Conclusion Having sustained part of appellants first point, to the extent that the trial courts decision to incarcerate appellant was based on his refusal to answer questions two through four of the polygraph examination, we reverse the trial courts denial of his applications for a writ of habeas corpus.  We affirm the trial courts denials of his writ applications in all other respects and remand this case to the trial court for further proceedings consistent with this opinion. v. << (2010)

Court of Appeals of Texas, Waco.

The original terms of 2 3 4 appellants community supervision prohibited him from contacting the complainant of his crime in any manner and precluded his unsupervised access to any child under seventeen years old (except for one specifically designated child);  the terms did not require him to complete sex offender treatment.2  However, in May 2008, the trial court signed an amendment to appellants community supervision terms.3  The amendment included provisions that precluded his participation in several sex-related acts and required him to [a]ssume responsibility for [his] offense, submit to a sex offender treatment evaluation as directed by the supervision officer, complete psychological sex offender counseling, and [s]ubmit to ․ and show no deception on any polygraph examination ․ as directed by the Court or supervision officer.  The trial court signed another amendment in January 2009 that required appellant to restart his sex offender treatment with PSY as directed by the supervision officer but dismissed the States petition for the trial court to proceed to adjudication of his guilt.4  Appellant filed objections to the amended terms. On March 4, 2009, appellants counsel sent a letter to Psycho Therapy Services;  the letter stated in part, Certainly we object to any required treatment programs which lie outside those required to and have no relationship to the crime which [appellant] pled to, or relate to conduct which is not itself criminal, or requires conduct that is not reasonably related to the future criminality of Mr. Dangelo and does not serve the statutory ends of his deferred adjudication. ․  Mr. Dangelo has no objections to polygraph examinations which in the course of your program he may be subjected to.  However, Mr. Dangelo 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.  Thus, he will not answer any questions relating to sexual conduct which he did not commit and for which he has not been accused.  An affidavit from appellant was attached to the letter;  the affidavit states that he had been told by one of Psycho Therapy Services' employees that as part of the Sexual Treatment Program [appellant] was required to admit any sexual offense.  The affidavit also explains that appellant had been notified that if he did not intend to answer questions regarding sexual offenses, he should not attend the therapy session. On March 27, 2009, appellant filed an application for a writ of habeas corpus, asking the court to dismiss the added conditions of probation.  In the application, he contended that the trial courts community supervision conditions violate his rights against compelled self-incrimination under the Texas and federal constitutions and that the trial courts requiring him to undergo sex offender treatment is not authorized by the code of criminal procedure because he did not plead guilty to a sex-related offense. On July 10, 2009, the trial court declared that appellants bond was insufficient and ordered a warrant to be issued for his arrest because of his failure to submit to a polygraph exam;  he was arrested the same day.  Five days later, appellant filed two more applications for writs of habeas corpus.  Those applications asserted that he had a constitutional right not to answer the questions that were proposed to be asked in the polygraph exam. Appellant attached a July 9, 2009 letter to both applications that was addressed from The Polygraph Science Center to a probation officer regarding appellants refusal to submit to the exam.  The letter explained that appellants probation officer had referred him to the center for the exam and that appellant had arrived at the center but had refused to answer the following questions:  (1) Since you have been on probation, have you had [sic] violated any of the conditions?;  (2) Since you have been on probation, have you had sexual contact with any persons younger than 17?;  (3) Since you have been on probation, have you tried to isolate any child for sexual purposes?;  and (4) Since you have been on probation, have you intentionally committed any sexual crimes? The State filed responses to 5 appellants writ applications, attaching offense reports and other documents that detailed the sexually-related alleged facts that resulted in his original four sex offense charges.  In June 2009, the State filed proposed findings of fact and conclusions of law, and the next month, the trial court adopted those findings and conclusions, denied appellants writ applications, and stated that his bond was insufficient and that he would be released from jail only to take the scheduled polygraph exam.5  Appellant filed notices of these appeals. Standard of Review Although appellant filed his writ applications under multiple constitutional and statutory provisions, we must review the applications under article 11.072 of the code of criminal procedure, which establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.  Tex.Code Crim. Proc. Ann. art. 11.072, 1 (Vernon 2005);  see Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex.Crim.App.2008) ( [I]t is clear that the Legislature intended Article 11.072 to provide the exclusive means by which the district courts may exercise their original habeas jurisdiction ․ in cases involving an individual who is either serving a term of community supervision or who has completed a term of community supervision.). Habeas corpus is an extraordinary writ used to challenge the legality of ones restraint.  Tex.Code Crim. Proc. Ann. art. 11.01 (Vernon 2005);  Ex parte Bennett, 245 S.W.3d 616, 618 (Tex.App.-Fort Worth 2008, pet. refd).  Absent a clear abuse of discretion, we must affirm the trial courts decision on whether to grant the relief requested in a habeas corpus application.  Ex parte Karlson, 282 S.W.3d 118, 127-28 (Tex.App.-Fort Worth 2009, pet. refd);  Ex parte Bruce, 112 S.W.3d 635, 639 (Tex.App.-Fort Worth 2003, pet. dismd).  In reviewing the trial courts decision, we view the evidence in the light most favorable to the ruling and accord great deference to the trial courts findings and conclusions.   Karlson, 282 S.W.3d at 127;  see Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App.2006). Appellants Fifth Amendment Right In his first issue, appellant contends that the trial courts decision to declare his bond insufficient (and to therefore incarcerate him) because he refuses to answer the questions that were proposed in the polygraph exam violates his right to remain silent and not incriminate himself under the Texas and federal constitutions.  Trial courts have wide discretion to impose reasonable community supervision terms that are in the defendants, the victims, and societys best interests.  See Butler v. State, 189 S.W.3d 299, 303 (Tex.Crim.App.2006);  Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App.1999) (describing the granting of supervision as a privilege, not a right), cert. denied, 529 U.S. 1088 (2000);  Belt v. State, 127 S.W.3d 277, 280 (Tex.App.-Fort Worth 2004, no pet.) (explaining that we review imposition of community supervision conditions under an abuse of discretion standard);  see also Flores v. State, 904 S.W.2d 129, 130 (Tex.Crim.App.1995) (stating that there is no fundamental right to receive probation), cert. denied, 516 U.S. 1050 (1996).  Requiring a polygraph examination may be a reasonable condition of community supervision.  See Ex parte Renfro, 999 S.W.2d 557, 560 & n.4 (Tex.App.-Houston [14th Dist.] 1999, pet. refd);  see also Leonard v. State, 315 S.W.3d 578, 580 (Tex.App.-Eastland 2010, pet. granted) (Polygraph examinations are regularly imposed as a condition of community supervision for sex offenders.). The Texas legislature has explained that the purpose of the community supervision statute is to remove from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems of community supervision in the public interest.  Tex.Code Crim. Proc. Ann. art. 42.12, 1 (Vernon Supp.2010) (emphasis added).  Thus, the trial courts broad authority to create community supervision terms does not extend to imposing terms that violate a defendants constitutional rights as balanced with the goals of the defendants probation.  See Flores, 904 S.W.2d at 131 (examining the constitutionality of a trial courts community supervision decision);  Tamez v. State, 534 S.W.2d 686, 692 (Tex.Crim.App.1976) (invalidating a probation condition because it was unconstitutional);  see also Briseño v. State, 293 S.W.3d 644, 648 (Tex.App.-San Antonio 2009, no pet.) (stating that a community supervision condition is not necessarily invalid simply because it affects [the defendants] ability to exercise constitutionally protected rights) (quoting Lee v. State, 952 S.W.2d 894, 900 (Tex.App.-Dallas 1997, no pet.) (en banc)).  As the Supreme Court stated in Griffin v. Wisconsin, To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy the absolute liberty to which every citizen is entitled, but only ․ conditional liberty properly dependent on observance of special [probation] restrictions.  These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationers being at large․  Supervision, then, is a special need of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.  That permissible degree is not unlimited, however․  483 U.S. 868, 874-75, 107 S.Ct. 3164, 3169 (1987) (citation omitted) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600 (1972)).  The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself.6  U.S. Const. amend.  V;  see Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App.2008) (explaining that the Fifth Amendment applies in state court proceedings);  Chapman v. State, 115 S.W.3d 1, 5 (Tex.Crim.App.2003) (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.).  The Fifth Amendment privilege not only extends to answers that would in themselves support a conviction, but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.  Ohio v. Reiner, 532 U.S. 17, 20, 121 S.Ct. 1252, 1254 (2001) (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818 (1951)).  The United States Supreme Court has examined a probationers Fifth Amendment right against compelled self-incrimination.7   See Minnesota v. Murphy, 465 U.S. 420, 422, 104 S.Ct. 1136, 1139 (1984).  The Courts opinion revealed the following background facts.  Prosecutors charged Murphy for criminal sexual conduct, but he pled guilty to a reduced charge of false imprisonment, and the trial court placed him on a three-year probation term.  Id. at 422, 104 S.Ct. at 1139.  Conditions of his probation required him to participate in sex offender treatment and be truthful with his probation officer in all matters.  Id. He eventually told a sex offender counselor that he had previously committed a murder that was unrelated to the charge he had pled guilty to, and the counselor told Murphys probation officer of the confession.  Id. at 423, 104 S.Ct. at 1140.  At Murphys next meeting with his probation officer, the officer informed Murphy about the information that she had received, and Murphy admitted that he had committed the murder.  Id. at 424, 104 S.Ct. at 1140.  Based on the admission, a grand jury indicted him for murder.  Id. at 425, 104 S.Ct. at 1141.  Murphy sought to suppress testimony about his confession on Fifth Amendment grounds, and although the trial court denied his motion to do so, the Minnesota Supreme Court reversed.  Id. at 425, 104 S.Ct. at 1141.  In reversing the Minnesota Supreme Court, the United States Supreme Court stated that the Fifth Amendment prohibition against compelled self-incrimination 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.  Id. at 426, 104 S.Ct. at 1141 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322 (1973)).  In the course of ultimately deciding the case on the ground that Murphy did not timely assert his Fifth Amendment rights, the Court explained, A defendant does not lose [Fifth Amendment protection] by reason of his conviction of a crime;  notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted․ ... ․  If [a defendant asserts Fifth Amendment rights], he may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him in a subsequent criminal proceeding. Id. at 426, 429, 104 S.Ct. at 1141-43 (quoting Maness v. Meyers, 419 U.S. 449, 473, 95 S.Ct. 584, 598 (1976) (White, J., concurring)).  While the Court therefore indicated that a probationers Fifth Amendment right against compelled self-incrimination would be violated by authorities requiring him to answer questions that would incriminate him in a pending or later criminal prosecution, it also stated, The situation would be different if the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding.  If, for example, a residential restriction were imposed as a condition of probation, it would appear unlikely that a violation of that condition would be a criminal act.  Hence, a claim of the Fifth Amendment privilege in response to questions relating to a residential condition could not validly rest on the ground that the answer might be used to incriminate if the probationer was tried for another crime.  Neither, in our view, would the privilege be available on the ground that answering such questions might reveal a violation of the residential requirement and result in the termination of probation.   Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding.  Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer.  It follows that whether or not the answer to a question about a residential requirement is compelled by the threat of revocation, there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings. ․[N]othing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation ․  Id. at 435 & n.7, 104 S.Ct. at 1146 & n.7 (citations omitted) (emphasis added).  Thus, if a condition of a 8 9 defendants probation requires the defendant to admit to an offense that could lead to criminal charges independent of those that the defendant is serving probation for, the defendant has a Fifth Amendment right to not answer such questions.8  But to the extent that a state asks questions only about probation violations that do not comprise independent offenses, the defendant does not have a Fifth Amendment right to not answer those questions.  Id.;  see Chapman, 115 S.W.3d at 6 (stating that a probationer has a right against self-incrimination concerning statements that would incriminate him for some other offense);  Bridwell v. State, 804 S.W.2d 900, 906 (Tex.Crim.App.1991) (citing Murphy for the proposition that the privilege against self-incrimination is not available to [a] probationer questioned by [a] probation officer);  see also United States v. Locke, 482 F.3d 764, 767 (5th Cir.2007) (holding that the defendants Fifth Amendment right against compelled self-incrimination had not been infringed because his answers to a polygraph examination could not serve as a basis for a future criminal prosecution.  A probationer may only invoke the Fifth Amendment privilege if a truthful answer would incriminate the probationer by exposing him to prosecution for a different crime.) (emphasis added).9 As explained above, appellants first point is based in part on the trial courts incarcerating him because of his refusal to answer the following questions on Fifth Amendment grounds:  (1) Since you have been on probation, have you had [sic] violated any of the conditions?;  (2) Since you have been on probation, have you had sexual contact with any persons younger than 17?;  (3) Since you have been on probation, have you tried to isolate any child for sexual purposes?;  and (4) Since you have been on probation, have you intentionally committed any sexual crimes?  The first question asks only about community supervision violations, not about independent criminal activity, and appellant therefore does not have a Fifth Amendment right to refuse to answer the question.  See Murphy, 465 U.S. at 435 n.7, 104 S.Ct. at 1146 n.7. Thus, to the extent that the trial courts denials of appellants writ applications could be based on his refusal to answer the first question, we overrule appellants first point. The State has conceded, and we conclude, that the second and fourth questions ask about independent crimes rather than mere community supervision violations and that under the authority cited above,10 appellant has a Fifth Amendment right to refuse to answer those questions.  Thus, to the extent that the trial courts denials of appellants writ applications may be based on his refusal to answer those two questions, we sustain appellants first point.10 The State argues that question three (isolation of a child for sexual purposes) inquires whether 11 appellant committed a mere probation violation and that the question poses no realistic threat of incrimination.  However, we conclude that question three exceeds asking only about a violation of appellants community supervision and provides at least a link in the chain to appellants responsibility for an independent offense.11  See Reiner, 532 U.S. at 20, 121 S.Ct. at 1254.  The penal code states that a person commits the offense of criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.  Tex. Penal Code Ann. 15.01(a) (Vernon 2003);  see Yalch v. State, 743 S.W.2d 231, 233 (Tex.Crim.App.1988).  We conclude that tr [ying] to isolate any child could qualify as an act amounting to more than mere preparation and that for sexual purposes could serve as specific intent to commit an offense such as attempted indecency with a child, attempted sexual assault of a child, attempted sexual performance by a child, or other attempted offenses that involve a defendants act and sexual intent with regard to children.  See Tex. Penal Code Ann. 15.01(a), 21.11(a), 22.011(a)(2), 43.25(b) (Vernon Supp.2010);  cf.  Laster v. State, 275 S.W.3d 512, 516, 522-23 (Tex.Crim.App.2009) (holding that the evidence was sufficient to prove attempted aggravated kidnapping when a defendant briefly grabbed a young girl by her waist and pulled her with the inferred purpose to secrete her). Thus, even while giving great deference to the trial courts conclusion that 12 appellant cannot refuse to answer question three on Fifth Amendment grounds, we must overrule that conclusion.  To the extent that appellants first point challenges the trial courts denials of his writ applications as related to his refusal to answer question three, we hold that the trial court abused its discretion by denying the applications and sustain the point.12 Appellant also argues in his first point that the sex offender counseling program requires him to admit to the sexual crime for which the counselor believes he is being counseled.  A term of appellants community supervision states that he must [a]ssume responsibility for [his] offense.  One of the trial courts findings of fact states, As part of treatment, [appellant] is required to admit and discuss the facts of this offense. The State contends that appellants Fifth Amendment right against self-incrimination does not apply to him discussing the facts of the remaining four indicted offenses because further prosecution of the offenses is barred by double jeopardy and he has no realistic threat of future criminal prosecution on the facts comprising the alleged offenses.  Furthermore, 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.13  See, e.g., Bryant v. State, 187 S.W.3d 397, 400-02 (Tex.Crim.App.2005) (holding that a 14 13 defendants stipulation that was not entered into evidence was nonetheless a judicial admission that barred him from contesting evidentiary sufficiency).  Thus, we conclude that Appellants 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.14  See Chapman, 115 S.W.3d at 7 & n.28 (explaining that a defendant could be compelled to testify against himself if he was granted immunity that eliminated the threat of incrimination);  Renfro, 999 S.W.2d at 561 (explaining that the Fifth Amendment privilege applies only when there is a realistic threat of self-incrimination). In summary, we hold that 15 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.15  We sustain appellants first point to the extent that the trial courts community supervision conditions require him to so participate.  But 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.  We overrule appellants first point to that degree. Appellants Requirement to Attend Sex Offender Treatment In the title of his second point,16 appellant argues that the trial court is denying him due process by requiring him to attend any part of sex offender counseling when he has not been convicted of a sex offense.  However, the argument in appellants second point does not assert a constitutional due process denial but relates to whether the Legislature limited the right to impose sex offender counseling to persons convicted of a sex offense.16  In other words, while relying on the text of article 42.12 of the code of criminal procedure, appellant argues that there is no statutory authority to support the trial courts decision to require him to attend sex offender counseling when he pled guilty to injury to a child, which is not a sex-related offense.  See Tex.Code Crim. Proc. Ann. art. 42.12, 9A(2) (stating that a person who enters a plea of guilty to one of several specific statutes, not including the injury to a child statute, qualifies as a sex offender). As explained above, appellants writ applications must be reviewed under article 11.072 of the code of criminal procedure.  Tex.Code Crim. Proc. Ann. art. 11.072, 1;  Villanueva, 252 S.W.3d at 397.  An applicant may challenge a condition of community supervision under [article 11.072] only on constitutional grounds.  Tex.Code Crim. Proc. Ann. art. 11.072, 3(c);  see Ex parte Wilson, 171 S.W.3d 925, 928 (Tex.App.-Dallas 2005, no pet.) (overruling a challenge in a habeas corpus appeal to requiring the defendant to participate in the Substance Abuse Felony Program as the result of a state jail felony guilty plea because the challenge d[id] not raise any constitutional issues, only statutory ones.  Therefore, article 11.072 preclude[d] appellant from bringing this complaint by habeas corpus);  see also Ex parte Watson, 601 S.W.2d 350, 352 (Tex.Crim.App.1980) (It is well-established that habeas corpus will lie only to review jurisdictional defects or denials of fundamental or constitutional rights.). Appellants complaint in his second point focuses on the trial courts allegedly exceeding its statutory authority to impose community supervision conditions rather than on constitutional issues.  Appellant does not cite any authority to contend that a trial courts imposition of a community supervision term that is not authorized by article 42.12 of the code of criminal procedure qualifies as a constitutional violation.17  Thus, we hold that we do not have jurisdiction to consider appellants statutory complaint in these habeas corpus appeals.  See Villanueva, 252 S.W.3d at 397;  see also Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002) (distinguishing between constitutional and statutory error);  Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App.1993) (holding that a habeas corpus proceeding was not the proper avenue to address statutory noncompliance).  We dismiss appellants second point. Conclusion Having sustained part of appellants first point, to the extent that the trial courts decision to incarcerate appellant was based on his refusal to answer questions two through four of the polygraph examination, we reverse the trial courts denial of his applications for a writ of habeas corpus.  We affirm the trial courts denials of his writ applications in all other respects and remand this case to the trial court for further proceedings consistent with this opinion.

NOS. 02-09-00266-CR

Decided: December 16, 2010