Ex Parte Joseph P. Dangelo

EX PARTE JOSEPH P. DANGELO

NO. 02-09-00266-CR

NO. 02-09-00268-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

DELIVERED: December 16, 2010

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

OPINION ON REHEARING

We grant the State's motion for rehearing, we withdraw the opinion issued in this case on June 17, 2010, and we substitute the following opinion in its place. In two points, appellant Joseph P. Dangelo appeals the trial court's denials of his preconviction applications for a writ of habeas corpus. We affirm in part and reverse and remand in part.

Background Facts

In 2004, a grand jury indicted appellant with four sex-related felony offenses against a child who was younger than fourteen years old. In February 2008, appellant entered into a plea agreement in which he received written admonishments, waived statutory and constitutional rights, and pled guilty only to injury to a child, which is not by statutory language a sex-related offense and which, as charged in appellant's amended indictment, is a third-degree felony.¹ See Tex. Penal Code Ann. § 22.04(a)(3), (f) (Vernon Supp. 2010). The trial court deferred adjudication of appellant's guilt for injury to a child and placed him on community supervision for seven years.

The original terms of appellant's community supervision prohibited him from contacting the complainant of his crime in any manner and precluded his unsupervised access to any child under seventeen years old (except for one specifically designated child); the terms did not require him to complete sex offender treatment.² However, in May 2008, the trial court signed an amendmentto appellant's community supervision terms.³ The amendment included provisions that precluded his participation in several sex-related acts and required him to "[a]ssume responsibility for [his] offense," submit to a sex offender treatment evaluation "as directed by the supervision officer," complete psychological sex offender counseling, and "[s]ubmit to... and show no deception on any polygraph examination... as directed by the Court or supervision officer." The trial court signed another amendment in January 2009 that required appellant to restart his sex offender treatment "with PSY as directed by the supervision officer" but dismissed the State's petition for the trial court to proceed to adjudication of his guilt.⁴ Appellant filed objections to the amended terms.

On March 4, 2009, appellant's counsel sent a letter to Psycho Therapy Services; the letter stated in part,

Certainly we object to any required treatment programs which lie outside those required to and have no relationship to the crime which [appellant] pled to, or relate to conduct which is not itself criminal, or requires conduct that is not reasonably related to thefuture criminality of Mr. Dangelo and does not serve the statutory ends of his deferred adjudication.

Mr. Dangelo has no objections to polygraph examinations which in the course of your program he may be subjected to. However, Mr. Dangelo has Fifth Amendment protection against making any incriminating statements and has a right to so state, relating to any conduct for which he has not pled or for which he is not on deferred adjudication. Thus, he will not answer any questions relating to sexual conduct which he did not commit and for which he has not been accused.

An affidavit from appellant was attached to the letter; the affidavit states that he had been told by one of Psycho Therapy Services' employees that "as part of the Sexual Treatment Program [appellant] was required to admit any sexual offense." The affidavit also explains that appellant had been notified that if he did not intend to answer questions regarding sexual offenses, he should not attend the therapy session.

On March 27, 2009, appellant filed an application for a writ of habeas corpus, asking the court to "dismiss the added conditions of probation." In the application, he contended that the trial court's community supervision conditions violate his rights against compelled self-incrimination under the Texas and federal constitutions and that the trial court's requiring him to undergo sex offender treatment is not authorized by the code of criminal procedure because he did not plead guilty to a sex-related offense.

On July 10, 2009, the trial court declared that appellant's bond was insufficient and ordered a warrant to be issued for his arrest because of hisfailure to submit to a polygraph exam; he was arrested the same day. Five days later, appellant filed two more applications for writs of habeas corpus. Those applications asserted that he had a constitutional right not to answer the questions that were proposed to be asked in the polygraph exam.

Appellant attached a July 9, 2009 letter to both applications that was addressed from The Polygraph Science Center to a probation officer regarding appellant's refusal to submit to the exam. The letter explained that appellant's probation officer had referred him to the center for the exam and that appellant had arrived at the center but had refused to answer the following questions: (1) "Since you have been on probation, have you had [sic] violated any of the conditions?"; (2) "Since you have been on probation, have you had sexual contact with any persons younger than 17?"; (3) "Since you have been on probation, have you tried to isolate any child for sexual purposes?"; and (4) "Since you have been on probation, have you intentionally committed any sexual crimes?"

The State filed responses to appellant's writ applications, attaching offense reports and other documents that detailed the sexually-related alleged facts that resulted in his original four sex offense charges. In June 2009, the State filed proposed findings of fact and conclusions of law, and the next month, the trial court adopted those findings and conclusions, denied appellant's writ applications, and stated that his bond was insufficient and that he would bereleased from jail only to take the scheduled polygraph exam.⁵ Appellant filed notices of these appeals.

Standard of Review

Although appellant filed his writ applications under multiple constitutional and statutory provisions, we must review the applications under article 11.072 of the code of criminal procedure, which "establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision." Tex. Code Crim. Proc. Ann. art. 11.072, § 1 (Vernon 2005); see Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008) ("[I]t is clear that the Legislature intended Article 11.072 to provide the exclusive means by which the district courts may exercise their original habeas jurisdiction... in cases involving an individual who is either serving a term of community supervision or who has completed a term of community supervision.").

Habeas corpus is an extraordinary writ used to challenge the legality of one's restraint. Tex. Code Crim. Proc. Ann. art. 11.01 (Vernon 2005); Ex parte Bennett, 245 S.W.3d 616, 618 (Tex. App.—Fort Worth 2008, pet. ref'd). Absent a clear abuse of discretion, we must affirm the trial court's decision on whether togrant the relief requested in a habeas corpus application. Ex parte Karlson, 282 S.W.3d 118, 127-28 (Tex. App.—Fort Worth 2009, pet. ref'd); Ex parte Bruce, 112 S.W.3d 635, 639 (Tex. App.—Fort Worth 2003, pet. dism'd). In reviewing the trial court's decision, we view the evidence in the light most favorable to the ruling and accord great deference to the trial court's findings and conclusions. Karlson, 282 S.W.3d at 127; see Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006).

Appellant's Fifth Amendment Right

In his first issue, appellant contends that the trial court's decision to declare his bond insufficient (and to therefore incarcerate him) because he refuses to answer the questions that were proposed in the polygraph exam violates his right to remain silent and not incriminate himself under the Texas and federal constitutions. Trial courts have wide discretion to impose reasonable community supervision terms that are in the defendant's, the victim's, and society's best interests. See Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006); Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999) (describing the granting of supervision as a "privilege, not a right"), cert. denied, 529 U.S. 1088 (2000); Belt v. State, 127 S.W.3d 277, 280 (Tex. App.—Fort Worth 2004, no pet.) (explaining that we review imposition of community supervision conditions under an abuse of discretion standard); see also Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995) (stating that there "is no fundamental right to receive probation"), cert. denied, 516 U.S. 1050 (1996). Requiring a polygraphexamination may be a reasonable condition of community supervision. See Ex parte Renfro, 999 S.W.2d 557, 560 & n.4 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd); see also Leonard v. State, 315 S.W.3d 578, 580 (Tex. App.—Eastland 2010, pet. granted) ("Polygraph examinations are regularly imposed as a condition of community supervision for sex offenders.").

The Texas legislature has explained that the purpose of the community supervision statute is to remove "from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems of community supervision in the public interest." Tex. Code Crim. Proc. Ann. art. 42.12, § 1 (Vernon Supp. 2010) (emphasis added). Thus, the trial court's broad authority to create community supervision terms does not extend to imposing terms that violate a defendant's constitutional rights as balanced with the goals of the defendant's probation. See Flores, 904 S.W.2d at 131 (examining the constitutionality of a trial court's community supervision decision); Tamez v. State, 534 S.W.2d 686, 692 (Tex....