May 2014 SDR – Voice for the Defense Vol. 43, No. 4

Voice for the Defense Volume 43, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

D had a viable ineffective assistance claim because counsel failed to seek funds to replace an expert who counsel knew was inadequate when that failure was not based on a strategy but on a mistake of law. Hinton v. Alabama, 134 S. Ct. 1081 (2014).

        D was charged with two murders in 1985. The case hinged on ballistics evidence. Mistakenly believing he could pay only $1,000 for an expert ballistics witness, D’s attorney hired someone who was inexperienced and blind in one eye. After the prosecution discredited the expert on the stand, D was convicted and received two death sentences.

        The Supreme Court summarily vacated the Court of Criminal Appeals of Alabama’s judgment and remanded for reconsideration of the prejudice prong of Strickland v. Washington, 466 U. S. 668 (1984). “[D]’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for ‘any expenses reasonably incurred.’ An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. . . . The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.”

Fifth Circuit

Even though USSG § 5D1.1(c) states that supervised release ordinarily should not be imposed on a deportable alien defendant, the court did not err in imposing a two-year supervised-release term on such a defendant because it supplied a sufficiently particularized explanation. United States v. Becerril-Peña, 714 F.3d 347 (5th Cir. 2013).

        The district court sufficiently explained that it found D’s supervised release sentence appropriate under the factors listed in 18 U.S.C. § 3553(a) and those applicable to sentencing generally; the imposition of supervised release was also supported by D’s extensive criminal history. Furthermore, even though the district court did not specifically address D’s arguments for a downward variance from the Guideline range, that did not constitute significant procedural error where the record shows that the district court considered D’s mitigation arguments, weighed the § 3553(a) factors, and explicitly found that the sentence “adequately and appropriately addresse[d]” those factors and others appropriate to consider in sentencing.

Texas state prisoner was not entitled to federal habeas relief on his claim that the court denied him a fair trial by not sua sponte dismissing an allegedly biased juror; no U.S. Supreme Court decision clearly establishes that state trial courts have a duty to sua sponte dismiss a purportedly biased juror when no party objects. Washington v. Thaler, 714 F.3d 352 (5th Cir. 2013).

        Moreover, to recognize such a new rule of criminal procedure on collateral review would run afoul of Teague v. Lane, 489 U.S. 288 (1989).

The court’s wholesale exclusion of the testimony of D’s expert was error, but that error did not affect the trial outcome. United States v. Liu, 716 F.3d 159 (5th Cir. 2013).

        In prosecution for conspiracy to steal trade secrets and perjury, the district court erred in precluding D’s expert from testifying; as an initial matter, there was no warrant for excluding the portion of the expert’s testimony to which the government did not object. It was also error to exclude the other parts of the expert’s testimony; a lack of personal experience—the district court’s concern here—should not ordinarily disqualify an expert, so long as the expert is qualified based on some other factor provided by Fed. R. Evid. 702. A lack of specialization should generally go to the weight of the evidence rather than its admissibility. However, even though it was error for the district court to exclude D’s expert, the error was harmless; especially in the absence of a proffer as to what the substance of the expert’s testimony would have been, nothing in the record indicates that the expert’s testimony would have been helpful to D. Given the overwhelming evidence of guilt, the Fifth Circuit was persuaded that the excluded testimony would have been or little or no benefit to D.

Even though under Dorsey v. United States, 132 S. Ct. 2321 (2012), defendants sentenced after the effective date of the Fair Sentencing Act of 2010 are entitled to benefit from the more lenient penalties of that act, Dorsey does not apply to persons who simply have their pre-FSA sentence modified under 18 U.S.C. § 3582(c)(2) (based on a retroactively applicable ameliorative Guideline amendment). United States v. Kelly, 716 F.3d 180 (5th Cir. 2013).

        Nothing in Dorsey purports to change Supreme Court and Fifth Circuit precedent that § 3582(c)(2) proceedings are not plenary resentencings; the Fifth Circuit joined its sister circuits in declining to treat a § 3582(c)(2) modification proceeding as the equivalent of an original sentencing hearing under Dorsey.

The district court did not plainly err in finding a factual basis for D’s plea; D’s statutory interpretation (he claimed the statute required a showing that he personally and directly caused serious bodily injury) was not “plain” under the language of the statute or any binding judicial construction of it. United States v. Alvarado-Casas, 715 F.3d 945 (5th Cir. 2013).

        D could challenge the factual basis underlying his guilty plea to conspiracy to transport illegal aliens causing serious bodily injury (8 U.S.C. § 1324(a)(1)(B)(ii)) notwithstanding his unconditional appeal waiver; but because he raised the issue for the first time on appeal, the Fifth Circuit reviewed only for plain error.

        The district court did commit plain error by advising D, at his guilty plea, that he faced a statutory maximum prison term of only 10 years, when the correct statutory maximum was 20 years; however, D did not carry his burden of showing a reasonable probability that, but for the error, he would not have pleaded guilty. Even though the 190-month prison sentence imposed greatly exceeded the 10-year maximum of which D was advised, D received a number of benefits from his plea and would have faced a higher sentence if he had gone to trial. Moreover, even after the presentence report set out the correct statutory maximum, D never moved to withdraw his plea.

Because the ultimate decision of the Louisiana governor to grant or deny commutation remains entirely discretionary, prisoner failed to demonstrate a significant risk that he would endure a longer period of incarceration as a result of the amendments to Louisiana’s commutation process. Howard v. Clark, 719 F.3d 350 (5th Cir. 2013).

        Where Louisiana state prisoner had unsuccessfully sought commutation of his sentence as a preliminary step to seeking release on parole, prisoner failed to establish an ex post facto violation in alterations to Louisiana’s commutation procedures (increasing the amount of time before a subsequent application can be filed and granting the Board of Pardons authority to deny an applicant a full hearing).

Speedy Trial Act’s 70-day period for bringing a case to trial was not exceeded; the time attributable to defense-requested continuances (based on defense counsel’s surgery and recovery) was excludable. United States v. Dignam, 716 F.3d 915 (5th Cir. 2013).

        Even though the reasons for a predecessor judge granting two “ends of justice” continuances were not set forth on the record, it was sufficient that the successor judge later articulated the first judge’s reasoning on the record; that record could be fairly understood as being the reasons that were in the defense’s unopposed motions for continuance. Nor was the second continuance period countable simply because the district court granted an open-ended continuance; because it was unclear how much time defense counsel would need to recover, and because the seven-month delay was not extreme and did not prejudice D, the grant of an open-ended continuance was reasonable.

        Finally, a further period of time, during which D had signed a plea agreement and indicated intent to plead guilty pursuant to the agreement, was also excludable under the STA. The time was not excludable under 18 U.S.C. § 3161(h)(1)(G) because the plea agreement was in fact never submitted to the district court for its consideration; the time was excludable under § 3161(h)(1)(D), dealing with delay attributable to pretrial motions. The notice of intent to plead guilty was effectively a motion to set a rearraignment date, so the time period between the notice of intent to plead guilty until the scheduled rearraignment date (when D stated she did not wish to plead guilty) was excludable under the STA. With all these periods of excludable time, the length of the non-excludable time did not exceed 70 days to violate the STA in this mail-fraud prosecution.

In Hobbs Act robbery conspiracy/firearms case, district court did not err in refusing to give an entrapment instruction because D failed to make a prima facie show­ing that he lacked a predisposition to commit the offenses. United States v. Stephens, 717 F.3d 440 (5th Cir. 2013).

         (2) Under USSG § 2B3.1, the Guideline applicable to robbery, it is error to use intended loss, rather than actual loss. However, the district court’s error in using intended loss under USSG § 2B3.1 did not affect D’s substantial rights because the proper Guideline for a Hobbs Act robbery conspiracy is USSG § 2X1.1, which does use intended loss. Nor did the court err in refusing to exclude, on the grounds of sentencing enhancement, any intended loss figure over $250,000.

        (3) District court did not err in denying D a reduction for acceptance of responsibility under USSG § 3E1.1. Defendants who deny guilt on the basis of an entrapment defense are not entitled to a reduction under USSG § 3E1.1.

Court of Criminal Appeals

The evidence was sufficient to convict D of aggravated assault of a public servant under the conspiracy theory of the law of parties; a jury could have found beyond a reasonable doubt that D should have anticipated his co-conspirator committing aggravated assault of a public servant in their conspiracy to deliver meth. Anderson v. State, 416 S.W.3d 884 (Tex.Crim.App. 2013).

        The conspiracy theory of the law of parties, Tex. Penal Code § 7.02(b), states that “if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty . . . if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.” Because this is similar to the federal rule of co-conspirator liability under Pinkerton v. United States, 328 U.S. 640 (1946), CCA adopted the approach used by federal courts, which focuses on an examination of the totality of the circumstances to determine whether a particular offense committed by a co-conspirator was “reasonably foreseeable” within the scope of the unlawful agreement.

        Considering the circumstances here, CCA affirmed COA and the trial court and concluded that D and his co-conspirator were acting together in a criminal business to sell moderate amounts of methamphetamine and that, given the volume of drugs involved, the co-conspirator’s assault of the officer was one that should have been anticipated as a result of carrying out the conspiracy.

D was not entitled to an instruction on the lesser-included offense of criminal trespass with his burglary charge; the entry element of criminal trespass did not require the same or less proof than entry for burglary, and there were no alleged facts that would allow the entry element of criminal trespass to be deduced. State v. Meru, 414 S.W.3d 159 (Tex.Crim.App. 2013).

        Appellee was convicted of burglary of a habitation. He filed a motion for new trial, complaining that the court erred in refusing to give his requested jury instruction on the lesser-included offense of criminal trespass. The trial court granted his motion. COA affirmed the trial court. CCA reversed.

        COA improperly concluded that criminal trespass was a lesser-included offense of burglary of a habitation in this case. D failed to demonstrate that criminal trespass is “established by proof of the same or less than all the facts required to establish the commission of the offense charged,” as required by Tex. Code Crim. Proc. art. § 37.09(1). The entry element of criminal trespass did not require the same or less proof than entry for burglary, and there were no facts alleged in the indictment that would allow the entry element of criminal trespass to be deduced. In other words, a burglary under Tex. Penal Code § 30.02(b) could be complete upon only a partial intrusion onto the property, whereas the definition of “entry” in the criminal trespass statute, § 30.05(b), made the showing of only a partial entry by the defendant insufficient for a conviction of criminal trespass.

        Alcala concurred: “This case has serious implications for both the State and defendants in all future burglary cases. Although historically considered to be two peas in a pod, after today, trespass is no longer a lesser-included offense of burglary under an indictment that generally pleads the element of entry. This decision turns the two peas into pea soup, a dense fog that will obscure the law for judges who must determine whether the State has manipulated pleadings in an indictment to conform to the anticipated evidence in the case.”

The facts and reasonable inferences were sufficient to lead an officer to conclude D was engaged in criminal activity, giving reasonable suspicion for a traffic stop. Delafuente v. State, 414 S.W.3d 173 (Tex.Crim.App. 2013).

        D was convicted of misdemeanor marijuana possession. On appeal, he challenged the denial of his suppression motion, arguing that the officer lacked reasonable suspicion to stop the vehicle in which he was traveling. COA reversed, ruling that there were no specific facts in the record to support suspicion for the stop. CCA vacated COA’s judgment and remanded for COA to consider State v. Mendoza, 365 S.W.3d 666 (Tex.Crim.App. 2012). COA again reversed, and CCA granted review and found that COA erred on this ground: “Did the Court of Appeals’ determination that the traffic stop was illegal ignore relevant facts and rational inferences, require the state to rebut innocent explanations, and misconstrue Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005)?” CCA reversed COA and reinstated the denial of the motion to suppress.

        The trial court’s explicit language made it clear that the court found the officer’s offense report credible, and that the court supported the reasonable inference that the vehicle’s slow pace in the inside lane caused the traffic congestion that the officer observed; the facts and inferences were sufficient to lead a reasonable officer to conclude that D was engaged in criminal activity in violation of Tex. Transp. Code § 545.363(a).

Counsel was not ineffective in forfeiting a statute of limitations challenge to D’s assault indictment because the legal basis of such a challenge was unsettled. State v. Bennett, 415 S.W.3d 867 (Tex.Crim.App. 2013).

        D alleged he received ineffective assistance for counsel failing to challenge D’s indictment on statute-of-limitation grounds. The judge granted D a new trial, stating that while he would have denied such a statute of limitations challenge because superior courts have held the statute of limitations to be three years, counsel should have preserved the issue for appeal. COA and CCA reversed, finding that counsel was not ineffective because the legal basis of such a statute-of-limitation challenge was unsettled.

        The preliminary issue was to determine which statute applied. Tex. Code Crim. Proc. art. 12.01’s catch-all provision provides that all felonies not listed have a three-year statute of limitations; article 12.03(d) states “[e]xcept as otherwise provided by this chapter, any offense that bears the title ‘aggravated’ shall carry the same limitations period as the primary crime.” In this case, the statute of limitations for aggravated assault under article 12.01 would be three years; under article 12.03(d), it would be two. D supplemented his new trial motion with an affidavit in which counsel claimed he did not challenge on statute-of-limitation grounds because, based on article 12.01(6), he believed the statute of limitations was three years. COA found conflicting CCA holdings on the matter and therefore that “the trial court did not have discretion to grant a new trial based on failure to preserve that claim for appellate purposes.” CCA likewise found this question was unsettled and has “repeatedly declined to find counsel ineffective for failing to take a specific action on an unsettled issue.”

Officer using a loud authoritative voice to speak with D, asking “what’s going on,” and demanding identification, manifested a detention that implicated Fourth Amendment protections. Johnson v. State, 414 S.W.3d 184 (Tex.Crim.App. 2013).

        In reviewing the denial of D’s motion to suppress evidence that led to his marijuana conviction, COA erred in holding that the officer did not detain D. Under the totality of the circumstances, as properly reviewed de novo, a reasonable person would not have felt free to leave. Officer shining a “pretty darn bright” high-beam spotlight on a person sitting in a parked vehicle, parking the police car in such a way as to at least partially block the vehicle such that the person would have had to “maneuver” around the police car to drive away, using a “loud authoritative voice” in speaking with the person, asking “what’s going on,” and demanding identification manifests a detention. CCA remanded for COA to consider the trial court’s determination that officer had reasonable suspicion to detain D and to decide whether that detention was valid.

D suffered egregious harm when the court failed to in­struct the jury that it must find certain predicate facts true beyond a reasonable doubt before relying on a statutory presumption to convict him. Hollander v. State, 414 S.W.3d 746 (Tex.Crim.App. 2013).

        CCA reversed COA and remanded for a new trial. The jury was not told that to convict D of criminal mischief, it had to believe beyond a reasonable doubt, as required by Tex. Penal Code § 2.05, the evidence substantiating the presumption that D engaged in the prohibited conduct because he benefited from the rigged meter on his house. Neither the balance of the jury charge nor the conduct of the parties corrected this deficiency. Moreover, the facts giving rise to the presumption were hotly contested; CCA therefore rejected both COA’s finding that the great weight of the evidence established the predicate facts and its implicit conclusion that the jury probably would have found those predicate facts to be true to the requisite level of confidence—beyond a reasonable doubt—had it been required to do so. CCA considered all these Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985), factors and held that the jury charge error both affected the very basis of the case and deprived D of the right to a fair trial.

The affidavit detailing a controlled purchase and the reasonable inferences therefrom supported prob­a­ble cause that cocaine would be found in D’s house. Moreno v. State, 415 S.W.3d 284 (Tex.Crim.App. 2013).

        A magistrate issued a warrant to search D’s house for crack cocaine based on an affidavit detailing a controlled purchase in which police used a reliable confidential informant to purchase narcotics through an unknown third party. The third party was not aware of the police operation. Because there was no information on the credibility or reliability of the unknowing third party, appellant argued that the magistrate could not have concluded that there was probable cause to believe the cocaine came from his house. COA and CCA concluded that the affidavit provided a substantial basis for probable cause.

        The affidavit stated that a reliable source told officers that D was distributing narcotics from his residence, the officers used a confidential informant to conduct a controlled purchase of cocaine from D, the informant made contact with an unknowing participant (who told him he would go to D’s house to pick up the cocaine), and the officers saw the participant enter D’s house and then deliver the cocaine to the informant.

The evidence was sufficient for D’s criminal mischief conviction; the judge properly resolved conflicting evidence to conclude that D intentionally damaged property by throwing screws and nails in the road, causing flat tires. Carrizales v. State, 414 S.W.3d 737 (Tex.Crim.App. 2013).

        D appealed that the evidence was insufficient to establish the corpus delicti of the offense of criminal mischief—i.e., that the damage to the tires was the result of criminal activity. COA disagreed, stating that proof of D’s motive and the physical evidence combined allowed a fact finder to conclude that the State had established the corpus delicti of criminal mischief. CCA affirmed.

        “The corpus delicti rule is a common law, judicially created, doctrine—the purpose of which was to ensure that a person would not be convicted based solely on his own false confession to a crime that never occurred. . . . The old corpus-delicti ‘usability’ rule has . . . been superceded by the due-process ‘sufficiency of the evidence’ model set out in Jackson v. Virginia[, 443 U.S. 307 (1979)]. Jackson is the only constitutional standard of review for assessing the legal sufficiency of evidence in a criminal case. Under that standard, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. . . . If the State proves each element beyond a reasonable doubt, there is no doubt that the crime has been committed by someone, namely the defendant. Because this case does not involve a defendant’s extrajudicial confession, there is neither need nor purpose to refer to the corpus-delicti doctrine. Mention of the corpus-delicti doctrine in a Jackson sufficiency review when the case does not involve a confession is, at best, just short hand for ‘evidence that the crime has been committed,’ and, at worst, confusing.” CCA agreed with the State that the victims, the investigators, and the trial judge could all reasonably apply the “doctrine of chances” to these facts to conclude beyond a reasonable doubt that the tire damage was caused by D’s intentional act rather than by an inadvertent accident.

The trial court did not clearly err in accepting the prosecutor’s race-neutral reasons for striking a juror. Blackman v. State, 414 S.W.3d 757 (Tex.Crim.App. 2013).

        A jury convicted D of felony possession with intent to deliver cocaine. D appealed that the trial court erred in overruling his objection that the State used a peremptory challenge to strike an African-American prospective juror from his petit jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). COA agreed, finding that at least one of the prosecutor’s explanations for the challenge was a pretext for racial discrimination, and reversed D’s conviction on authority of Snyder v. Louisiana, 552 U.S. 472 (2008). CCA reversed COA:

“the court of appeals erred to conclude that Snyder governs the facts of this case. In our view, the court of appeals’ analysis went wrong in three respects. First, it misinterpreted the prosecutor’s proffer of racially neutral explanations for striking Fortune to include two non-demeanor-based reasons, namely: that the jury on which she had previously served had neither 1) reached a verdict, nor 2) assessed punishment. Because the prosecutor never offered either of these as explanations for his peremptory strike in the first place, they can hardly be deemed a cover-up for a discriminatory intent. Second—and as a consequence of its first mistake—the court of appeals erred to conclude that the trial court made no ruling with respect to the prosecutor’s demeanor-based explanations for his peremptory challenge. Finally, in the absence of an inference of discriminatory intent arising from a pretextual explanation, the court of appeals erred in shifting the burden of proof to the State, à la Snyder, to rebut an inference that these purported explanations conclusively established discrimination.”

The independent source doctrine does not circumvent the Texas statutory requirement to suppress unlawfully obtained evidence and was a proper basis to deny D’s suppression motion. Wehrenberg v. State, 416 S.W.3d 458 (Tex.Crim.App. 2013).

        The trial court applied the independent source doctrine and denied D’s motion to suppress, and D was convicted of two felony drug offenses. COA reversed, holding that the independent source doctrine is inconsistent with Texas’s exclusionary rule and thus inapplicable in this state. The State petitioned CCA with this question: Is the federal independent source doctrine, which excepts from the exclusionary rule evidence initially observed during an unlawful search but later obtained lawfully through independent means, applicable in Texas?

        CCA agreed with the State that the independent source doctrine is wholly consistent with Tex. Code Crim. Proc. art. 38.23, the statutory exclusionary rule in Texas that requires suppression of unlawfully obtained evidence. CCA further observed that its prior rejection of the inevitable discovery doctrine does not imply or necessitate its rejection of the independent source doctrine here. CCA reversed and remanded to COA for further consideration of D’s argument that the court erroneously denied his motion to suppress.

Habeas relief granted based on ineffective assistance of counsel, but D did not show actual innocence. Ex parte Villegas, 415 S.W.3d 885 (Tex.Crim.App. 2013).

        D was convicted of capital murder and sentenced to life imprisonment. COA affirmed. In this habeas writ, D alleged he received ineffective assistance of counsel and is actually innocent. The trial court held hearings, made findings of fact and conclusions of law, and determined that counsel was ineffective and D is innocent under Schlup v. Delo, 513 U.S. 298 (1995). CCA granted relief, set aside the conviction, and remanded D to custody to answer the charges in the indictment.

        CCA agreed that D was entitled to relief because he showed that counsel was ineffective for not presenting evidence of pos­sible alternative perpetrators and for not discovering and presenting evidence that would have allowed the jury to give effect to the voluntary confession jury instruction. However, CCA disagreed that D showed he is innocent. “In a Schlup actual-innocence claim, evidence demonstrating innocence is a prerequisite the applicant must satisfy to have an otherwise barred constitutional claim considered on the merits. In this case, the trial court found that Sixth Amendment ineffective assistance of counsel violations, combined with the cumulative evidence of innocence, showed that D was actually innocent. Because D’s ineffective assistance claims were not procedurally barred as subsequent, a Schlup innocence claim dependent on them is improper.” Furthermore, D did not show that new facts “unquestionably establish” his innocence.

Court of Appeals

Felony murder conviction was not void because felony deadly conduct under Tex. Penal Code § 22.05(b)(2), (e) was not a lesser included offense of manslaughter under § 19.04(a) and could serve as the underlying felony in a felony murder prosecution under § 19.02(b)(3). Wash­ington v. State, 417 S.W.3d 713 (Tex.App.—Houston [14th Dist] 2013).

        “Appellant challenges his conviction and sentence in six issues concerning the underlying felony for felony murder, the sufficiency of the evidence, the effectiveness of counsel’s representation, and alleged jury charge error. We affirm.”

Evidence was legally insufficient to support the conviction of tampering with a governmental record because the State failed to prove that D presented his claim to the city with knowledge of its falsity or with intent that it be relied on as a government document. Fox v. State, 418 S.W.3d 365 (Tex.App.—Texarkana 2013).

        “The foregoing evidence is insufficient to prove Fox knew the allegations of discrimination, religious persecution, retaliation, and torture were false. Fox’s allegations are merely that—allegations—to be accepted or rejected in a civil proceeding. . . . Further, the State alleged in its indictment that Fox presented the notice of claim ‘with intent that it be taken as a genuine governmental record, by presenting or using a document filed with the Smith County Clerk. . . .’ In its case, the State produced no evidence that Fox had the intention that the claim be taken as a genuine governmental record due to its previous filing in Smith County. In contravention of that charge, Fox himself presented a somewhat paranoid explanation for causing it to be filed—he wanted it to be copied by some credible agency so he could prove its original content if someone subsequently altered it.”

D failed to rebut the presumption that requiring him to submit to polygraph and plethysmograph exams is a reasonable condition of his community supervision. Mitchell v. State, 420 S.W.3d 448 (Tex.App.—Houston [14th Dist] 2014).

        Appellant pleaded guilty to promotion of child pornography. The trial court deferred adjudication and placed appellant on community supervision for ten years. Appellant was ordered to submit to a program of psychological and physiological assessment on the direction of his community supervision officer. “The legislature has prescribed a nonexclusive list of valid conditions of community supervision. See Tex. Code Crim. Proc. art. 42.12, § 11(a). Currently, the list consists of twenty-four separate conditions, but polygraph and plethysmograph examinations are not enumerated among them. Despite this omission, the examinations are addressed elsewhere in the code of criminal procedure in a manner that evidences their legislative endorsement. . . . If the legislature had wholly intended to reject polygraph examinations from the scope of permissible conditions, it could have said so directly. . . . Many courts have determined that the results of polygraph and plethysmograph examinations are unreliable as items of evidence, but these decisions do not control the outcome in this case. . . . With respect to the treatment of sex offenders, the legislature has already determined that both polygraph and plethysmograph examinations offer some value at the diagnostic level.”

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