Astin Chavers Clark v. State

Opinion issued March 8, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00324-CR & 01-15-00325-CR
———————————
ASTIN CHAVERS CLARK, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case Nos. 1296861 & 1297213

MEMORANDUM OPINION

Appellant Astin Chavers Clark appeals the trial court revoking his

community supervision and adjudicating him guilty on two counts of burglary of a

habitation. We affirm.
 BACKGROUND

On February 28, 2011, appellant was charged with two counts of felony

breaking into and hiding in complainant’s home with the intent to commit the

felony of sexually assault. In November 2011, and the trial court signed an order

of six years’ deferred adjudication, with multiple conditions, including registration

as a sex offender. The State alleged several times that appellant violated

conditions of his community supervision, and moved to revoke. Each time the

court modified the conditions and continued the deferred adjudication.

A. The Adjudication Proceedings

In March, 2015, a hearing was held on the State’s latest amended motions to

adjudicate guilt.

1. Appellant’s admissions that he violated certain conditions of
confinement

At the beginning of the hearing, appellant pleaded “true” to several of the

alleged violations, and “not true” to others. Specifically, he pleaded true to the

allegations:

1) In violation of the supervision conditions that he avoid persons or
places of disreputable or harmful character, on October 3rd, 2014, the
defendant admitted to polygraph examiner Ronald Russell:
- to meeting a woman on the street that he met about four
months ago, and he inviting her to his residence where she
smoked cocaine,

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 -to meeting a woman on the street that he met about four
months ago and inviting her to his residence where she snorted
what he thinks could have been cocaine,
- that he met a female on the street who used marijuana in front
of him on or about October 1st, 2014, and
- that he picked up a woman that smoked marijuana in front of
him that he met on Scott Street.
2) being $350.00 in arrears on supervision fees
3) being $457 in arrears on court costs
4) failing to pay laboratory processing fees of $295
5) failing to pay offender identification court costs of $2.50
6) failing to pay $25 Crime Stoppers Fee
7) failing to pay $25 Children’s Assessment Center fee
8) failing to pay $60 Sex Assault Program Fund fee
9) failing to pay $15 for DNA testing
10) failing to comply with the requirement that he participle in Sex
Offender Treatment until successful discharge or release by the Court
and instead being suspended from the Sex Offender Treatment
Program
11) In violation of the supervision condition that he have no contact with
minors under the age of 17, on October 3, 2014, he admitted to
polygraph examiner Ronald Russell that he
-held the hand of a 9-year-old boy during Bible study in August
2014, and
-shook hands with minor members of his church congregation
in August 2014.
12) In violation of the supervision condition that he not view, receive,
download, transmit, or possess pornographic materials on any
computer equipment, on October 3, 2014, he admitted to polygraph
examiner Ronald Russell that he
-received nude photos from a woman he met on the Quest Chat
line, and
-viewed the nude image of the penis of a man on a cell phone.

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 13) In violation of the supervision condition that he not access the
Internet, on October 3, 2014, he admitted to polygraph examiner
Ronald Russell that he input personal information online while
registering for barber college without the permission of the Court.

Appellant pleaded “not true” to the allegations that he violated supervision

provisions by admitting to polygraph examiner Ronald Russel that he (1) in August

2014, exposed his penis to a girl that he was later informed was a minor, (2)

watched a 16-year-old girl on a swing at the park and talked to her, (3) accessed

the Internet on his smart phone to look at maps, and (4) accessed the Internet on his

smart phone to listen to music.

2. Testimony by Ronald Russell, polygraph examiner

Russell testified to performing polygraph tests for over 11 years, covering

about 10,000 cases. Through his nine-year contract with Harris County, he

primarily works with sex-offender probationers that are sent to him to determine

compliance with their conditions. He testified to giving appellant a pre-interview

questionnaire to complete. He then recorded a little more than an hour of a pre-

polygraph-test interview of appellant, and recorded the 30-minute polygraph test.

The State did not seek to introduce the results or recording of the polygraph

examination into evidence, but offered only the questionnaire answers and the

recording of the pre-polygraph interview, as well as a handwritten statement by

appellant made after the polygraph test. The trial court admitted each of these into

evidence at the hearing.

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 Russell testified his job was to interview appellant, perform the polygraph

examination, and then report the results to appellant’s probation officer and to his

sex-offender treatment provider, Raymond Johnson.

Appellant’s pre-interview questionnaire was dated October 3, 2014, and

asked appellant to answer “yes” or “no” about behaviors since November 29, 2011

that would indicate non-compliance with probation supervision conditions.

Of the 65 yes or no questions, he answered “yes” to the following:

1) Have you been arrested for anything new?
2) Have you violated your travel restrictions?
3) Have you been around a person using illegal drugs?
4) Have you spent time with disreputable characters?
5) Have you violated any curfews?
6) Have you committed any undetected crimes?
7) Have you violated any other general conditions?
8) Have you lied to your supervision officer?
9) Have you lied to get out of a major problem?
10) Have you lied to cover up something that you did?
11) Have you been alone, unsupervised, with a minor?
12) Have you had supervised contact with a minor?
13) Have you groomed a minor?
14) Have you exposed your genitals? (public, stranger, minor)
15) Have you engaged in touching someone without consent?
16) Have you peeped on anyone or engaged in voyeurism?
17) Have you followed or stalked a potential victim?
18) Engaged in obscene calls, 900 numbers or telephone sex?
19) Have you masturbated in a public place?

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 20) Have you possessed or viewed any pornographic material?
21) Have you used a computer including smartphone?
22) Have you committed a sex crime?
23) Have you fantasized about sex with minors?

He did not answer “yes” or “no” as to whether he had “violated [his] child

safety zone restriction” or whether he “accessed the Internet.”

The written statement entered into evidence was a document entitled

“Voluntary Non-Custodial Statement.” Russell testified that it was made after

appellant completed his polygraph examination. The statement is signed by

appellant, witnessed, and states:

My name is Astin Clark and I am 25 years of age. . . . As part of
my interview with Mr. Russell, I wish to voluntarily and freely make
the following admission or admissions. Mr. Russell has not promised
me anything or coerced me in any way to make these admissions and I
understand that (1) I am free to leave the interview room at any time;
(2) that I am not in custody; (3) that I am not required to give this
statement; and (4) that this statement is given freely by me in a non-
custodial setting.
I’ve masturbated at the washateria by exposing myself. She
was an obvious woman of legal age and I fantasized to her as I
masturbated.
On several occasions I’ve masturbated to many women while
driving. An estimated 5 women witnessed me in the act, within the
year.
Within the year, I peeped though the window of the apartment
of a [illegible] as she washed her dishes. I didn’t masturbate but
indeed peeped.
Within the year, a woman I was in a sexual relationship with
was asleep at my apartment, while she was asleep I began to fondle
her. She later woke and we proceeded to consensual intercourse.

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 3. Testimony by Raymond Johnson

Johnson next testified. He stated that part of the sexual offender treatment

contract is that defendants consent to polygraph examinations to determine if the

person is compliant with probationary rules and treatment rules, and whether there

are additional behaviors not in line with the treatment. Johnson believed that

appellant had made some progress in his treatment, but he suspended him from

treatment and sent him back to his probation officer after reviewing the results of

appellant’s October 3, 2014 polygraph test. Although Johnson did not watch the

tape of the polygraph examination or read appellant’s pre-polygraph questionnaire,

he read several admissions of appellant’s from the exam, including appellant’s (1)

masturbating in public, (2) contact with minors, (3) viewing pornography, and (4)

peeping in people’s windows. Johnson considered these behaviors to be potential

high risk to the community.

Johnson testified that some of appellant’s behaviors may stem from his

upbringing during which he suffered some abuse.

4. Adjudication of guilt and punishment

After the tape of appellant’s pre-polygraph interview was played for the

court, it found all of the State’s pleaded violations to be “true” and the punishment

phase was held. The State called a University of Houston student who testified

that, while she was living in an all girls’ dormitory in 2011 at the age of 16, she

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awoke in the middle of the night to discover appellant touching her breasts. He

was lying on the ground, and—after she started screaming—stated “Oh I thought

this was my girlfriend’s room” and left. The complainant testified to being left

scared and paranoid after the incident, as she had just come alone from Venezuela

five months previously to participate in a study-abroad program, and had no family

here in the United States.

Appellant’s aunt, Freda Clark, testified on appellant’s behalf. She explained

that she and appellant’s uncle raised appellant for much of his childhood because

his “mother was just not around.” Appellant’s mother had drug problems, and they

do not know who appellant’s father is. When appellant was 4 or 5 years’ old,

appellant’s mother brought appellant to his aunt and uncle complaining he was

sick. When they took appellant to the doctor, he had genital herpes, and it was

evident that he had been sexually assaulted. Child Protective Services took

custody of appellant at that point, and he was later returned to the Clarks. Clark

testified to being shocked when she watched the video of appellant’s pre-polygraph

interview and upset that “he’s been going through something and we didn’t know

or couldn’t help him.”

The court, while acknowledging that appellant had a rough childhood,

opined that—based on the evidence and appellant’s taped admissions—he is “a

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dangerous threat to the community.” The court sentenced appellant to 25 years’

confinement, and appellant brought this appeal.

ISSUE ON APPEAL

In a single point of error, appellant argues:

The trial court committed reversible error by allowing the prosecutor,
over a timely specific objection by defense counsel, to introduce
evidence of the appellant’s failed polygraph results and statements
made during custodial interrogation obtained without Miranda
warnings, in violation of appellant’s Fifth Amendment rights against
self-incrimination.

STANDARD OF REVIEW

The decision to proceed to an adjudication of guilt and revoke deferred

adjudication community supervision is reviewable in the same manner as a

revocation of ordinary community supervision. TEX. CODE CRIM. PROC. ANN. art.

42.12, § 5(b) (West Supp. 2013); Cantu v. State, 339 S.W.3d 688, 691 (Tex.

App.—Fort Worth 2011, no pet.). We review an order revoking community

supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984). In a revocation proceeding, the State must prove by a

preponderance of the evidence that the defendant violated at least one of the terms

and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873–74

(Tex. Crim. App. 1993). The trial court is the sole judge of the credibility of the

witnesses and the weight to be given their testimony, and we review the evidence

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in the light most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493;

Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). If the

State fails to meet its burden of proof, the trial court abuses its discretion in

revoking the community supervision. Cardona, 665 S.W.2d at 493–94. We will

affirm if there is sufficient proof of one violation. Marcum v. State, 983 S.W.2d

762, 767 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (recognizing that the

State only need prove one violation of a condition of probation and that the failure

of a defendant to report to his community supervision officer as instructed on one

occasion is sufficient grounds for adjudication of guilt).

APPLICABLE LAW

Under the Fifth Amendment to the United States Constitution, no person

“shall be compelled in any criminal case to be a witness against himself.” U.S.

CONST. amend. V. “It is well settled that the Fifth Amendment insulates

probationers from compelled self-incrimination.” Dansby v. State, 398 S.W.3d

233, 240 (Tex. Crim. App. 2013). “Supreme Court decisions have ‘made clear’

that a state may ‘not constitutionally carry out a threat to revoke probation for the

legitimate exercise of the Fifth Amendment privilege.’” Id. (quoting Minnesota v.

Murphy, 465 U.S. 420, 438, 104 S. Ct. 1136, 1148 (1984). Thus, while a

probationer may be compelled “to appear and give testimony about matters

relevant to his probationary status,” he cannot be “required . . . to choose between

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making incriminating statements and jeopardizing his conditional liberty by

remaining silent.” Murphy, 465 U.S. at 436, 104 S. Ct. at 1147. “A State may

validly insist on answers to even incriminating questions and hence sensibly

administer its probation system, as long as it recognizes that the required answers

may not be used in a criminal proceeding and thus eliminate the threat of

incrimination.” Id. at 435 n.7, 104 S. Ct. at 1147 n.7.

The “privilege against compelled self-incrimination is not ordinarily self-

executing.” Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003). “In all

but a few specific situations, a criminal defendant must timely assert his privilege”:

The Fifth Amendment speaks of compulsion. It does not preclude a
witness from testifying voluntarily in matters which may incriminate
him. If, therefore, he desires the protection of the privilege, he must
claim it or he will not be considered to have been “compelled” within
the meaning of the Amendment.

Id.

If a probationer does not affirmatively invoke the privilege, the question

becomes whether “‘the classic penalty situation’” exception to this general rule

applies, thereby relieving him of the responsibility to assert his privilege.” Id. In

the classic penalty situation, a person is threatened with punishment for relying

upon his Fifth Amendment privilege. Id. The Supreme Court has identified the

key inquiry in this penalty situation as “whether the accused was deprived of his

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free choice to admit, to deny, or to refuse to answer.” Garrity v. New Jersey, 385

U.S. 493, 496, 87 S. Ct. 616, 618 (1967).

Miranda warnings are not required before a polygraph examination if the

purpose of the polygraph examination is to “to help evaluate the truthfulness” of

the defendant’s reports and compliance with supervision terms. Ex parte Renfro,

999 S.W.2d 557, 561 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). “When

subject to a polygraph examination as an investigative tool [to evaluate compliance

with supervision conditions] alone, a probationer is not placed in any worse

position than he would otherwise be were there no polygraph condition.” Id.

ANALYSIS

During the State’s direct examination of Mr. Russell, the polygraph

examiner, it moved to admit into evidence (1) appellant’s completed questionnaire,

(2) appellant’s “Voluntary Non-Custodial Statement,” and (3) Russell’s recorded

interview. Before the court ruled, appellant’s counsel requested permission to take

Russell on voir dire:

Q. Just a few things. It is your understanding it was Mr.
Clark’s – it was a requirement of his probation that he take these
polygraph tests?
A. Yes, sir.
Q. And refusal to do so could be a violation of his
probation?
A. That’s what I understand, yes, sir.
Q. Which could then result in him going to prison?

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 A. Correct.
Q. Did you Mirandize him before the test?
A. No, sir. I’m not a peace officer.

Appellant’s then made the following objection.

Your Honor, just in an abundance of caution, I object to the admission
of this as a violation of his Miranda rights, his right to self-
incrimination. It’s our position that given the mandatory nature of this
polygraph test, it’s tantamount to a custodial statement and we would
ask that it not be admitted.

The trial court overruled the objection and ruled that the State’s three

exhibits were admitted.

A. Parties’ arguments

Appellant argues that he “objected to the admission of the failed polygraph

examination and other exhibits offered by the prosecution, as a violation of

[appellant’s] Miranda rights and rights against self-incriminating, arguing that

because these tests were mandatory in nature they amounted to an involuntary

custodial statement obtained without Miranda warnings.” According to appellant,

“Supreme Court decisions have ‘made clear’ that a state may not constitutionally

carry out a threat to revoke probation for the legitimate exercise of the Fifth

Amendment privilege.”

The State responds that the Fifth Amendment was not implicated because

appellant’s statements were solicited solely for the purpose of investigating

compliance with supervision terms (which could lead to revocation of that

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supervision), but not for use in a future criminal prosecution. Further, the State

contends that any privilege against self-incrimination was waived by appellant’s

failure to invoke it during the pre-polygraph interview or the post-polygraph

written statement. The State also disputes that Miranda warnings were necessary,

as appellant was not in a custodial interrogation.

Finally, the State notes that there are numerous violations to which appellant

pleaded true that are unrelated to the admissions made during the pre-polygraph

questionnaire and interview, or the post-polygraph written statement. Because

appellant does not address those grounds in his brief, the State argues that we must

affirm.

B. Application of the Law

Preliminarily, we note that—despite appellant’s argument that the trial court

erred in admitting “the failed polygraph examination”—neither the polygraph

examination, nor its results, were entered into evidence. At issue here is the trial

court’s admission of the pre-polygraph questionnaire and interview and the post-

polygraph written statement. The crux of appellant’s argument is that Miranda

warnings should have been given before he was interviewed. “Statements made by

a suspect during a custodial interrogation are inadmissible unless the suspect was

given a Miranda warning and knowingly and intelligently waived [the] privilege

against self-incrimination and [the] right to counsel.” In re A.M., 333 S.W.3d 411,

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416 (Tex. App.—Eastland 2011, pet. denied); see also Ervin v. State, 333 S.W.3d

187, 204 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (recognizing that failure

to give Miranda warnings and the warnings set forth in TEX. CODE CRIM. PROC

ANN. art. 38.22 §§ 2(a), 3(a) (West 2005) render custodial statements

inadmissible). “However, requiring a probationer to submit to a polygraph

examination does not subject the person to custodial interrogation.” A.M., 333

S.W.3d at 417; Marcum, 963 S.W.2d at 766 (“Although the examination was a

requirement of his probation, appellant was not subjected to custodial

interrogation.”).

Appellant did not invoke his Fifth Amendment rights at the polygraph

examiner’s and, in his post-polygraph statement, he acknowledged, in writing, that

that his statement was made “voluntarily and freely,” and his understanding “(1) I

am free to leave the interview room at any time; (2) that I am not in custody; (3)

that I am not required to give this statement; and (4) that this statement is given

freely by me in a non-custodial setting.”

Appellant was represented by counsel at the adjudication hearing. At the

beginning of the hearing, before the State sought to introduce any evidence from

the polygraph questionnaire, interview, or written statement, appellant pleaded true

to thirteen (some with additional sub-parts) violations of the terms of his

community supervision. Of those, four were directly related to admissions

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appellant made to the polygraph examiner. The remainder of the violations were

independent of those exhibits later admitted related to his questionnaire, interview,

and written statement.

Proof of a single violation of a condition of deferred adjudication is

sufficient to support a trial court’s order of revocation. Moore v. State, 605 S.W.2d

924, 926 (Tex. Crim. App. [Panel Op.] 1980). Appellant’s plea of “true” to

numerous violations, including nine that he does not challenge here on appeal as

being “tainted” by his polygraph questionnaire, interview or written statement, are

sufficient to support the trial court’s adjudication of guilt. See Latigue v. State, No.

14-10-00680-CR, 2011 WL 2149418, at *2 (Tex. App.—Houston [14th Dist.] May

26, 2011, no pet.) (mem. op., not designated for publication) (“Appellant admitted

he violated curfew and failed to pay court costs and fees. Those admissions alone

are sufficient to support an adjudication of guilt.”) (citing Cardona v. State, 665

S.W.2d 492, 493–94 (Tex. Crim. App. 1984)).

When an appellant does not challenge every ground found “true” by the trial

court for adjudicating guilt, “nothing is presented for review.” Moore, 605 S.W.2d

at 924.

We overrule appellant’s sole issue.

CONCLUSION

We affirm the trial court’s judgment.

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 Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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