Berry, Jack Lynn v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed, in Part, and Dismissed, in Part, and Memorandum Opinion filed November 13, 2003

Affirmed, in Part, and Dismissed, in Part, and Memorandum Opinion filed November 13, 2003

In The

Fourteenth Court of Appeals

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NO. 14-02-01240-CR

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JACK LYNN BERRY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 184th District Court

Harris County, Texas

Trial Court Cause No. 702,163

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M E M O R A N D U M O P I N I O N

Appellant Jack Lynn Berry appeals his conviction for indecency with a child. In six issues, appellant contends his community supervision conditions were unconstitutional and void, the trial court improperly admitted testimony during his punishment hearing, and his sentence constitutes cruel and unusual punishment. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm, in part, and dismiss, in part.

Background

Appellant pled nolo contendre to the offense of indecency with a child and, pursuant to a plea bargain, was placed on deferred adjudication for ten years. The State later filed a motion to adjudicate appellant s guilt, alleging appellant had unsupervised contact with a minor in violation of a term of his community supervision. Appellant pled not true to the allegation. After a hearing, the trial court found appellant guilty of indecency with a child and assessed punishment at twenty years confinement.

Conditions of Community Supervision

In his first and second issues, appellant argues the trial court violated his due process rights by conducting a hearing on the State s motion to adjudicate guilt because the only community supervision condition the State accused appellant of violating was unconstitutional and void. It is well settled that an appellant may not appeal from a trial court s determination to proceed with an adjudication of guilt. Tex. Code Crim. Proc. Ann. Art. 42.12 5(b) (Vernon Supp. 2003); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). This prohibition includes challenges to the validity of community supervision conditions claims involving denial of due process. Connolly, 983 S.W.2d at 740 41 (citing Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992)); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). We do not have jurisdiction to consider appellant s issues one and two. Accordingly, we dismiss that portion of this appeal pertaining to issues one and two.

Admission of Statements

In his third issue, appellant contends the trial court erred in admitting testimony during the punishment hearing about incriminating statements appellant made to a polygraph examiner. A condition of appellant s probation required him to participate in a polygraph examination. During the punishment hearing, the polygraph examiner testified over appellant s objection that appellant had admitted to a history of sexual fantasies about children and admitted he had victimized approximately fifteen to twenty children. Appellant claims his statements were not made freely and voluntarily, and, therefore, their admission violated his constitutional right to due process. Specifically, appellant claims that his admissions were not the product of free will because he was required to submit to a polygraph exam or be subject to arrest and a revocation hearing.

A person may not be compelled to make an incriminating statement. U.S. Const. amend. V. However, this privilege against self-incrimination must be invoked in all but a few specific situations in order for a defendant to claim his statement was compelled. Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003). Appellant does not claim, nor has he offered any evidence that he invoked his right against self-incrimination before he told the polygraph examiner about his previous victims. Therefore, we must determine whether the facts of this case fall within the classic penalty situation which relieves a defendant of the obligation to assert his Fifth Amendment privilege. See id.

In the classic penalty situation, a person is threatened with punishment for asserting his privilege against self-incrimination, depriving him of his choice to refuse to answer. Id. (citing Garrity v. New Jersey, 385 U.S. 493, 496 (1967)). In the context of a probation situation, The critical inquiry is whether a state has gone beyond merely requiring a probationer to appear and speak on matters relevant to his probationary status, or whether [it goes] further and require[s] him to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent. Id. at 7 8 (quoting Minnesota v. Murphy, 465 U.S. 420, 436 (1984)). In Murphy, the Supreme Court held that a probation condition requiring a probationer to be truthful with his probation officer did not present a classic penalty situation. Murphy, 465 U.S. at 439. In making this determination, the Court considered the following factors: (1) the obligation was similar to the obligation of a trial witness compelled to appear who must answer truthfully under penalty of perjury, or assert his Fifth Amendment privilege; (2) the probation terms were silent as to the consequences should a probationer assert his Fifth Amendment privilege; (3) there was no evidence the incriminating statements were made because the probationer was threatened with revocation; and (4) even if the probationer believed his probation could be revoked for invoking the privilege, this belief would not have been objectively reasonable because the State cannot carry out a threat to revoke probation for invoking the privilege. Murphy, 465 U.S. at 436 39.

In this case, there is no indication that anyone expressly or impliedly stated that appellant s probation would be revoked if he exercised his privilege against self-incrimination. His probation condition required him to submit to a polygraph examination, but here, as in Murphy, there was no mention of the consequences of invoking his Fifth Amendment privilege during that examination. See id. at 437. Further, appellant did not claim that he made the incriminating statements because he was threatened with probation revocation. Both appellant and the polygraph examiner testified that appellant told the examiner the number of his victims. Neither testified that appellant s statement was in response to a direct question, or that appellant was expressly informed that refusing to divulge the incriminating information would result in the imposition of a penalty. See id. at 437 38. In fact, the polygraph examiner testified that he told appellant he was free to leave the examination at any time. Additionally, any belief by appellant that his probation would be revoked for invoking his Fifth Amendment right would not have been objectively reasonable because the State could not legitimately revoke his probation for that reason. See id. at 438. Because there is no evidence appellant would have been subject to an automatic penalty had he invoked his Fifth Amendment right, appellant was required to assert the privilege. Chapman, 115 S.W.3d at 11. Because he did not invoke this right, appellant s statement was not compelled within the meaning of the Fifth Amendment. Id. at 3. Therefore, we hold the trial court did not err in admitting testimony of appellant s statements to the polygraph examiner. Accordingly, we overrule appellant s third issue.

Cruel and Unusual Punishment

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In his fourth and fifth issues, appellant claims the trial court erred in sentencing him to twenty years confinement because the sentence constitutes cruel and unusual punishment in violation of the Texas and Federal Constitutions. In order to preserve error for appellate review, an appellant must raise the complaint in the trial court. Tex. R. App. P. 33.1(a). Appellant did not object to the sentence either when it was announced or in a post-trial motion. By failing to raise any complaint in the trial court, appellant has waived this issue. Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App. Houston [14th Dist.] 2001, pet. ref d) (citing Stewart v. LaGrand, 526 U.S. 115, 119 (1999)). Accordingly, appellant s fourth and fifth issues are overruled.

In conclusion, that portion of the appeal pertaining to appellant s issues one and two is dismissed for want of jurisdiction. The judgment of the trial court with respect to issues three, four, and five is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 13, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).