CROSSOVER: Fifth Amendment Ends for Finalized Instant Offense: Refusal to Answer Treatment Polygraph Can Support Revocation

Martinez v. State, 07-25-00237-CR, April 13, 2026.

On appeal from 251st District Court, Randall County, Texas

Synopsis

Yes. The Amarillo Court of Appeals held that a defendant whose conviction is already final and whose direct appeals are exhausted cannot invoke the Fifth Amendment to refuse an instant-offense polygraph limited to the adjudicated offense. On that record, refusal to participate in the treatment polygraph supported revocation of community supervision.

Relevance to Family Law

Although Martinez is a criminal revocation case, its logic matters in Texas family litigation whenever one party tries to use the Fifth Amendment as a blanket shield after a criminal matter is already final. In divorce and SAPCR litigation, that comes up in discovery, depositions, social studies, custody evaluations, therapeutic participation, and protective-order-adjacent disputes involving prior abuse, child sexual abuse findings, or sex-offender conditions. The case gives family lawyers a sharper argument that, at least as to a finalized offense, the privilege is not unlimited and may not justify refusal to answer narrowly targeted questions about adjudicated conduct. It also underscores the importance of framing requests with precision: questions confined to a final offense are more defensible than broad inquiries into uncharged or unrelated historical conduct.

Case Summary

Fact Summary

Edward Bobby Martinez was convicted of indecency with a child by sexual contact. The jury assessed ten years’ incarceration, recommended suspension of the sentence, and Martinez was placed on community supervision. His direct appeal concluded in 2024, when the Amarillo court modified the judgment to remove appointed-counsel fees and otherwise affirmed.

Later, the State moved to revoke community supervision, alleging Martinez failed to successfully complete sex offender treatment. At the revocation hearing, supervision officers and treatment personnel testified that he was discharged from the treatment program because he refused to complete intake paperwork and refused to submit to an instant-offense polygraph. The counselor testified the polygraph was limited to the offense for which Martinez had already been adjudicated and did not inquire into other historical sexual behavior. The trial court found the violation true, revoked supervision, and imposed the ten-year sentence.

Martinez appealed, arguing principally that revocation based on his refusal to answer the polygraph violated his Fifth Amendment privilege against self-incrimination. He also challenged language in the bill of costs suggesting court-appointed attorney’s fees could later be applied despite his indigence finding.

Issues Decided

• Whether the trial court could revoke community supervision based on the defendant’s refusal to submit to an instant-offense polygraph required by sex offender treatment, where the defendant invoked the Fifth Amendment.
• Whether the judgment and bill of costs improperly permitted future recovery of court-appointed attorney’s fees after the defendant had been found indigent and unable to pay.

Rules Applied

The court applied the ordinary revocation framework: the State need prove a community-supervision violation only by a preponderance of the evidence, and revocation is reviewed for abuse of discretion. Proof of a single violation is enough to sustain revocation. The trial court remains the sole judge of witness credibility and evidentiary weight. The opinion cites Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013), and McDonald v. State, 608 S.W.2d 192, 200 (Tex. Crim. App. 1980) (op. on reh’g), as reiterated through more recent Amarillo authority.

On self-incrimination, the court relied on the Fifth Amendment, Ex parte Dangelo, 376 S.W.3d 776, 781 (Tex. Crim. App. 2012), and In re Medina, 475 S.W.3d 291, 300-01 (Tex. Crim. App. 2015). The controlling principle is that the privilege protects against answers that may incriminate the person in future criminal proceedings, but the privilege is not implicated when compelled statements can no longer create criminal liability. Once direct appeals are over, or double jeopardy bars future prosecution for the offense being discussed, the person loses the right to invoke the privilege as to that offense.

On costs, the court applied indigency principles reflected in Alston v. State, 705 S.W.3d 849, 851-52 (Tex. App.—Amarillo 2024, no pet.), along with similar Tyler and Texarkana cases, holding that when indigency has been established, a bill of costs cannot preserve future appointed-attorney-fee recovery absent evidence of a material change in financial circumstances.

Application

The court’s analysis turned on the scope of the questioning and the procedural posture of the underlying conviction. Martinez did not merely object to treatment generally; he refused an instant-offense polygraph that, according to the counselor’s testimony, was confined to the offense of adjudication. That distinction mattered. If the questioning had reached unrelated sexual history or potentially chargeable conduct, the privilege analysis would have been more complicated. But on this record, the court treated the polygraph as narrowly tethered to a conviction already reduced to finality after direct appeal.

From there, the court moved directly to Medina and Dangelo. Because Martinez had exhausted all available direct appeals from the indecency conviction, he no longer faced future criminal exposure for that offense in the way the Fifth Amendment contemplates. In other words, the constitutional privilege had ended as to that offense. Once that premise was established, his refusal to participate in a legitimate treatment requirement was simply a supervision violation. The trial court therefore acted within its discretion in revoking community supervision.

On the attorney’s-fees issue, the court distinguished between a current balance of zero and a bill of costs that still purported to leave the door open for later assessment. Even though the amount due was listed as $0.00, the document’s statement that other fees might later be applied—potentially including appointed-counsel fees—was improper absent a finding of changed financial circumstances. The court therefore modified the judgment and bill of costs to delete that language.

Holding

As to revocation, the court held that the Fifth Amendment privilege against self-incrimination did not permit Martinez to refuse an instant-offense polygraph limited to the adjudicated offense after his direct appeals had been exhausted. Because the treatment requirement was directed only to the finalized conviction, the trial court did not abuse its discretion in finding a violation of community supervision and revoking supervision on that basis.

As to costs, the court held that the bill of costs could not preserve a future assessment of court-appointed attorney’s fees where Martinez had been found indigent and the record contained no evidence of a material change in his financial circumstances. The judgment and bill of costs were modified to delete any statement suggesting such fees could later be imposed.

Practical Application

For Texas family litigators, Martinez is less about criminal revocation doctrine than about privilege management in cases involving prior criminal adjudications. In custody litigation, one parent may attempt to refuse deposition answers, evaluator interviews, psychological or therapeutic disclosures, or discovery responses concerning a prior offense by invoking the Fifth Amendment in broad terms. Martinez supports the argument that the privilege is not categorical and may be unavailable when questioning is carefully limited to a finalized offense for which direct appellate exposure has ended.

That has particular force in modification cases, conservatorship disputes, and restriction/access litigation where a prior indecency, assault, family violence, or child-abuse conviction bears directly on best interest and safety planning. A parent who is under treatment conditions, sex offender restrictions, counseling directives, or probation-like reporting obligations may be vulnerable to credibility attacks if he refuses participation on privilege grounds that no longer apply to the adjudicated conduct. Family courts will not be revoking supervision, of course, but they may draw procedural and evidentiary consequences from noncooperation in evaluations, counseling compliance, or discovery disputes.

The strategic lesson is to narrow the ask. If you represent the examining party, confine requests to the final offense, avoid fishing into uncharged conduct unless and until immunity or other protections are addressed, and build a clean record that the inquiry does not expand beyond adjudicated facts. If you represent the resisting party, do not assert the Fifth Amendment reflexively. Analyze whether there remains real criminal exposure, whether the question reaches collateral crimes, whether post-conviction proceedings remain pending, and whether a protective order should define the scope of compelled disclosures. In property cases, this can also matter where one spouse’s prior criminal acts affected dissipation, reimbursement, or economic-fault theories and the witness tries to avoid testimony by invoking a privilege that may no longer exist as to the final conviction.

Checklists

Narrow the Scope of Your Discovery or Examination

• Limit questions expressly to the adjudicated offense if you anticipate a Fifth Amendment objection.
• State on the record that the inquiry does not seek admissions regarding uncharged conduct or other potentially prosecutable acts.
• Tie the requested testimony or participation to a concrete family-law issue such as best interest, parental fitness, safety planning, supervised possession, or credibility.
• Use precise dates, offense descriptions, and charging language so the scope is unmistakable.
• Consider obtaining a ruling or protective-order language defining the permitted subject matter before a deposition or evaluation proceeds.

Evaluate Whether the Privilege Is Still Viable

• Confirm whether direct appeals have been exhausted.
• Determine whether any petition for discretionary review, habeas proceeding, retrial risk, or other live criminal exposure remains.
• Separate finalized conduct from unrelated conduct that could still create criminal liability.
• Assess whether the question calls for testimony that could furnish a link in the chain for a different offense.
• Avoid asserting a blanket privilege where only some questions are genuinely incriminating.

Build the Record in Custody or Divorce Litigation

• Introduce certified judgments, mandate dates, and appellate history to establish finality.
• Elicit testimony showing the inquiry is limited to the finalized offense.
• If dealing with treatment or evaluator noncompliance, obtain records showing the precise reason for discharge or refusal.
• Connect the noncompliance to issues the family court can decide: conservatorship restrictions, possession terms, therapy requirements, or credibility.
• Request express findings where noncooperation affects the court’s best-interest analysis.

Defend Against Overreach

• Object when the questioning moves beyond the finalized offense into broader sexual history, uncharged abuse, or unrelated criminal conduct.
• Seek a protective order limiting examination topics.
• Ask the court to review disputed questions one by one rather than accepting a broad waiver theory.
• Distinguish between compelled testimony about a final offense and compelled admissions that could expose the client to new prosecution.
• Preserve error with a clear explanation of the remaining criminal exposure.

Scrub Fee Language and Cost Orders

• Review judgments and cost bills for language preserving future appointed-attorney-fee recovery.
• If indigency has been found, object to any prospective fee language absent evidence of material changed circumstances.
• Compare the current order to prior appellate mandates removing improper attorney’s-fee assessments.
• Request modification of the judgment and bill of costs, not merely a notation of zero balance.
• Preserve the issue even if the current amount due is $0.00.

Citation

Martinez v. State, No. 07-25-00237-CR, 2026 Tex. App. LEXIS ___ (Tex. App.—Amarillo Apr. 13, 2026, mem. op.) (not designated for publication).

Full Opinion

Read the full opinion here

Family Law Crossover

This holding can be weaponized in a Texas divorce or custody case by forcing precision around privilege claims. If the opposing party has a final criminal conviction relevant to child safety, coercive control, family violence, or sexual misconduct, you can argue that he may not hide behind a generalized Fifth Amendment objection when your questions are confined to the adjudicated offense and directed to best-interest issues. That can materially affect depositions, custody evaluations, amicus interviews, parenting-facilitator participation, and compliance disputes involving treatment. Conversely, if you represent the responding party, Martinez is the warning shot: unless you can show genuine remaining criminal exposure beyond the finalized offense, an overbroad privilege assertion may damage credibility, invite compelled responses, and undermine your position on conservatorship, possession, and protective conditions.

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