Affirmed and Opinion filed January 14, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00038-CR

              FREDERICK ANTHONY MITCHELL, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1333266

                                   OPINION

      Appellant pleaded guilty to promotion of child pornography. The trial court
deferred an adjudication of guilt and placed appellant on community supervision
for a period of ten years. As a condition of his community supervision, appellant
was ordered to submit to a program of psychological and physiological assessment
upon the direction of his community supervision officer. According to the terms of
the trial court’s order, this program may specifically include polygraph and
plethysmograph examinations. Appellant objected to these examinations as
unreasonable conditions of community supervision. On appeal, our review is
limited to deciding whether the trial court abused its discretion by imposing such
conditions. Finding no abuse of discretion, we affirm the judgment of the trial
court.

                                GOVERNING LAW

         The trial court may impose “any reasonable condition that is designed to
protect or restore the community, protect or restore the victim, or punish,
rehabilitate, or reform the defendant.” Tex. Code Crim. Proc. art. 42.12, § 11(a).
We afford the trial court wide discretion in selecting the terms and conditions of
community supervision. See Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App.
2006); Tamez v. State, 534 S.W.2d 686, 691 (Tex. Crim. App. 1976). Absent a
clear abuse of that discretion, the trial court’s judgment must be upheld. See
Briseño v. State, 293 S.W.3d 644, 647 (Tex. App.—San Antonio 2009, no pet.);
Belt v. State, 127 S.W.3d 277, 280 (Tex. App.—Fort Worth 2004, no pet.).

         The trial court has no discretion to impose an “invalid” condition of
community supervision. See Barton v. State, 21 S.W.3d 287, 289 (Tex. Crim. App.
2000). There are several reasons a condition may be invalid. A condition is invalid,
for instance, if the trial court lacked the authority to impose it. See, e.g., Gutierrez
v. State, 380 S.W.3d 167, 176–77 (Tex. Crim. App. 2012) (condition violated both
state and federal constitutions); Ex parte Pena, 739 S.W.2d 50, 51 (Tex. Crim.
App. 1987) (trial court failed to make a necessary finding before imposing the
condition). A condition may also be invalid if it has all three of the following
characteristics: (1) it has no relationship to the crime, (2) it relates to conduct that
is not in itself criminal, and (3) it forbids or requires conduct that is not reasonably
related to the future criminality of the defendant or does not serve the statutory
ends of community supervision. See Marcum v. State, 983 S.W.2d 762, 768 (Tex.

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App.—Houston [14th Dist.] 1998, pet. ref’d). Generally, if a trial court imposes an
invalid condition, the proper remedy is to reform the judgment by deleting the
condition. See Ex parte Gingell, 842 S.W.2d 284, 285 (Tex. Crim. App. 1992);
Milligan v. State, 465 S.W.2d 157, 159 (Tex. Crim. App. 1971).

                   PRESUMPTION OF REASONABLENESS

      The legislature has prescribed a nonexclusive list of valid conditions of
community supervision. See Tex. Code Crim. Proc. art. 42.12, § 11(a). Currently,
the list consists of twenty-four separate conditions, but polygraph and
plethysmograph examinations are not enumerated among them. Despite this
omission, the examinations are addressed elsewhere in the code of criminal
procedure in a manner that evidences their legislative endorsement. For example,
in section 21 of Article 42.12, the legislature specifically provided that a trial court
may not revoke a defendant’s community supervision if the only evidence in
support of the revocation consists of “the uncorroborated results of a polygraph
examination.” See id. art. 42.12, § 21(c); see also id. art. 42.12, § 5(b) (proscribing
the same action in a hearing to adjudicate guilt). If the legislature had wholly
intended to reject polygraph examinations from the scope of permissible
conditions, it could have said so directly, as it has done with other tested
conditions. See, e.g., id. art. 42.12, § 11(f) (expressly prohibiting a trial court from
requiring a defendant to undergo an orchiectomy as a condition of community
supervision). Because the legislature has instead qualified the types of polygraph
results a trial court may consider, we conclude that the legislature has implicitly
sanctioned such examinations as permissible.

      Similarly, in Section 11 of Article 42.12, the legislature provided that a trial
court may require a “sex offender as a condition of community supervision to
submit to treatment, specialized supervision, or rehabilitation according to offense-

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specific standards of practice adopted by the Council on Sex Offender Treatment.”
See id. art. 42.12, § 11(i); see also id. art. 42.12, § 13B(a)(2) (providing that
defendants who committed sexual offenses against children may be ordered to
attend similar types of counseling sessions). Since 2006, the Council has adopted a
set of standards for conducting both polygraph and plethysmograph examinations
on adult sex offenders. See 22 Tex. Admin. Code § 810.64(d)(17)–(18); see also 31
Tex. Reg. 8520, 8556 (Oct. 13, 2006). Because the legislature has reenacted
Article 42.12 since the publication of these standards, we must presume that the
legislature has acquiesced in the Council’s adoption of polygraph and
plethysmograph testing as acceptable tools in sex offender treatment. See Tex.
Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d
170, 176 (Tex. 2004) (the legislature is presumed to have adopted agency
interpretations of a statute when the legislature reenacts the statute without
substantial change); Act approved June 14, 2013, 83d Leg., R.S., ch. 745, § 1,
2013 Tex. Gen. Laws 1873, 1873–74 (reenacting Article 42.12, Section 11 without
amending subsection (i)). Because we must further presume that the legislature
enacts every statute with the intent to achieve a just and reasonable result, we
conclude that these examinations are presumptively reasonable conditions of
community supervision. See Tex. Gov’t Code § 311.021; see also Tex. Health &
Safety Code § 841.083 (providing that a treatment plan for a person civilly
committed as a sexually violent predator “may include the monitoring of the
person with a polygraph or plethysmograph”). We now consider whether appellant
has carried his burden of establishing that these conditions are unreasonable as
applied to him.




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                                   POLYGRAPH

      This court has previously held that a trial court does not abuse its discretion
by requiring a defendant to submit to a polygraph examination as a condition of
community supervision. See Ex parte Renfro, 999 S.W.2d 557, 560–61 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d). In Renfro, we concluded that a
polygraph could assist counselors with treating, planning, and monitoring the
defendant’s rehabilitation. Id. at 560. So long as the polygraph examination was
being used as an investigative or diagnostic tool, we held that the condition was
reasonable and advanced the purposes of community supervision. Id. at 561. We
rejected the defendant’s argument that the condition was unreasonable because the
results of such testing were unreliable. Id. We stated that reliability was an
evidentiary standard, which did not preclude the use of such tests for investigative
purposes. Id. We also rejected the defendant’s argument that the condition violated
his privilege against self-incrimination, stating that the privilege is not self-
executing and that it must be invoked to be effective. Id.

      Appellant argues that we should revisit Renfro because of Leonard v. State,
385 S.W.3d 570 (Tex. Crim. App. 2012). In Leonard, the court of criminal appeals
held that a trial court abuses its discretion by admitting expert testimony that relies
entirely on inadmissible polygraph results. Id. at 582. The court explained that
because polygraphs are untrustworthy, an expert cannot “reasonably rel[y] upon”
them as the exclusive basis for his opinion under the standard set forth in Rule 703
of the Texas Rules of Evidence. Id. The court of criminal appeals did not consider
whether requiring a defendant to submit to a polygraph examination in the first
instance was a reasonable condition of community supervision. In fact, the court
specifically reserved that issue for another case. Id. at 583.



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      The reasoning in Leonard does not undermine our holding in Renfro.
Consistent with Leonard, we stated in our previous opinion that “the existence and
results of a polygraph examination are inadmissible for all purposes.” See Renfro,
999 S.W.2d at 561 (citing Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App.
1990)). We clarified that this was a rule of evidence, though, and we implicitly
held that the reliability of polygraph results did not impact the separate question of
whether polygraph examinations served the statutory purposes of community
supervision. See id.; accord United States v. Johnson, 446 F.3d 272, 278 (2d Cir.
2006) (“[P]olygraph results are inadmissible as evidence. But that does not much
bear on the therapeutic value of the tool . . . .”). No part of Leonard explicitly or
implicitly disturbs that central holding. We reaffirm today that polygraph
examinations are reasonable conditions of community supervision if used to assist
in treatment, planning, and case monitoring. Cf. Leonard, 385 S.W.3d at 582–83
(suggesting that drug and alcohol testing is a reasonable condition of community
supervision because “the testing is a means to an end, not an end to itself”); see
also Tex. Code Crim. Proc. art. 42.12, § 11(a) (trial court may impose any
reasonable condition designed to “rehabilitate” the defendant).

      Appellant contends that the condition is still unreasonable because it
requires him to either submit to an examination or assert his Fifth Amendment
right to remain silent. Appellant contends that this choice is unacceptable because
invoking the privilege against self-incrimination is likely to invite additional
scrutiny or motivate the State to revoke or adjudicate for a different reason. But,
under well-established law, a defendant cannot be penalized by asserting his Fifth
Amendment rights. In Dansby v. State, the court of criminal appeals held that a
trial court may not revoke a defendant’s community supervision because he
refused to incriminate himself during the course of a sexual history polygraph or


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sex offender group therapy session. 398 S.W.3d 233, 240–41 (Tex. Crim. App.
2013). The court held that while a defendant may be compelled “to appear and give
testimony about matters relevant to his probationary status,” he cannot be required
“to choose between making incriminating statements and jeopardizing his
conditional liberty by remaining silent.” Id. at 240 (quoting Minnesota v. Murphy,
465 U.S. 420, 436 (1984)). The court further emphasized that “a State may validly
insist on answers to even incriminating questions and hence sensibly administer its
probation system, as long as it recognized that the required answers may not be
used in a criminal proceeding and thus eliminate the threat of incrimination.” Id.
Accordingly, appellant’s exercise of his Fifth Amendment rights cannot be the
“deciding factor” in his discharge from treatment or in the revocation of his
community supervision. Id. at 241.

      While a well-advised probationer might always refuse to answer any
potentially incriminating questions, thus limiting the usefulness of the test, this
does not mean that the condition is unreasonable. The State can make the test more
useful through an offer of immunity. Id. at 240.

      Appellant finally argues that the polygraph condition is unreasonable
because the record does not affirmatively establish that the condition is necessary.
Appellant relies exclusively on the reasoning in United States v. Weber, 451 F.3d
552 (9th Cir. 2006). In Weber, the Ninth Circuit held that the federal government
must justify a condition of supervised release because, under federal law, Congress
has specified that the condition must involve “no greater deprivation of liberty than
is reasonably necessary.” See id. at 558 (citing 18 U.S.C. § 3583). We conclude
that Weber is distinguishable because the statutory framework in this case requires
no similar showing. Under Texas law, requiring the defendant to submit to a
polygraph examination is a presumptively reasonable condition of community

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supervision, and appellant has proffered no evidence or argument to overcome that
presumption.

                               PLETHYSMOGRAPH

      A plethysmograph is a device that measures changes in volume. It is most
commonly used to detect fluctuations in the amount of air or blood coursing
through a bodily organ. During sex offender treatment, counselors may employ a
penile plethysmograph to measure a person’s erectile responses to visual and
auditory stimuli. The examination requires procedures that some courts have
described as “intrusive” and “especially unpleasant and offensive.” See United
States v. McLaurin, 731 F.3d 258, 263 (2d Cir. 2013); Berthiaume v. Caron, 142
F.3d 12, 16 (1st Cir. 1998).

      As with the polygraph, the reliability of penile plethysmograph testing has
been severely questioned. See Weber, 451 F.3d at 564. The examination is
susceptible to user manipulation, as test subjects have been known to “significantly
inhibit their arousal by using mental activities to distract themselves.” See id.
(quoting W.L. Marshall & Yolanda M. Fernandez, Phallometric Testing with
Sexual Offenders: Limits to Its Value, 20 Clinical Psychol. Rev. 807, 810 (2000)).
The test has also been found to suffer from a lack of “uniform administration and
scoring guidelines.” See id. at 565 (quoting Walter T. Simon & Peter G.W.
Schouten, The Plethysmograph Reconsidered: Comments on Barker and Howell,
21 Bull. Am. Acad. Psychiatry & L. 505, 510 (1993)). This problem is
compounded by reports indicating that some clinicians who administer the test lack
the requisite training. See id. (citing D. Richard Laws, Penile Plethysmography:
Will We Ever Get it Right?, in Sexual Deviance: Issues and Controversies 82, 87
(Tony Ward et al. eds., 2003)). Because there are no accepted standards in the
scientific community, many courts have held that the results of plethysmograph

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examinations are inadmissible as evidence. See, e.g., Doe ex rel. Rudy-Glanzer v.
Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000); Gentry v. Georgia, 443 S.E.2d 667,
669 (Ga. App. 1994); see also Billips v. Virginia, 652 S.E.2d 99, 102 (Va. 2007)
(the plethysmograph evidence was inadmissible because it lacked the necessary
foundation); North Carolina v. Spencer, 459 S.E.2d 812, 667–68 (N.C. App. 1995)
(trial court did not abuse its discretion by excluding such evidence because it is
unreliable); In re A.V., 849 S.W.2d 393, 399 (Tex. App.—Fort Worth 1993, no
writ) (the record did not establish the reliability of the penile plethysmograph).

      Appellant argues that the plethysmograph examination is an unreasonable
condition of community supervision because it is unreliable and impermissibly
invasive. Appellant did not assert a trial objection on the basis of invasiveness.
Rather, he objected that the condition was unreasonable “for the reasons stated in
Leonard.” Because the analysis in Leonard was limited to questions of
admissibility and reliability—and in regards to polygraph examinations,
specifically—we do not consider appellant’s challenge to the invasiveness of the
plethysmograph examination. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002) (argument on appeal must comport with objection at trial); Speth v.
State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999) (a defendant must object to a
condition of community supervision to preserve error). Liberally construing
appellant’s trial objection, we limit our review to considering only whether the
condition is unreasonable because the examination is unreliable.

      Neither appellant nor the State presented the trial court with any evidence
concerning the reliability of plethysmograph results. Although we have quoted
from cases from other jurisdictions that have found the test to be unreliable, this
case does not require that we hold that the results are unreliable under Texas law.



                                          9
We will presume, for the purposes of this opinion, that the test would fail the
reliability standard.

      However, reliability is an evidentiary standard, and a test’s unfitness as
evidence says nothing about its fitness for therapy, monitoring, or investigation.
Despite the test’s criticisms from some courts of appeals, there are courts in other
jurisdictions that have recognized that plethysmograph examinations can be useful
in the treatment of sex offenders. See Weber, 451 F.3d at 565–66; In re
Commitment of Sandry, 857 N.E.2d 295, 316 (Ill. App. Ct. 2006); United States v.
Dotson, 324 F.3d 256, 261 (4th Cir. 2003); Pool v. McKune, 987 P.2d 1073, 1079–
80 (Kan. 1999); Berthiaume, 142 F.3d at 17; Washington v. Riles, 957 P.2d 655,
663–64 (Wash. 1998); Walrath v. United States, 830 F. Supp. 444, 447 (N.D. Ill.
1993). According to these courts, plethysmograph examinations have utility in
identifying a person’s deviant sexual arousal and with monitoring the effectiveness
of the counselor’s treatment. See Weber, 451 F.3d at 565–66. In Texas, the Council
on Sex Offender Treatment has specifically found that plethysmograph
examinations may improve the accuracy of sexual interest assessments when
combined with active surveillance, collateral verifications, and self-reporting. See
22 Tex. Admin. Code § 810.64(d)(17). The Council has even recommended the
use of the polygraph when the test subject is suspected of engaging in suppression
behaviors during the plethysmograph examination. See id. To the extent these
procedures are useful as methods of treatment, we cannot say that they are
unrelated to the rehabilitation of persons, such as appellant, who have pleaded
guilty to crimes involving deviant sexual interests. Appellant has certainly offered
no evidence suggesting that these procedures are incapable of assisting in his
recovery.



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      We express no opinion on whether the trial court could revoke appellant’s
community supervision or proceed to an adjudication of guilt due to his “failing”
the plethysmograph, or whether, as in Dansby, the court could do the same because
appellant was discharged from sex offender treatment for “failing” the
plethysmograph. These issues can still be litigated in a hearing on a motion to
revoke or adjudicate.

                                  CONCLUSION

      Many courts have determined that the results of polygraph and
plethysmograph examinations are unreliable as items of evidence, but these
decisions do not control the outcome in this case. The question here is whether the
conditions “have a reasonable relationship to the treatment of the accused.” See
Tamez, 534 S.W.2d at 691. With respect to the treatment of sex offenders, the
legislature has already determined that both polygraph and plethysmograph
examinations offer some value at the diagnostic level. Appellant has wholly failed
to rebut the presumption that requiring him to submit to these examinations is a
reasonable condition of his community supervision. We overrule appellant’s sole
issue and affirm the judgment of the trial court.




                                       /s/     Tracy Christopher
                                               Justice


Panel consists of Justices Christopher, Donovan, and Brown.
Publish — Tex. R. App. P. 47.2(b).




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