Clark v. State

• Decision Date: 15 February 1984
• Docket Number: No. 077-83,077-83
• Citation: 665 S.W.2d 476
• Parties: Mark CLARK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 476

665 S.W.2d 476

Mark CLARK, Appellant, v. The STATE of Texas, Appellee.

No. 077-83.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 15, 1984.

George M. Karam, Houston, for appellant.

John B. Holems, Jr., Dist. Atty. and Winston E. Cochran, Jr., Russell Turbeville and Harvey Hudson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Appeal is taken from convictions in two cases in which the appellant was charged with violating the Polygraph Examiners Act, Tex.Rev.Civ.Stat.Ann. Art. 4413(29cc). ¹ After finding the appellant guilty, the court assessed a fine of $100.00 in each case, probated for six months. The Houston Court of Appeals (1st District) affirmed the convictions in an unpublished opinion. We granted appellant's petition for discretionary review in order to review the Court of Appeals' holdings that the evidence is sufficient to sustain the convictions, and that Art. 4413(29cc) is constitutional.

Appellant was charged by two informations, which alleged that he did unlawfully:

"intentionally and knowingly administer an examination to Sheldon Philip Reichstein utilizing instrumentation for the purpose of detecting deception and verifying truth of statements without first securing a license from the Polygraph Examiners Board, as required by Article 4413 (29cc) of Vernon's Annotated Texas Statutes.

and:

"intentionally and knowingly use an instrument and device known as a psychological stress evaluator to detect deception in statements made by Sheldon Philip Reichstein, and such psychological stress evaluator did not record visually, permanently, and simultaneously: (1) the cardiovascular pattern of Sheldon Philip Reichstein, and (2) the respiratory pattern of Sheldon Philip Reichstein."

In essence, Sec. 4 of Art. 4413(29cc), supra, hereinafter referred to as "the act," prohibits the use of any "instrument" to "detect deception" or "verify truth" that does not meet the "minimum instrumentation requirements" of a polygraph machine. ² Sec. 7 of the Act prohibits, inter alia, administering an examination utilizing an "instrument" to detect deception or verify truth without first securing a license under the Act. See note 1, supra. Appellant was charged with violating these provisions by administering an examination without a license, and by using a Psychological Stress Evaluator (PSE), a voice analysis machine which does not meet the "minimum instrumentation requirements" of a polygraph.

The State's evidence at the guilt stage consisted of the testimony of William Fisher, board member and former chairman of the State Board of Polygraph Examiners, and a stipulation of evidence which contained an affidavit by the complainant, Sheldon Philip Reichstein. Reichstein's affidavit revealed that he was suspected of theft by his employer, Whataburger restaurant, who requested that he undergo a "stress test" in order to keep his job. Reichstein agreed, and in January 1980, met with appellant at the employer's office in order to take the test. Appellant asked Reichstein several questions, and appellant recorded the responses. Reichstein stated that a tape recorder and microphone were on the table during the interview. Reichstein was required to meet again with appellant by his employer at a later date. At this second meeting, appellant informed Reichstein that if he paid $200.00 in restitution he would not have to take another test. Reichstein refused to pay and took another test, after which the following took place, according to his statement:

"After I had taken the tests he showed me how he could tell deciption (sic). After that he called in his partner and he asked him to read the tapes to (sic) so he would have another persons (sic) decision.... They started showing me how they read the tapes and showed on certain parts where I wasn't telling the truth ..."

After failing the examination, Reichstein was not rehired.

Fisher testified that appellant was not a licensed polygraph operator, and that the test appellant administered to the complainant could not have been a polygraph examination. He described a Psychological Stress Evaluator as a machine which tests a person's veracity by analyzing recordings of a person's responses to questions. He further testified that "Psychological Stress Evaluator," or PSE, was a brand name for a product made by the "Dektor" company, and that the PSE does not record visually, permanently, and simultaneously, a subject's cardiovascular and respiratory patterns.

Appellant contends that Secs. 4 and 7 of the Act violate due process and equal protection by arbitrarily discriminating against those who use devices other than the polygraph for the purpose of detecting deception or verifying truth. Appellant also challenges the constitutionality of the Act on the basis of vagueness and overbreadth.

The Act divides the profession of truth and deception detection into two groups: Those who purport to verify truth and detect deception through the use of polygraph machines, and those who use other machines for the same purpose. Only the former group may be licensed under the Act; thus only polygraph operators may engage in the truth and deception detection business. Appellant contends that this classification is unreasonable and arbitrary and is not rationally related to the objective of the Act, which is stated to be "to regulate all persons who purport to be able to detect deception or to verify truth of statements ...", see Sec. 2 of the Act.

It is well settled that the Equal Protection Clause allows the Legislature considerable leeway to enact legislation that may appear to affect similarly situated people differently. Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982). Absent an interference with the exercise of a "fundamental" right ³ or a burden on a "suspect" class, ⁴ classifications will not be set aside on equal protection grounds if they are rationally related to a legitimate state interest. Id. Alternatively stated, the test "is whether the challenged classification rests on grounds wholly irrelevant to achievement of a valid state objective." Morgan v. State, 470 S.W.2d 877, 880 (Tex.Cr.App.1971). See also Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).

Appellant does not contend that he is a member of a "suspect" class or that the right to practice his profession is a "fundamental" right. Therefore, we will scrutinize the Act only to determine whether the classification scheme it sets up is rationally related to the achievement of a legitimate state interest. There is no question that the State has a legitimate interest in regulating those who purport to be able to detect deception or to verify truth of statements through the use of mechanical devices. It is common knowledge that polygraph and other "lie detector" tests are used by employers as well as by police. As the instant case indicates, failing such a test can cause serious consequences. It is evident from the educational, moral, and mechanical prerequisites for licensing under the Act that the Legislature sought to protect the public by creating certain minimum requirements for "lie detector" operators and machines. We find that the classification scheme is rationally related to that objective. The wisdom of the Legislature's determination that the polygraph is more accurate and reliable than other "lie detectors" is not subject to judicial review, under the rational basis standard. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Morgan v. State, supra.

Appellant contends that the Act's purposes cannot be furthered by the classification since under the Act, a licensed polygraph examiner can lawfully operate machines other than a polygraph and base his decision solely on the results of the nonpolygraph examination. We do not interpret the statute in the same manner. Sec. 4 of the Act, supra note 1, provides that "The use of any instrument or device to detect deception or to verify truth of statements which does not meet [the] minimum instrumentation requirements [of the polygraph] is hereby prohibited ..." It further provides, however, that "Patterns of other physiological changes in addition ..." to those recorded by the polygraph "may also be recorded." See note 1, supra. While this language does allow the use of a machine other than a polygraph at the same time that a polygraph examination is being administered, it would be impermissible to rely on the non-polygraph examination results alone "to detect deception or to verify truth of statements." Thus although another test can be lawfully administered by a licensed polygraph examiner along with the polygraph examination, the results of the non-polygraph can only be used as a supplement to the polygraph test results, which must be used in formulating any conclusions about the veracity of a subject's statements. ⁵

Appellant also challenges the Act as being unconstitutionally vague and overbroad. Due process requires that criminal statutes be reasonably definite as to the persons and the conduct within their scope and the punishment which may be imposed for their violation. See LaFave and Scott, Criminal Law Sec. 11 (1972). Penal statutes must be drafted so that ordinary people can understand what conduct is prohibited, and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

A statute is considered impermissibly overbroad if, in addition to proscribing activities which may constitutionally be forbidden, it sweeps within its coverage speech or conduct which is protected by the First Amendment. See Dandridge v. Williams, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

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