

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
 

 
                                                                  O
P I N I O N
            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 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 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.


 
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 Miranda[1]
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 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 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.




                [1]Miranda
v. Arizona, 384 U.S. 436 (1966).


