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Selby v. State

Court of Appeals of Texas, Ninth District, Beaumont

July 19, 2017

RICKIE WAYNE SELBY, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted on June 15, 2017

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

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

          OPINION

          STEVE McKEITHEN Chief Justice.

         Appellant Rickie Wayne Selby appeals the trial court's denial of his motion for new trial, in which he alleged, among other issues, that his pleas of "true" during a proceeding to revoke his community supervision were involuntary and made as a result of ineffective assistance of counsel. Because we conclude that Selby's trial counsel's performance fell below an objective standard of reasonableness and prejudiced his defense, we reverse the trial court's order denying Selby a new trial and remand for a new revocation hearing.

         BACKGROUND

         Selby pleaded guilty to aggravated sexual assault of a child, a first-degree felony. The trial court deferred an adjudication of guilt and placed Selby on community supervision for a period of ten years. As a condition of his community supervision, Selby was ordered to "submit to polygraph evaluations as instructed by the sex offender therapist or community supervision officer, who shall designate the polygraph examiner to be utilized." During the plea hearing, Selby represented to the trial court that he had reviewed the paperwork concerning his plea agreement with his attorney and understood the terms, which included the sex offender registration admonishments and the additional terms and conditions of his community supervision. Selby's attorney also indicated that he had talked with Selby on numerous occasions about the various aspects of the plea agreement. During the hearing, the trial judge specifically asked whether the sex offender conditions of Selby's community supervision included polygraph testing, and the prosecutor indicated that Selby was to undergo a polygraph examination every six months. Selby's counsel agreed that the plea agreement included a polygraph examination every six months. At that point, Selby did not object to the polygraph examinations as being an unreasonable condition of his community supervision.

         Subsequently, the State filed a motion to revoke Selby's unadjudicated community supervision alleging that Selby had violated the conditions of his community supervision by viewing or possessing sexually stimulating or sexually oriented materials and by having contact with a minor. Selby pleaded "true" to both violations, and the trial court found that Selby had violated the conditions of his community supervision. After conducting a punishment hearing, the trial court sentenced Selby to a term of ninety-nine years in prison.

         With new counsel, Selby moved for a new trial alleging that, among other things, the State did not file a valid motion to revoke prior to the expiration of his community supervision, a valid capias had not issued prior to the expiration of this period, the State's motion to revoke was based on inadmissible polygraph evidence, he had been placed in a "classic penalty" situation whereby he was required to candidly participate in the polygraph process or face revocation of his probation, and his pleas of "true" were involuntary and unknowingly made as a result of ineffective assistance of counsel without knowledge or advice that he could challenge the State's inadmissible polygraph evidence. The trial court conducted a hearing on Selby's motion for new trial, and after hearing evidence, the trial court denied Selby's motion for new trial and found no evidence of ineffective assistance by Selby's trial counsel.

         STANDARD OF REVIEW

         We review a trial court's ruling on a motion for new trial for an abuse of discretion, "reversing only if the trial judge's opinion was clearly erroneous and arbitrary." Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the trial court's ruling, must not substitute our judgment for that of the trial court, and must uphold the ruling if it was within the zone of reasonable disagreement. Id.; Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). When there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Riley, 378 S.W.3d at 457. A trial court abuses its discretion in denying a motion for new trial if no reasonable view of the record could support its ruling. Id.; Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

         ANALYSIS

         In issue one, Selby contends that the trial court lacked jurisdiction to revoke his probation. According to Selby, the record establishes that the motion to revoke his unadjudicated community supervision was not filed before his community supervision period expired, because although the document is file-stamped April 1, 2016, the file-stamp cannot be trusted because the record shows that it had been altered. Selby also argues that a valid capias did not issue before his community supervision expired, because the record shows that the original capias is not signed by a deputy district clerk, is not officially attested to, does not bear the seal of the State of Texas, and is not file-stamped. The State maintains that the trial court had jurisdiction to revoke Selby's community supervision.

         A trial court retains jurisdiction to hold a hearing and to proceed with an adjudication of guilt, regardless of whether the period of community supervision imposed on the defendant has expired, "if before the expiration the attorney representing the state files a motion to proceed with the adjudication and a capias is issued for the arrest of the defendant." Tex. Code Crim. Proc. Ann. art. 42.12 § 5(h) (West Supp. 2016). "The operative rule is that the duration of a time period during which a person suffers specified restrictions upon his freedom by virtue of either a sentence of imprisonment or community supervision includes the first day in ...


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