Ex Parte Renfro
Ex Parte Renfro
Opinion of the Court
MAJORITY OPINION
Charles Anthony Renfro (Appellant) pled guilty to the third degree felony offense of indecency with a child. See Tex. Penal Code Ann. § 21.11(a)(2) (Vernon 1994). Upon conviction, Appellant received community supervision for a term of ten years. See TexUode ÜRiM. Proo. Ann. art. 42.12, § 3(b) (Vernon Supp. 1999). Approximately five years into the term of his community supervision, the conditions of Appellant’s community supervision were amended to require Appellant submit to a polygraph examination to assist in treatment, planning, and case monitoring.
I.
Although it is not necessary for an applicant for a writ of habeas corpus to be actually confined in jail, the applicant must suffer some restraint to justify the issuance of the writ. Ex parte Sealy, 870 S.W.2d 663, 666 (Tex.App.-Houston [1 st Dist.] 1994, no pet.); see also Ex parte Calhoun, 127 Tex. 54, 91 S.W.2d 1047, 1048 (Tex. 1936). It has been held that community supervision was a sufficient restraint on liberty to permit relief by writ of habeas corpus where the terms and conditions of community supervision required the applicant, as here, to report to a probation officer at least once a month and prohibited him from traveling outside Harris County without permission from the trial court. Id.; see also Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.App. 1977).
II.
In his first point of error, Appellant contends that the condition of his community supervision
We note that the district court possesses wide discretion in selecting conditions of community supervision. Marcum v. State, 983 S.W.2d 762, 768 (Tex.App.-Houston [14 th Dist.] 1998, pet. ref'd); see
III.
In his second point of error, Appellant contends that the district court erred in not removing the polygraph condition of his community supervision because requiring him to submit to such an examination as a condition of community supervision is in violation of his Fifth Amendment privilege against self-incrimination.
Community supervision conditions must be reasonably related to the treatment of the probationer and the protection of the general public. Marcum, 983 S.W.2d at 768. A condition of community supervision is invalid if it contains all three of the following characteristics: (1) it has no relationship to the crime; (2) it relates to conduct that is not in itself criminal; and (3) it forbids or requires conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of community supervision. Id.
Applying these rules to the instant case, we find that the polygraph condition is valid.
Appellant also contends that the polygraph condition violates his privilege against self-incrimination. Appellant misconstrues the nature of the privilege. The privilege against self-incrimination is not self-executing; it must be claimed. Minnesota v. Murphy, 465 U.S. 420, 427-28, 104 S.Ct. 1136, 1142-43, 79 L.Ed.2d 409 (1984). Although the Appellant has a duty to answer the polygraph examiner’s questions truthfully, unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered. MThe mere requirement of taking the test in. itself is insufficient to constitute an infringement of the privilege. See Miller, 208 Cal.App.3d at 1315, 256 Cal.Rptr. at 590.
Related to this constitutional argument is Appellant’s contention concem-ing whether he is entitled to Miranda warnings before the polygraph examination. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, Miranda warnings are not necessary prior to the administration of a polygraph examination under the circumstances of this case. See Marcum, 983 S.W.2d at 766; see also Miller, 208 Cal.App.3d at 1315-16, 256 Cal.Rptr. at 589. The polygraph condition is designed to help evaluate the truthfulness of Appellant’s reports and the purpose and objectives of probation would be frustrated if a convicted defendant could maintain a right of silence at the time of his report to a probation officer. See generally id.; Miller, 208 Cal.App.3d at 1315-16, 256 Cal.Rptr. at 589. When subject to a polygraph examination as an investigative tool alone, a probationer is not placed in any worse position than he would otherwise be were there no polygraph condition. See id. In either case, the probation officer may fully investigate the probationer’s compliance with conditions whether or not a polygraph is used.
The trial court did not abuse its discretion by amending Appellant’s conditions of community supervision to include the polygraph examination requirement for the limited purpose as an investigative tool. Point overruled.
The judgment is affirmed.
. Appellant’s community supervision is scheduled to expire on July 20, 2003.
. The terms "community supervision” and “probation” share the same meaning and are generally used interchangeably. Rodriguez v. State, 939 S.W.2d 211, 221 (Tex.App.-Austin 1997, no pet.).
. Harris County Community Supervision and Corrections Department.
. Several jurisdictions have upheld the validity of polygraph examinations as a condition of community supervision where the probationer was convicted of a sex crime involving minor children. See, e.g., State v. Lumley, 267 Kan. 4, 977 P.2d 914, 918-21 (1999) (condition valid because it helped monitor compliance and operated as a deterrent to future criminal conduct, and there is no privilege against self-incrimination available to the probationer on the ground that information sought through a polygraph examination might be used in a subsequent probation revocation hearing); Cassamassima v. State, 657 So.2d 906 (Fla.Dist.Ct.App. 1995) (en banc) (polygraph condition of probation reasonably related to the offender’s probation in that it deters him from violating the terms of probation by instilling in him a fear of detection, and was properly imposed so long as the results of the polygraph are not offered in evidence); State v. Tenbusch, 131 Or.App. 634, 886 P.2d 1077 (1994), cert. denied, 516 U.S. 991, 116 S.Ct. 523, 133 L.Ed.2d 430 (1995) (polygraph condition of probation valid because, inter alia, the main function of a polygraph appears to be the added psychological factor that if the probationer fails to tell the truth, he will be detected); People v. Miller, 208 Cal.App.3d 1311, 256 Cal.Rptr. 587 (Cal.Ct.App. 1989) (polygraph condition of probation was reasonably related to the defendant’s offense and reasonably related to future criminality and was properly imposed on the defendant for the limited purpose as an investigatory tool).
Concurring Opinion
concurring.
Our United States Constitution, the Fifth Amendment, plainly provides that no person “shall be compelled in any criminal case to be a witness against himself.” This privilege extends to official questions beyond strictly criminal cases and applies to official questions in other proceedings, “civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”
The courts and probation officers can compel attendance, questioning, and truthful responses, as the majority stated. The probationer has a duty to answer the polygraph examiner, “unless he invokes the privilege, [and] shows a realistic threat of self-incrimination.”
. See Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).
. Id.
. Id. at 437, 104 S.Ct. 1136.
. Id.
. See People v. Miller, 208 Cal.App.3d 1311, 256 Cal.Rptr. 587, 589 (1989).
. See generally Minnesota, supra.
Reference
- Full Case Name
- Ex Parte Charles Anthony RENFRO
- Cited By
- 45 cases
- Status
- Published