No More Bites of the Apple: Probation Revocation and Res Judicata

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).

Sentencing Range and Community Supervision Period Not Linked

The punishment range for a second-degree felony sexual assault is two-twenty years in prison. However, the minimum period of community supervision (i.e. probation) for the same offense is five years. So can a trial court award community supervision if the jury returns a punishment verdict of less than five years? Here’s how this situation played out down in Houston:

A jury found a defendant guilty of the second-degree felony of sexual assault. The jury sentenced the defendant to the minimum punishment (two years) and further recommended community supervision (a recommendation the trial judge is required to take). The trial judge, however, informed the jury that its verdict was illegal because the minimum period of community supervision is five years. The trial court essentially instructed the jury that if it wanted to recommend community supervision, it must sentence the defendant to at least five years (which would then be probated). Following instructions, the jury went back and returned a verdict of five years with a recommendation for community supervision.

Was the trial court correct in his instructions to the jury?

NO, says the Texas Court of Criminal Appeals in Mayes v. State.

There is nothing in Article 42.12 (Tex. Code Crim. Proc.) that states, or even suggests, that the jury must assess a sentence that equals the minimum period of community supervision, the maximum period, or any particular period in between. The jury does not determine the period of community supervision. It assesses the sentence and recommends that the trial judge place the defendant on community supervision. The judge must follow that recommendation, but he has the discretion to determine the appropriate period of supervision, as long as it within the minimum and maximum statutory period.

The CCA opinion makes clear that the statutory minimums for punishment and community supervision are not inextricably linked.

[A] rule that a jury cannot assess the minimum sentence in a case if it also wants the defendant to serve that sentence on community supervision would lead to an absurd result.

Accordingly, the CCA reversed the judgment of the court of appeals.

TDCJ’s Flagrant Violations of Constitutional Law

A releasee (parolee) is entitled to a prompt preliminary hearing once the revocation process has been initiated by the execution of a revocation warrant. Morrissey v. Brewer, 408 U.S. 471 (1972). Due process, according to the Supreme Court of the United States in Morrissey v. Brewer, requires that a preliminary hearing be held “as promptly as convenient” after a parolee has been arrested to “determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.”

In Ex Parte Bohannan, the applicant (parolee) filed an application for writ of mandamus arguing that the Texas Department of Criminal Justice (TDCJ) violated his constitutional rights by failing to hold a preliminary hearing when the State sought to revoke his parole.

While on parole for aggravated rape, applicant was arrested for monitoring violations. However, TDCJ did not hold the required preliminary hearing because it has a standing policy that it does not conduct preliminary hearings while there is a criminal case pending. Once applicant filed for habeas corpus, however, the TDCJ conducted the preliminary hearing. Even though he ultimately received the hearing that he sought, applicant nonetheless requested that the CCA intervene, arguing that his situation is not unique in Texas and that this problem is “capable of repetition, yet evading review” (an exception to the mootness doctrine).

TDCJ, in its brief to the CCA, stated its belief that it need not conduct such a hearing while a criminal case is pending because the court system conducts similar probable cause hearings and a preliminary hearing would only be redundant. In essence, TDCJ was saying they there is no need for them to follow the law.

Ultimately, the CCA held that the case was non-justiciable (moot), so it did not consider the substance of applicant’s claim. However, Judge Keasler, joined by Judges Price, Hervey and Cochran, penned a scathing concurrence (HERE) wherein it warns the TDCJ that if it continues its policy of not granting preliminary hearings in parole revocation cases, “it does so at its own peril.”

The Supreme Court has not made any exceptions to [the preliminary hearing requirement]. Thus, contrary to the assertion of the Texas Department of Criminal Justice (TDCJ), as amicus curiae, such a hearing is not duplicative of any other prior probable cause determination. The failure to comply with Morrissey violates a releasee’s constitutional rights, and our experience with this issue establishes that the Board, pursuant to the policies established by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly established constitutional law. Indeed, TDCJ has admitted as much: “there is no reasonable expectation that the TDCJ will discontinue its policy of not providing a preliminary hearing when a releasee is being held on pending criminal charges . . . .” This is patently unacceptable. And if it “reasonably expects” to continue this policy, it does so at its peril.

The answer for future parolees: MANDAMUS.

Because a claim challenging the Board’s failure to provide a preliminary revocation hearing is non-justiciable, Article 11.07 does not provide an adequate remedy at law for a release to compel the Board to comply with its ministerial duty. But mandamus clearly does. And in response to any future alleged violations on mandamus, as time is of the essence, it may be necessary and appropriate for TDCJ and the Board, through their legal representatives, to appear before us in person to answer any allegation that Morrissey’s mandate is being disobeyed.

A "Shocking" Ruling

In Texas, there are certain types of offenses for which a trial judge may not order community supervision (i.e. Probation). See Tex. Code Crim. Proc. 42.12 § 3g. A jury, on the other hand, in those same cases, may recommend to the judge that community supervision be ordered and the law provides that the judge shall so order it.

Section 6 of Article 42.12 also provides the judge with another probation option – Shock Probation. Shock Probation allows a defendant to be released early from a confinement sentence and placed back on regular probation if:

(1) the defendant is otherwise eligible for community supervision under this article; and
(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony.

BUT…does section (1) mean that the defendant is eligible for Shock Probation if he is eligible for ANY community supervision under 42.12, including jury recommended (i.e. when the judge cannot do it himself) or must be eligible for the more restrictive JUDGE-ORDERED community supervision?

I’ll admit that I was confused when I saw this question posed in the recent CCA case – State v. Posey. In Posey, the State was appealing a decision of the 6th District Court of Appeals (Texarkana) holding that the trial judge can impose Shock Probation in any case in which the defendant is eligible for ANY type of probation under Article 42.12. The State was of the mind that the defendant must have initially been eligible for Judge-Ordered community supervision to later be eligible for Shock Probation.

Posey was convicted of two criminally negligent homicides. Because the jury made a deadly-weapon finding, the judge was unable to order community supervision without a jury recommendation for such. The jury recommended community supervision and the judge ordered it. Later, Posey violated the terms of his community supervision and the State moved to revoke his probation. After Posey had begun serving his resulting confinement sentence, he filed a Motion to Impose Community Supervision and the judge granted Shock Probation. Posey was released from jail and placed back on probation.

The State appealed the issue to the CCA.  Noting an ambiguity in Article 42.12, the Court of Criminal Appeals donned their legislative hats and signed a new bill into law. Here’s the new rule with regard to Shock Probation under section 6 of 42.12:

A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered community supervision.

In so holding, the CCA cleaned up a gap in the law and, in my opinion, interpreted section 6 consistently with section 3. If a trial judge cannot order community supervision without a jury recommendation, then he should not also be able to order shock probation. Good holding, but, of course, you would always prefer that a legislature be the body handing down the law.

Judge Keasler concurred and is of the opinion that the deadly weapon finding precluded the Defendant from being placed on Shock Probation.

Better Study Your Algebra!

Here are a couple more interesting issues that came up recently in Texas published cases:

Better Study Your Algebra
Davis v. State, (14th Ct - Houston) June 29, 2010 - Appellant argued that the trial court abused its discretion by allowing the State to introduce evidence during sentencing of the poor grades he received in school.  Overuling this issue, the Court held:

     Article 37.07 provides, in part, that upon a finding of guilt, evidence may be offered by either party as to any matter the trial court deems relevant to sentencing,‖ and the evidence is not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried.  Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a).
     Although it is questionable that appellant‘s poor grades were relevant to determining an appropriate punishment for appellant, any asserted error in admitting evidence of appellant‘s grades was not harmful.

Even the State Needs Permission Sometimes
Witkovsky v. State, (2nd Ct - Fort Worth) June 24, 2010 - Where there is no showing that the terms or conditions of community supervision were modified, a person’s community supervision cannot be revoked for failure to meet the modified terms.  Because the defendant's community supervision was modified unilaterally, without court authorization, the trial court abused its discretion by revoking the defendant's community supervision on the basis of his failure to successfully complete a particular sex offender treatment program.

"The Best Part of Waking Up..."
Garcia v. State, (4th Ct - San Antonio) July 7, 2010 - Appellant argues that by placing his bare hand in the coffee can to search for marijuana, the police officer destroyed consumable property in violation of the Takings Clause of the Fifth Amendment to the Constitution.  However, the Court held, when property has been seized pursuant to the criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not "takings" for which the owner is entitled to compensation.  The same rule applies even if the property is seized as evidence in a criminal investigation or as the suspected instrumentality of a crime, but is ultimately returned to the owner either because the government does not pursue forfeiture proceedings or because the owner prevails in a forfeiture action.

You Can't Ask That Question

The 2nd District Court of Appeals (Fort Worth) has affirmed that, indeed, there are some questions that cannot be asked a probationer.  In Ex Parte Dangelo, the applicant, who was on probation for pleading guilty to one count of "injury to a child," filed an application for writ of habeas corpus when the trial court incarcerated him after he refused to answer the following questions during a polygraph exam given to him as part of his probation:

1. "Since you have been on probation, have you violated any of its 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 and child for sexual purposes?"; and
4. "Since you have been on probation, have you intentioanlly committed any sexual crimes?"

The applicant claimed that these questions violated his rights under the Texas and United States Constitutions against self-incrimination. (These types of questions tend to be SOP for probationers - especially sex offenders - in Texas.)

The 2nd Court agreed with the applicant, holding:

the trial court’s broad authority to create community supervision terms does not extend to imposing terms that violate a defendant’s constitutional rights as balanced with the goals of the defendant’s probation.

The Fifth Amendment privilege [against self-incrimination] 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.”

To bolster its conclusion that questions 2-4 were unconstitutional, Justice Livingston's opinion cited the Supreme Court case of Minnesota v. Murphy, 465 U.S. 420 (1984), wherein the High Court reasoned:

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.

Applying the Supreme Court's holding in Murphy to the facts of Dangelo's case, the Court stated:

In summary, we hold that 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 general requirement of sex offender counseling and the specific 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.

Pehaps this opinion will spark a change in the probation tactics employed in the various Texas community supervision programs.  At least in the jurisdiction of the 2nd Court, it should, so long as defense attorneys remain aware of what's happening (or probationers are savvy enough to tell someone).

What is a "Final Conviction" for DWI Enhancement Purposes?

More specifically, can a prior judgment be "final" even though the judgment itself specifically states:

IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of two years.

The Court of Criminal Appeals says YES, the judgment is final.

Overruling the 13th District Court of Appeals (Corpus Christie) precedent in State v. Kindred, 773 S.W.2d 766 (Tex. App.-Courpus Christi 1989, no pet.), the CCA held that the above-paragraph "does not pertain to the finality of the judgment of the conviction for enhancement purposes, but rather to the suspension of the sentence necessary to grant community supervision."  Thus, "the court of appeals erred in holding that appellant's offense was not a final conviction."

The case from which this post is derived is Gonzales v. State.  Full opinion HERE.

I realize that this issue is not terribly sexy or interesting, but I just thought I'd pass along the info in case you ever run into this situation in a felony (enhanced) DWI case.

A Probation Officer Can't Do That!

Of course, in Texas, we call our probation officers "Community Supervision Officers" and last week, the 2nd District Court of Appeals (Fort Worth) explained that community supervision officers CANNOT unilaterally modify the conditions of a person's community supervision (probation).

In Witkovsky v. State, the State tried to revoke appellant's community supervision for failure to complete a sex offender treatment program.  The problem with this was that appellant had already completed a treatment program as required by the Court.  The community supervision officer, however, was dissatisfied with appellant's "progress" as a reformed sex offender and unilaterally ordered that he attend a 2nd treatment program.  When appellant failed to complete the 2nd program, the State moved to revoke his community supervision.  Ala Lee Corso from College Gameday - "Not so fast my fiend" - the Court explained that under Aricle 42.12, Section 10(a) of the Texas Code of Criminal Procedure:

only the judge may alter condiditions of community supervision.  Where there is no showing that the terms or conditions of community supervision were modified, a person's community supervision cannot be revoked for failure to meet the modified terms. 

There are exceptions, whereby a Community Supervision officer can modify the terms of the "community supervision by transferring the defendent to different programs within the community supervision continuum of programs," but that was not the case here where the officer tried to impose an additional treatment program on the defendant.

Just Answer the Question, But You Can Lie if You Want

The 11th District Court of Appeals (Eastland) released an opinion yesterday regarding whether the results of polygraph examinations can be used as evidence to revoke community supervision.

Here are some highlights:

This case presents an interesting paradox: courts routinely require sex offenders on community supervision to take and pass polygraph exams - even though their mere existence, let alone results, is inadmissible. But Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes.

Unless and until, the Court of Criminal Appeals lifts its ban on polygraph test results, trial courts lack the discretion to revoke an individual's community supervision for failing an exam.

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program.  Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation.  Nor do we hold that failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

So, to summarize the summary, Courts may impose polygraph exams as a condition of community supervision and the inidividual must submit to the exam, but they can completely fail the exam by totally lying throughout and their community supervision cannot be revoked.  That's an interesting loophole.

See the full opinion in Leonard v. State HERE.