Selby v. State
| Decision Date | 19 July 2017 |
| Docket Number | No. 09-16-00287-CR.,09-16-00287-CR. |
| Citation | 525 S.W.3d 842 |
| Parties | Rickie Wayne SELBY, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Jamie Matuska, Matuska Law Firm, Nederland, Paul W. Gertz, Ryan W. Gertz, Gertz Law Firm, Beaumont, for Appellant.
Logan Pickett, District Attorney, Stephen C. Taylor, Assistant District Attorney, Liberty, for Appellee.
Before McKeithen, C.J., Kreger and Horton, JJ.
Appellant Rickie Wayne Selby appeals the trial court's denial of his motion for new trial, in which he alleged, among other issues, that his pleas of "true" during a proceeding to revoke his community supervision were involuntary and made as a result of ineffective assistance of counsel. Because we conclude that Selby's trial counsel's performance fell below an objective standard of reasonableness and prejudiced his defense, we reverse the trial court's order denying Selby a new trial and remand for a new revocation hearing.
Selby pleaded guilty to aggravated sexual assault of a child, a first-degree felony. The trial court deferred an adjudication of guilt and placed Selby on community supervision for a period of ten years. As a condition of his community supervision, Selby was ordered to "submit to polygraph evaluations as instructed by the sex offender therapist or community supervision officer, who shall designate the polygraph examiner to be utilized." During the plea hearing, Selby represented to the trial court that he had reviewed the paperwork concerning his plea agreement with his attorney and understood the terms, which included the sex offender registration admonishments and the additional terms and conditions of his community supervision. Selby's attorney also indicated that he had talked with Selby on numerous occasions about the various aspects of the plea agreement. During the hearing, the trial judge specifically asked whether the sex offender conditions of Selby's community supervision included polygraph testing, and the prosecutor indicated that Selby was to undergo a polygraph examination every six months. Selby's counsel agreed that the plea agreement included a polygraph examination every six months. At that point, Selby did not object to the polygraph examinations as being an unreasonable condition of his community supervision.
Subsequently, the State filed a motion to revoke Selby's unadjudicated community supervision alleging that Selby had violated the conditions of his community supervision by viewing or possessing sexually stimulating or sexually oriented materials and by having contact with a minor. Selby pleaded "true" to both violations, and the trial court found that Selby had violated the conditions of his community supervision. After conducting a punishment hearing, the trial court sentenced Selby to a term of ninety-nine years in prison.
With new counsel, Selby moved for a new trial alleging that, among other things, the State did not file a valid motion to revoke prior to the expiration of his community supervision, a valid capias had not issued prior to the expiration of this period, the State's motion to revoke was based on inadmissible polygraph evidence, he had been placed in a "classic penalty" situation whereby he was required to candidly participate in the polygraph process or face revocation of his probation, and his pleas of "true" were involuntary and unknowingly made as a result of ineffective assistance of counsel without knowledge or advice that he could challenge the State's inadmissible polygraph evidence. The trial court conducted a hearing on Selby's motion for new trial, and after hearing evidence, the trial court denied Selby's motion for new trial and found no evidence of ineffective assistance by Selby's trial counsel.
We review a trial court's ruling on a motion for new trial for an abuse of discretion, "reversing only if the trial judge's opinion was clearly erroneous and arbitrary." Riley v. State , 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the trial court's ruling, must not substitute our judgment for that of the trial court, and must uphold the ruling if it was within the zone of reasonable disagreement. Id. ; Wead v. State , 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). When there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Riley , 378 S.W.3d at 457. A trial court abuses its discretion in denying a motion for new trial if no reasonable view of the record could support its ruling. Id. ; Webb v. State , 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
In issue one, Selby contends that the trial court lacked jurisdiction to revoke his probation. According to Selby, the record establishes that the motion to revoke his unadjudicated community supervision was not filed before his community supervision period expired, because although the document is file-stamped April 1, 2016, the file-stamp cannot be trusted because the record shows that it had been altered. Selby also argues that a valid capias did not issue before his community supervision expired, because the record shows that the original capias is not signed by a deputy district clerk, is not officially attested to, does not bear the seal of the State of Texas, and is not file-stamped. The State maintains that the trial court had jurisdiction to revoke Selby's community supervision.
A trial court retains jurisdiction to hold a hearing and to proceed with an adjudication of guilt, regardless of whether the period of community supervision imposed on the defendant has expired, "if before the expiration the attorney representing the state files a motion to proceed with the adjudication and a capias is issued for the arrest of the defendant." Tex. Code Crim. Proc. Ann. art. 42.12 § 5(h) (West Supp. 2016). "The operative rule is that the duration of a time period during which a person suffers specified restrictions upon his freedom by virtue of either a sentence of imprisonment or community supervision includes the first day in which such restrictions upon freedom operate and excludes the anniversary date." Nesbit v. State , 227 S.W.3d 64, 68 (Tex. Crim. App. 2007) (footnote omitted).
The relevant time period with respect to the capias requirement is the time at which the capias is actually issued. Ex parte Moss , 446 S.W.3d 786, 792 (Tex. Crim. App. 2014). Chapter 23 of the Texas Code of Criminal Procedure defines a capias as a writ that is " ‘issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial, or by a clerk at the direction of the judge[.]’ " Tex. Code Crim. Proc. Ann. art. 23.01(1) (West 2009). A capias is sufficient if it has the following requisites: runs in the name of the State of Texas, names the person whose arrest is ordered, specifies the offense of which the defendant is accused, names the court to which and the time when it is returnable, and indicates that it is dated and attested officially by the authority issuing the same. Tex. Code Crim. Proc. Ann. art. 23.02 (West 2009).
In his motion for new trial, Selby requested that the trial court issue findings of fact and conclusions of law. The trial judge denied the motion for new trial without issuing findings of fact and conclusions of law. When a trial court fails to make specific findings of fact and conclusions of law, it is presumed that the trial court made the necessary findings to support its decision. Ice v. State , 914 S.W.2d 694, 695 (Tex. App.—Fort Worth 1996, no writ.). Because the order the trial judge signed denying Selby's motion for new trial does not state that it found that the motion to revoke was timely filed and that a valid capias was timely issued, the implied findings in this case include all the findings necessary to support the legal conclusion that the trial court had jurisdiction to revoke Selby's community supervision. See id. at 695-96. This includes the implied findings that the motion to revoke was timely filed and the original capias was signed by the district clerk and timely issued.
Both Selby and the State agree that the first day of Selby's ten-year period of community supervision was April 4, 2006, and that his expiration date was April 3, 2016. The record shows that the State's motion to revoke is file-stamped April 1, 2016. Although Selby argues that the file-stamp cannot be trusted because the document indicates that it was filed at ten o'clock in the morning, which is prior to the time that Selby made admissions during the pre-test polygraph interview that are the basis of the violations in the motion to revoke, our review of the record supports the implied finding that the motion was timely filed.
Matthew Poston, the assistant district attorney who signed the motion to revoke, testified that he assisted in preparing the motion. Poston explained that in addition to the motion to revoke, a judge's fiat, the alias capias, and the precept to serve were also prepared on April 1. Poston testified that on April 1, he presented the motion to revoke, the judge's fiat, the alias capias, and the precept to serve to Judge Morefield for approval sometime after 3:27 p.m. According to Poston, Judge Morefield determined that the petition to revoke was sufficient to order Selby's arrest, and Judge Morefield signed the judge's fiat on April 1. Poston explained that the paperwork was filed immediately after the judge signed the fiat.
Tania McGrath, the deputy district clerk, testified that she is the designated criminal clerk for the 75th District Court and that Delores Wiley is the designated criminal clerk of the 253rd District Court. McGrath testified that when she receives a document at the district clerk's counter, she file-stamps it. McGrath explained that the time should be filled in when the document is given a Bates stamp, but there are...
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...590 (E.D. Tex. 2005). Courts have long approved polygraph test requirements as part of a community supervision condition. See Selby v. State, 525 S.W.3d 842, 853 (Tex. App.—Beaumont 2017, no pet); Mitchell v. State, 420 S.W.3d 448, 450 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see als......
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...art. 42.12, § 5(h)). However, appellant does not argue the untimeliness of either the motion to revoke or the capias. See Selby v. State, 525 S.W.3d 842, 846-47 (Tex. App.—Beaumont 2017, no pet.) (discussing jurisdiction to hold a hearing and to proceed with an adjudication of guilt). And, ......