treatment is not authorized by the code of criminal procedure because

he did not plead guilty to a sex-related offense.

      On July 10, 2009, the trial court declared that appellant=s bond was

insufficient and ordered a warrant to be issued for his arrest because of his
                                         4
failure to submit to a polygraph exam; he was arrested the same day. Five days

later, appellant filed two more applications for writs of habeas corpus. Those

applications asserted that he had a constitutional right not to answer the

questions that were proposed to be asked in the polygraph exam.

      Appellant attached a July 9, 2009 letter to both applications that was

addressed from The Polygraph Science Center to a probation officer regarding

appellant=s refusal to submit to the exam. The letter explained that appellant=s

probation officer had referred him to the center for the exam and that appellant

had arrived at the center but had refused to answer the following questions:

(1) ASince you have been on probation, have you had [sic] violated any of the

conditions?@; (2) ASince you have been on probation, have you had sexual

contact with any persons younger than 17?@; (3) ASince you have been on

probation, have you tried to isolate any child for sexual purposes?@; and

(4) ASince you have been on probation, have you intentionally committed any

sexual crimes?@

      The State filed responses to appellant=s writ applications, attaching offense

reports and other documents that detailed the sexually-related alleged facts that

resulted in his original four sex offense charges. In June 2009, the State filed

proposed findings of fact and conclusions of law, and the next month, the trial

court adopted those findings and conclusions, denied appellant=s writ

applications, and stated that his bond was insufficient and that he would be



                                        5
released from jail only to take the scheduled polygraph exam. 5 Appellant filed

notices of these appeals.

                               Standard of Review

      Although appellant filed his writ applications under multiple constitutional

and statutory provisions, we must review the applications under article 11.072 of

the code of criminal procedure, which Aestablishes the procedures for an

application for a writ of habeas corpus in a felony or misdemeanor case in which

the applicant seeks relief from an order or a judgment of conviction ordering

community supervision.@ Tex. Code Crim. Proc. Ann. art. 11.072, ' 1 (Vernon

2005); see Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008)

(A[I]t is clear that the Legislature intended Article 11.072 to provide the exclusive

means by which the district courts may exercise their original habeas jurisdiction

. . . in cases involving an individual who is either serving a term of community

supervision or who has completed a term of community supervision.@).

      Habeas corpus is an extraordinary writ used to challenge the legality of

one=s restraint. Tex. Code Crim. Proc. Ann. art. 11.01 (Vernon 2005); Ex parte

Bennett, 245 S.W.3d 616, 618 (Tex. App.—Fort Worth 2008, pet. ref=d). Absent

a clear abuse of discretion, we must affirm the trial court=s decision on whether to


      5
        Because of a motion that he filed in this court during these appeals, the
trial court has released appellant from confinement through a bond that requires
him to report to his supervision officer once a week and be supervised on house
arrest, among other conditions. Appellant=s release does not require dismissal of
these appeals. See Tex. Code Crim. Proc. Ann. art. 44.35 (Vernon 2006).

                                         6
grant the relief requested in a habeas corpus application. Ex parte Karlson, 282

S.W.3d 118, 127–28 (Tex. App.—Fort Worth 2009, pet. ref=d); Ex parte Bruce,

112 S.W.3d 635, 639 (Tex. App.—Fort Worth 2003, pet. dism=d). In reviewing

the trial court=s decision, we view the evidence in the light most favorable to the

ruling and accord great deference to the trial court=s findings and conclusions.

Karlson, 282 S.W.3d at 127; see Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.

Crim. App. 2006).

                      Appellant=s Fifth Amendment Right

      In his first issue, appellant contends that the trial court=s decision to declare

his bond insufficient (and to therefore incarcerate him) because he refuses to

answer the questions that were proposed in the polygraph exam violates his right

to remain silent and not incriminate himself under the Texas and federal

constitutions. Trial courts have wide discretion to impose reasonable community

supervision terms that are in the defendant=s, the victim=s, and society=s best

interests. See Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006);

Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999) (describing the

granting of supervision as a Aprivilege, not a right@), cert. denied, 529 U.S. 1088

(2000); Belt v. State, 127 S.W.3d 277, 280 (Tex. App.—Fort Worth 2004, no pet.)

(explaining that we review imposition of community supervision conditions under

an abuse of discretion standard); see also Flores v. State, 904 S.W.2d 129, 130

(Tex. Crim. App. 1995) (stating that there Ais no fundamental right to receive

probation@), cert. denied, 516 U.S. 1050 (1996).            Requiring a polygraph
                                          7
examination may be a reasonable condition of community supervision. See Ex

parte Renfro, 999 S.W.2d 557, 560 & n.4 (Tex. App.—Houston [14th Dist.] 1999,

pet. ref=d); see also Leonard v. State, 315 S.W.3d 578, 580 (Tex. App.—Eastland

2010, pet. granted) (APolygraph examinations are regularly imposed as a

condition of community supervision for sex offenders.@).

      The Texas legislature has explained that the purpose of the community

supervision statute is to remove Afrom existing statutes the limitations, other than

questions of constitutionality, that have acted as barriers to effective systems of

community supervision in the public interest.@ Tex. Code Crim. Proc. Ann. art.

42.12, ' 1 (Vernon Supp. 2010) (emphasis added). Thus, the trial court=s broad

authority to create community supervision terms does not extend to imposing

terms that violate a defendant=s constitutional rights as balanced with the goals of

the defendant=s probation.     See Flores, 904 S.W.2d at 131 (examining the

constitutionality of a trial court=s community supervision decision); Tamez v.

State, 534 S.W.2d 686, 692 (Tex. Crim. App. 1976) (invalidating a probation

condition because it was unconstitutional); see also Briseño v. State, 293 S.W.3d

644, 648 (Tex. App.—San Antonio 2009, no pet.) (stating that a community

supervision condition Ais not necessarily invalid simply because it affects [the

defendant=s] ability to exercise constitutionally protected rights@) (quoting Lee v.

State, 952 S.W.2d 894, 900 (Tex. App.—Dallas 1997, no pet.) (en banc)). As the

Supreme Court stated in Griffin v. Wisconsin,



                                         8
      To a greater or lesser degree, it is always true of probationers (as
      we have said it to be true of parolees) that they do not enjoy Athe
      absolute liberty to which every citizen is entitled, but only . . .
      conditional liberty properly dependent on observance of special
      [probation] restrictions.@

             These restrictions are meant to assure that the probation
      serves as a period of genuine rehabilitation and that the community
      is not harmed by the probationer=s being at large. . . . Supervision,
      then, is a Aspecial need@ of the State permitting a degree of
      impingement upon privacy that would not be constitutional if applied
      to the public at large. That permissible degree is not unlimited,
      however . . . .

483 U.S. 868, 874–75, 107 S. Ct. 3164, 3169 (1987) (citation omitted) (quoting

Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972)).

      The Fifth Amendment to the United States Constitution provides that no

person Ashall be compelled in any criminal case to be a witness against himself.@6

U.S. Const. amend. V; see Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim.

App. 2008) (explaining that the Fifth Amendment applies in state court

proceedings); Chapman v. State, 115 S.W.3d 1, 5 (Tex. Crim. App. 2003) (AIt is a

fundamental tenet of Texas and federal constitutional jurisprudence that every

      6
        Along with the Fifth Amendment to the United States Constitution,
appellant cites a provision of the Texas constitution that states that an accused
Ashall not be compelled to give evidence against himself.@ Tex. Const. art. I, '
10. However, he does not cite authority to explain how this provision provides
greater rights than its federal constitutional counterpart. Thus, we will examine
appellant=s points under authority related to the rights granted by the federal
constitution. See Lagrone v. State, 942 S.W.2d 602, 612 (Tex. Crim. App.), cert.
denied, 522 U.S. 917 (1997); Dowthitt v. State, 931 S.W.2d 244, 254 n.4 (Tex.
Crim. App. 1996); see also Carroll v. State, 68 S.W.3d 250, 253 n.3 (Tex. App.—
Fort Worth 2002, no pet.) (op. on remand) (AThe self-incrimination clause of
Article I, Section 10 of the Texas Constitution gives no greater rights than does
the Fifth Amendment of the United States Constitution.@).

                                        9
person has the right to avoid self-incrimination by exercising the privilege

provided him by the Fifth Amendment and the Texas Constitution.@). The Fifth

Amendment privilege not only extends to answers that would in themselves

support a conviction, Abut likewise embraces those which would furnish a link in

the chain of evidence needed to prosecute.@ Ohio v. Reiner, 532 U.S. 17, 20,

121 S. Ct. 1252, 1254 (2001) (quoting Hoffman v. United States, 341 U.S. 479,

486, 71 S. Ct. 814, 818 (1951)).

      The United States Supreme Court has examined a probationer=s Fifth

Amendment right against compelled self-incrimination.7        See Minnesota v.

Murphy, 465 U.S. 420, 422, 104 S. Ct. 1136, 1139 (1984). The Court=s opinion

revealed the following background facts.

      Prosecutors charged Murphy for criminal sexual conduct, but he pled guilty

to a reduced charge of false imprisonment, and the trial court placed him on a

three-year probation term. Id. at 422, 104 S. Ct. at 1139. Conditions of his

probation required him to participate in sex offender treatment and be truthful

with his probation officer Ain all matters.@ Id. He eventually told a sex offender

counselor that he had previously committed a murder that was unrelated to the

charge he had pled guilty to, and the counselor told Murphy=s probation officer of

the confession. Id. at 423, 104 S. Ct. at 1140. At Murphy=s next meeting with his

      7
        Texas courts are bound by the United States Supreme Court=s
interpretation of the federal constitution. Taylor v. State, 10 S.W.3d 673, 681
(Tex. Crim. App. 2000); State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App.
1998).

                                       10
probation officer, the officer informed Murphy about the information that she had

received, and Murphy admitted that he had committed the murder. Id. at 424,

104 S. Ct. at 1140.     Based on the admission, a grand jury indicted him for

murder. Id. at 425, 104 S. Ct. at 1141.

      Murphy sought to suppress testimony about his confession on Fifth

Amendment grounds, and although the trial court denied his motion to do so, the

Minnesota Supreme Court reversed. Id. at 425, 104 S. Ct. at 1141. In reversing

the Minnesota Supreme Court, the United States Supreme Court stated that the

Fifth Amendment prohibition against compelled self-incrimination Anot only

permits a person to refuse to testify against himself at a criminal trial in which he

is a defendant@ but also A>privileges him not to answer official questions put to

him in any other proceeding, civil or criminal, formal or informal, where the

answers might incriminate him in future criminal proceedings.=@ Id. at 426, 104 S.

Ct. at 1141 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322

(1973)). In the course of ultimately deciding the case on the ground that Murphy

did not timely assert his Fifth Amendment rights, the Court explained,

            A defendant does not lose [Fifth Amendment protection] by
      reason of his conviction of a crime; notwithstanding that a defendant
      is imprisoned or on probation at the time he makes incriminating
      statements, if those statements are compelled they are inadmissible
      in a subsequent trial for a crime other than that for which he has
      been convicted. . . .

             ....

            . . . If [a defendant asserts Fifth Amendment rights], he Amay
      not be required to answer a question if there is some rational basis
                                          11
      for believing that it will incriminate him, at least without at that time
      being assured that neither it nor its fruits may be used against him@
      in a subsequent criminal proceeding.

Id. at 426, 429, 104 S. Ct. at 1141–43 (quoting Maness v. Meyers, 419 U.S. 449,

473, 95 S. Ct. 584, 598 (1976) (White, J., concurring)).

      While the Court therefore indicated that a probationer=s Fifth Amendment

right against compelled self-incrimination would be violated by authorities

requiring him to answer questions Athat would incriminate him in a pending or

later criminal prosecution,@ it also stated,

              The situation would be different if the questions put to a
      probationer were relevant to his probationary status and posed no
      realistic threat of incrimination in a separate criminal proceeding.
      If, for example, a residential restriction were imposed as a condition
      of probation, it would appear unlikely that a violation of that condition
      would be a criminal act. Hence, a claim of the Fifth Amendment
      privilege in response to questions relating to a residential condition
      could not validly rest on the ground that the answer might be used to
      incriminate if the probationer was tried for another crime. Neither, in
      our view, would the privilege be available on the ground that
      answering such questions might reveal a violation of the residential
      requirement and result in the termination of probation. Although a
      revocation proceeding must comport with the requirements of due
      process, it is not a criminal proceeding. Just as there is no right to a
      jury trial before probation may be revoked, neither is the privilege
      against compelled self-incrimination available to a probationer.
      It follows that whether or not the answer to a question about a
      residential requirement is compelled by the threat of revocation,
      there can be no valid claim of the privilege on the ground that the
      information sought can be used in revocation proceedings.

             . . . [N]othing in the Federal Constitution would prevent a
      State from revoking probation for a refusal to answer that violated an
      express condition of probation . . . .




                                          12
Id. at 435 & n.7, 104 S. Ct. at 1146 & n.7 (citations omitted) (emphasis added).

Thus, if a condition of a defendant=s probation requires the defendant to admit to

an offense that could lead to criminal charges independent of those that the

defendant is serving probation for, the defendant has a Fifth Amendment right to

not answer such questions. 8 But to the extent that a state asks questions only

about probation violations that do not comprise independent offenses, the

defendant does not have a Fifth Amendment right to not answer those questions.

Id.; see Chapman, 115 S.W.3d at 6 (stating that a probationer has a right

Aagainst self-incrimination concerning statements that would incriminate him for

some other offense@); Bridwell v. State, 804 S.W.2d 900, 906 (Tex. Crim. App.

1991) (citing Murphy for the proposition that the privilege against self-

incrimination is Anot available to [a] probationer questioned by [a] probation

officer@); see also United States v. Locke, 482 F.3d 764, 767 (5th Cir. 2007)

(holding that the defendant=s Fifth Amendment right against compelled self-

incrimination had not been infringed because his answers to a polygraph

examination Acould not serve as a basis for a future criminal prosecution.

A probationer may only invoke the Fifth Amendment privilege if a truthful answer




      8
       A probationer could be compelled to talk about independent offenses if
the State grants the probationer use-immunity. See Chapman, 115 S.W.3d at 7
& n.28.

                                       13
would incriminate the probationer by exposing him to prosecution for a different

crime.@) (emphasis added).9

      As explained above, appellant=s first point is based in part on the trial

court=s incarcerating him because of his refusal to answer the following questions

on Fifth Amendment grounds: (1) ASince you have been on probation, have you

had [sic] violated any of the conditions?@; (2) ASince you have been on probation,

have you had sexual contact with any persons younger than 17?@; (3) ASince you

have been on probation, have you tried to isolate any child for sexual

purposes?@; and (4) ASince you have been on probation, have you intentionally

committed any sexual crimes?@ The first question asks only about community

supervision violations, not about independent criminal activity, and appellant

therefore does not have a Fifth Amendment right to refuse to answer the

question. See Murphy, 465 U.S. at 435 n.7, 104 S. Ct. at 1146 n.7. Thus, to the

extent that the trial court=s denials of appellant=s writ applications could be based

on his refusal to answer the first question, we overrule appellant=s first point.

      The State has conceded, and we conclude, that the second and fourth

questions ask about independent crimes rather than mere community


      9
       Although they are not binding, we may rely on federal circuit decisions as
persuasive authority. Mosley v. State, 983 S.W.2d 249, 256 n.13 (Tex. Crim.
App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070 (1999). Other states have
also recognized the Fifth Amendment dichotomy of requiring a probationer to
speak about matters related only to the conditions of his probation as opposed to
matters related to different crimes. See State v. Lumley, 977 P.2d 914, 919
(Kan. 1999).

                                          14
supervision violations and that under the authority cited above, appellant has a

Fifth Amendment right to refuse to answer those questions. Thus, to the extent

that the trial court=s denials of appellant=s writ applications may be based on his

refusal to answer those two questions, we sustain appellant=s first point.10

      The State argues that question three (isolation of a child for sexual

purposes) inquires whether appellant committed Aa mere probation violation@ and

that the question poses Ano realistic threat of incrimination.@       However, we

conclude that question three exceeds asking only about a violation of appellant=s

community supervision and provides at least a link in the chain to appellant=s

responsibility for an independent offense. 11 See Reiner, 532 U.S. at 20, 121 S.

Ct. at 1254. The penal code states that a person commits the offense of criminal

attempt Aif, with specific intent to commit an offense, he does an act amounting to


      10
         The trial court found, based on the letter from The Polygraph Science
Center, that appellant was willing to answer the first question but not the other
three questions. However, appellant=s writ applications do not concede that the
first question is proper, and appellant has not yielded on appeal to the State=s
position that it was proper. Instead, appellant contended during oral argument
that a question that asks about probation violations triggers his Fifth Amendment
right. The trial court=s findings of fact do not address appellant=s Fifth
Amendment rights in relation to questions one, two, and four; rather, the trial
court found that appellant=s refusal to answer question three was dispositive of
the relief that he requested in the applications. We are addressing the first,
second, and fourth questions because, as explained below, we disagree with the
trial court=s conclusion that appellant does not have a Fifth Amendment right to
refuse to answer question three.
      11
        We also note that question three is limited time-wise to isolation of a child
since appellant=s been on probation; thus, the question clearly relates to a
potentially new offense.

                                         15
more than mere preparation that tends but fails to effect the commission of the

offense intended.@ Tex. Penal Code Ann. ' 15.01(a) (Vernon 2003); see Yalch v.

State, 743 S.W.2d 231, 233 (Tex. Crim. App. 1988). We conclude that Atr[ying] to

isolate any child@ could qualify as an Aact amounting to more than mere

preparation@ and that Afor sexual purposes@ could serve as Aspecific intent to

commit an offense@ such as attempted indecency with a child, attempted sexual

assault of a child, attempted sexual performance by a child, or other attempted

offenses that involve a defendant=s act and sexual intent with regard to children.

See Tex. Penal Code Ann. ' 15.01(a), '' 21.11(a), 22.011(a)(2), 43.25(b)

(Vernon Supp. 2010); cf. Laster v. State, 275 S.W.3d 512, 516, 522–23 (Tex.

Crim. App. 2009) (holding that the evidence was sufficient to prove attempted

aggravated kidnapping when a defendant briefly grabbed a young girl by her

waist and pulled her with the inferred purpose to secrete her).

      Thus, even while giving great deference to the trial court=s conclusion that

appellant cannot refuse to answer question three on Fifth Amendment grounds,

we must overrule that conclusion.        To the extent that appellant=s first point

challenges the trial court=s denials of his writ applications as related to his refusal

to answer question three, we hold that the trial court abused its discretion by

denying the applications and sustain the point.12


      12
        Furthermore, appellant=s community supervision may not be revoked for
simply asserting his Fifth Amendment right to not answer questions two through
four. See Murphy, 465 U.S. at 438, 104 S. Ct. at 1148 (AOur decisions have
made clear that the State could not constitutionally carry out a threat to revoke
                                          16
        Appellant also argues in his first point that the sex offender counseling

program requires him to admit Ato the sexual crime for which the counselor

believes he is being counseled.@ A term of appellant=s community supervision

states that he must A[a]ssume responsibility for [his] offense.@ One of the trial

court=s findings of fact states, AAs part of treatment, [appellant] is required to

admit and discuss the facts of this offense.@

        The State contends that appellant=s Fifth Amendment right against self-

incrimination does not apply to him discussing the facts of the remaining four

indicted offenses because further prosecution of the offenses is barred by double

jeopardy and he has Ano realistic threat of future criminal prosecution@ on the

facts comprising the alleged offenses. Furthermore, the State represents that

appellant is Asafe from additional prosecution@ on the underlying facts of this

case.

        We view these statements as binding concessions that the State will never

use the facts relating to the indicted offenses, if any, for a future criminal

proceeding on the indicted offenses or new offenses. 13      See, e.g., Bryant v.


probation for the legitimate exercise of the Fifth Amendment privilege.@);
Chapman, 115 S.W.3d at 6.
        13
        The State also represents that appellant Acannot now be prosecuted for
any of the . . . indicted offenses.@ We note that the judicial estoppel doctrine
prevents parties from prevailing in one phase of a case on an argument and then
relying on a contradictory argument to prevail in another phase. See Schmidt v.
State, 278 S.W.3d 353, 358 (Tex. Crim. App. 2009); Davidson v. State, 737
S.W.2d 942, 948 (Tex. App.—Amarillo 1987, pet. ref=d) (explaining that judicial
estoppel prevents a Aparty who has taken a position in an earlier proceeding from
                                        17
State, 187 S.W.3d 397, 400–02 (Tex. Crim. App. 2005) (holding that a

defendant=s stipulation that was not entered into evidence was nonetheless a

judicial admission that barred him from contesting evidentiary sufficiency). Thus,

we conclude that appellant=s Fifth Amendment rights do not apply to him

discussing the limited facts specifically related to counts one through four of his

original indictment because the State may not use those facts in a subsequent

criminal proceeding, and he cannot be incriminated based on those facts. 14

See Chapman, 115 S.W.3d at 7 & n.28 (explaining that a defendant could be

compelled to testify against himself if he was granted immunity that eliminated

the threat of incrimination); Renfro, 999 S.W.2d at 561 (explaining that the Fifth

Amendment privilege applies only when there is a Arealistic threat of self-

incrimination@).




taking a contrary position at a later time,@ and therefore holding that a defendant
was prohibited on appeal from contesting the cause of a victim=s death when the
defendant=s counsel conceded at trial that the death was caused by gunshot
wounds).
      14
         In the trial court, within a response to one of appellant=s writ applications,
the State claimed that sex offender conditions were appropriate for appellant=s
community supervision, even though he did not plead to a sex-related offense,
because the underlying facts of appellant=s case were sexual in nature. In an
attempt to prove its claim, the State attached police reports, witness statements,
and medical records specifically describing an event that allegedly occurred on
July 14, 2004. We conclude that the State=s concessions preclude it from
prosecuting appellant for any crimes (other than the crime to which he has pled
guilty) related to the alleged facts occurring during that event on that date as
described in those documents; consequently, appellant may be compelled to
discuss only those alleged facts.

                                          18
      In summary, we hold that appellant may not be compelled, over the

invocation of his Fifth Amendment right, to participate in any portion of the

objected-to community supervision conditions, including the requirement of

answering questions two through four of the planned polygraph examination, that

would provide a link to his criminal prosecution for any offense unrelated to the

injury to a child offense that he pled guilty to. 15 We sustain appellant=s first point

to the extent that the trial court=s community supervision conditions require him to

so participate. But appellant may be compelled to discuss the facts particularly

related to counts one through four of his indictment because the State may not

use those facts in a future criminal prosecution. We overrule appellant=s first

point to that degree.

           Appellant=s Requirement to Attend Sex Offender Treatment

      In the title of his second point, appellant argues that the trial court is

denying him due process by requiring him to attend any part of sex offender

counseling when he has not been convicted of a sex offense. However, the

argument in appellant=s second point does not assert a constitutional due

process denial but relates to whether Athe Legislature limited the right to impose




      15
         We do not express any opinion on whether a trial court=s requirement of a
probationer to answer questions about independent criminal activity would be
constitutional if the probationer agreed to answer such questions as a particular
term of his plea bargain agreement and waived his Fifth Amendment rights at the
time of the agreement.

                                          19
sex offender counseling to persons convicted of a sex offense.@16 In other words,

while relying on the text of article 42.12 of the code of criminal procedure,

appellant argues that there is no statutory authority to support the trial court=s

decision to require him to attend sex offender counseling when he pled guilty to

injury to a child, which is not a sex-related offense. See Tex. Code Crim. Proc.

Ann. art. 42.12, ' 9A(2) (stating that a person who enters a plea of guilty to one

of several specific statutes, not including the injury to a child statute, qualifies as

a Asex offender@).

      As explained above, appellant=s writ applications must be reviewed under

article 11.072 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art.

11.072, ' 1; Villanueva, 252 S.W.3d at 397.         AAn applicant may challenge a

condition of community supervision under [article 11.072] only on constitutional

grounds.@ Tex. Code Crim. Proc. Ann. art. 11.072, ' 3(c); see Ex parte Wilson,

171 S.W.3d 925, 928 (Tex. App.—Dallas 2005, no pet.) (overruling a challenge in

a habeas corpus appeal to requiring the defendant to participate in the

Substance Abuse Felony Program as the result of a state jail felony guilty plea

because the Achallenge d[id] not raise any constitutional issues, only statutory

      16
         Appellant=s writ applications in the trial court likewise do not contain
argument specifically related to a violation of due process because of his
required submission to sex offender counseling generally. A defendant may
forfeit constitutional complaints by not raising them in the trial court. Fuller v.
State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 904
(2009); Alexander v. State, 137 S.W.3d 127, 130–31 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref=d) (holding that a due process complaint was forfeited by
failure to assert the complaint in the trial court).

                                          20
ones. Therefore, article 11.072 preclude[d] appellant from bringing this complaint

by habeas corpus@); see also Ex parte Watson, 601 S.W.2d 350, 352 (Tex. Crim.

App. 1980) (AIt is well-established that habeas corpus will lie only to review

jurisdictional defects or denials of fundamental or constitutional rights.@).

      Appellant=s complaint in his second point focuses on the trial court=s

allegedly exceeding its statutory authority to impose community supervision

conditions rather than on constitutional issues.       Appellant does not cite any

authority to contend that a trial court=s imposition of a community supervision

term that is not authorized by article 42.12 of the code of criminal procedure

qualifies as a constitutional violation.17     Thus, we hold that we do not have

jurisdiction to consider appellant=s statutory complaint in these habeas corpus

appeals.   See Villanueva, 252 S.W.3d at 397; see also Burnett v. State, 88

S.W.3d 633, 637 (Tex. Crim. App. 2002) (distinguishing between constitutional

and statutory error); Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim. App.

      17
         In his response to the State=s motion for rehearing, appellant contends
that A[s]ubjecting a defendant to sex offender counseling and conditions absent a
conviction for a sexual offense violates due process.@ But the sole case that
appellant cites for that proposition contains a narrower holding. Specifically, it
states that a parole board cannot impose sex offender conditions on someone
who has not been convicted of a sex offense when those conditions are imposed
without procedural due process such as an opportunity to contest the conditions
at a hearing. Coleman v. Dretke, 395 F.3d 216, 225 (5th Cir. 2004), reh=g en
banc denied, 409 F.3d 665 (5th Cir. 2005), cert. denied, 546 U.S. 938 (2005);
see Ex parte Campbell, 267 S.W.3d 916, 926 (Tex. Crim. App. 2008)
(AColeman=s holding was about what process must be afforded to the releasee
before sex offender conditions may be imposed, not about whether sex offender
conditions may be imposed at all.@). Neither of appellant=s points directly
challenge the procedure by which the trial court imposed sex offender conditions.

                                          21
1993) (holding that a habeas corpus proceeding was not the proper avenue to

address statutory noncompliance). We dismiss appellant=s second point.

                                     Conclusion

      Having sustained part of appellant=s first point, to the extent that the trial

court=s decision to incarcerate appellant was based on his refusal to answer

questions two through four of the polygraph examination, we reverse the trial

court=s denial of his applications for a writ of habeas corpus. We affirm the trial

court=s denials of his writ applications in all other respects and remand this case

to the trial court for further proceedings consistent with this opinion.




                                               TERRIE LIVINGSTON
                                               CHIEF JUSTICE


PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DAUPHINOT, J. filed a concurring opinion.

PUBLISH

DELIVERED: December 16, 2010




                                          22
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NOS. 02-09-00266-CR
                                  02-09-00268-CR


EX PARTE JOSEPH P. DANGELO


                                     ----------

        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                     ----------

               CONCURRING OPINION ON REHEARING

                                     ----------

      I agree with the conscientious majority’s holding that Appellant cannot be

required to waive his Fifth Amendment right against self-incrimination.          I,

nevertheless, remain concerned that the record before us does not describe the

four discrete acts alleged in the indictment with sufficient specificity to prevent

future prosecution and potential double jeopardy violations. My concern is based

on the fact that when the State pleads that a sexual offense against a child

occurred ―on or about‖ a specific date, the State may prove any such offense that
occurred within the statute of limitations but before the return of the indictment. 1

Unless the State is required to elect specific offenses, or unless the State is

judicially estopped from prosecuting Appellant for any offense that could fall

within the conduct described in the indictment and that occurred within the

statute of limitations but before the date the indictment was returned, then there

is no way for a judge, an accused, a counselor, an attorney, or a polygrapher to

know whether the questions that the majority requires Appellant to answer

involve offenses that the State is judicially estopped from pursuing.

      I agree that the State is judicially estopped from compelling participation in

any condition of community supervision that would provide a link to his criminal

prosecution for any offense other than the injury-to-a-child offense to which

Appellant pled guilty.   I also agree that the State is judicially estopped from

prosecuting Appellant for the sexual offenses alleged in the indictment.

Unfortunately, I have no idea how anyone will know which sexual acts those are.

Because the law permits such temporal vagueness in pleading sexual offenses

against children, it would be difficult, if not impossible, for anyone to determine

whether Appellant is being required to answer questions concerning offenses for

which the State could prosecute him as opposed to offenses which the State is

judicially estopped from pursuing.




      1
       Sledge v. State, 953 S.W.2d 253, 255–56 (Tex. Crim. App. 1997).

                                         2
      Because of these concerns that I have voiced, I concur in the thoughtful

opinion of the majority.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PUBLISH

DELIVERED: December 16, 2010




                                      3
