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 2011-01

Calvin Wayne Burnham v. State ( 2011 )


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                                                             In The

                                                    Court of Appeals

                            Sixth Appellate District of Texas at Texarkana

     

                                                    ______________________________

     

                                                                 No. 06-10-00038-CR

                                                    ______________________________

     

     

                                  CALVIN WAYNE BURNHAM, Appellant

     

                                                                    V.

     

                                         THE STATE OF TEXAS, Appellee

     

     

     

     

                                           On Appeal from the 123rd Judicial District Court

                                                                 Panola County, Texas

                                                           Trial Court No. 2005-C-0001

     

                                                   

     

     

     

                                              Before Morriss, C.J., Carter and Moseley, JJ.

                                                Memorandum Opinion by Justice Moseley

                                                         MEMORANDUM OPINION

     

                Calvin Wayne Burnham was charged with four counts of aggravated sexual assault and four counts of indecency with a child, his stepdaughter.[1]  Pursuant to a plea of guilty on all counts, he was placed on deferred adjudication community supervision for a period of ten years.  Burnham appeals the trial court’s subsequent revocation of community supervision, adjudication of guilt, and resulting sentence of fifty years’ imprisonment for each aggravated sexual assault and twenty years’ imprisonment for each count of indecency with a child.  He claims that the trial court erred in considering evidence resulting from a polygraph examination, “erred in adjudicating the Appellant guilty based on evidence received at a hearing that had occurred over seven months earlier,” and that the evidence was insufficient to demonstrate he violated a condition of his community supervision.  We affirm the trial court’s judgment. 

    I.          Standard of Review

                The determination of an adjudication of guilt is reviewable in the same manner as that used to determine whether sufficient evidence supported the trial court’s decision to revoke community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2010).  While the decision to revoke community supervision rests within the discretion of the trial court, it is not absolute.  In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.––Texarkana 2003, no pet.).  To revoke community supervision, the State must prove every element of at least one ground for revocation by a preponderance of the evidence.  Tex. Code Crim. Proc. Ann. art. 42.12, § 10 (Vernon Supp. 2010); T.R.S., 115 S.W.3d at 320; Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.––Houston [1st Dist.] 1997, no pet.).  “‘Preponderance of the evidence’ has been defined as the greater weight and degree of credible testimony.”  T.R.S., 115 S.W.3d at 320.

                In a revocation hearing, the trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given to the testimony.  T.R.S., 115 S.W.3d at 321; Lee v. State, 952 S.W.2d 894, 897 (Tex. App.––Dallas 1997, no pet.); Johnson, 943 S.W.2d at 85.  The judge may accept or reject any or all of a witness’s testimony.  T.R.S., 115 S.W.3d at 321 (citing Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987)).  Considering the unique nature of a revocation hearing and the trial court’s broad discretion in the proceedings, the general standards for reviewing sufficiency do not apply.  Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.––Texarkana 2003, pet. ref’d).  Instead, we review the trial court’s decision regarding community supervision revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial court’s order.  T.R.S., 115 S.W.3d at 321; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Pierce, 113 S.W.3d at 436. If the State’s proof is sufficient to prove any one of the alleged community supervision violations, the revocation should be affirmed.  T.R.S., 115 S.W.3d at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.––Texarkana 1995, pet. ref’d)); Pierce, 113 S.W.3d at 436.

    II.        Court Could Consider Evidence from Hearing on First Motion to Adjudicate Guilt

     

                As a preliminary matter, Burnham complains that the trial court improperly considered evidence from a hearing on the State’s first amended motion to adjudicate guilt, in which his competency was timely questioned.  At the beginning of the hearing, the trial court appointed Dr. Frank S. Murphy to examine Burnham.  Due to the requested competency examination, Burnham’s counsel told the court he would not be “able to go forward today” and requested a continuance of the hearing. The trial court granted the continuance, but allowed Kelly B. Hendricks, the polygraph examiner, to testify because he had travelled 180 miles to attend the hearing scheduled that day.  Counsel was allowed to reserve objections to the testimony.  After the hearing, Dr. Murphy concluded that Burnham was competent, but recommended treatment for bipolar disorder, prompting agreement between Burnham and the State to “reset” the hearing for a “status evaluation” at a later date.  Prior to the status evaluation, the State filed a second amended motion to adjudicate guilt. 

                Burnham argues that the trial court erred in considering Hendricks’ testimony during the hearing on the first motion to adjudicate, before resolving competency issues.  To support his argument, Burnham cites Rogers v. State.  640 S.W.2d 248 (Tex. Crim. App. [Panel Op.] 1981).  In Rogers, the court found the trial court was without authority to subsequently revoke community supervision in the absence of allegations or proof of subsequent violations where it had previously decided to continue the defendant upon community supervision.  Id. at 252 (op. on reh’g); Rains v. State, 678 S.W.2d 308 (Tex. App.––Fort Worth 1984, pet. ref’d) (same). In other words, in the absence of other allegations, a trial court cannot simply change its mind and revoke community supervision once it has decided not to do so.  Here, because the revocation hearing was reset pursuant to agreement, and the second amended motion to revoke contained new allegations, Rogers does not apply.  Bersuch v. State, 304 S.W.3d 547, 548 (Tex. App.––Waco 2009, pet. ref’d). 

                Instead, the Texas Court of Criminal Appeals has held that in a second revocation hearing, a trial judge may take judicial notice of evidence obtained in a prior revocation proceeding, provided that he presided over both hearings.  Torres v. State, 595 S.W.2d 537 (Tex. Crim. App. [Panel Op.] 1980); see Cisneros v. State, 697 S.W.2d 718, 720 (Tex. App.––Corpus Christi 1985, no pet.). The same trial judge presided over both motions to adjudicate guilt.  Thus, the trial court did not err in considering evidence obtained at the hearing on the first amended motion when adjudicating guilt based on the State’s second amended motion. 

    III.       Polygraph Results Are Inadmissible

                Because of their inherent unreliability and tendency to be unduly persuasive, Burnham is correct in reciting the rule that polygraph examination results are inadmissible for any purpose in a criminal proceeding on proper objection.  See Shiflet v. State, 732 S.W.2d 622, 630 (Tex. Crim. App. 1985).  

                There is a question of whether Burnham failed to preserve the point of error.  Jasso v. State, 112 S.W.3d 805, 813–14 (Tex. App.––Houston [14th Dist.] 2003, pet. ref’d).  We note that Hendricks was allowed to testify with the court’s condition that counsel was able to reserve objections.  When Burnham’s counsel specifically objected to the admissibility of the polygraph results, the trial court stated, “Again, I’m just giving you, Counsel, an opportunity to see what he’s going to say.  . . . .  You can reserve your objections.  . . . . And I’ll note it, and you can be subject to making objections at a later time.”  The results were “received at this time just for the limited purpose of [Hendricks’] testimony.” 

                At the conclusion of the hearing on the second amended motion to adjudicate guilt, in which the State did not offer the polygraph results, Burnham’s counsel asked to file a brief with the court addressing concerns that the second amended motion contained allegations not heard at the hearing.  The judge referenced Hendricks’ testimony and pointed out that he had “heard nothing at the beginning of this that we were having any objection to that evidence coming in.”  He further stated, “I was satisfied, since I haven’t heard anything to the opposite, about the polygraph that was administered and the admissions he made subsequent to that.”  It is unclear whether the court treated the results of the polygraph as admitted, and whether it treated counsel’s request to file a brief as an objection to the results.

                Nevertheless, even assuming that the court erroneously admitted the polygraph results over proper objection, because we hold below that the evidence was sufficient to demonstrate violation of at least one condition of community supervision, Burnham was not harmed by its admission. See Tex. R. App. P. 44.2(b); Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006). 

    IV.       Sufficient Evidence Supported the Trial Court’s Judgment

                The State’s second amended motion to adjudicate guilt claimed that Burnham violated the following conditions of community supervision requiring him to:  maintain suitable employment; pay an assessed $1,336.00 fine at a rate of $15.00 per month; pay community supervision fees of $50.00 each month; submit to sex offender treatment; and commit to sex offender registration requirements. 

                At the hearing on the second amended motion to adjudicate guilt, administrative deputy Heather Green testified that although Burnham was required to report any change in job status “[n]ot later than the 7th day after the date of the change,” he failed to do so.  Shelby and Panola County community supervision officer Heather Brown stated Burnham was laid off on December 3, 2008, and failed to provide income verification until November 2, 2009, indicating Burnham had not worked in almost a year.[2]  She claimed Burnham was absent from sex offender treatment meetings.[3]  Brown also testified Burnham had failed to pay fines and community supervision fees pursuant to the court’s order.  Without objection, the State admitted documentation of Burnham’s failure to pay, showing arrearages in each case of between $75.00–$185.00, totaling $1,140.00, and administrative notes suggesting Burnham was sent several “failure to pay” notices.[4]

                Most importantly, the State also claimed that Burnham violated the conditions of community supervision requiring him to:  avoid injurious or vicious habits, including abstaining from the possession or use of all intoxicating beverages and all unlawful possession of alcohol; refrain from frequenting places where pornographic materials are sold; refrain from possessing recorded materials for the purpose of deviant sexual arousal; avoid contact with the victim’s family; and stay 500 feet from any school. 

                “[T]he ‘result’ of a polygraph examination is the conclusion based on the machine’s graphic indications as to whether the defendant was lying or telling the truth.”  Marcum v. State, 983 S.W.2d 762, 766 (Tex. App.––Houston [14th Dist.] 1998, pet. ref’d) (citing Castillo v. State, 739 S.W.2d 280, 293 (Tex. Crim. App. 1987)). Statements made to a polygraph examiner during such an examination are generally admissible.[5]  Id.; Harty v. State, 229 S.W.3d 849, 851 n.2 (Tex. App.––Texarkana 2007, pet. ref’d); see Shiflet, 732 S.W.2d at 623 (statements against interest made while not in custody admissible). 

                Hendricks testified that Burnham made several “pre-test” and “post-test” admissions.  Specifically, he admitted to: “consuming wine at Olive Garden,” viewing “cell phone instant message image photos of girls sending pictures of their breasts and vaginas . . . about 20 to 30 times”; “frequenting several area gas stations or convenience stores that display pornography”; and visiting “his brother’s house in the evening when school is out because his brother’s house is within 500 feet of a school.”  The examiner testified Burnham “shop[ped] at the grocery store where the victim’s grandmother is the manager,” but denied speaking with her.  Burnham also “claim[ed] that he ha[d] a prescription for Hydrocodone,” and “admit[ted] possession of crystal methamphetamine when he poured his dad’s crystal methamphetamine out on the ground once whenever he was trying to help his dad get off crystal meth.”

                The admissions to Hendricks were sufficient for the trial court to find, in its discretion as sole fact-finder, that Burnham violated at least one condition of his community supervision by a preponderance of the evidence.  See T.R.S., 115 S.W.3d at 321.  Thus, we affirm the revocation and adjudication of guilt.  Id.

    V.        Conclusion

                We affirm the trial court’s judgment.

     

     

     

                                                                            Bailey C. Moseley

                                                                            Justice

     

    Date Submitted:         December 14, 2010

    Date Decided:             December 15, 2010

     

    Do Not Publish

     

     

     

    OPINION ON REHEARING

     

                In the above-captioned case, we affirmed Calvin Wayne Burnham’s conviction of four counts of aggravated sexual assault and four counts of indecency with a child, his stepdaughter.[6]  Burnham has moved that we rehear the matter, alleging that the State violated Article 42.12, Section 21(b) of the Texas Code of Criminal Procedure in amending its motion to adjudicate guilt “after the commencement of taking evidence at the hearing.”[7]  Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 2010).

                To recapitulate, the State filed its first amended[8] motion to adjudicate guilt on May 13, 2009. Among other allegations, the first amended motion alleged Burnham violated conditions of community supervision requiring him to:  avoid injurious or vicious habits, including abstaining from the possession or use of all intoxicating beverages and all unlawful possession of alcohol; refrain from frequenting places where pornographic materials are sold; refrain from possessing recorded materials for the purpose of deviant sexual arousal; avoid contact with the victim’s family; and stay 500 feet from any school.  The first amended motion to adjudicate stated that Burnham admitted to polygraph examiner Kelly B. Hendricks that he had:  (1) consumed alcohol at an Olive Garden restaurant; (2) possessed methamphetamine; (3) stopped at a grocery store where the victim’s grandmother worked; (4) gone into gas stations and convenience stores that displayed pornography; (5) reviewed “cell phone instant message photos of breasts and vaginas 20 to 30 times”; (6) visited his brother’s home, which was within 500 feet of a local school; and (7) ingested Hydrocodone, although he had previously reported to his community supervision officer that he was not taking any medications. 

                At the hearing on the first amended motion to adjudicate guilt on May 29, 2009, Burnham’s counsel raised issues of competency, and the trial court appointed Dr. Frank S. Murphy to examine Burnham. The trial court granted a request for continuance made by Burnham’s counsel, but allowed the polygraph examiner to testify because he had travelled 180 miles to attend the hearing scheduled that day.  Counsel was allowed to reserve objections to the testimony.  Dr. Murphy concluded Burnham was competent, but recommended treatment for bipolar disorder.  At a setting on August 21, 2009, Burnham and the State agreed to “reset” the hearing for a “status evaluation” at a later date due to Burnham’s mental health issues, and the trial court was not asked to exercise its discretion to rule on the first amended motion.[9]  Prior to the status evaluation, the State filed a second amended motion to adjudicate guilt, adding a single allegation that Burnham failed to remain at his residence for the duration of Halloween night, as required by his “Halloween 2009 Guidelines Contract” made a part of his conditions of community supervision.

                Article 42.12, Section 21(b) of the Texas Code of Criminal Procedure states that “in no event may the state amend the motion after the commencement of taking evidence at the hearing.”  Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b).  Burnham complains on rehearing that the State violated Section 21(b).  However, in order for Burnham to have preserved this error for our review, he was required to lodge a timely, specific objection in front of the trial court.  Tex. R. App. P. 33.1; Rogers, 640 S.W.2d at 263 (op. on second reh’g); see Burns v. State, 835 S.W.2d 733, 735 (Tex. App.––Corpus Christi 1992, pet. ref’d).[10]  We find this was not done.

                During the January 2010 hearing on the State’s second amended motion to adjudicate guilt, Burnham’s attorney Clement Dunn announced “ready” on Burnham’s behalf.  After evidence was presented and concluded, the following transpired: 

                MR. DUNN:  Your Honor, I’m going to make an unusual request, if I may.  Before the Court makes a decision on adjudication, would the Court be willing to entertain a brief that we would submit?

     

                THE COURT:  Well, I don’t see what -- from the evidence I’ve heard this morning, is there something you need to point out to me?

     

                MR. DUNN:  Well, there are several things that I would point out.  And quite frankly, to do the best job, perhaps to be of most service to the Court, I would like a little bit of time to research a little bit of case law and be able to --

     

                THE COURT:  Well, what kind of --

     

                MR. DUNN:  -- be able to articulate some of these points a little better than I can right now. 

     

                . . . .

     

                MR. DUNN:  . . . . My concern focuses, Your Honor, in part on coming into court today and having a hearing on what is styled, I believe, a second amended motion, which was filed November 2nd of 2009 and, within that motion, there are allegations that were not heard today.  There were previous hearings that occurred before this motion was filed. 

     

                THE COURT:  There certainly was.  I agree. I recall it.  I was here.  There was a polygraph expert here that gave him a polygraph back in, I guess, May of last year that testified as to points 1 through, I guess -- what was it Mr. Davidson? 

     

                . . . .

     

                THE COURT:  I think it was probably about five or six . . . . I know you weren’t benefit of that, but I have heard nothing at the beginning of this that we were having any objection to that evidence coming in.  And of course, it was in under previous counsel. 

                And then, of course, to be frank with you, I think the State was trying their best to try to help your client out in giving him another chance and getting some counseling for this. . . .

     

                THE COURT:  . . . . I was satisfied, since I haven’t heard anything to the opposite, about the polygraph that was administered and the admissions he made subsequent to that. . . . I’m going to go ahead and pronounce judgment today. . . .

     

                The court then advised “if you point out something that we need to address on guilt-innocence, then I’ll be glad to reconsider that.”  Dunn replied, “Your Honor, I appreciate the opportunity.  With that understanding for appellate purposes if we ever get to that point, I might say that I’ll defer any objections and advise the Court of those in the next few days, if that’s acceptable.”  No objections, briefs, or motions regarding Section 21(b) were filed.

                During Burnham’s sentencing, the court inquired, “Do you have anything to say at this time why the sentence should not be pronounced against you?”  Dunn replied, “We do not, Your Honor.” 

                The purpose of requiring timely, specific objections is to apprise the trial court of a party’s complaint and thereby afford the court an opportunity to rule at a time when the error could have been avoided or corrected by the trial court.  See Gibson v. State, 726 S.W.2d 129, 131 (Tex. Crim. App. 1987).  After receiving the second amended motion to adjudicate guilt, Burnham did not file a motion to quash or otherwise complain to the trial court that the State could not amend its motion because evidence had already been received. Burnham also voiced no objection at the beginning of the hearing.  Instead, he announced that he was ready to proceed, evidence was heard, and the parties rested before any complaint was voiced.  Burnham’s objection was too general to raise the issue of a Section 21(b) violation to the trial court.  Rather, it appears that the trial court interpreted it as a complaint on the sufficiency of the evidence presented at the hearing on the second motion to adjudicate guilt.  Thus, the record does not demonstrate an express or implied ruling by the trial court finding that the State did not violate Section 21(b) so that we can review the matter.  Also, Burnham did not file a motion to arrest judgment or complain about the trial court’s procedure in a motion for new trial.  Therefore, we find Burnham’s main complaint in his motion for rehearing was not preserved.  It is overruled.[11]

                We deny the motion for rehearing.

     

     

     

     

                                                                            Bailey C. Moseley

                                                                            Justice

     

     

    Date: January 26, 2011

     

    Do Not Publish


    [1]Burnham appeals from this cause number and judgments entered in cause numbers 06-10-00039-CR through 06-10-00045-CR. 

    [2]Burnham argues that his condition of community supervision did not require him to maintain suitable employment if searching for a job.  The condition required him to “[m]aintain suitable employment or educational/vocational status; [i]f unemployed and not a student, comply with the instructions of the Supervision Officer concerning employment search, education or training, including providing documentation of such activities.”  Though the officer testified Burnham “had tried” to find employment, the court was free to conclude his one-year hiatus from employment of any sort constituted noncompliance with the condition.

     

    [3]After Brown testified without objection that Burnham failed to attend sex offender treatment classes, she was asked what dates he failed to attend.  Because Brown referred to the “records” to determine these dates, Burnham lodged a hearsay objection for lack of “direct knowledge.” 

     

    [4]Burnham argues that the trial court failed to establish that he was able to pay the fines and fees.  Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2010).  The record demonstrates Burnham was indigent and was unemployed until November 2009. 

     

    [5]Burnham’s counsel objected “to any statements that were made to the examiner,” although the basis for the objection was not stated. He further lodged an objection that the examiner’s “total testimony [w]as a violation of Article 38.22.” However, because submission to a polygraph examination pursuant to conditions of community supervision is not a custodial interrogation, Article 38.22 does not apply.  Marcum, 983 S.W.2d at 766.

    [6]Burnham appealed from this cause number and judgments entered in cause numbers 06-10-00039-CR through 06-10-00045-CR. 

     

    [7]Burnham discussed Section 21(b) in reference to his point of error by emphasizing that the trial court “erred in adjudicating the Appellant guilty based on evidence received at a hearing that had occurred over seven months earlier.”  He argued that because the court should not have considered the polygraph examiner’s testimony, there “was no evidence introduced” on these matters during the hearing on the second amended motion to adjudicate, and the additional allegation contained within the second amended motion to adjudicate guilt should not have been considered, Burnham should not have been adjudicated guilty. We disposed of this point of error in our original opinion by holding that the trial court could consider evidence from the previous hearing.  Burnham now places emphasis on the filing of the intervening motion to adjudicate guilt. On rehearing, we address Burnham’s failure to preserve error on this specific Section 21(b) objection. 

     

    [8]An original motion to adjudicate guilt was filed on April 3, 2009. 

    [9]Burnham also asks the Court to re-evaluate his point of error complaining that the trial court erred in continuing, and then subsequently revoking, Burnham’s community supervision.  He cites the rule that a trial court is without authority to later revoke community supervision in the absence of allegations or proof of subsequent violations where it had previously decided to continue the defendant on community supervision.  Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. [Panel Op.] 1981); Rains v. State, 678 S.W.2d 308 (Tex. App.––Fort Worth 1984, pet. ref’d).  We pointed out, in our original opinion, that the first amended motion to adjudicate guilt was reset pursuant to agreement, and the trial court was not asked to exercise its discretion to make a finding as to whether Burnham violated his community supervision.  We also stated that because the second amended motion to adjudicate guilt contained new allegations, Burnham’s cited cases did not apply.  Bersuch v. State, 304 S.W.3d 547, 548 (Tex. App.––Waco 2009, pet. ref’d). 

     

    [10]See also Falana v. State, No. 02-07-00065-CR, 2007 WL 4292390, at *4 n.7 (Tex. App.––Fort Worth Dec. 6, 2007, no pet.) (not designated for publication) (citing Anderson v. State, Nos. 05-00-01700-CR, 05-00-01701-CR, 05-00-01702-CR, 2001 WL 1346309, at *2 (Tex. App.––Dallas Nov. 2, 2001, no pet.) (not designated for publication)); Brietzke v. State, No. 04-99-00518-CR, 2000 WL 682564, at *2 (Tex. App.––San Antonio May 17, 2000, no pet.) (not designated for publication); Peña v. State, No. 04-98-00546-CR, 1999 WL 107068, at *2 (Tex. App.––San Antonio Mar. 3, 1999, pet. ref’d) (not designated for publication).  Although these unpublished cases have no precedential value, we may take guidance from them “as an aid in developing reasoning that may be employed.”  Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.––Amarillo 2003, pet. ref’d). 

    [11]Moreover, the rationale for Section 21(b) is to “prevent the State from adding new or different grounds for revocation as a result of evidence adduced at the hearing on that particular motion.”  Washington v. State, 731 S.W.2d 648, 649 (Tex. App.––Houston [1st Dist.] 1987, no pet.); Johnson v. State, 633 S.W.2d 687, 689 (Tex. App.––Amarillo 1982, pet. ref’d)).  Even if this Court had concluded that error was preserved, we would next determine it was harmless.  O’Hara v. State, 626 S.W.2d 32, 35 (Tex. Crim. App. [Panel Op.] 1981).  Both the first and second motions to adjudicate were based upon the same admissions made by Burnham to Hendricks.  The only additional allegation in the second amended motion to adjudicate revolved around Burnham’s failure to remain in his home on the night of October 31, 2009.  This occurrence took place several months after Hendricks’ testimony.  Thus, the State’s amended motion was not based upon evidence adduced at the revocation hearing where Hendricks testified.  Thus, any error would have been harmless.