Ex Parte Joseph P. DANGELO, Appellant.
Pursuant to a plea agreement, appellant pled guilty to the felony offense of injury to a child. That offense, alleging that appellant knowingly caused bodily injury to a named child, was handwritten and inserted as the indictment's fifth count, after four type-written counts that alleged four sex-related felony offenses against that same named child.1 In accordance with that plea agreement and after accepting appellant's plea, the trial court placed him on deferred-adjudication community supervision for seven years, commencing on February 26, 2008. Appellant signed a document that stated that the trial court could modify the conditions of supervision at any time during the period of community supervision. Ex parte Dangelo, 339 S.W.3d 143, 146 (Tex.App.-Fort Worth 2010)(op. on reh'g).
The original terms of appellant's community supervision did not require him to complete sex-offender treatment. Id. In May of 2008, three months later, the trial court modified those conditions to include provisions that required appellant to submit to sex-offender treatment and evaluation, as directed by his supervision officer, complete sex-offender psychological counseling, and submit to, and show no deception on, any polygraph examination ordered by the court or his supervision officer.2 Id. In December of 2008, the state filed its first petition to proceed to adjudication. In January of 2009, the trial court again modified appellant's conditions and required appellant to reside in Tarrant County and to restart his sex-offender treatment, as directed by the supervision officer, but it dismissed the state's petition to proceed to adjudication of appellant's guilt. Id.
In March of 2009, appellant's attorney sent to Psycho Therapy Services a letter that stated appellant's objections to any required treatment programs that lie outside those required or have no relationship to the crime to which appellant plead or that relate to conduct that is not itself criminal. Id. The letter also stated that appellant “has no objections to polygraph examinations which in the course of your program he may be subjected to,” but that he “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.” Id. at 146–47. Attached to that letter was an affidavit from appellant stating that he had been told by one of the Psycho Therapy Services employees that, as part of the sexual-offender treatment program, appellant was required to admit any sexual offense and that “appellant had been notified that if he did not intend to answer questions regarding sexual offenses, he should not attend the therapy session.” Id. at 147. On April 9, 2009, the state filed its second petition to proceed to adjudication, which alleged that appellant had violated the terms and conditions of his supervision by failing to complete a sex-offender evaluation and that he had been discharged from sex-offender treatment without completing it. Appellant filed a motion to quash the second petition on grounds similar to those raised in the writ applications that are the subject of this appeal, but “[t]he record does not contain any order resolving the State's second petition.” Id. at 146, n.4.
Appellant points out that, when he was placed on the seven-year deferred-adjudication community supervision, the court's order contained no sex-offender conditions or counseling requirements; it was only when his supervision was transferred to Denton County, where he lived, that sex-offender conditions were added. His first habeas corpus application objected to these conditions. Soon after, the state filed a motion to proceed to adjudication, which was subsequently dismissed, but the condition that required sex-offender counseling was retained.
In July 2009, the trial court found that appellant's bond was insufficient because he had refused to take the ordered polygraph tests and answer the questions to which he objected,3 and it issued a warrant for his arrest. Id. at 147.4 Appellant filed additional habeas corpus applications “assert[ing] that he had a constitutional right not to answer the questions that were proposed to be asked in the polygraph exam.”5 Id. at 147. The trial court denied relief on these applications.
The Court of Appeals's Opinion
On direct appeal, appellant filed two separate appeals regarding the same underlying conviction of injury to a child, both appeals challenging the single deferred-adjudication case but on slightly different grounds. He asserted that the trial court's decision to declare his bond insufficient, and thus to incarcerate him because he refused to answer questions that were proposed in the polygraph examination, denied him due process of law because it required him: 1) “to waive his right to remain silent”; and 2) “to submit to an unconstitutional order of probation to attend sex-offender counseling when he has not been convicted of a sex offense.” Id. at 148.
The court of appeals held “that appellant may not be compelled, over the invocation of his Fifth Amendment right, to participate in any portion of the objected-to community supervision conditions, including the requirement of answering questions two through four of the planned polygraph examination, that would provide a link to his criminal prosecution for any offense unrelated to the injury to a child offense that he pled guilty to.” Id. at 154. But it also held that appellant “may be compelled to discuss the facts particularly related to counts one through four of his indictment because the State may not use those facts in a future criminal prosecution.” Id.
The court of appeals reversed the trial court's denial of appellant's habeas corpus writ applications to the extent that the trial court's decision to incarcerate him was based on his refusal to answer questions two through four of the polygraph examination, but affirmed the trial court's denials of his writ applications in all other respects. Id. at 155.
Petitions for Discretionary Review
We granted review of the first two grounds of appellant's petitions for discretionary review. Those grounds assert that the court of appeals erred: 1) when it granted immunity to appellant to require him to answer questions put to him on the allegations in the indictment for which he refused to acknowledge guilt, and 2) when it held that appellant may be questioned on the indictment allegations to which no plea was entered. Pursuant to Appellant's brief, those first two grounds “will be addressed jointly as they cover the same facts and general law.”
Appellant generally complains of the court of appeals's holding that his “Fifth Amendment rights do not apply to him discussing the limited facts specifically related to counts one through four of his original indictment because the State may not use those facts in a subsequent criminal proceeding, and he cannot be incriminated based on those facts.” Id. at 153. In ground one, appellant takes issue with the court of appeals's language about his having immunity from prosecution for the other counts of the indictment, for which he refused to acknowledge guilt. In ground two, appellant disputes the court of appeals's holding that he “may be questioned on the indictment allegations to which no plea was entered.” Appellant contends that the court of appeals has no authority to grant immunity. He also suggests that the court of appeals has denied him the benefit of his plea bargain; he refused to plead to a sexual offense, consistently denying that he ever committed such an act. But he is now facing the choice of either admitting to a crime he did not commit or having his probation revoked for not admitting it. Appellant asserts that his “reason for accepting the plea bargain was to avoid this dilemma.”
Citing Minnesota v. Murphy, 465 U.S. 420 (1984), in which the Supreme Court examined a probationer's Fifth Amendment right against compelled self-incrimination, the court of appeals stated that “[a] probationer could be compelled to talk about independent offenses if the State grants the probationer use-immunity.” Dangelo, 339 S .W.3d at 151, n.8. The court of appeals also noted the state's acknowledgment that further prosecution of the remaining four indicted offenses was barred by double jeopardy and that appellant had no realistic threat of future criminal prosecution on the facts comprising those alleged offenses. It viewed the state's acknowledgment “as binding concessions that the State will never use the facts relating to the indicted offenses, if any, for a future criminal proceeding on the indicted offenses or new offenses.” Id. at 153. Accordingly, the court of appeals concluded that appellant's “Fifth Amendment rights do not apply to him discussing the limited facts specifically related to counts one through four of his original indictment because the State may not use those facts in a subsequent criminal proceeding, and he cannot be incriminated based on those facts.” Id. It specifically ruled that “appellant may be compelled to discuss the facts particularly related to counts one through four of his indictment because the State may not use those facts in a future criminal prosecution.” Id. at 154.
Appellant asserts that even a defendant on probation “does not lose his right against self incrimination.” He adds that “[a] person does not lose his right to assert his Fifth Amendment rights as to other offenses for which he has not been convicted by either pleading guilty or otherwise being convicted of a criminal offense.” He cites Minnesota v. Murphy and Chapman v. State, 115 S.W.3d 1 (Tex.Crim.App.2003), in support of these principles. He maintains that the court of appeals erred when it accepted the “assurances” of the state that it would not prosecute him for allegations contained in the indictment and thereby purported to give him use immunity for those crimes, if they even happened, and thus allowing him to be subjected to possible sanctions for refusing to answer the questions and possible prosecution for perjury should the state not believe whatever statements he makes. Appellant also suggests that, if immunity is granted, such immunity goes only to the actual testimony and not to mere conversation with the prosecution and that the appellate court cannot grant a general immunity to questioning that is not testimonial.
The state agrees with appellant that the court of appeals erred in holding that the state had made “binding concessions” that it would never prosecute appellant based on the other allegations in the indictment. But the state acknowledges that, because it did not affirmatively waive, dismiss, or abandon counts one through four of the indictment before the trial court accepted appellant's plea of guilty to count five pursuant to the plea agreement, jeopardy attached to those counts as well. Once jeopardy has attached, the state is barred from prosecuting appellant on those counts in the future, thus appellant cannot now be prosecuted for any of the offenses alleged in the indictment. The state maintains that “it is double jeopardy, and not the concession of the State, that prohibits the State from prosecuting Appellant on any of the other counts in the indictment after he pled guilty to count five.” The state also asserts that, because it cannot prosecute appellant again based on the allegations in the same indictment, there is no realistic threat for future prosecution, thus appellant can be required to answer questions regarding other allegations in the indictment after invoking his Fifth Amendment rights. It concludes that, although the court of appeals erred when it held that the state had made a binding concession that it would not prosecute appellant for the other allegations, thus granting some sort of judicial immunity to appellant, the court of appeals came to the correct conclusion and this Court should affirm.
In a negotiated-plea proceeding, the issue is joined, and jeopardy attaches when the plea agreement is accepted by the trial court. Ortiz v. State, 933 S.W.2d 102 (Tex.Crim.App.1996). The state quotes from Ortiz that “[i]t is [at the point of acceptance of a plea agreement by the trial court] that the defendant has a vested interest in the finality of the proceeding” and recognizes that “because [it] did not affirmatively waive, dismiss, or abandon Counts One, Two, Three, and Four of the indictment prior to the trial court's acceptance of Appellant's plea pursuant to the plea agreement, jeopardy attached to those counts as well.” State's Brief at 12.
Appellant correctly states that a probationer retains his Fifth Amendment right against self-incrimination concerning statements that would incriminate him in future criminal proceedings. Chapman v. State, 115 S.W.3d at 5. The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself and protects the individual, not only against being involuntarily called as a witness against himself in a criminal prosecution, 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 proceedings.” Id., quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). However, in light of the state's concession that double-jeopardy principles preclude it from prosecuting appellant for the four sex-related offenses set out in counts one through four, we agree with the court of appeals's determination that “appellant may be compelled to discuss the facts particularly related to counts one through four of his indictment because the State may not use those facts in a future criminal prosecution.” Dangelo, 339 S.W.3d at 154. Appellant has no Fifth Amendment right to refuse to answer legitimate questions that are a condition of his community supervision regarding those offenses. Accordingly, we overrule appellant's grounds one and two and affirm the judgment of the court of appeals.
I agree that “appellant may be compelled to discuss the facts particularly related to counts one through four of his indictment” if “the State may not use those facts in a future criminal prosecution.”1 But it is entirely possible that appellant could be prosecuted for self-incriminatory, truthful statements concerning the underlying “facts” of the four sex-related counts that were dismissed when he pled guilty to an injury-to-a-child offense. For example, a polygrapher might ask whether appellant had committed the same sex offense against the same alleged victim on some day other than the date specified in the indictment. Or the polygrapher might ask if appellant had performed some sex act with the alleged victim other than those acts explicitly listed in the dismissed counts.2
At a minimum, appellant is entitled to know beforehand exactly what “yes” or “no” questions the polygrapher wants to ask and then be given the opportunity to consult with his attorney to determine whether there is any reasonable possibility that the answer to a specific question might incriminate him. Any invocation of the Fifth Amendment right must be viewed liberally and in the light most favorable to its legitimacy.3 A person may be compelled to answer only if it “is perfectly clear, from a careful consideration of all the circumstances in the case,” that the person “is mistaken in asserting the privilege, and the answer cannot possibly tend to incriminate [him].”4 That is a high hurdle to jump. And it should be, because the constitutional right against self-incrimination is such a fundamental tenet of our American criminal-justice system.
The majority concludes that “[a]ppellant has no Fifth Amendment right to refuse to answer legitimate questions that are a condition of his community supervision regarding those offenses” in the dismissed counts.5 True enough, but what questions are “legitimate”? In this context, questions are legitimate only if answers to them “cannot possibly tend to incriminate” appellant for purposes of a new criminal prosecution.6
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself[.]”7 In Minnesota v. Murphy, the United States Supreme Court held that, under long-standing law, “this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges 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.’ “8 The Supreme Court explained,
In all such proceedings, “a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant․ Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution.”9
A judicial requirement that a probationer take a polygraph examination concerning sexual matters qualifies as a “proceeding” for purposes of the Fifth Amendment right against self-incrimination .10 In Murphy, the Supreme Court also concluded that the State may not make the waiver of the Fifth Amendment right against self-incrimination a condition of probation. In analyzing whether a “waiver” condition would improperly force Murphy, a probationer, to choose between incriminating himself and jeopardizing his probation, the Court stated that
[o]ur decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege․ [T]he State submits that it would not, and legally could not, revoke probation for refusing to answer questions calling for information that would incriminate in separate criminal proceedings.11
The Court ultimately held that Murphy's probation condition did not improperly impinge on his Fifth Amendment rights because it did not require him “to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent.”12 Instead, the probation condition merely required Murphy to speak truthfully about matters relevant to his probationary status. Because the probation condition was silent about Murphy's freedom to choose not to answer particular questions and “contained no suggestion that his probation was conditional on his waiving his Fifth Amendment privilege,” it did nothing more than proscribe lies. The probation condition did not require Murphy to speak if speaking would incriminate him, but, if he did speak, he could be punished for lying.
Appellant, like Murphy, may have his probation revoked for telling lies to a polygrapher.13 But he may not be revoked (or otherwise punished) for invoking his right against self-incrimination if there is any reasonable possibility that the answers to any questions posed by a polygrapher could be used in a future criminal prosecution against him.14 The State may not force appellant to choose between incriminating himself and losing his probationary status by remaining silent. However, as the majority correctly concludes, appellant has lost the Fifth Amendment privilege for the injury-to-a-child offense for which he has been placed on deferred-adjudication probation and for the specific counts to which jeopardy attached at the time of his guilty plea. For those discrete and specific offenses, he must answer. But if the State wishes to compel the answers to any questions that could show both a probation violation and a new criminal offense, the State must provide use immunity before compelling any answer.15
The court of appeals suggested that the State had promised use immunity concerning any facts relating to the dismissed counts.16 The State denies that it has done so,17 and neither trial nor appellate courts may unilaterally grant use immunity.18 Thus, appellant may invoke his right against self-incrimination for any “facts” relating to the alleged victim except the very precise acts that allegedly occurred on the one specified date. Any other question could pose a realistic threat of incrimination.19
With these comments, I join the court's opinion.20
1. Count one alleged penetration of the child's sexual organ, count two alleged penetration of her anus, count three alleged touching of her sexual organ, and count four alleged touching of her anus. All of the offenses were alleged to have occurred on or about July 14th, 2004. The original indictment was filed in the clerk's office on September 21, 2004. The hand-written addition, count five, is dated February 26, 2008, the same date that appears on the “unadjudicated judgment.”
2. Also, he was prohibited, among other things, from visiting sex-related businesses, internet pornography sites, social-media sites, or prostitutes, from consumption of alcohol, and from having any contact with three named persons. He was also subject to the restrictions that define child-safety zones. The court of appeals's opinion states the May 2008 modification required appellant to “[a]ssume responsibility of [h]is offense․” Dangelo, at 146. We do not find that phrase in any of the several probation orders.
3. “If Defendant does not participate in polygraph, bond is insufficient.” I C.R. 138, PD–770–11.
4. After appellant filed a motion challenging the trial court's arrest warrant in the court of appeals, the trial court released appellant on a highly restrictive bond.
5. The four questions which appellant refused to answer are: Since you have been on probation, have you: 1) violated any of the conditions?; 2) had sexual contact with any persons younger than seventeen?; 3) tried to isolate any child for sexual purposes?; and 4) intentionally committed any sexual crimes? Dangelo, 339 S.W.3d at 147 and 151–52.
1. Ex parte Dangelo, 339 S.W.3d 143, 154 (Tex.App.Fort Worth 2010) (op. on reh'g).
2. The bar against later prosecution for “extraneous offenses” covered by the indictment does not apply unless a defendant is actually tried for and convicted of the indicted offense and he has declined to request an election at trial as to the specific act that the State could rely upon for conviction. See Rodriguez v. State, 104 S.W.3d 87, 91 (Tex.Crim.App.2003) (absent election, evidence of multiple occurrences of an act alleged in the indictment is not “extraneous offense” evidence; every act for which evidence is presented is covered by the indictment and, upon conviction, is jeopardy-barred).
3. Hoffman v. United States, 341 U.S. 479, 486 (1951) (the Fifth Amendment right against compelled self-incrimination “must be accorded liberal construction in favor of the right it was intended to secure.”).
4. Grayson v. State, 684 S.W.2d 691, 696 (Tex.Crim.App.1984) (quoting Hoffman, 341 U.S. at 486–87, in which the Supreme Court stated, “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it was asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”).
5. Majority op. at 8.
6. Grayson, 684 S.W.2d at 696.
7. U.S. Const. amend. V.
8. Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)); see also Chapman v. State, 115 S.W.3d 1, 7 (Tex.Crim.App.2003) (probationer had Fifth Amendment right not to incriminate himself during participation in sex-offender treatment program, but he failed to assert that privilege when he volunteered self-incriminatory statements).
9. Murphy, 465 U.S. at 426 (quoting Lefkowitz v. Turley, 414 U.S. at 78).
10. See id. at 422; see also Chapman, 115 S.W.3d at 7.
11. Id. at 438.
12. Id. at 436.
13. Appellant complains that he pled guilty to the injury-to-a-child offense because he adamantly denied committing any sexual act, and thus he should not “be compelled to submit to questioning for an offense he did not commit.” Appellant's Brief at 8. But appellant cannot be punished for truthful answers. Whether he did or did not commit the sexual acts with which he was originally charged, he need only tell the truth.
14. Murphy, 465 U.S. at 437.
15. Murphy, 465 U.S. at 436 n.7 (“a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.”).
16. Dangelo, 339 S.W.3d at 153 (“the State represents that appellant is ‘safe from additional prosecution’ on the underlying facts of this case. We view these statements as binding concessions that the State will never use the facts relating to the indicted offenses, if any, for a future criminal proceeding on the indicted offenses or new offenses.”).
17. See State's Brief at 12–13 (setting out the specific dates and discrete acts alleged in the four dismissed counts and concluding that “it is double jeopardy, and not the concessions of the State, that prohibits the State from prosecuting Appellant on any of the other counts in the indictment after he pled guilty to count five.”).
18. See Smith v. State, 70 S.W.3d 848, 860–61 (Tex.Crim.App.2002) (State may offer use and derivative-use immunity if it needs to compel witness testimony, and that immunity agreement must be ratified by trial judge, but “[t]he trial court's role is very limited in this context.”).
19. See Murphy, 465 U.S. at 435 n.7.
20. Both appellant and the State have addressed a third issue, but we did not grant review of appellant's third ground for review.
JOHNSON, J., delivered the opinion for a unanimous Court. COCHRAN, J., filed a concurring opinion in which HERVEY and ALCALÁ, JJ., joined.COCHRAN, J., filed a concurring opinion in which HERVEY and ALCALA, JJ., joined.