No s . 01 -15-00324- CR & 01- 15 -00325- CR In the Court of Appeals For the First Judicial District of Texas

At Houston  No s . 1297213 & 1297213 In the 248 th District Court of Harris County, Texas
 

### A STIN 

### C HAVERS 

### C LARK Appellant
v. 

### T HE 

### S TATE OF 

### T EXAS Appellee
 STATE’S APPELLATE BRIEF
 D EVON A NDERSON District Attorney Harris County, Texas C ARLY D ESSAUER Assistant District Attorney A NDREA M OSELEY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: ( 713 ) 274-5826 Fax No.: 713/755-5809 ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT ACCEPTED 01-15-00324-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 11/12/2015 1:52:40 PM CHRISTOPHER PRINE

CLERKii STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of Appellate Procedure 39.1 , the State requests oral argument only if a ppellant requests oral argument

. IDENTIFICATION OF TH E PARTIES
Pursuant to Texas Rule of Appellat e Procedure 38.2( a)(1)(A) , a complete list of the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson

 District Attorney of Harris County Carly Dess auer
 Assistant District Attorney on appeal Andrea Moseley

 Assistant District Attorney at trial Appellant or criminal defendant:
Astin Chavers Clark Counsel for Appellant:
Allison Secrest

 Attorney on appeal Kyle B. Johnson

 Attorney at trial Trial Judge:
Hon. K atherine Cabanissiii TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT

................................ .................... ii
IDENTIFICATION OF THE PARTIES

................................ ................................ ......... ii
TABLE OF AUTHORITIES

................................ ................................ .............................. v STATEMENT OF THE CASE

................................ ................................ .......................... 1
STATEMENT OF FACTS

................................ ................................ ................................ .. 1
SUMMARY OF THE ARGUMENTS

................................ ................................ ............... 3
REPLY TO APPELLANT’S POINT OF ERROR

................................ ......................... 4
I. The trial court did not err when it allowed the State to admit appellant’s statement s over appellant’s Miranda and Fifth Amendment objections.

................... 4

a. Reviewing courts employ an abuse of dis cretion standard when d etermini ng whether a trial court erred when revoking a defendant’s probation or w hen admitting evidence.

................................ ................................ ... 5 b. The Fifth Amendment provides protection for probationers against self

incrimination in future criminal proceedings, but a probationer generally must invoke his Fifth Amendment right against self

- incrimination or courts will not consider his statement compelled.

................................ .................. 5

c. The trial court did not abuse its discretion as appellant cannot use his Fifth Amendment right against self

- incrimination from criminal prosecution as a blanket to exclude statements regarding his probation status.
................................ ................................ ................................ ............................ 8 d. The trial court did not abuse its discretion because appellant failed to timely invoke his right against self

- incrimination.

................................ .................. 9 i

. Appellant’s Fifth Amendment right was not self

- executing as he was not subjected to custodial interrogation when he made his statements.
................................ ................................ ................................ ............ 10iv

ii. Appellant’s Fifth Amendment right was not self

- executing as he was not subjected to the “classic penalty situation” when he made his statements.
................................ ................................ ................................ ............ 13

e. Even if the trial court erred in admitting appellant’s statements, the error was harmle ss as appellant pleaded true to multiple violations of his probation.

................................ ................................ ................................ ................... 14 CONCLUSION

................................ ................................ ................................ ................... 17
CERTIFICATE OF COMPLIANCE

................................ ................................ .............. 18
CERTIFICATE OF SERVICE

................................ ................................ ......................... 19v TABLE OF AUTHORITIES
CASES Canseco v. State , 199 S.W.3d 437 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref’d)

............................ 5 Casey v. State , 215 S.W.3d 870 (Tex. Crim. App. 2007)

................................ ................................ ......... 5 Chapman v. State , 115 S.W.3d 1 (Tex. Crim. App. 2003)

................................ ................ 3, 6, 7, 8, 9, 10, 14 Dansby v. State , 398 S.W.3d 233 (Tex. Crim. App. 2013)

................................ ................ 5 , 6, 8, 9, 15, 16 Dowthitt v. State , 931 S.W.2d 244 (Tex. Crim. App. 1996)

................................ ................................ ....... 12 Ex parte Dangelo , 339 S.W.3d 143 (Tex. App.

— Fort Worth 2010), aff’d , 376 S.W.3d 776 (Tex. Crim. App. 2014)

................................ ................................ 9 Ex parte Renfro , 999 S.W.2d 557 (Tex. App.

— Houston [14th Dist.] 1999, no pet.)

....................... 8, 12 Gardner v. State , 306 S.W.3d 274 (Tex. Crim. App. 2009)

................................ ................................ . 10, 11 Herrera v. State , 241 S.W.3d 520 (Tex. Crim. App. 2007)

................................ ................................ ....... 10 In re A.M. , 333 S.W.3d 411 (Tex. App.

— Eastland 2011, pet. denied)

................................ ......... 12 In re Medina , No. WR

- 75,835

- 02, 2015 WL 6722175 (Tex. Crim. App. Nov. 4, 2015)

................................ ................................ ............... 6, 8, 9 Leonard v. State , 385 S.W.3d 570 (Tex. Crim. App. 2012)

................................ ................................ ... 5, 15 Marcum v. State , 983 S.W.2d 762 (Tex. App.

— Houston [14th Dist.] 1998, pet. ref’d)

................. 11, 12 Minnesota v. Murphy , 465 U.S. 42 0 (1984)

................................ ................................ ............... 5, 6, 7, 8, 9, 10, 13vi

Miranda v. Arizona , 384 U.S. 436 (1966)

................................ ................................ ................................ ...... 7, 10 Nickerson v. State , No. 01

- 14

- 00096

- CR, 2015 WL 3982025 (Tex. App.

— Houston [1st Dist.] June 30, 2015, no pet.)

................................ ..... 10, 11 Wilkerson v. State , 173 S.W.3d 521 (Tex. Crim. App. 2005)

................................ ................................ ... 7, 11 RULES T EX
. R. A PP
. P. 38.2( a)(1)(A)

................................ ................................ ................................ . ii T EX
. R. A PP
. P. 39.1

................................ ................................ ................................ ................ ii T EX
. R. A PP
. P . 44.2(b)

................................ ................................ ................................ ......... 15 T EX
. R. A PP
. P. 9.4(g)

................................ ................................ ................................ ............. ii T EX
. R. A PP
. P . 9.4(i).

................................ ................................ ................................ ........... 18 CONSTITUTIONAL PROVI SIONS U.S. C ONST . amend. V

................................ ................................ ................................ ........... 51

TO THE HONORABLE COURT OF APPEALS:

S TATEMENT OF THE CASE Appellant was charged with burglary of a habitation in cau se number s 1296861
and 1297213 ( 1296861 CR at 13 ; 1297213 CR at 11 ). He entered a plea of guilty , but the court deferred his adjudicated for six years ( 1296861 CR at 28

- 29, 36

- 37 ; 1297213
CR at 24

- 25, 33

- 34

). The State filed several motions to adjudicate appellant’s offenses because of violations to the terms of his probation , and a hearing was held ( 1296861
CR at 67

- 68, 75

- 76, 100

- 103, 108

- 111; 1297213 CR at 66

- 67, 73

- 74, 99

- 101, 106

- 08; 1
RR )

. 1 Appellant pleaded true to numerous allegations but pleaded not true to four allegations in the State’s Third Amended Motion to Adjudicate ( 1296861 CR at 117

- 18; 1297213 CR at 114

- 15; 1 RR at 7

- 23 ). The court found that appellant violated numerous conditions of his probation and sentenced him to confinement f or twenty

five years in prison for each offense ( 1296861 CR at 117

- 18 ; 1297213 CR at 114

- 15; 1
RR at 43

- 44, 61 ). The court certified appellant’s right to appeal, and appellant filed a timely notice of appeal ( 1296861 CR at 120

- 22; 1297213 CR at 11 7

- 1 9 ).

STATEMENT OF FACTS Appellant was serving six years’ probation as a condition of his deferred adjudication (1296861 CR at 36

- 37; 1297213 CR at 33

- 34). Among the terms of his
p robation , appellant was required to avoid persons or places of disrepu table or

1 While appellant was on deferred adjudication community sup ervision, the State will refer to his community supervision as “probation.”2

harmful character, pay court costs and supervision fees , participate in sex offender treatment and comply with all program rules, regulations, and guidelines until successfully discharged or released, have no contact with any minor except if permi tted by the court, have no access to the internet through any manner or method for any reasoning, including to view, receive, download, transmit, or possess pornographic material on any computer, and not possess pornographic software images or material ( 12 96861 CR at 38

- 65; 1297213 CR at 35

- 64 ). The court has also ordered appellant to submit to polygraph examinations if directed to by his probation
officer , and on October 3, 2014, appellant was interviewed by polygraph examiner Ronald Russell regarding his compliance with the terms of his probation ( 1296861 CR

at 39, 44, 49, 54, 59, 64, ; 1297213 CR at 37, 42, 47, 52, 57, 62 ; 1 RR at 24, 25 ). In a pre

- polygraph questionnaire and interview, appellant admitted committing multiple violations of his probation to Russell (State’s Ex. 1, 3) . After taking the polygraph exam, appellant volunteered to write a statement in which he further explained several incidents of conduct that violated his probation (State’s Ex. 2). The State filed a motion to adjudicate app ellant’s guilt alleging multiple violations of his probation as appellant admitted to Russell (1296861 CR at 108

- 111;
1297213 CR at 106

- 08). At the hearing on the motion, appellant pleaded true to violating multiple conditions of his probation but pleaded not true to the allegation that he exposed his penis to a minor, that he watched and talked t o a girl at a park , and th at he used his phone to access internet maps and music (1 RR at 7

- 23).3

The State attempted to admit appellant’s pre

- po lygraph questionnaire, Russell’s

v ideo of the pre

- polygraph interview with appellant, and appellant’s post

- polygraph written statement (1 RR at 26; State’s Ex. 1, 2, 3). 2 Appellant objected, arguing that
the statements violated Miranda and his Fifth Amend ment right (1 RR at 27). The trial court overruled his objection (1 RR at 27).

SUMMARY OF THE ARGUM ENT S The trial court did not err in finding appellant’s statements admissible over his objection that they violated his Fifth Amendment right. While a prob ationer like appellant does not lose his Fifth Amendment right upon conviction, both the United States Supreme Court and Court of Criminal Appeals have held that questions relating to probation conditions do not implicate the Fifth Amendment as long as tha t threat of revocation does not coerce the probationer to reveal information that could be used in a future criminal proceeding. Further, even if the Fifth Amendment applied, a ppellant waived his right to not incriminate himself by failing to invoke its protection when making his pre and post polygraph statements. Because the Fifth Amendment is not a “self

- executing” right , and appellant did not invoke his right before m aking his statements , the trial court did not err in finding t hem adm issible. Chapman v. State , 115 S.W.3d 1, 6 (Tex. Crim. App. 2003)

.

2 The State did not offer the polygraph examination (1 RR at 28).4

Additionally, e ven if appellant had not waived his Fifth Amendment right, the
trial court would not hav e abused its discretion in finding appellant’s statement s admissible despite the fact that Russel did not give appellant his Miranda warnings . As appellant was not subjected to custodial interrogation, Russel did not need to inform

a ppellant of his rights before interviewing him.

REPLY TO APPELLANT’S POINT OF ERROR
I. The trial court did not err when it allowed the State to admit appellant’s statement s over appellant’s Miranda and Fifth Amendment objections. In his brief, appellant argu es that the trial court committed reversible error by allowing the State to introduce evidence of appellant’s statements over his Miranda and Fifth Amendment objections. Appellant claims that the court abused its
discretio n by admitting the statements which he alleges were made as a result of custodial interrogation and which violated his right not to be compelled to be a witness against himself. In making this argument, appellant overlooks that his

statements do not implicate the Fifth Amendment as they involve the conditions of his probation , that he failed to timely assert his Fifth Amendment right, and that his statement was not given as a result of custodial interrogation. As such, the trial court
did not abuse its d iscretion in finding his statement admissible and did not err in its ruling.5 Standard of Review

a. Reviewing courts employ an abuse of discretion standard when d etermin ing whether a trial court erred when revoking a defendant’s probation or w hen admitting evidence. In a revocation proceeding, the trial court has the discretion to revoke a defendant’s probation when a preponderance of the evidence supports at least one of
the State ’ s allegations that the defendant violated a condition of hi s community supervision. Leonard v. State , 385 S.W.3d 570, 576 (Tex. Crim. App. 2012)

. Similarly, a trial court has discretion when determining the admissibility of
evide nce. Canseco v. State , 199 S.W.3d 437, 439 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref’d) . An abuse of discretion occurs when the trial court ’s decision is so clearly wrong as to lie outside that zone within which reasonable people might disagree. Casey
v. State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)

. Applicable Law
b. The Fifth Amendment provides protection for probationers against self

incrimination in future criminal proceedings, but a probationer generally must invoke his Fifth Amendment right against self

- incriminat ion or courts will not consider his statement compelled. Under the Fifth Amendment, no person “shall be compelled in any criminal case to be a witness against himself.” U.S. C ONST . amend. V ; s ee Minnesota v. Murphy , 465 U.S. 420, 426 (1984) ; Dansby v. State , 398 S.W.3d 233, 239 (Tex. Crim. App. 2013)

. “ It is a fundamental tenet of Texas and federal constitutional jurisprudence that every person has the right to avoid self

- incrimination by exercising the privilege provided6

him by the Fifth Amendment and the Texas Constitution.” Chapman , 115 S.W.3d at
5.
As both the Supreme Court and Texas Court of Criminal Appeals have recognized, a person may choose to invoke his right to remain silent and “not to answer official questions put to him in any other proceeding, ci vil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”
In re Medina , No. WR

- 75,835

- 02, 2015 WL 6722175, at *5 (Tex. Crim. App. Nov. 4, 2015) (quoting Lefkowitz v. Turley , 414 U.S. 70, 77 (1973)); Chapman , 115 S.W.3d at 5 (noting that “[t]he privilege does not turn upon the type of proceeding in which its protection is invoked, bu t upon the nature of the statement or admission and the exposure which it invites”). Similarly, both Courts have held that the Fifth Amendment insulates probationers from compelled self

- incrimination regarding future criminal prosecutions, Murphy , 465 U.S. at 426, and that the State may “not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” Dansby , 398 S.W.3d at 240 (quoting Murphy , 465
U.S. at 426); s ee also Chapman , 115 S.W.3d at 6

. However, the right “against compelled self

- incrimination is not ordinarily self

executing” as a p erson must claim his Fifth Amendment right or he will not be considered to have been compelled to incriminate himself. Chapman , 115 S.W.3d at 6 (quoting Murphy , 465 U.S. at 427

- 28). With few exceptions to this general rule, a person must timely i nvoke his Fifth Amendment right to obtain its protections or be7

barred from claiming that his statement was compelled. Murphy , 465 U.S. at 428

– 29; Chapman , 115 S.W.3d at 6

. Among the exceptions , a defendant does not need to invoke his right when subject to custodial interrogation by law enforcement when he does not first knowingly and voluntarily waive his privilege against self

- incrimination. Murphy

, 465
U.S. at 429

- 30; see Miranda v. Arizona , 384 U.S. 436, 475 (1966) . As the Supreme Court recognized in Miranda v. Arizona , the inherent compulsion of custodial surroundings require specia l safeguards as “ the process of in

- custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he
would not otherwise do so freely.” Miranda , 384 U.S. at 467; see Wilkerson v. State , 173 S.W.3d 521, 526

- 27 (Tex. Crim. App. 2005) . Thus, unless a defendant is given
Mirand a warnings before waiving his rights during a custodial interrogation, his
statement is inadmissible. Murphy , 465 U.S. at 430; Miranda , 384 U.S. at 475. Additionally, a defendant does not have to invoke his Fifth Amen dment right against self

- incrimination when faced with a “classic penalty situation.” Murphy , 465
U.S. at 434

- 35; Chapman , 115 S.W.3d at 6

. In the classic penalty situation, a defen dant is threatens with punishment for asserting his privilege against self

- incrimination, thereby depriving him of his choice to refuse to answer. Chapman , 115 S. W.3d at 6

. In such cases, the Fifth Amendment right against self

- incrimination is self

- executing, and8

the statements a defendant makes are deemed compelled and thus inadmissible in criminal prosecution. Murphy , 465 U.S. at 434

- 35; Chapman , 115 S.W.3d at 6

- 7. Analysis

c. The trial court did not abuse its discretion as appellant cannot use his Fifth Amendment right against self

- incrimination from criminal prosecution as a blanket to exclude statemen ts regarding his probation status. The trial court did not err when it found appellant’s statements to be
admissible over his Miranda and Fifth Amendment objection. The court did not
abuse its discretion because the Fifth Amendmen t was not implicated when the State admitted appellant’s statement made before and after Russell ’s polygraph e xamination regarding appellant’s adherence to the conditions of his probation. See Ex parte Renfro , 999 S.W.2d 557, 56 1 (Tex. App.

— Houston [14th Dist.] 1999, no pet.) (holding that “the mere requirement” that Renfro undergo polygraph examinations as a condition of his probation did not infringe upon his right against self

- incrimination

). As both the Supreme Court and Court of Criminal Appeals have recognized, when a probationer has been convicted of a crime, he does not lose his Fifth Amendment protection, but the focus of that right shifts away f rom the crime that has resulted in conviction to protection from future criminal prosecution. Murphy , 465 U.S. at 426; Medina , 2015 WL 6722175, at *6. The Fifth Amendment does not prevent a probationer from being compe lled “to appear and give testimony about matters relevant to his probationary status.” Dansby , 398 S.W.3d at 240 (quoting9

Murphy , 465 U.S. at 436). Significantly, the Court of Criminal Appeals recently
reiterated that “ questions relati ng to probation conditions rather than criminal acts would not implicate the Fifth Amendment provided the threat of revocation did not coerce the probationer to reveal information that could be used in a future criminal proceeding.” Medina , 2015 WL 6722175, at *6. Thus, to the extent that Russell questioned appellant about possible probation violations, appellant’s Fifth Amendment right against self

- incrimination from future criminal prosecution was not implicated. See Ex parte Dangelo , 339 S.W.3d 143, 151 (Tex. App.

— Fort Worth 2010), aff’d , 376 S.W.3d 776 (Tex. Cri m. App. 2014)

. As such , the trial cour t did not abuse its
discretion.
d. The trial court did not abuse its discretion because appellant failed to timely invoke his right against self

- incrimination. Additionally, the trial court did not abuse its discretion because appellant failed to timely invo ke his Fifth Amendment right. As the holdings in Murphy and Chapman recognize, the right against self

- incrimination is generally not “self

- executing.” Murphy , 465 U.S. at 427

- 29; Chapman , 115 S.W.3d at 6 . Therefore appellant needed to invoke his Fifth Amendment protection to enjoy its benefits. See Dansby , 398 S.W.3d at 234 (stating that Dansby invoked his Fifth Amendment right not to answer questions abo ut other possible crimes). As State’s Exhibits 2 and 3 establish, appellant did not inform Russell that he wished to invoke his right against self

incrimination when facing questions that could expose him to future criminal10

prosecution (State’s Ex. 2, 3). Because appellant failed to timely invoke his Fifth Amendment right , he is barred from claiming that his statement was compelled. Murphy , 465 U.S. at 428

– 29; Chapman , 115 S.W.3d at 6

. i. Appellant’s Fifth Amendment right was not self

- executing as he was not subjected to custodial interrogation when he made his statements. While appellant does not address the fact that he waived his Fifth Amendment protection by failing to in vok e it, his argument regarding Russell’s lack of Miranda warnings does not alleviate the requirement that appellant invoke his right . This is
because appellant was not subjected to custodial interrogation by Russell’s pre and post polygraph interview

. Miranda warnings are not needed unless a person is subject to custodial interrogation. See Murphy , 465 U.S. at 430; Miranda , 384 U.S. at 475

. To d etermine if a person was in custody and if Miranda warnings were needed before interrogation occurred, courts consider whether the person was physically deprived of his freedom in a significant way, whether a law enforcement officer told the person that he was not free to leave, whether law enforcement officers created a situation that would lead a reasonable person to believe that his freedom of movement has been sig nificantly restricted, and whether law enforcement officers had probable cause to arrest the
person
. Gardner v. State , 306 S.W.3d 274, 294 (Tex. Crim. App. 2009) ; Nickers on v. State , No. 01

- 14

- 00096

- CR, 2015 WL 3982025, at *4 (Tex. App.

— Houston [1st Dist.] June 30, 2015, no pet.) ; se e Herrera v. State , 241 S.W.3d 520, 525 (Tex. Crim. App. 2007)11

(“The Supreme Court has defined ‘custodial interrogation’ as ‘questioning initiated by
law enforcement offic ers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’”). None of these facts apply to appellant’s case. Appellant was not physically deprived of his freedom of movement in any way , as State’ s Exhibit 3 shows ( State’s Ex. 3 ). See Gardner , 306 S.W.3d at 294); Nickerson , 2015 WL 3982025, at *4. He was not interacting with law enforcement officers, as Russell was not a peace officer or acting as the agent of an officer. See Wilkerson , 173
S.W.3d at 527

- 28 (noting that Miranda only applies to custodial interrogation conducted by law enforcement officers or their agents); see also Marcum v. State , 983 S.W.2d 762, 766 (Tex. App.

— Houston [14th Dist.] 1998, pet. ref’d) (holding that Marcum was not subject to custodial interrogation because his polygraph examiner was not a peace offi cer). Appellant was free to leave at any time, and was not in a situation that would have led a reasonable person to believe his freedom of movement had been significantly restricted. See Gardner , 306 S.W.3d at 294); Nickerson , 2015 WL 3982025, at *4. Most importantly, appellant was not under arrest when he made his

statements , and no probable cause existed to arrest appellant. Id.
A dditionally, a ppellant submitted to the polygraph examination as a court
ordered c ondition of his probation but was not required to give his pre or post polygraph statements. See Marcum , 983 S.W.2d at 766 (holding that since Marcum was required by the court to take polygraph tests as a condition of his probation, he w as12

not subjected to custodial interrogation) ; see also Dowthitt v. State , 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (noting that “custody does not occur merely because [a] suspect submits to and fails a polygraph test”). Indeed, several Courts of Appeals have held that requiring a probationer to submit to a polygraph examination does not subject him to custodial interrogation, even when that probationer admits to
commit ting other crimes during his interview. In re A.M. , 333 S.W.3d 411, 4 16

- 17 (Tex. App.

— Eastland 2011, pet. denied) (holding that A.M. was not subject to
custodial in terrogation during pre

- polygraph interview in which A.M. admitted to sexually abusing his sister) ; Renfro , 999 S.W.2d at 561 (holding that no Miranda warnings were needed when the polygraph required for R enfro’s probation was used

to invest iga t e Renfro’s compliance with the terms of his probation) ; Marcum , 983
S.W.2d at 766 (holding that Marcum was not subject to custodial interrogation when making a stat ement to a polygraph examiner about two crimes he had committed )

. Appellant’s case is almost identical that that addressed by the Fourteenth Court of Appeals in Marcum v. State . Marcum was on probation and admitted to sexually abusing two children durin g a post

- polygraph interview. Marcum , 983 S.W.2d at 765, 766. When the State admitted his statement at a hearing to revoke his probation, Marcum argued that the statement was inadmissible because he had not received
Miranda warnings. I

d . at 766. In rejecting his argument, the Court held that since the polygraph examination was a requirement of Marcum’s probation, since there was no probable cause to arrest Marcum eve n after he made his statement, since there was13

“no apparent intent to arrest [Marcum] because the interview was simply a condition of [his] probation,” and since the examiner was not a peace officer, Marcum was not subject to custodial interrogation and Miranda warnings were not required. Id. Like Marcum, appellant was no t in custody when he made his pre and post

polygraph statements. As such, Russell did not need to give appellant Miranda warnings , and the trial court did not abuse its discretion in overruling his Miranda objection

. ii. Appellant’s Fifth Amendment right wa s not self

- executing as he was not subjected to the “ classic penalty situation” when he made his statements. While appellant does not directly mention the other situation in which a defendant’s Fifth Amendment right against self

- incrimination would be self

- executing, he does argue that as taking polygraph examinations was a condition of his probation, his pre and post

- polygraph statements were compelled. Appellant’s Br. 16

- 17. When appellant argues that he could have believed that he had no choice but to honestly answer Russell’s questions, appellant casts his dilemma as a situation that mirrors the

“ classic penalty situation.” However, both the Supreme Court and Court of Crimi nal Appeals have distinguished the “ classic penalty situation” from the situati on of a probationer being required to honestly answer questions regarding his probation status or have his probation revoked. Murphy , 465 U.S. at 427

- 28 (holding that the condition of community supervision that required Murphy to report to his probation14

officer and be truthful did not convert his statements into compelled self

incrimination nor place Murphy in a worse position than an ordinary witness who is compelled to appear and tell the truth under “the pain of contempt”); Chapman , 115 S.W.3d at 6, 7 (“[T]he normal probation conditions, such as a stipulation that the probationer appear and discuss matters that affect his probationary status, does not relieve him of the responsibility to assert his privilege if he fea rs that his answers may incriminate him.”). Because the requirement that appellant undergo polygraph examinations regarding his probationary status did not relieve him of the responsibility to assert his right against self

- incrimination if he feared that h is answers may incriminate him, appellant ’s Fifth Amendment right was not self

- executing and he had to invoke it or else be barred from claiming that his statements were compelled. See Chapman , 115 S.W.3d at 7. As such, his answers wer e not compelled and appellant waived his right

to invoke his Fifth Amendment right. Therefore, the trial court did not abuse its discretion in overruling his objection, and this Court should uphold appellant’s
conviction.

e. Even if the trial court erred in admitting appellant’s statements, the error was harmless as appellant pleaded true to multiple violations of his probation. Assuming for the sake of argument that the trial court did err when it allowed the State to admit the evidence of appellan t’s pre and post

- polygraph statements , the15

error was harmless. As the trial court could have revoke appellant’s probation on the basis of the multiple violations that appellant pleaded true, this Court can determine beyond a reasonable doubt that the alle ged error did not contribute to appellant’s
revocation. See T EX
. R. A PP
. P . 44.2(b) (“ If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. ”) ; see also Leonard , 385 S.W.3d at 576

. This Court can determine that any error in ad mitting appellant’s statements was
harmless because the trial court was authorized to revoke appellant’s probation as along as the State established at least one of the violations it alleged

. See Dansby , 398
S.W.3d at 241 (stating that “ a revocation may stand on appeal so long as the evidence supports a finding that at least one of the conditions of community supervision was violated” and “it must demonstrate from the record that the one violation upon which it relies on appeal is support able independent of whatever constitutional taint arguably inheres in the other”)

. A ppellant pleaded true to multiple violations alleged (RR at 7

- 23, 43

- 44). As the record establishes, before the State put on any evidence, appellant pleaded true to the allegations in paragraphs number one through fourteen and seventeen through nineteen for cause number 1296861 and one through seven and nine through twelve for cause number 1297213 (RR at 7

- 23 ). Thus, there are multiple16

violations supported by appellant’s pleas that are independent from the “constitutional taint” he argues about on appeal

. Dansby , 398 S.W.3d at 241

. As the record supports the trial court’s decision revoking appellant’s probation , appellant was not harmed by the admission of his statements

. Because the trial court could revoke appellant’s probation on the basis of his pleas of true alone, this record allows this Court to determine beyond a reasonable doubt that if the trial court erred by allowing the evidence of his statements to be admitted over appellant’s Miranda and Fifth Amendment ob jections, the error did not contribute to appellant’s revocation. As such, this Court should overrule appellant’s sole point of error and affirm his conviction.17 CONCLUSION
T he State of Texas respectfully urges the Court to overrule appellant’s point of
error and affirm h is conviction.
D EVON A NDERSON District Attorney Harris County, Texas
/s/ 

# Carly Dessauer

________ ___________________________________________________________________________________________________________________ _________________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274

- 5826 State Bar No. 24069083 dessauer_carly@dao.hctx.net curry_alan@dao.hctx.net18 CERTIFICATE OF COMPL IANCE The undersigned attorney certifies that this computer

- generated document has
a word count of 3 , 6 85 words, based upon t he representation provided by the word processing program that was used to create the document. T EX
. R. A PP . P. 9.4(i).

/s/ 

# Carly Dessauer

__________________________________ _____________________________________________________________________________________________________________________________ _____________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274

- 5826 State Bar No. 2406908319 CERTIFICATE OF SERVI CE The State will serve a copy of the foregoing instrument to appellant’s attorney though TexFile:
Allison Secrest Attorney at Law 808 Travis Street, 24th Floor Houston, Texas 77010 Allison@allisonsecrestlaw.com
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# Carly Dessauer

_____________________________________________________________________________________________________________________________ _______________________________________________________ C ARLY D ESSAUER Assista nt District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274

- 5826 State Bar No. 24069083

Date: November 12, 2015