Molinar v. The State Of Tex., 14-08-00749-CR
| Decision Date | 22 July 2010 |
| Docket Number | NO. 14-08-00749-CR,No. 999250,14-08-00749-CR,999250 |
| Parties | DAVID ERIC MOLINAR, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 262nd District Court Harris County.
After the trial court found David Eric Molinar violated his probation by failing to complete sex-offender counseling, it revoked his community supervision and sentenced him to ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Molinar appeals the ruling, arguing the trial court erred by (1) denying his motion for continuance; (2) denying his motion to quash; (3) admitting evidence that violated constitutional prohibitions against double jeopardy; and (4) admitting into evidence his polygraph-examination results. He also argues that the trial court abused its discretion by revoking his community supervision for failing to admit guilt. Molinarcomplains that the revocation (5) violated his constitutional right against selfincrimination and (6) was supported by insufficient evidence. We affirm.
In 2005, a jury found David Eric Molinar guilty of the felony offense of sexual assault of a child. The jury assessed Molinar's punishment at ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice, but recommended Molinar be placed on community supervision for ten years. In 2007, the State filed a motion to revoke Molinar's community supervision because he allegedly violated the conditions of his probation by failing to: (1) submit to sex-offender-treatment evaluation immediately upon referral; (2) attend and participate in such a program and to submit written proof to the community-supervision officer; and (3) be successfully discharged from the program. The trial court held a hearing on the motion, and Molinar pleaded true to at least one of State's allegations. After hearing all the evidence, the trial court found the State's allegations true, revoked Molinar's community supervision, and sentenced Molinar to ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
Molinar complains the trial court erred by refusing to grant his motion for continuance, which he claims violated his due-process right to present a defense. He sought the continuance to subpoena several other patients from the sex-offendertreatment program that he was attending. Molinar wanted these witnesses to testify about his behavior during the treatment sessions. The State contends Molinar did not preserve his issue for review because his motion for continuance was oral, and the motion should have been in writing and filed to conform to the statutory requirements. Additionally, the State argues Molinar failed to file a motion for new trial, which is also necessary to preserve error for review.1
The requirements for a continuance motion are provided in Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure. Anderson v. State, 301 S.W.3d 276, 278-79 (Tex. Crim. App. 2009); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 2006). The State or the defendant may seek to continue a criminal action if a written motion is filed that demonstrates sufficient cause for the delay. Tex. Code Crim. Proc. Ann. art. 29.03. The motion for continuance must also be sworn by a person who has personal knowledge of the facts in the motion. Tex. Code Crim. Proc. Ann. art. 29.08. The Court of Criminal Appeals has interpreted these statutes to require a party file a sworn, written motion for continuance to preserve the issue for appeal if the trial court denies the motion. Anderson, 301 S.W.3d at 279; Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) ().
Recently, the Court of Criminal Appeals was confronted with the issue of whether there is a "due process exception" to the statutory requirements for a continuance motion. See Anderson, 301 S.W.3d at 278-80. In reviewing the denial of an oral motion for continuance, the Corpus Christi court of appeals concluded a party may appeal the denial of a continuance if it amounted to a due-process denial, specifically the right to present a defense. Id. at 278. Thus, the appellate court acknowledged the procedural requirement, but overcame it by invoking a "due process exception." Id. at 278. The Court of Criminal Appeals held that the Corpus Christi court erred in concluding the appellant need not preserve the error because the right to present a complete defense is subject to forfeiture if not properly preserved. Id. at 279-80 (). Because there is no "due process exception" to the preservation requirements of Articles 29.03 and 29.08, the Court of Criminal Appeals held the appellant failed to preserve his claim. Id. at 280-81.
As in Anderson, Molinar did not file a sworn written motion for continuance. Although Molinar received a ruling on the motion, he failed to follow the proper procedural requirements; hence, we cannot review the trial court's denial of his motion for a continuance. Accordingly we overrule Molinar's first issue.
In his second issue, Molinar complains the trial court erred when it improperly denied his motion to quash the allegations against him in the State's motion to revoke. Molinar claims the allegations were vague and "cannot be defended." The State contends Molinar failed to preserve this issue for review because his motion to quash was not in writing, as required by the Texas Code of Criminal Procedure.2
All motions to set aside an information or an indictment and all special pleas and exceptions must be in writing. Tex. Code Crim. Proc. Ann. art. 27.10 (Vernon 2006); Roy v. State, 76 S.W.3d 87, 99 (Tex. App. Houston [14th Dist.] 2002, no pet.); see Faulks v. State, 528 S.W.2d 607, 609 (Tex. Crim. App. 1975). When the trial court overrules an oral motion to quash, it preserves nothing on appeal because the motion was not in writing. See Quarles v. State, 398 S.W.2d 935, 937 (Tex. Crim. App. 1966); Crum v. State, 946 S.W.2d 349, 358 (Tex. App. Houston [14th Dist.] 1997, pet. ref'd). Because we have only Molinar's oral motion to quash before us, Molinar has notpreserved this issue for review. See Crum, 946 S.W.2d at 358. Accordingly, we overrule Molinar's second issue.
In his third issue, Molinar contends the trial court violated his constitutional protections against double jeopardy. Specifically, Molinar complains the trial court based his probation revocation on disruptive conduct, which was previously used against Molinar to jail him for fourteen days; hence, he was punished multiple times for one offense. The State first claims Molinar waived this issue. But it then asserts even if Molinar preserved this issue for review, Molinar's fourteen-day stay in jail was not punishment, but a modified condition of his community supervision.
The Double Jeopardy Clause provides three separate protections for the accused. Brown v. Ohio, 432 U.S. 161, 165 (1977). These protections include: (1) the protection against a second prosecution for the same offense after the accused was acquitted; (2) the protection against a second prosecution for the same offense after the accused was convicted; and (3) the protection against multiple punishments for the same offense. Id.; Ex parte Stover, 946 S.W.2d 343, 345 (Tex. Crim. App. 1997); Ex parte Broxton, 888 S.W.2d 23, 25 (Tex. Crim. App. 1994). Here, Molinar contends the trial court violated the third Double Jeopardy Clause protection.
When Molinar was placed on community supervision, he signed a document entitled "Conditions to Community Supervision." By signing this document, Molinar agreed the court could alter or modify the conditions of his community supervision. According to the record and the trial judge's clarification of the record, while Molinar was on probation, Thus, the jail time Molinar served was not a "punishment," but a modified condition of his community supervision that he agreed tofulfill. The "Conditions to Community Supervision" document Molinar signed informed him that his conditions could be modified; therefore, the fourteen days in jail do not constitute a punishment from which there could be any double-jeopardy implications.
Additionally, the record reflects after Molinar completed his fourteen-day jail sentence, he was allowed to return to the sex-offender-treatment program. Because he was never discharged after successful completion of the program, he violated one of his community-supervision conditions. Molinar's community supervision was revoked because he failed to submit to sex-offender-treatment evaluation, failed to attend and participate in such a program, and failed to submit written proof to his communitysupervision officer that he had participated. The trial court's order does not indicate whether Molinar's community supervision was revoked because of the conduct that led to the modification of his probation. Double jeopardy does not apply. Accordingly, we overrule Molinar's third issue on appeal.
In his fourth issue, Molinar contends the trial court erred, during the revocation hearing, by admitting evidence of the results of his polygraph examination. The State claims the evidence of Molinar's polygraph results had previously been entered into evidence without objection; therefore, Molinar failed to properly preserve error on this issue.
Molinar is correct that evidence of polygraph results is inadmissible for all...
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