MICHAEL EDWARD DANSBY SR v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION ON REHEARING

Opinion By Justice Murphy

Appellant Michael Edward Dansby, Sr. filed a motion for rehearing.   The Court overrules appellant's motion for rehearing.   On the Court's own motion, we withdraw our memorandum opinion issued March 9, 2012 and vacate our judgment of that date.   The following is now the opinion of this Court.

Michael Edward Dansby, Sr., appeals from the revocation of his community supervision.   In two issues, appellant claims the trial court erred in finding he violated two conditions of his community supervision because the violations resulted from the invocation of his Fifth Amendment right against self-incrimination.   We affirm.

Background

In 2007, the State charged appellant with aggravated sexual assault of a child.   Under a plea agreement dated July 9, 2008, appellant pleaded guilty to the lesser offense of indecency with a child, and the trial court placed appellant on deferred-adjudication community supervision for a period of five years.   The trial court imposed numerous general conditions of community supervision and specified that appellant would also be subject to “sex offender terms and conditions.”   Appellant signed these conditions, and during the plea hearing, he orally acknowledged he had reviewed the sex offender terms and conditions with his attorney.   That same day, the conditions specific to sex offenders were included as conditions thirty through thirty-six in an order modifying the original community supervision terms.   Under condition thirty, appellant was required to submit to and pass a polygraph examination upon request;  under condition thirty-six, he was required to participate in and abide by all rules and conditions of a court-approved sex offender treatment program.

In August 2008, appellant entered a sex offender treatment program administered by “The Family Therapy Place.”   His counselor was Linda Young.   The treatment program consisted of different treatment modules.   One component required participants to admit to and accept responsibility for committing the offense;  another component required participants to confront their past sexual history.   As part of the sexual history component, participants were required to reveal sexual history information beyond the offense for which they were on community supervision.   Participants specifically were asked to share their past sexual histories in individual and group counseling sessions and as part of a life history questionnaire.   To facilitate accountability, participants were then required to take a sexual history disclosure polygraph examination to verify the truthfulness of their disclosures on the written assignments.

In April 2009, appellant met with polygraph examiner, Andy Sheppard, to take the sexual history polygraph.   Sheppard reviewed with appellant the purpose of the polygraph, which was to address “sexual crimes and deviant sexual behavior” occurring before appellant was placed on community supervision.   Sheppard informed appellant that while he would not be asking appellant for names or “specific identifiers” for sexual crimes, if any, he would be seeking information related to appellant's age, his victim's age, what he did to the victim, and whether the victim was an acquaintance or a stranger.   Appellant participated and answered Sheppard's questions until Sheppard asked him the question:  “Do you have any other victims?”   Appellant refused to answer that question, citing his attorney's advice not to say anything that might result in prosecution.   At that point, Sheppard terminated the examination and notified appellant's community supervision officer, Harold Kurt Mann, of appellant's refusal to take the polygraph.   Despite Mann's warning to appellant to complete the polygraph by a certain date or be discharged from the sex offender treatment program, appellant failed to do so.

Appellant was discharged from the treatment program on August 18, 2009.   Shortly thereafter, the State initiated proceedings to revoke appellant's community supervision and adjudicate his guilt.   Specifically, the State alleged appellant violated condition thirty when he “refused to obtain a sexual history polygraph” as requested by his community supervision officer and condition thirty-six by “fail[ing] to attend and successfully complete the Sex Offender Treatment Program.”

At the adjudication hearing, the trial court heard testimony from three witnesses—Sheppard, Young, and Mann. Sheppard described the sexual history polygraph he attempted to complete with appellant in April 2009.   Sheppard testified that when he discontinued the polygraph, he “inferred” that appellant was asserting his Fifth Amendment privilege against self-incrimination and that appellant was “refusing to continue with the polygraph.”

Young testified to appellant's progress and participation in the sex offender treatment program.   Young stated the main goal of treatment is relapse prevention—that is, “not to have anymore victims.”   She explained the beginning step in the program is “to get the person to the point that they acknowledge that they have committed the offense.”   Young then gets to know the person “inside and out” to identify underlying beliefs;  she testified, “we have to get to know them well enough to where we can help them identify how they navigate their [offense] cycle typically.”   That process involves “pick [ing] the offense apart as much as they will allow” and “look[ing] at it from all kinds of different angles in terms of what was going on in their mind [and] what they were thinking․”  Young testified the person's disclosure of his past sexual history and the sexual history polygraph were “critical” to this process because a person's past behavior is helpful for understanding how to prevent future behavior.

Young testified that just acknowledging he committed the offense was a “boundary” for appellant.   And while appellant eventually admitted to committing the offense, “that was about as far as [she] could go because, [she] didn't have any history of prior negligent behavior.”   Young stated appellant did not get to the next step of identifying his underlying beliefs because he “didn't allow himself to be vulnerable enough.”   Young described appellant as “guarded” in group sessions and related that he had a “hard time participating in terms of his own deviance.”   Young clarified that offenders have to be willing to report their own sexual deviance so she can figure out ways to help them control their impulses.

Young acknowledged she met with appellant close to fifty times between August 2008 to August 2009 when he was discharged and that appellant attended every meeting.   Yet his progress reports prepared during the year reflected minimal or no progress was being made.   Young explained that appellant's “participation was not on target in terms of his own issues.”   She testified appellant had problems with active participation and that at times appellant would “refuse to talk” and “would just sit there” when asked a question.   She emphasized this behavior could not be tolerated because it was disruptive to the group and not helpful to appellant's treatment.

Young acknowledged that two months before appellant's discharge, she had a “glimmer of hope” concerning appellant's progress in the program.   In a June 9, 2009 progress report, Young wrote that appellant “seem[ed] to understand that he is not the victim—his journaling has improved dramatically and he is presenting the correct thought processes—however, he is still being manipulative regarding the sexual history polygraph.”   Young explained this was a “brief time” when she thought appellant was going to make it.   But as they “kept pressing [appellant] for the polygraph, he became more and more guarded, and [his] participation just dropped from there.”

According to Young, appellant's refusal to take the polygraph was not the only reason he was discharged from the sex offender treatment program.   Specifically, she testified:

[Appellant] couldn't participate because he would [have] had to disclose information, and he was unwilling to do that.   So, he was guarded and his participation was not on target in terms of his own issues, his attitude stunk there at the end, and he just wasn't getting anywhere.

Young did not believe appellant would benefit by some other type of sex offender treatment program.   She claimed that unless appellant acknowledged and came to terms with his past behaviors, his chance of getting better was low.

Mann testified that since appellant's discharge from treatment, there had been several offers to withdraw the motion to revoke appellant's community supervision if he would “get back into counseling, take a sexual history polygraph and make progress.”   Mann stated appellant refused to do so.   Mann confirmed appellant could not get back into sex offender counseling without taking the polygraph because the State requires it in all sex offender treatment programs.

The trial court found appellant violated conditions thirty and thirty-six of his community supervision and adjudicated his guilt.   Following a punishment hearing, the trial court sentenced appellant to eighteen years' imprisonment.

Legal Standards

In community supervision revocation cases, the State has the burden to prove the allegations in a motion to revoke by a preponderance of the evidence.   See Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984);  Lee v. State, 952 S.W.2d 894, 897 (Tex.App.—Dallas 1997, no pet.) (en banc).   The preponderance of the evidence standard is met when the greater weight of the credible evidence before the trial court supports a reasonable belief that a condition of community supervision has been violated.  Rickels v. State, 202 S.W.3d 759, 763–64 (Tex.Crim.App.2006).   Proof of any one violation is sufficient to support a revocation.  Lee, 952 S.W.2d at 900.   Once evidence is presented, the trial court has the discretion either to continue, modify, or revoke community supervision.  Tex.Code Crim. Proc. Ann. art. 42.12, §§ 5(b), 22(a), 23(a) (West Supp.2011);  Flournoy v. State, 589 S.W.2d 705, 708 (Tex.Crim.App. [Panel Op.] 1979).   Thus, our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion by concluding that appellant violated a condition of his community supervision.   See Rickels, 202 S.W.3d at 763.

In revocation proceedings, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given witness testimony and must determine whether the allegations in the motion to revoke are sufficiently demonstrated.  Lee, 952 S.W.2d at 897.   We therefore view the evidence presented at the revocation proceeding in a light most favorable to the trial court's ruling.  Id.

Discussion

Appellant raises two issues on appeal.   In his first issue, he challenges the trial court's finding that he violated condition thirty of his sex offender conditions by “refusing to obtain a sexual history polygraph.”   Appellant claims he asserted his Fifth Amendment privilege and declined to answer certain questions posed to him during the mandatory polygraph because the information sought was incriminating and would have provided a “link to criminal prosecution.”   In his second issue, appellant maintains the trial court abused its discretion in finding he violated condition thirty-six because his discharge from the program was the natural fall-out from his assertion of his right to remain silent.   Appellant claims the evidence shows his discharge from the program was because he would not disclose his past sexual history during the polygraph or treatment.   Thus, appellant maintains the trial court impermissibly used his silence against him when it revoked his community supervision, adjudicated his guilt, and assessed an eighteen-year prison term.

We begin by noting the Fifth Amendment privilege against self-incrimination, which protects a person from being forced to give testimony that may be used to convict him in a subsequent criminal proceeding, remains available to a person even if he has been convicted of a crime, is in prison, or is on probation.   See Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (“A defendant does not lose this protection by reason of his conviction of a crime․”);  Chapman v. State, 115 S.W.3d 1, 5–6 (Tex.Crim.App.2003) (fact of probation did not diminish probationer's Fifth Amendment privilege).   And that in the probation context, the Supreme Court has “made clear” that a State cannot “constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.”  Murphy, 465 U.S. at 438;  Chapman, 115 S.W.3d at 6. The State does not suggest otherwise.   Rather, the State responds that “even without regard to the failure to submit to the polygraph in question,” there was sufficient evidence to support the trial court's finding that appellant violated condition thirty-six by not completing the required sex offender treatment program.   When we view the evidence in the light most favorable to the trial court's judgment, as we must, we agree.   See Lee, 952 S.W.2d at 897.

The trial court heard testimony that appellant made minimal progress in the treatment program and was not complying with the program's requirements.   Specifically, Young testified appellant failed to complete the sex offender treatment because of his own lack of participation in counseling sessions and his refusal to talk.   She also testified to difficulties in treating appellant, emphasizing appellant's inability to admit to and self-report his own deviant sexual behaviors, such as impulses or fantasies, and that he would provide “generic statements” regarding his own deviance.   She further described appellant as “guarded a lot of the time,” which inhibited his ability to get to the next step of identifying his underlying beliefs.   Young characterized appellant as someone who is still at risk to reoffend because he had not “been in treatment very long and when he was in treatment he did not comply with the requirement.”   In short, Young testified appellant was not “getting anywhere” with his treatment because he did not give Young enough information with which to treat him.   She stated that a person who is not being honest or withholding information does not typically “stay in group very long.”

Appellant contends that had he taken the sexual history polygraph, he would still be in the treatment program.   He claims the evidence shows that in June 2009, he was “doing well” in the treatment program but he was discharged from the program just two months later following a “clear ultimatum” from Mann to take the polygraph by a certain date or be discharged from counseling.   Appellant maintains the timing of his discharge coupled with Mann's threat of discharge and testimony from Young about the importance Young placed on the sexual history polygraph shows his discharge from treatment was because of the polygraph;  therefore his ultimate violation of condition thirty-six was derived from his not wanting to incriminate himself.   But Young specifically testified that the polygraph was not the only reason appellant was discharged from the treatment program.   And the information sought in counseling addressed more than just subjects that might have caused appellant to incriminate himself for other crimes.   In the end, the trial court was the sole trier of Young's credibility and of the weight to be given her testimony.   See id.   Viewed in the light most favorable to the trial court's ruling, we conclude the trial court could have held a reasonable belief that appellant violated condition thirty-six for reasons other than invoking his Fifth Amendment privilege.   Proof of any one violation is sufficient to support a revocation.  Id. at 900.   Therefore the trial court did not abuse its discretion by revoking appellant's community supervision.   We overrule appellant's second issue.

Based on our resolution of appellant's second issue, we do not reach his first issue.   See Tex.R.App. P. 47.1. We affirm the trial court's judgment.

100866HF.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

MICHAEL EDWARD DANSBY, SR., Appellant

No. 05–10–00866–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the County Court at Law of Kaufman County, Texas.  (Tr.Ct.No.25891–CC).

Opinion delivered by Justice Murphy, Justices Bridges and Richter participating.

The Court overrules appellant Michael Edward Dansby, Sr.'s motion for rehearing.   On the Court's own motion, we withdraw the opinion issued March 9, 2012 and vacate the judgment of that date.   This is now the judgment of the Court.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 9, 2012.

/Mary Murphy/

MARY MURPHY

JUSTICE

MARY MURPHY JUSTICE