Leonard v. State

Citation385 S.W.3d 570
Decision Date21 November 2012
Docket NumberNo. PD–0551–10.,PD–0551–10.
PartiesWilliam Thomas LEONARD, Appellant v. The STATE of Texas.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

OPINION TEXT STARTS HERE

Paul Francis, Arlington, for Appellant.

Charles M. Mallin, Asst. District Atty., Fort Worth, Lisa C. McMinn, State's Attorney, Austin, for State.

Opinion on Rehearing

WOMACK, J., delivered the opinion of the Court, in which PRICE, JOHNSON, COCHRAN, and ALCALA, JJ., joined.

We withdraw our opinion of March 7, 2012, and issue this opinion in its place.

The appellant's deferred-adjudication community supervision was revoked based on the results of polygraph examinations. The Court of Appeals held that this evidence was inadmissible, and therefore the trial court abused its discretion. We shall affirm the Court of Appeals.

I. Background
A. Trial Court Proceedings

The appellant was indicted for aggravated sexual assault. In November 2004, he pled guilty to injury to a child and was placed on deferred-adjudication community supervision for five years. After several amendments, the terms of the appellant's community supervision included two provisions relevant to this appeal:

Submit to sex offender treatment and evaluation as directed by the supervision officer. Attend and participate fully in and successfully complete psychological counseling, treatment, and aftercare sessions for sex offenders with an individual or organization as specified by or approved by the Court or the supervision officer. Pay all costs of evaluation, counseling, treatment and aftercare. Treatment must be completed within three years of its initiation, with at least one-third of treatment completed each year.

And:

Must submit to, pay all costs for, and show no deception on any polygraph examination and other diagnostic test or evaluation as directed by the court or supervision officer.

In October 2008, the State petitioned the trial court to proceed to adjudication, alleging that the appellant had violated three terms of his community supervision.1 In the first count, the State alleged that the appellant had violated the “Sex Offender Treatment” condition in two ways:

a) In violation of this condition, [the appellant] was unsuccessfully discharged from sex offender treatment, on or about October 21, 2008.

b) In violation of this condition, [the appellant] failed to complete one-third of sex offender treatment at Michael Strain and Associates within the first year.

In the second count, the State alleged that the appellant had violated the “Polygraph” condition:

In violation of this condition, [the appellant] submitted to polygraph testing and revealed significant criteria indicative of deception, on or about [April 11, 2008, and December 12, 2007].

In the third count, the State alleged that the appellant had not promptly paid his assessed fine and supervision fees.

At the adjudication hearing, the appellant pled not true to the first and third counts, and the State waived the second count. The State presented two witnesses: Dr. Michael Strain and the appellant's probation officer.

Strain was a psychotherapist in whose program the appellant had been enrolled until Strain discharged him from the program. When the State asked Strain why he had discharged the appellant, the appellant objected, citing two cases from this Court that had held that, because polygraphs were unreliable as a matter of law, the results of polygraph examinations were inadmissible.2 The trial court then asked Strain to answer the question. Strain said that he had discharged the appellant “because he had failed five polygraphs.” The appellant renewed his objection; the trial court overruled it, granting the appellant a running objection to all polygraph testimony. When Strain resumed testifying about polygraph results, the appellant requested a Daubert3 hearing to test the validity of the polygraph results. After a lengthy discussion with defense counsel, the trial court held in abeyance the motion for a Daubert hearing and never revisited the matter.

Strain then proceeded to testify that he had discharged the appellant from treatment because he believed that the appellant was not being truthful with him. The appellant had failed three polygraphs prior to April 2007, at which point the appellant “made several admissions” and “cleared” a polygraph. 4 After that “cleared” polygraph, the appellant then failed five polygraphs, three of which “questioned him if he had had sexual contact with children, if he had done a sex crime or if he had isolated children,” and two of which “asked only if he had had sexual contact with children or done a sex crime.” Strain said that he believed these polygraph results showed that the appellant was engaged in “secret keeping.”

Strain said that he had no basis, other than the failed polygraphs, to discharge the appellant from the program or to believe that the appellant was being dishonest. The appellant was making satisfactory progress,5 the appellant attended all required sessions, and there was no reason other than the polygraphs to believe the appellant had committed any offenses. Strain testified that he did not conduct the polygraphs, but he did not say who did or give any information about the polygrapher.Strain did not testify as to what specific questions the appellant was asked or what answers the appellant gave, nor did he provide any details on how the polygraphs were conducted. Strain said that the appellant was the only patient in the history of his clinic to have been discharged solely for failing polygraph examinations. According to Strain, each time prior patients had failed this many polygraphs, there had been other violations of the conditions of therapy.

The appellant's community-supervision officer then testified that the appellant had failed to pay some of his supervision fees on time, but had eventually paid the fees. During cross-examination, defense counsel seemed to have elicited that the periods in which the appellant was behind on his fees corresponded to periods of unemployment.

After this testimony, the parties rested. The State waived the third count of the motion to adjudicate, leaving only the first count.

In his argument, defense counsel observed that Strain had testified that the appellant had completed one-third of his treatment in the first year, showing that count 1b was not true, and that the only possible basis for revocation was count 1a. Defense counsel then argued that Strain's testimony regarding polygraph results was per se inadmissible.” While polygraphs might be acceptable tools for therapists to use during therapy, they could not be “the only reason for putting a man in the penitentiary....”

In issuing its ruling, the trial court distinguished “between admitting polygraphs outright to show that someone did or did not tell the truth and ... considering them as the basis of an expert opinion as to whether someone poses a danger and a risk to this community....” The trial court then explained that it was

very concerned that if polygraphs cannot be considered as a tool by the expert who receives them to be able to monitor someone on sex offender probation in this community, then we'll be losing a valuable tool to monitor someone's honesty, which is the crux of allowing people to continue ... in the community on sex offender probation when they obviously have shown that they are a danger to children in the past.

The trial court found count 1a to be true and count 1b to be false. It then adjudicated the appellant guilty of injury to a child and sentenced him to seven years' confinement.

B. Court of Appeals
1. Arguments of the Parties

The appellant brought five points of error to the Eleventh Court of Appeals. In three points he argued that the trial court erred by admitting and considering the polygraph testimony, and without this testimony there was insufficient evidence to show that the appellant had violated the terms of his community supervision. In a fourth point, the appellant argued that the trial court erred in denying his request for a Daubert hearing. In his final issue, the appellant argued that the polygraph results were inadmissible hearsay because Strain did not conduct the polygraph examinations.

The State made two arguments for admitting the polygraph results. First, under Rule of Evidence 703, “the facts or data” upon which an expert bases his opinion “need not be admissible in evidence.” The State argued that the import of Strain's testimony was not that the appellant failed polygraphs, but that an expert had formed the opinion that the appellant was not being truthful, and, on the basis of this opinion, had discharged the appellant from his treatment program.

In its second argument for admissibility, the State argued that because requiring the appellant to take polygraphs and “show no deception” was a valid condition of his community supervision, the results of the polygraphs must be admissible or else there would be no way for the trial court to enforce the condition. “Requiring that Appellant ‘show no deception’ on the polygraph is just a logical extension of the already permissible condition of submitting to a polygraph as part of community supervision.” While acknowledging this Court's longstanding rule that polygraph results are inadmissible, the State said that this created a “conundrum” for trial courts that imposed polygraph examinations as a condition of community supervision.

In a third point, the State argued that the appellant's request for a Daubert hearing was not preserved for review because the trial court never made a final ruling on the matter.

2. Opinion of the Court

Characterizing the adjudication proceeding as “trial by polygraph,” the Court of Appeals sustained the appellant's first three points of error and reversed the trial court.6 The Court of Appeals rejected the State's Rule 703 argument by noting that the reason polygraph results are inadmissible is because “the Court of Criminal Appeals has determined...

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