IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. C-297-007585-0562742 IN THE 297TH JUDICIAL DISTRICT COURT
FROM TARRANT COUNTY
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant originally pleaded guilty to the offense of indecency with a child in exchange for ten years of deferred adjudication community supervision. His community supervision was later revoked, and after an adjudication of guilt, Applicant was sentenced to six years' imprisonment. He did not appeal his conviction.
Applicant contends inter alia that the condition of his community supervision requiring that he pass a polygraph test with respect to his sexual history violated the Fifth Amendment privilege against self-incrimination. Applicant alleges that he would have been required to divulge information which could form the basis of a later criminal prosecution, and that he therefore refused to take the polygraph examination. Applicant further alleges that it was because of his refusal to incriminate himself that his community supervision was revoked. The judgment revoking community supervision and adjudicating guilt reflects that Applicant's community supervision was revoked because he "failed to complete a sexual history polygraph and monitoring polygraph as instructed."
Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that the condition of community supervision requiring completion of a sexual history polygraph examination violated his privilege against self-incrimination. The court shall make findings as to whether Applicant was specifically required to divulge his entire sexual history, including events unrelated to his conviction in this cause, as a condition of his community supervision. The court shall also make findings as to whether Applicant specifically invoked his Fifth Amendment privilege against self-incrimination when he refused to take the sexual history polygraph examination. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: May 9 , 2007
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