Romero v. State

• Decision Date: 18 April 1973
• Docket Number: No. 46281,46281
• Citation: 493 S.W.2d 206
• Parties: Johnny ROMERO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 206

493 S.W.2d 206

Johnny ROMERO, Appellant, v. The STATE of Texas, Appellee.

No. 46281.

Court of Criminal Appeals of Texas.

April 18, 1973.

J. A. Canales, Corpus Christi, for appellant; appointed on appeal only.

William B. Mobley, Jr., Dist. Atty., and John Potter, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for sale of heroin wherein the punishment was assessed at twenty (20) years.

At the outset, appellant urges that the court erred 'as a matter of law' in admitting into evidence, over objection, the results of a lie-detector or polygraph test. The State contends that the same was admissible by virtue of a pre-trial written agreement and stipulation entered into prior to the polygraph test. Both State and appellant believe that the question presented is one of first impression in this jurisdiction.

Prior to trial, the appellant filed a motion in limine to prevent the State from using the results of said test by contending that, contrary to the agreement, the polygraph operator was not qualified, and, further, contrary to the agreement, the appellant was given the drug 'Methadone' though he was not to be given any drugs for 48 hours prior to the test.

At the hearing on the motion, it was shown that on December 15, 1970, several days after the return of the indictment, the following stipulation was entered into:

STIPULATION

We, Ed Williams, Attorney for the undersigned Defendant, Johnny Romero, Defendant, and Phil Westergren, State's Attorney, hereby agree and stipulate that the lie detector test given to the Defendant on the 15th day of December, 1970, may be admitted into evidence at the trial of said Defendant, by either party, provided that no such evidence can be admitted unless the examiner first testifies, out of the presence of the Jury, that his offered testimony, in his opinion, is probative.

/s/ Johnnie Romero

Defendant

/s/ Ed P. Williams

Attorney for Defendant

/s/ Phil Westergren

Attorney for the State

Subscribed and sworn to before me, on this the 15 day of December, A.D.1970. . . .'

At this time appellant was in custody and was taken from the jail to the Department of Public Safety office in Corpus Christi. The appellant offered evidence to show that Edwin De Sha, the polygraph operator for the Department of Public Safety, had only an intern's license at the time of the test, ¹ and that at 8 p.m. on December 14, the evening before the test on the morning of December 15, the appellant had been given one Methadone tablet. Appellant contends this violated the agreement to stipulate.

The State countered with evidence that the operator's intern's license was on the wall of the room where the test was given in the presence of appellant's counsel, and that such counsel had been informed prior to the test that appellant had taken Methadone the night before and had thereafter agreed to the test; that Dr. Rupp had been called prior to the test to determine the effect of the Methadone on the results of such test.

The motion in limine was subsequently overruled.

The State's evidence at the trial on the merits reflects that 22-year old John Messer and one Williams, age 20, undercover agents for the Nueces County Sheriff, went to the Blue Note Lounge in Corpus Christi on November 24, 1970, posing as construction workers looking for employment. The lounge was shown to be owned by a Kathy Bolden. Among those present in the lounge at the time were J. D. Haywood, who was working behind the bar, Terry Murlough, alias Linda Davis, and the appellant.

While the agents were drinking beer, they were approached by Terry Murlough who propositioned Messer for a 'date' and then told him he looked like a 'junky.' She offered to get him pills, 'weed', 'smack', or anything he wanted. He ordered one 'paper' of 'smack' or heroin for $10.00 and told the woman he would have to go get the money. Though there is some conflict in the testimony as to appellant's position in the lounge, the agents estimated he was approximately ten feet away from their table at the time of the transaction and the jukebox was not playing.

The agents went to the courthouse to obtain the money. When they returned, they say the appellant leaving. Upon their entry into the lounge, J. D. Haywood asked if they were the ones who had made arrangements with Terry Murlough and, upon receiving an affirmative answer, went to a machine and removed several 'papers' and sold them one 'paper' of a substance later shown to be heroin. ²

The next day, November 25, Messer and one Sullivan returned to the lounge, contacted the Murlough woman and gave her $30.00 for more heroin. She kept stalling on the delivery of the same and finally the agents followed her from the lounge to appellant's apartment nearby where the appellant 'ran' the agents off. They waited across the street until the appellant, Kathy Bolden, J. D. Haywood and Terry Murlough left the apartment and got into a car. The agents then approached the car and demanded their money or the 'dope.' At this point, appellant got out of the car, pulled a pistol and ordered the undercover agents away.

On November 27, 1970, Messer and other officers executed a search warrant at the Blue Note Lounge. Only J. D. Haywood and Terry Murlough were present. In the cash register they found a substance later shown to be heroin. After this discovery, they observed the appellant on the sidewalk a half of block away walking toward the lounge. He was arrested.

Terry Murlough, who admitted she was a prostitute and a dope addict and had been convicted of shoplifting and passing hot checks, testified for the State. She related that shortly before the events in question she had come to Corpus Christi with J. D. Haywood and they made contact with Kathy Bolden with whom the appellant lived and that prior to November 24 the four of them had gone to San Antonio where the appellant purchased heroin which he and J. D. Haywood 'papered.' She admitted that she made arrangements for the sale of heroin to Messer and Williams on November 24 and that the next day she 'burned' Messer by taking his money and failing to deliver the heroin. She related another trip was made to San Antonio where the appellant purchased more heroin which was again 'papered' by the appellant and Haywood. She related that she was present on November 27 when the search warrant was executed and that she and Haywood had access to and control over the cash register when they were in the lounge alone, that the appellant had control when he was present, and that Kathy Bolden had control whenever she was present.

To corroborate this accomplice witness, the State offered the testimony of De Sha, the polygraph operator, that when questioned about his part in the sale on November 24, and the possession of the narcotics in the cash register, the appellant gave deceptive answers. Canty, his supervisor, also testified from the chart made by De Sha that the appellant's answers were deceptive.

The court charged on the law of principals but gave no limiting instructions on the polygraph testimony.

No machine or device has perhaps caused greater controversy among 'experts', judges, lawyers, physicians, psychologists, government officials, and the public in general than the polygraph or lie-detector machine.

No reported Texas decision has described the machine and it is perhaps well to do so here.

'The polygraph machine ordinarily consists of a cardiograph which registers pulse rate, a sphygmograph which measures blood pressure, a pneumograph which measures respiration, and usually a galvanometer which measure electrodermal responses. The theory for using the polygraph to detect lies is that the act of lying causes conscious conflict in the mind of the examinee, which produces an emotion of fear or anxiety, manifested by fluctuations in pulse rate, blood pressure, breathing, and perspiration.' Pulakis v. State, 476 P.2d 474, 477--478 (Alaska Sup.1970).

See also Henderson v. State, 94 Okl.Crim. 45, 230 P.2d 495, 501 (1951); State v. Valdez, 91 Ariz. 274, 371 P.2d 894, 895 (1962); Kleinfeld, The Detection of Deception--A Re sume , 8 Fed.B.J. 153 (1947); Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694, 699--700 (1961).

In the leading case of Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923), the Court said of the expert testimony based on a test of blood pressure fluctuations (really a monograph rather than a polygraph):

'. . . Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.' ³

In 1933 in State v. Bohner, 210 Wis. 651, 658, 246 N.W. 314, 317, 86 A.L.R. 611, the Wisconsin Supreme Court wrote:

'We are not satisfied that this instrument, during the ten years that have elapsed since the decision in the Frye Case, has progressed from the experimental to the demonstrable stage. . . .' 246 N.W. at 317.

And, in Henderson v. State, 94 Okl.Crim. 45, 230 P.2d 495, 23 A.L.R.2d 1292 cert. den. 342 U.S. 898, 72 S.Ct. 234, 96 L.Ed. 673 (1951), the court, after an exhaustive review of existing authority on the...