ELVIE TREMAINE ARNOLD, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND and Opinion Filed July 31, 2008
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00120-CR
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ELVIE TREMAINE ARNOLD, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 354th District Court
Hunt County, Texas
Trial Court Cause No. 22,493
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OPINION
Before Justices O'Neill, Richter, Lang
Opinion By Justice Richter
        Elvie Tremaine Arnold was convicted of possession of 2000 pounds or less, but more than 50 pounds of marijuana and sentenced to ten years' imprisonment. Appellant challenges the punishment portion of the judgment in four issues, asserting: (1) the trial court violated his Fifth Amendment privilege against self-incrimination by coercing him into taking a polygraph examination; (2) the trial court violated his fundamental right to due process by failing to ensure a fair and just sentencing hearing; (3) the trial court abused its discretion by considering his coerced confessions in sentencing; and (4) he was denied effective assistance of counsel. For the reasons that follow, we reverse the trial court's judgment on punishment and remand for a new sentencing hearing.
Background
        Appellant was arrested when a search of the car he was driving revealed several large suitcases containing 175 pounds of marijuana. Appellant was subsequently charged by indictment with the second degree felony offense of possession of 2000 pounds or less, but more than 50 pounds of marijuana. Appellant entered an “open” plea of no contest and elected for the trial court to assess his punishment. The trial court ordered a pre-sentence investigation report (PSI). Appellant also filed an application for community supervision. During the first part of the punishment hearing, the state introduced the PSI into evidence. The PSI reflected that appellant had two other drug convictions. The first conviction was a misdemeanor, and the second a felony for which appellant was on parole in Arkansas. Appellant testified he had been arrested and sentenced to prison in Arkansas after his arrest for the marijuana offense in Texas. Appellant further testified he did not knowingly possess marijuana. Instead, he claimed he was driving the car for a friend who was helping his girlfriend move. The trial court questioned appellant about the details of his testimony without objection. Appellant urged the court to consider deferred-adjudication community supervision. The probation officer who completed the narrative portion of the PSI reported that appellant was performing well on parole in Arkansas and recommended placing appellant on deferred-adjudication community supervision for ten years. The probation officer suggested several conditions for the community supervision, including the administration of a polygraph to be done within thirty days of placement on deferred community supervision. If the appellant failed the polygraph, the officer recommended appellant serve 180 days in jail. If he passed the polygraph, no jail time was recommended.
         Before pronouncing sentence, the trial court challenged appellant's veracity and stated:
 
Mr. Arnold, I find your story kind of incredible and unbelievable. I can't give somebody that I find incredible and unbelievable deferred probation. I'm prepared to go ahead and announce a sentence in TDC.
 
 
 
I've got one alternate suggestion that I'm going to let you discuss with [counsel]. If you can convince me by passing a polygraph that you had no knowledge of anything in the car being prohibitive, I might consider deferred. However, if you fail the polygraph, the amount of time I give you in TDC will probably double.
 
 
 
Keep in mind . . . that the state cannot introduce a polygraph as evidence in a case. You don't have to consent to a polygraph. But if you do, the results, whether they are good or bad are going to come before me . . . .
 
        After a recess was taken to allow appellant to consult with counsel, appellant informed the court he would take the polygraph. The court reminded appellant the number of years assessed as punishment would be increased if he failed the test. Counsel did not object. At the conclusion of the hearing, the court instructed the sheriff to take appellant into custody and schedule the administration of the polygraph.
        Appellant failed the test. The punishment hearing reconvened approximately two weeks later. Although the polygraph results were neither offered nor admitted into evidence, the court had the polygraph results before it, and counsel did not object. Appellant testified again and attempted to explain why he failed the polygraph. On cross-examination, appellant admitted he knew there was marijuana in the back of the car, but claimed he did not know there was 175 pounds of marijuana. The court stated, “. . . when I last swore you in, you lied to me. I said I didn't believe you. We sent you through a polygraph. And when you failed the polygraph, then you decided you were going to tell the truth.” Appellant acknowledged he had not expected to pass the polygraph. The trial judge reminded appellant he said he would double the sentence if appellant failed the polygraph and stated, “[w]ell, I guess we'll live with our deal.” Appellant was sentenced to ten years' imprisonment. Although there was no express finding of guilt before the sentence was pronounced, the judgment subsequently entered by the court reflects appellant was adjudged guilty.
         Discussion
Due Process-Was the Proceeding Fundamentally Unfair?        
        In his second issue, appellant argues the trial court violated his fundamental right to due process by failing to ensure a fair sentencing hearing.   See Footnote 1  We agree.
         The due process clause provides that no State may “deprive any person of life, liberty, or property without due process of law.” U.S. Const., amend XIV. The touchstone of due process is fundamental fairness. See Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007). Fundamental fairness requires that an accused receive a fair trial before a neutral and detached judicial officer. See Ward v. Village of Monroeville, 409 U.S. 57, 62 (1972); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Thus, a judge should not act as an advocate for any party. Ex parte Parker, 26 S.W.3d 711, 715 (Tex.App.-Waco 2000, no pet.). A judge should not be any party's adversary. Ex parte Finn, 615 S.W.2d 293, 296 (Tex. Civ. App.-Dallas 1981, no writ).
        The State appears to argue the proceeding was not unfair because the sentence was within the range of punishment.   See Footnote 2  The range of punishment is not the issue, but rather the method employed by the trial court to determine the punishment.   See Footnote 3  The Texas Court of Criminal Appeals has erected a policy-based barrier to the admission of the existence and results of polygraph tests. See Tennard v. State, 802 S.W.2d 678, 683-84 (Tex. Crim. App. 1990); Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985). The results of polygraph examinations are inadmissible for all purposes. Russell v. State, 798 S.W.2d 632, 635 (Tex. App.-Fort Worth 1990, no pet.). This proposition holds true “[e]ven if the State and the defendant agree and stipulate to use the results of a polygraph at trial. . . .” Nethery v. State, 692 S.W.2d at 700; see also, Nesbit v. State, 227 S.W.3d 64, 67 (Tex. Crim. App. 2007). The rule is not altered by the fact that the proceeding is a bench trial. See Reed v. State, 48 S.W.3d 856, 861 (Tex.App.-Texarkana 2001, pet. ref'd). The reason polygraph results are excluded is because they are inherently unreliable and have a tendency to be unduly persuasive. See Banda v. State, 727 S.W.2d 679, 681 (Tex. App.-Austin 1987, no pet.). This rationale is particularly compelling when a polygraph is used by the trial court to challenge a defendant's veracity for the purpose of determining punishment. “Due process and those individual rights that are fundamental to our quality of life co-exist with, and at times override, the truth-finding function.” Morrison v. State, 845 S.W.2d 882, 884 (Tex. Crim. App. 1992).
         The State insists the trial court determined the sentence based upon the relevant evidence before it. But the trial judge's comments suggest otherwise. The judge acknowledged appellant could not be required to take the test and the results would not constitute admissible evidence. Despite this express recognition of the legal limitations placed on the use of polygraph exams, the trial court not only offered appellant the “option” to take a test, but relied on the results to sentence him. Failure to object to polygraph evidence ordinarily results in waiver of the error. See Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.-Houston [14th Dist.] 2003, pet ref'd). But this is not an ordinary case. Here, the polygraph results were neither offered nor admitted into evidence. The trial court solicited, procured, considered, and relied on inherently unreliable information to determine the sentence. A court cannot maintain its status as a neutral arbiter when it instigates the creation of evidence that is uniformly recognized as inadmissible for all purposes.
         The State also argues the trial court has broad authority to employ a wide range of sentencing options. But we are aware of no authority nor has any been provided which allows a court to initiate an extra-judicial challenge to a defendant's veracity to impose an additional sentence for unindicted perjury. Some courts have required sex offenders to submit to polygraph tests as a condition of community supervision. See Ex parte Renfro, 999 S.W.2d 557, 560 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). This is not such a case. Here, the probation officer recommended the polygraph as a condition of community supervision to occur after appellant was placed on deferred adjudication. We do not comment on that suggestion. The trial court, however, ventured far beyond requiring the polygraph as a condition of community supervision and utilized the polygraph to assess punishment. The broad range of the court's authority does not extend this far.
         A judge is not only charged with being impartial, but must also avoid the appearance of partiality. Collaterally, cases involving a trial judge's participation in plea discussions have some applicability to our problem. A judge should be careful not to step outside his role as a judge and assume the role of prosecutor. See Perkins v. State, 7 S.W.3d 683, 690 (Tex.App.-Texarkana, 1999, pet. ref'd). Thus, a trial judge cannot participate in plea discussions prior to an agreement being reached between the defense and the prosecution. See Perkins v. Third Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987). The reason is that the trial judge should always avoid the appearance of any judicial coercion or prejudgment of the defendant since such influence might affect the voluntariness of the plea. Id. If a trial judge improperly participates, the inquiry becomes whether the plea was voluntarily made or the result of judicial coercion. See Ex parte Shuflin, 528 S.W.2d 610, 615 (Tex. Crim. App. 1975); see also, State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 8-9 (Tex. Crim. App. 1983). Although this case involves a non-negotiated plea rather than a plea negotiation, the element of judicial coercion, coupled with the court's improper reliance on the polygraph casts a similar taint on the process. In his assumption of a role more in vein of the role of prosecutor, the trial judge abandoned the appearance of impartiality.
        Although we do not reach appellant's Fifth Amendment claim, the element of judicial coercion is germane to our consideration of the overall fundamental fairness of the proceeding. A trial judge may not properly threaten a defendant with a more severe sentence if he does not admit his guilt. See U.S. v. Rodriguez, 498 F.2d 302, 312 (5th Cir. 1974). Rodriguez involved a sentencing hearing for Rodriguez and several co-defendants charged with participation in a conspiracy. When the judge addressed each of the defendants he told them he had no compassion for those who did not tell him the truth, and there was no mistaking what the judge believed to be the truth. After listening to the interchange between the court and his co-defendants, one defendant admitted his participation. When this occurred, the judge remarked “well, at least this boy is telling me the truth.” After this confession, the court re-directed its attention to Rodriguez, and put heavy pressure on him to confess. Rodriguez confessed, and challenged his sentence on appeal. The Fifth Circuit held the trial court's sentencing tactics constituted an abuse of discretion and vacated the sentence. In so doing, the court held that a court cannot place the defendant in the dilemma of either abandoning his Fifth Amendment rights or facing a harsher sentence. A defendant's rights must not be made the price of sentencing leniency. Id. See also, Carroll v. State, 68 S.W.3d 250 (Tex.App.-Fort Worth 2002, no pet.) (coerced testimony at sentencing violated Fifth Amendment).
        Similarly coercive tactics were employed here. The trial court refused to consider deferred adjudication unless appellant could convince the court through a polygraph that he did not knowingly possess marijuana.   See Footnote 4  When a defendant is placed on deferred adjudication, the trial court accepts the defendant's plea of guilty or nolo contendere, finds the evidence substantiates the finding of guilt, defers the adjudication of guilt, and places the defendant on community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 §5 (Vernon Supp. 2007).    See Footnote 5  Thus, appellant was threatened with more severe punishment if he failed to acquiesce to the court's extra-judicial challenge to his testimony. Although the court ostensibly gave appellant an option to decline the polygraph, the option was tantamount to a Hobson's choice. If he declined the polygraph, a more severe punishment was inevitable. The trial court made appellant a proverbial offer he could not refuse.
        The State argues the trial court has absolute discretion whether to grant or withhold community supervision, see Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979), and that the determination is absolute and unreviewable. See Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). This argument is misplaced. The error lies not in the refusal to grant community supervision, but rather the untenable position in which the trial judge placed appellant before he would even consider it.
        In Jefferson v. State, 803 S.W.2d 470, 471 (Tex.App.-Dallas 1991, pet ref'd), we reversed the trial court's sentence where the trial court told the defendant upon deferring his sentence that if he violated his probation, the maximum sentence would be imposed. When the State subsequently filed a motion to adjudicate, the trial court noted its previous warning and refreshed the defendant's memory about the promise of a maximum sentence for a probation violation. This court concluded the trial court's actions resulted in a denial of due process because the trial court's action effectively excluded evidence relevant to punishment, precluded consideration of the full range of punishment, and deprived the defendant of a fair and impartial tribunal at the punishment hearing. Id. at 472.
        We conclude a similar denial of due process occurred here. The trial court did not exclude relevant evidence, but the initiation and consideration of the polygraph to challenge appellant's testimony and assess his sentence is equally offensive to the notion of fundamental fairness. Likewise, the element of judicial coercion casts a dark shadow of bias on the entire proceeding. These factors combined to infect the process with such unfairness as to deny appellant a fair and impartial tribunal in violation of his right to due process of law.
Characterization of the Error-Was the Error Structural, Waivable, or Waived?
        We have concluded the trial court violated appellant's right to due process by failing to ensure a fair sentencing hearing. We must now determine whether the issue was waived due to appellant's failure to object in the court below.
         The general rule is that preservation of error requires a timely, specific objection at trial and a ruling by the trial court. See Tex. R. App. P. 33.1; see also, Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995). Although appellant failed to preserve error by objecting in the trial court, Texas law provides that a limited class of errors in criminal cases may be presented for the first time on appeal. See Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim App. 1997). In Marin, the Texas Court of Criminal Appeals identified three categories of rights. The first category of rights are those “widely considered to be so fundamental to the proper functioning of our adjudicatory process . . . that they cannot be forfeited by inaction alone.” Id. at 279; see also, Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.). These rights are frequently described as “systemic” or “structural.” See Mendez v. State, 138 S.W.3d 334, 340-41 (Tex. Crim. App. 2004). Structural errors are federal constitutional errors labeled by the United States Supreme court as such. Johnson v. State, 169 S.W.3d 223, 237 (Tex. Crim. App. 2005). The lack of an impartial trial judge is one of the types of errors that have been identified as structural. Id. The second category is comprised of rights that are “waivable.” Waivable rights cannot be forfeited by mere inaction, but can be waived if the waiver is affirmatively, plainly, freely, and intelligently made. Id. The third category of rights are “forfeitable” and must be requested by the litigant. Id. Errors involving structural or “waivable” rights may be raised for the first time on appeal. Mendez, 138 S.W.3d at 342; Deener v. State, 214 S.W.3d 522, 527 (Tex. App.-Dallas 2006, pet. ref'd).
         Because the trial court's actions created the appearance of unfairness and a lack of impartiality, appellant was deprived of his fundamental right to a fair sentencing hearing before an impartial tribunal. The harm is so severe that we need not inquire into actual prejudice. The error committed in this case was an error in the hearing itself, rather than an error in the hearing process. Consequently, we conclude the error was structural, and was not waived by counsel's failure to object at trial. A structural error is not subject to harm analysis.    See Footnote 6  See Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Because our resolution of this issue is dispositive, we need not reach appellant's remaining issues.
        We sustain appellant's second issue, reverse the sentence imposed by the trial court and remand the case for new sentencing.
 
                                                                          
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
 
 
 
 
Do Not Publish
Tex. R. App. P. 47
 
                                                          
                                                          
 
 
 
                                                          
                                                                                          
 
 
                                
 
 
 
 
        
 
 
Footnote 1 Although appellant also references due course of law under the Texas Constitution, our inquiry is confined to the issue that was briefed.
Footnote 2 The range of punishment for a second degree felony offense of possession of marijuana in an amount of 50 pounds or more but less than 2000 pounds is not less than 2 years or more than 20 years imprisonment, and an optional fine of up to $10,000. See Tex. Penal Code Ann. § 12.33 (Vernon 1994).
Footnote 3 A court's arbitrary refusal to consider the full range of punishment or imposition of a predetermined sentence violates due process. See Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005). But this issue was not preserved for our review.
Footnote 4 Knowing or intentional possession is an element of the offense with which appellant was charged. See Tex. Health & Safety Code Ann. § 481.121 (5) (Vernon 2003). Although appellant asserts error only in connection with sentencing, because the court had yet to make a finding of guilt at the time of the polygraph, it appears the court also used the polygraph to make a determination concerning one of the requisite elements of the offense.
Footnote 5 “Community supervision” means the court's placement of a defendant under a continuum of programs and sanctions, with conditions imposed by the court for a specified period. See Tex. Code Crim. Proc. Ann. art. 42.12 § 2 (Vernon Supp. 2007).
Footnote 6 Because the trial court relied on the polygraph in determining the sentence, even if we were to analyze the harm, we could not conclude beyond a reasonable doubt that the error made no contribution to appellant's sentence. See Tex. R. App. P. 44.2 (a).