Chapman v. State

• Decision Date: 10 September 2003
• Docket Number: No. 2011/12-02.,02 December 2011
• Citation: 115 S.W.3d 1
• Parties: Phillip Arthur CHAPMAN, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

115 S.W.3d 1

Phillip Arthur CHAPMAN, Appellant, v. The STATE of Texas.

No. 2011/12-02.

Court of Criminal Appeals of Texas.

September 10, 2003.

Edgar A. Mason, Dallas, for Appellant.

Patricia Poppoff Noble, Asst. DA, Dallas, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court.

While on probation for a sex offense, appellant made unwarned, self-incriminating statements to his therapist during his participation in a court-ordered Sexual Offender Treatment Program. He then repeated these statements when questioned, first by his probation officer, and second by a police officer. We must decide whether appellant's statements were compelled in violation of his Fifth Amendment right against self-incrimination.¹ Because we find that appellant: 1) failed to affirmatively invoke his Fifth Amendment privilege; and 2) was not confronted with the "classic penalty situation" which would have excused that failure, we conclude that appellant's statements were not compelled within the meaning of the Fifth Amendment. We therefore affirm the court of appeals which held that appellant's statements were admissible against him in a subsequent criminal proceeding.²

I

Appellant was serving 10 years' deferred adjudication probation for two 1995 indecency with a child offenses. Appellant's probation terms required him to attend a Sex Offender Treatment Program (SOTP) and to "participate in and comply with all treatments, guidelines and directions given by the sex offender therapist." Appellant also attended a group therapy program for sex offenders administered by Child Protective Services (CPS). Trevor Parr was appellant's CPS group therapist.

Appellant's treatment contract with the SOTP included a lengthy list of specific requirements³ and informed him that he must participate in good faith, fully disclosing information relevant to his rehabilitation.⁴ During therapy, appellant told Trevor Parr and his therapy group that he had sexually molested two other young girls in 1994, for which he had never been charged. Parr called appellant's probation officer, Andy Nation, the following day and told him about the statements. They discussed who should report the disclosures to the police, because both of them were required to report suspected child abuse or neglect to the relevant authorities.⁵ At their next probation meeting, Nation asked appellant about his statements to Parr. Appellant repeated his admissions and later provided the girls' names and contact information.⁶ Nation, as required by law, then called Officer Dudley Perry at the Mesquite Police Department to report the offenses.

Officer Perry contacted the girls' parents and obtained statements from the children. Perry then called appellant, who met Perry at the station house. After giving appellant the proper Miranda warnings, Perry questioned appellant about the allegations; appellant then confessed. The Dallas County District Attorney's Office charged appellant for the two 1994 acts of indecency with a child.

Appellant filed motions to dismiss the indictment and to suppress the statements. During the motion hearings, appellant gave three reasons for disclosing his prior offenses: 1) he thought that if he did not cooperate with his therapist—and later, his probation officer and the police—Parr would drop him from the treatment program and he would then be in violation of his probation and possibly be sent to jail; 2) he was concerned about his own rehabilitation; and 3) he was concerned about his victims' recovery.

Regarding his first reason for disclosure, appellant testified that Parr had emphasized the importance of complete honesty to a sex offender's recovery and rehabilitation, and strongly encouraged each therapy group member to give a full sexual history as part of the treatment process. His request was reinforced by the possibility of polygraph testing to determine the accuracy and completeness of the self-disclosure as well as possible termination from the program for non-cooperation.

Appellant said that he understood the terms of his probation agreement to mean that if he failed to successfully complete the treatment program, he "could be brought back before the Court, sentenced and be put in jail." He also said that he felt he could not refuse to answer their questions, and he did not think that charges could be filed against him because of his statements. According to appellant, Parr did not tell him that he would turn the information over to authorities until after he (appellant) had already disclosed the uncharged conduct. Appellant further stated that he "would have had second thoughts" about revealing the incriminating information and would not have revealed it if he had known he could go to prison for it. However, appellant also admitted to the trial judge that he had actually known in advance that Parr would inform the police of his statements:

COUNSEL: Mr. Chapman, in these group sessions you were involved in, you were never given any Miranda warnings in those group sessions, were you?

APPELLANT: No, I wasn't.

COUNSEL: They never told you if you made these revelations that whatever you said might be used—would be used against you in a court of law, did they?

APPELLANT: No.

COUNSEL: Did they ever tell you that they would go down and file criminal cases on you if you—if you revealed that you had sexually offended?

APPELLANT: They—they told me that— they didn't tell me that they would file charges, but they would tell—were required by law to tell the police department.

THE COURT: When did they tell you that?

APPELLANT: It was all through my—my time period that I was going to CPS that this was reiterated over.

THE COURT: So you knew that before you even said anything to Mr. Parr; is that correct?

APPELLANT: Yes.

THE COURT: Okay.

Appellant's second and third reasons for disclosure were interrelated. When asked by his counsel, "Why did you make a clean [breast] of things and tell your therapist about these two prior incidents ...?" Appellant answered: "Well, I wanted to tell these offenses because I wanted to do this program of recovery, and second, last but not least[,] there be a recourse of rescue for the children that I had harmed." Appellant testified that, despite Parr's urging that sex therapy members give a full sexual history, he did not tell his therapist about the other offenses for several months, not until a friend gave him Just Before Dawn, a book intended to help child sexual abuse offenders empathize with their victims and understand the lifelong effects of the offender's conduct on the children. Appellant agreed that reading the book had been a catalyst for his disclosures. When he read the book, he "felt bad for the children" and "wanted to do the right thing." Thus, he approached Parr and told him about the prior offenses voluntarily. He made his self-incriminating admissions without any direct questions from his therapist. Appellant further agreed that his therapist did not threaten him in any way or say that if he did not reveal other sexual conduct he would be sent to prison. He also said that he went to the police station voluntarily.

The trial judge denied appellant's motions. Appellant then pleaded guilty to the two offenses and the trial judge sentenced him to 20 years in prison.

In the court of appeals, appellant argued that the trial court erred in refusing to grant his motion to dismiss because the State had violated his right against compelled self-incrimination under the Texas and United States Constitutions. Specifically, appellant argued that the SOTP terms required him to reveal his past sexual history, under pain of polygraph examination, and thus forced him to choose between waiving his Fifth Amendment right against self-incrimination or suffering revocation of his probation for refusing to cooperate. In an unpublished opinion, the court of appeals disagreed, holding, among other things, that the Fifth Amendment right against self-incrimination is not self-executing and that appellant had not shown that he had ever asserted his right against self-incrimination.⁷ Before this Court, appellant argues that the court of appeals erred when it found that his statements were not compelled and were therefore admissible.

II

It is a fundamental tenet of Texas and federal constitutional jurisprudence that every person has the right to avoid self-incrimination by exercising the privilege provided him by the Fifth Amendment and the Texas Constitution.⁸ He may choose to remain silent rather than to respond to questions when the answers to those questions would tend to incriminate him.⁹ The privilege applies not only to an accused's right to refuse to testify in criminal proceedings, but also permits him "not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."¹⁰

A criminal defendant does not lose this constitutional protection merely because he has been convicted of a crime.¹¹ "`[T]he privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.'"¹² A person who has been convicted of a crime, is in prison or on probation still has a right against self-incrimination concerning statements that would incriminate him for some other offense.¹³ As the State acknowledged in its brief:

The State could not constitutionally carry out a threat to, and could not legally, revoke probation for refusing to answer questions calling for information that would incriminate the Appellant in separate criminal proceedings. He was not, and could not be, required to jeopardize his conditional liberty by remaining silent, a legitimate exercise of the Fifth Amendment privilege.

Thus, the fact that appellant was on probation for a criminal sexual...