Kelly, Sean Michael
PD-1370-14
| Tex. App. | Feb 19, 2015Background
- Appellant Sean Michael Kelly filed a Motion for Rehearing after the Court of Criminal Appeals refused discretionary review on Feb. 4, 2015.
- State sought revocation of probation alleging Kelly failed to complete a sex offender counseling program.
- Evidence relied on by the State included a June 6, 2012 letter from Ezio Leite and attached polygraph results.
- Leonard v. State (Tex. Crim. App. 2012) held polygraph results are unreliable for probation revocation and are inadmissible.
- Kelly’s revocation hearing occurred before Leonard II was available, and the trial court admitted polygraph evidence.
- Kelly argues the trial court abused its discretion by considering the polygraph evidence and by improper bifurcation; he also sought a Rule 705 hearing that was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Polygraph evidence admissibility in probation revocation | Kelly argues Leonard II bars polygraphs as unreliable for revocation | State contends polygraphs relevant to alleged failure | Polygraph evidence excluded; trial court abused discretion by admitting it |
| Improper bifurcation in probation revocation proceedings | Kelly objected to bifurcation; it violated due process | El Paso Court purportedly extended Barfield to probation cases | Court should sustain objection and reverse for improper bifurcation |
Key Cases Cited
- Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) (polygraph evidence inadmissible for probation revocation)
- Leonard II, 385 S.W.3d 570 (Tex. Crim. App. 2012) (polygraph evidence unreliable; not admissible)
- Barfield v. State, 63 S.W.3d 446 (Tex. Crim. App. 2001) (bifurcation principles in proceedings)