PD-1370-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/18/2015 11:33:14 AM
Accepted 2/19/2015 10:23:44 AM
NO. PD-1370-14 ABEL ACOSTA
CLERK
COURT OF APPEALS NO. 08-12-00291-CR
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
SEAN MICHAEL KELLY,
Appellant
vs.
THE STATE OF TEXAS,
Appellee.
MOTION FOR REHEARING
(TRAP 79.1)
On Appeal from the 415st Judicial District Court of Parker County,
Texas
in Cause No. 15133
Hon. Graham Quisenberry, Presiding
L. PATRICK DAVIS
SBN 00795775
115 N. Henderson Street
Fort Worth, Texas 76102
(817)870-1544
February 19, 2015 (817)870-1589 fax
ATTORNEY FOR APPELLANT
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TO THE JUDGES OF THE HONORABLE COURT OF CRIMINAL APPEALS:
NOW COMES SEAN MICHAEL KELLY, Appellant herein, and files this his
Motion for Rehearing pursuant to Rule 79.1 of the Texas Rules of
Appellate Procedure and would show the following:
This Court refused discretionary review on February 4, 2015.
Appellant respectfully asks this Court to reconsider its decision.
In its motion to revoke probation, the State alleged that Appellant
was unable to abide by the conditions of his probation because he
violated one condition:
(cc) The Defendant shall attend, participate, ln and
successfully complete a sex offender counseling program with
a therapist who is registered with the Interagency Council on
sex offender treatment and approved by the Community
Supervision officer. This will include any testing, group
sessions and after-care prescribed by the counselor and the
Defendant shall pay all costs for this program.
(C.R., Vol. 1, p.43).
The State alleged in its motion that Appellant "failed to
successfully complete a sex offender counseling program." (C.R.,
Vol. 1, p.43). In support of this allegation, the State offered
one exhibit, over Appellant's objection, through Appellant's
probation officer, Steven Dover, of a letter dated June 6, 2012,
from Ezio Leite, a licensed sex offender provider and counselor,
that stated inter a2ia that Appellant had been discharged from his
sex offender treatment program for failing four polygraph
examinations 1 and attached the actual polygraph examination results
from the various examinations. (R.R., Vol. 2, p.38, SX-1). In
Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) (op. on
reh'g), this Court held that the results of polygraph examinations
for sex offenders on probation are not reliable and, therefore,
inadmissible as evidence to revoke probation. Id. at 583. It should
be noted that Leonard II was not available at the time of
Appellant's revocation hearing.
In the case at bar, the trial court abused its discretion by
considering evidence of Appellant's failed polygraphs when
determining whether to revoke Appellant's community supervision.
When said evidence is excluded, there was nothing to revoke
Appellant's community supervision. Accordingly, the trial court
abused its discretion in revoking Appellant's probation for failing
polygraph examinations as this issue was addressed and resolved by
this Court in Leonard II and, as stated above, was not available to
Appellant at the time of his revocation hearing. The El Paso Court
completely disregarded Leonard II in upholding the trial court's
action.
In the case at bar, the trial court heard evidence that did
not support the State's allegations contained in its motion to
revoke probation and revoked Appellant's probation. (R.R., Vol. 2,
p. 73). The trial court then, on its own motion, heard additional
Appellant also specifically asked for a Rule 705 hearing before Leite
testified and was denied by the trial court. TEX. R. EVID. 705. (R.R., Vol. 2,
pp. 39, 43) .
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evidence to determine sentencing. Appellant timely and properly
objected to the improper bifurcation. TEX. R. APP. P. 33.1(a). It
is well founded that bifurcated proceedings are proper only in
cases tried before a jury on a plea of not guilty. TEX. CODE CRIM.
PROC. ANN. art. 37. 07, §2 (a) (Vernon 2012) ; Barfield v. State, 63
S.W.3d 446, 449-50 (Tex. Crim. App. 2001).
The El Paso Court unjustifiably attempts to extend Barfield to
encompass probation revocation proceedings in order to uphold the
judgment of the trial court. There is absolutely no authority that
would allow the El Paso Court to take such action. This Honorable
Court must sustain Appellant's objection to the improper
bifurcation for the reasons stated herein, strike the testimony of
Leite on recall and reverse the judgment of the El Paso Court as a
matter of law for the improper bifurcation of Appellant's probation
revocation proceeding.
For this Court to just remain silent and leave this issue
squarely on the shoulders of the Supreme Court of the United States
to decide is just wrong. "Our criminal justice system makes two
promises to its citizens: a fundamentally fair trial and an
accurate result. If either of those two promises are not met, the
criminal justice system itself falls into disrepute and will
eventually be disregarded." Jacobson v. State, 398 S.W.3d 195, 200
(Tex. Crim. App. 2013), quoting, Ex parte Thompson, 153 S.W.3d 416,
421 (Tex. Crim. App. 2005) (Cochran, J., concurring). This Court
protected Leonard, but now turns its back on Kelly and allows
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conviction by polygraph. U.S. CONST. amend. XIV; United States v.
Scheffer, 523 U.S. 303, 118 S.Ct. 1261 (1998) (for the proposition
that polygraph examinations are unreliable). Accordingly, this
Court's decision to refuse discretionary review is absolutely
baffling in light of Leonard II.
Counsel believes that Appellant's case deserves a second look
and as such, counsel hereby certifies that this Motion is grounded
in well-settled law from the Supreme Court of the United States as
cited above and that said Motion is brought in good-faith and not
for delay.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable
Court grant this Motion for Rehearing and after a full review
hereon reverse the judgment of the Court of Appeals for the reasons
stated herein and for any other relief Appellant may be justly
entitled.
RESPECTFULLY SUBMITTED,
L. 4;tr.?:a~~---------
SBN 00795775
115 N. Henderson Street
Fort Worth, Texas 76102
(817)870-1544
(817)870-1589 fax
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
document was sent via facsimile to Hon. Don Schnebly, Parker County
District Attorney, 117 Fort Worth Highway, Weatherford, Texas
76086, and Hon. Matthew Paul, State Prosecuting Attorney, P.O. Box
12405, Austin, Texas 78711 on February 18, 2015.