Rickie Wayne Selby v. State

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________

NO. 09-16-00287-CR
____________________

RICKIE WAYNE SELBY, Appellant

V.

THE STATE OF TEXAS, Appellee
__________________________________________________________________

On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CR25185
__________________________________________________________________

OPINION

Appellant Rickie Wayne Selby appeals the trial court’s denial of his motion

for new trial, in which he alleged, among other issues, that his pleas of “true” during

a proceeding to revoke his community supervision were involuntary and made as a

result of ineffective assistance of counsel. Because we conclude that Selby’s trial

counsel’s performance fell below an objective standard of reasonableness and

prejudiced his defense, we reverse the trial court’s order denying Selby a new trial

and remand for a new revocation hearing.

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BACKGROUND

Selby pleaded guilty to aggravated sexual assault of a child, a first-degree

felony. The trial court deferred an adjudication of guilt and placed Selby on

community supervision for a period of ten years. As a condition of his community

supervision, Selby was ordered to “submit to polygraph evaluations as instructed by

the sex offender therapist or community supervision officer, who shall designate the

polygraph examiner to be utilized.” During the plea hearing, Selby represented to

the trial court that he had reviewed the paperwork concerning his plea agreement

with his attorney and understood the terms, which included the sex offender

registration admonishments and the additional terms and conditions of his

community supervision. Selby’s attorney also indicated that he had talked with Selby

on numerous occasions about the various aspects of the plea agreement. During the

hearing, the trial judge specifically asked whether the sex offender conditions of

Selby’s community supervision included polygraph testing, and the prosecutor

indicated that Selby was to undergo a polygraph examination every six months.

Selby’s counsel agreed that the plea agreement included a polygraph examination

every six months. At that point, Selby did not object to the polygraph examinations

as being an unreasonable condition of his community supervision.

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Subsequently, the State filed a motion to revoke Selby’s unadjudicated

community supervision alleging that Selby had violated the conditions of his

community supervision by viewing or possessing sexually stimulating or sexually

oriented materials and by having contact with a minor. Selby pleaded “true” to both

violations, and the trial court found that Selby had violated the conditions of his

community supervision. After conducting a punishment hearing, the trial court

sentenced Selby to a term of ninety-nine years in prison.

With new counsel, Selby moved for a new trial alleging that, among other

things, the State did not file a valid motion to revoke prior to the expiration of his

community supervision, a valid capias had not issued prior to the expiration of this

period, the State’s motion to revoke was based on inadmissible polygraph evidence,

he had been placed in a “classic penalty” situation whereby he was required to

candidly participate in the polygraph process or face revocation of his probation, and

his pleas of “true” were involuntary and unknowingly made as a result of ineffective

assistance of counsel without knowledge or advice that he could challenge the

State’s inadmissible polygraph evidence. The trial court conducted a hearing on

Selby’s motion for new trial, and after hearing evidence, the trial court denied

Selby’s motion for new trial and found no evidence of ineffective assistance by

Selby’s trial counsel.

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STANDARD OF REVIEW

We review a trial court’s ruling on a motion for new trial for an abuse of

discretion, “reversing only if the trial judge’s opinion was clearly erroneous and

arbitrary.” Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We view the

evidence in the light most favorable to the trial court’s ruling, must not substitute

our judgment for that of the trial court, and must uphold the ruling if it was within

the zone of reasonable disagreement. Id.; Wead v. State, 129 S.W.3d 126, 129 (Tex.

Crim. App. 2004). When there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous. Riley, 378 S.W.3d at

457. A trial court abuses its discretion in denying a motion for new trial if no

reasonable view of the record could support its ruling. Id.; Webb v. State, 232 S.W.3d

109, 112 (Tex. Crim. App. 2007).

ANALYSIS

In issue one, Selby contends that the trial court lacked jurisdiction to revoke

his probation. According to Selby, the record establishes that the motion to revoke

his unadjudicated community supervision was not filed before his community

supervision period expired, because although the document is file-stamped April 1,

2016, the file-stamp cannot be trusted because the record shows that it had been

altered. Selby also argues that a valid capias did not issue before his community

4
supervision expired, because the record shows that the original capias is not signed

by a deputy district clerk, is not officially attested to, does not bear the seal of the

State of Texas, and is not file-stamped. The State maintains that the trial court had

jurisdiction to revoke Selby’s community supervision.

A trial court retains jurisdiction to hold a hearing and to proceed with an

adjudication of guilt, regardless of whether the period of community supervision

imposed on the defendant has expired, “if before the expiration the attorney

representing the state files a motion to proceed with the adjudication and a capias is

issued for the arrest of the defendant.” Tex. Code Crim. Proc. Ann. art. 42.12 § 5(h)

(West Supp. 2016). “The operative rule is that the duration of a time period during

which a person suffers specified restrictions upon his freedom by virtue of either a

sentence of imprisonment or community supervision includes the first day in which

such restrictions upon freedom operate and excludes the anniversary date.” Nesbit v.

State, 227 S.W.3d 64, 68 (Tex. Crim. App. 2007) (footnote omitted).

The relevant time period with respect to the capias requirement is the time at

which the capias is actually issued. Ex parte Moss, 446 S.W.3d 786, 792 (Tex. Crim.

App. 2014). Chapter 23 of the Texas Code of Criminal Procedure defines a capias

as a writ that is “‘issued by a judge of the court having jurisdiction of a case after

commitment or bail and before trial, or by a clerk at the direction of the judge[.]”

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Tex. Code Crim. Proc. Ann. art. 23.01(1) (West 2009). A capias is sufficient if it has

the following requisites: runs in the name of the State of Texas, names the person

whose arrest is ordered, specifies the offense of which the defendant is accused,

names the court to which and the time when it is returnable, and indicates that it is

dated and attested officially by the authority issuing the same. Tex. Code Crim. Proc.

Ann. art. 23.02 (West 2009).

In his motion for new trial, Selby requested that the trial court issue findings

of fact and conclusions of law. The trial judge denied the motion for new trial

without issuing findings of fact and conclusions of law. When a trial court fails to

make specific findings of fact and conclusions of law, it is presumed that the trial

court made the necessary findings to support its decision. Ice v. State, 914 S.W.2d

694, 695 (Tex. App.—Fort Worth 1996, no writ.). Because the order the trial judge

signed denying Selby’s motion for new trial does not state that it found that the

motion to revoke was timely filed and that a valid capias was timely issued, the

implied findings in this case include all the findings necessary to support the legal

conclusion that the trial court had jurisdiction to revoke Selby’s community

supervision. See id. at 695-96. This includes the implied findings that the motion to

revoke was timely filed and the original capias was signed by the district clerk and

timely issued.

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Both Selby and the State agree that the first day of Selby’s ten-year period of

community supervision was April 4, 2006, and that his expiration date was April 3,

2016. The record shows that the State’s motion to revoke is file-stamped April 1,

2016. Although Selby argues that the file-stamp cannot be trusted because the

document indicates that it was filed at ten o’clock in the morning, which is prior to

the time that Selby made admissions during the pre-test polygraph interview that are

the basis of the violations in the motion to revoke, our review of the record supports

the implied finding that the motion was timely filed.

Matthew Poston, the assistant district attorney who signed the motion to

revoke, testified that he assisted in preparing the motion. Poston explained that in

addition to the motion to revoke, a judge’s fiat, the alias capias, and the precept to

serve were also prepared on April 1. Poston testified that on April 1, he presented

the motion to revoke, the judge’s fiat, the alias capias, and the precept to serve to

Judge Morefield for approval sometime after 3:27 p.m. According to Poston, Judge

Morefield determined that the petition to revoke was sufficient to order Selby’s

arrest, and Judge Morefield signed the judge’s fiat on April 1. Poston explained that

the paperwork was filed immediately after the judge signed the fiat.

Tania McGrath, the deputy district clerk, testified that she is the designated

criminal clerk for the 75th District Court and that Delores Wiley is the designated

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criminal clerk of the 253rd District Court. McGrath testified that when she receives

a document at the district clerk’s counter, she file-stamps it. McGrath explained that

the time should be filled in when the document is given a Bates stamp, but there are

occasions when the time is not filled in. According to McGrath, when a clerk

receives a document that has been file marked but does not have the time filled in,

the “general rule of thumb is to put it at 10:00 a.m. because that’s when answers are

due and the general mail generally gets there.”

McGrath testified that the motion to revoke was file-stamped on April 1, and

it was assigned to the 253rd District Court, but Wiley, the designated clerk for the

253rd, was not working on April 1. McGrath testified that it was her name written

underneath the file-stamp on the State’s motion to revoke that was filed on April 1.

McGrath further testified that she did not write in the 10:00 a.m. time. According to

McGrath, she issued the alias capias and the precept to serve on April 1. McGrath

explained that she made copies of the documents and placed them in Wiley’s basket.

Wiley agreed that there was an office policy to put 10:00 a.m. on documents

that had been filed with the clerk’s office but which did not include a time. Wiley

testified that when another clerk receives a criminal document belonging to the

253rd, Bates stamps it, and places it in her basket, she puts 10:00 a.m. on the

document if it does not have a time. Wiley testified she was not at work on Friday,

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April 1, and on the following Monday, she wrote in the 10:00 a.m. time on the

motion to revoke. Wiley also testified that State’s Exhibit M, which is the returned

alias capias, shows that the alias capias was signed by McGrath and issued on April

1.

Donna Brown, the District Clerk, testified that the motion to revoke, judge’s

fiat, alias capias, and precept to serve were issued on April 1. Brown agreed that an

alias capias needed a signature to be valid, and she testified that she did not know

whether State’s Exhibit H, a copy of the alias capias, had a signature. However,

Brown testified that State’s Exhibit H is an unreturned copy of the alias capias, and

the clerk’s file shows that the original, returned alias capias was signed. Brown

explained that the sheriff’s office stamped the original with a sad face stamp, and

that stamp indicates that a document is the original.

We conclude that the record shows that the State’s motion to revoke was

timely filed on April 1, and that the original alias capias for Selby’s arrest was signed

by McGrath and also issued on April 1. We further conclude that the trial court had

jurisdiction to revoke Selby’s probation. We overrule issue one.

In issue two, Selby maintains that his pleas of “true” were involuntary,

unknowing, and made as a result of ineffective assistance of counsel. Selby argues

that the motion to revoke was based on inadmissible polygraph evidence, and his

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waiver of viable objections to the polygraph evidence and conditions were the result

of inept advice of counsel. Selby maintains that he was prejudiced by his trial

counsel’s deficient performance.

To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-pronged test:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,

726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). An appellant must demonstrate a

reasonable probability that but for his counsel’s errors, the outcome would have been

different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “Appellate

review of defense counsel’s representation is highly deferential and presumes that

counsel’s actions fell within the wide range of reasonable and professional

assistance.” Id.

Counsel has a duty to conduct a reasonably substantial, and independent

examination of the facts, circumstances, pleadings, and laws. Strickland, 466 U.S. at

680. To render reasonably effective assistance, an attorney must have firm command

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of the facts of the case and the governing law. Ex parte Welborn, 785 S.W.2d 391,

393 (Tex. Crim. App. 1990). “It may not be argued that a given course of conduct

was within the realm of trial strategy unless and until the trial attorney has conducted

the necessary legal and factual investigation which would enable him to make an

informed rational decision.” Id. (citing Ex parte Duffy, 607 S.W.2d 507, 526 (Tex.

Crim. App. 1980), overruled on other grounds by Hernandez v. State, 988 S.W.2d

770 (Tex. Crim. App. 1999)). Thus, without a firm command of the law governing

the case, a lawyer cannot render effective assistance of counsel to the defendant. Ex

parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983); Compton v. State, 202

S.W.3d 416, 422 (Tex. App.—Tyler 2006, no pet.). In our view, the law governing

the case includes relevant law concerning the admissibility of polygraph evidence

and the defendant’s right to assert his Fifth Amendment privilege against self-

incrimination. See Dansby v. State, 448 S.W.3d 441, 449-452 (Tex. Crim. App.

2014).

Our review of the record, which includes Selby’s motion for new trial and the

attached exhibits, shows that the evidence supports Selby’s contention that his

counsel’s performance fell below an objective standard of reasonableness and such

deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687-88,

694. The record shows that during the hearing on Selby’s motion for new trial, the

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trial court heard evidence of trial counsel’s ineffective assistance. Attached to

Selby’s motion for new trial is Selby’s affidavit, in which Selby averred that he felt

compelled by the probation order to participate in the polygraph examination process

and believed that if he had refused to participate it would have been a violation of

his probation. Selby averred that he was advised by counsel that he must plead “true”

to the allegations, and that he was not advised that he could plead “not true” and

have counsel confront the polygraph examiner and potentially have the evidence

excluded. Selby further averred that he was not informed by counsel that the Texas

Court of Criminal Appeals had found polygraph test results inadmissible, that

polygraph test results cannot be used as grounds for revocation of community

supervision, and that he could refuse to answer polygraph exam questions and

invoke his Fifth Amendment right. According to Selby’s affidavit, had he known

that he could invoke his Fifth Amendment right, not answer the polygraph questions,

and object to the use of the polygraph evidence, he would have done so. Selby stated

that neither his probation officer, trial attorney, nor the polygraph examiner informed

him that he could invoke his Fifth Amendment right, decline to answer the questions,

and be immune from penalty for doing so.

The trial court also considered an affidavit from Selby’s trial counsel. In his

affidavit, counsel averred that he had advised Selby to plead “true” to the allegations

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in the State’s motion to revoke because he believed that Selby had made the

admissions during the pre-polygraph and post-polygraph interviews, but “[t]his was

not a strategic decision, but rather based on the fact that I was not aware that those

admissions might not be admissible because of the compulsive nature of the

probation orders, the lack of immunity extended to Selby, and the fact that they were

the fruits of actually inadmissible evidence[.]” Counsel stated that he had “limited

interactions with the polygraph examination process . . . and was further unfamiliar

with the . . . line of cases regarding the admissibility of polygraph results and

polygraph evidence in probation proceedings.” Counsel averred that if he had known

that there was a chance he could prevail on the motion by challenging the

admissibility of the polygraph evidence, he “would have advised Selby to plead ‘not

true’ and required the State to prove the allegations.” Trial counsel also

testified at the motion for new trial. Counsel disagreed that he had stated in his

affidavit that he had been ineffective. Counsel testified that he had discussed with

Selby the options of pleading “true” or “not true,” and that Selby decided to plead

“true.” Counsel explained that he had a trial strategy in the case, and the strategy

consisted of Selby taking responsibility in an attempt to mitigate punishment since

Selby had completed almost ten years of probation. Counsel testified that he did not

object to the State admitting the disc of the polygraph examination and using Selby’s

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admissions during the pre-test interview as proof of the allegations in the State’s

motion to revoke. Counsel further testified that he knew that the results of the

polygraph exam could not be used as a basis in the State’s motion to revoke.

However, counsel admitted that when he represented Selby, he was not aware of the

case law which states that a probationer cannot be required to choose between

making incriminating statements and jeopardizing his conditional liberty. Counsel

also admitted that he was not aware of the Dansby case and the issues associated

with the compulsory nature of the polygraph.

The record shows that trial counsel did not have a firm command of the

governing law of the case and that he failed to conduct the necessary legal

investigation which would have enabled him to make an informed decision

concerning whether to advise Selby to plead “true” or “not true”

to the violations. See Welborn, 785 S.W.2d at 393-94. Had counsel conducted a

reasonably substantial and independent examination of Selby’s circumstances and

the law involved, counsel would have known that a reasonable trial strategy would

have included challenging the admissibility of the polygraph evidence, advising

Selby to plead ‘not true,’ and requiring the State to prove the allegations. 1 See

1
These include relevant law concerning the admissibility of polygraph
evidence, the defendant’s right to assert his Fifth Amendment right against self-
incrimination, and whether a defendant can be faulted for failing to preserve his Fifth
14
Strickland, 466 U.S. at 680; Dansby, 448 S.W.3d at 449-452; Welborn, 785 S.W.2d

at 393. However, without a firm command of the relevant law, counsel was unable

to effectively assist Selby. See Lilly, 656 S.W.2d at 493. On this record, we conclude

that the performance of Selby’s trial counsel fell below an objective standard of

reasonableness and that counsel’s error was so serious that he was not functioning

as the counsel guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 688.

The second part of the Strickland test requires that Selby “show that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 669. In this case, prejudice to Selby

is undeniable, and more than adequate to satisfy the second part of the Strickland

test. As a result of counsel’s failure to challenge the admissibility of the polygraph

evidence, Selby pleaded “true.” Had Selby’s trial counsel challenged the

admissibility of the polygraph evidence at the revocation hearing, there is a

reasonable probability that the evidence would have been excluded. Because both of

the violations in the State’s motion to revoke were based on the polygraph evidence,

the State would not have been able to prove the violations without the use of the

polygraph evidence, and the trial court would have had no evidence on which it

Amendment complaint when the defendant had not been placed on fair notice that
waiver of his Fifth Amendment right would be required for him to comply with his
conditions of community supervision.
15
could revoke Selby’s probation. We conclude that Selby has satisfied both

requirements of the Strickland test. We further conclude that the trial court erred in

failing to find that Selby received ineffective assistance of counsel during his

revocation proceeding and abused its discretion by denying Selby’s motion for new

trial. See Riley, 378 S.W.3d at 457.

In his second issue, Selby also argues that the use of his pre-test and post-test

statements obtained during the polygraph process violated his Fifth Amendment

right against self-incrimination. Under the Fifth Amendment to the United States

Constitution, no person “shall be compelled in any criminal case to be a witness

against himself.” U.S. Const. amend. V. “It is well settled that the Fifth Amendment

insulates probationers from compelled self-incrimination.” Dansby v. State, 398

S.W.3d 233, 239 (Tex. Crim. App. 2013). “Supreme Court decisions have ‘made

clear’ that a state may ‘not constitutionally carry out a threat to revoke probation for

the legitimate exercise of the Fifth Amendment privilege.’” Id. at 240 (quoting

Minnesota v. Murphy, 465 U.S. 420, 438 (1984)). Accordingly, while a probationer

may be compelled to appear and testify about matters relevant to his probationary

status, he cannot be “required . . . to choose between making incriminating

statements and jeopardizing his conditional liberty by remaining silent.” Dansby,

398 S.W.3d at 240. The State “may validly insist on answers to even incriminating

16
questions and hence sensibly administer its probation system, as long as it recognizes

that the required answers may not be used in a criminal proceeding and thus

eliminates the threat of incrimination.” Murphy, 465 U.S. at 435 n.7.

The “privilege against compelled self-incrimination is not ordinarily self-

executing.” Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003). Generally,

a criminal defendant must timely assert his privilege. Id. “[T]he critical question is

whether appellant affirmatively invoked his right against self-incrimination, and if

not, whether the facts in this case fall within ‘the classic penalty situation’ exception

to this general rule, thereby relieving him of the responsibility to assert his

privilege.” Id. “The Supreme Court has identified the key inquiry in this penalty

situation as ‘whether the accused was deprived of his free choice to admit, to deny,

or to refuse to answer.’” Id. (quoting Garrity v. New Jersey, 385 U.S. 493, 496

(1967)).

On appeal, Selby acknowledges that he did not affirmatively invoke his Fifth

Amendment right, but argues that he was placed in a “classic penalty situation.”

According to Selby, after he failed to pass Polygraph I, he was required to submit to

Polygraph II on the “eve of the expiration of his probation.” Selby maintains that

although the polygraph examiner told him that he had the right to remain silent or

terminate the polygraph exam, the conditions of his probation state that “any refusal

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to submit to such assessment is a violation of probation.” Selby contends that the

polygraph examiner did not tell him that the test could not be used as grounds for

revocation or advise him that he could assert his Fifth Amendment right without fear

of revocation, nor did the State offer him “use immunity” to eliminate the looming

threat of revocation.

According to Selby, he was already in fear of revocation “merely by having

been required to submit to Polygraph II on the heels of Polygraph I on the last

effective day of his probation term.” Selby contends that he was never told that he

could remain silent and not participate without fear of revocation, and he points out

that at the motion for new trial, the chief probation officer testified that the probation

department would have filed a motion to revoke had Selby not gone to Polygraph II.

Selby argues that due to the probation order requiring him to participate in polygraph

exams to be in compliance, along with the timing and circumstances of Polygraph

II, he was forced to either make incriminating statements and jeopardize his

conditional liberty, or remain silent, which would also jeopardize his conditional

liberty. Selby maintains that due to the circumstances, he was not required to

affirmatively invoke his Fifth Amendment right.

The record shows that the results of Polygraph II were not admitted into

evidence during Selby’s revocation hearing. Selby’s counsel and the State stipulated

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that the disc of Polygraph II was only offered to show the pre-test interview, the test

on the video, and the post-test interview. The pre-test interview contains admissions

Selby made to the examiner concerning his viewing and possessing of pornography,

which is a violation of his probation. In the post-test interview, Selby admitted to

violating his probation by being in the proximity of minors. The State’s motion to

revoke alleges that Selby violated two conditions of his community supervision, and

both of those grounds directly relate to the admissions that Selby made to the

polygraph examiner during the pre-test and post-test interviews. Thus, the State did

not allege any violations that are independent of the complained-of polygraph

evidence.

On this record, we conclude that Selby’s case falls within “the classic penalty

situation” exception to the general rule that a criminal defendant must affirmatively

invoke his right against self-incrimination. See Chapman, 115 S.W.3d at 6. We

further conclude that Selby’s failure to raise a Fifth Amendment objection to the use

of his pre-test and post-test admissions obtained during the polygraph process did

not result in procedural default of his complaint on appeal. See Dansby, 448 S.W.3d

at 443. Selby cannot be faulted for failing to object on the basis that his admissions

violated his Fifth Amendment constitutional right because he was not placed on

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notice that he would be required to “incriminate himself” as part of his conditions of

community supervision. See id.

In summary, having concluded that the trial court erred in failing to find that

Selby received ineffective assistance of counsel during his revocation proceeding

and abused its discretion by denying Selby’s motion for new trial, we sustain issue

two. Accordingly, we remand the cause for a new revocation hearing, and on

remand, the trial court must address the merits of Selby’s Fifth Amendment

complaint concerning the use of his pre-test and post-test admissions obtained during

the polygraph process. Having remanded the cause for a new revocation hearing, we

need not consider Selby’s argument that the evidence is insufficient to support

revocation. See Tex. R. App. P. 47.1. We further note that Selby’s issue two

argument that the probation terms that he allegedly violated were impossibly broad

and ambiguous is untimely, as he should have raised that complaint when the trial

court imposed his deferred adjudication community supervision. See Hawkins v.

State, 112 S.W.3d 340, 343 (Tex. App.—Corpus Christi 2003, no pet.).

In issue three, Selby argues that the polygraph condition is unreasonable both

in itself and as applied to him. The legislature has provided that a trial court may

require a “sex offender as a condition of community supervision to submit to

treatment, specialized supervision, or rehabilitation according to the offense-specific

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standards of practice adopted by the Council on Sex Offender Treatment.” Tex. Code

Crim. Proc. Ann. art. 42.12 § 11(i) (West Supp. 2016). Since 2006, the Council on

Sex Offender Treatment has adopted a set of standards for conducting polygraph

examinations of adult sex offenders. Mitchell v. State, 420 S.W.3d 448, 450 (Tex.

App.—Houston [14th Dist.] 2014, no pet.); see 22 Tex. Admin. Code §

810.64(c)(17) (West 2011). Since the Legislature has reenacted article 42.12 after

the publication of the standards, we must presume that the Legislature has

acquiesced in the Council’s adoption of polygraph testing as an acceptable tool in

sex offender treatment. Mitchell, 420 S.W.3d at 450. Because we must further

presume that the Legislature enacts every statute with the intent to achieve a just and

reasonable result, we conclude that polygraph examinations are presumptively

reasonable conditions of community supervision. Id.; see Tex. Gov’t Code Ann. §

311.021(3) (West 2013).

In considering whether the polygraph condition is unreasonable as applied to

Selby, we note that a trial court does not abuse its discretion by requiring a defendant

to submit to a polygraph examination as a condition of community supervision. Ex

parte Renfro, 999 S.W.2d 557, 560-61 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d). Polygraph examinations are reasonable conditions if used to assist in

treatment, planning, and case monitoring. Mitchell, 420 S.W.3d at 451. Nor is the

21
condition unreasonable because it requires the appellant to either submit to an

examination or assert his Fifth Amendment right to remain silent, because a

defendant cannot be penalized for asserting his Fifth Amendment rights. Id. at 451-

52. While a defendant may be compelled to appear and give testimony about matters

relevant to his probationary status, the State cannot use those answers in a criminal

proceeding. Dansby, 398 S.W.3d at 240.

The specific condition of which Selby complains states that “[t]he defendant

shall submit to any program of physiological assessment at the discretion of the

probation officer, to include the use of . . . the polygraph, to assist in treatment,

planning, and case monitoring; any refusal to submit to such assessment is a

violation of probation.” Swan, Selby’s probation officer, testified that the trial court

had instructed Selby to have Jules Peterson conduct his polygraph examinations, but

toward the end of his community supervision, Selby used another examiner.

According to Swan, Selby was instructed to complete a polygraph with Peterson by

April 1, and Selby complied. Swan explained that Selby had to complete the

polygraph examination by April 1, because his probation was about to expire, and

Selby had to complete a certain number of polygraph examinations with Peterson to

be in compliance with his probation terms.

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The condition expressly states that one of its purposes is case monitoring.

Based on Swan’s testimony, the probation department had ordered Selby to complete

the polygraph as a condition of his probation, and thus, it was used to assist in

monitoring Selby’s probation. See Renfro, 999 S.W.2d at 560. We conclude that the

condition is not unreasonable as applied to Selby. We overrule issue three.

In issue four, Selby contends that the trial court violated his rights by failing

to consider the entire range of punishment. Because we have sustained Selby’s

second issue, reversed the trial court’s order denying Selby a new trial, and remanded

for a new revocation hearing, we need not consider Selby’s fourth issue, as it would

not result in any greater relief. See Tex. R. App. P. 47.1.

REVERSED AND REMANDED.

______________________________
STEVE McKEITHEN
Chief Justice

Submitted on June 15, 2017
Opinion Delivered July 19, 2017
Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

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