Sparks v. State

• Decision Date: 27 November 1991
• Docket Number: No. 3-90-207-CR,3-90-207-CR
• Citation: 820 S.W.2d 924
• Parties: Charles SPARKS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 924

820 S.W.2d 924

Charles SPARKS, Appellant, v. The STATE of Texas, Appellee.

No. 3-90-207-CR.

Court of Appeals of Texas Austin.

Nov. 27, 1991.

Bill Barbisch, Austin, for appellant.

Ronald Earle, Dist. Atty., William G. Reid, Asst. Dist. Atty., Austin, for appellee.

Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.

ABOUSSIE, Justice.

A jury found appellant guilty of burglary of a habitation. Tex.Penal Code Ann. § 30.02 (1989). The trial court assessed punishment at thirty-five years' confinement in the Texas Department of Criminal Justice Institutional Division.

In a single point of error, appellant asserts that the trial court erred in denying his motion for a mistrial following the State's improper introduction of testimonial evidence concerning its witness's agreement to take a polygraph test. We will reverse the judgment of the trial court.

I. BACKGROUND

At approximately 8:00 a.m. on Sunday morning, December 17, 1989, an apartment shared by Terence Schumpert and Joe Cunningham was burglarized. Schumpert discovered and confronted the burglar, who fled. Schumpert was able to get a description of the burglar and the license number of the truck as he drove away. Cunningham's wallet was stolen in the burglary.

At 9:16 a.m., appellant called the police to report his truck stolen. He told investigating officers that he believed one Daryl Green had stolen his truck, because Green had come to his apartment earlier that morning ¹ to use the telephone, and would have had access to his truck keys, which were on the coffee table at the time. Appellant did not discover the truck was missing until he prepared to go to work at approximately 9:00 a.m. The description of Green that appellant gave police matched several characteristics in the description of the burglar that Schumpert had given police. Later that evening, appellant called the police a second time, to report that he saw Green return his truck. The police launched an immediate search of the vicinity looking for a man fitting the description appellant had given them. They detained a man who identified himself as Devon Poe. Appellant identified Poe as the man who had stolen his truck. Poe was arrested and taken to the police station. His picture was included in a photo spread and Schumpert was asked if he could identify the burglar. He could not. Shortly thereafter, the investigating officer prepared a second photo spread, and called Schumpert back to the police station to view it. This second photo spread included a picture of appellant. Schumpert positively identified appellant as the man he had seen in his apartment.

The trial of this cause began August 21, 1990. It was the State's theory that appellant, realizing he and his truck had been seen by Schumpert, called the police and fabricated the truck-theft story in an effort to throw suspicion away from himself, going so far as to falsely accuse Poe. The evidence most strongly supporting the State's theory included: (1) Schumpert's photo identification and in-court identification of appellant as the intruder he discovered in his apartment; (2) Schumpert's testimony that he provided to the police a description and license number of the truck used by the burglar to flee; and (3) Police Officer Robertson's testimony that a computer search of the license number Schumpert provided showed that the truck was registered to appellant.

Regarding Schumpert's identification of appellant, the defense, on cross-examination of Schumpert, elicited his testimony that there was only ambient light in the apartment at the time of the burglary and it was "not as bright as if it were well lit." Schumpert also testified that he confronted the burglar only ten to fifteen seconds. Defense counsel also pointed out inconsistencies in Schumpert's description of the suspect's facial hair. Schumpert testified that he had told police on the date of the burglary that the suspect had a goatee or mustache. The description in Officer Robertson's police report includes the notation that the burglar had a beard. Yet, Schumpert testified that in a telephone conversation with appellant's counsel, he described the burglar only as needing to shave. ²

Appellant called two alibi witnesses, Tammy McDonald and Lashonda Favors. McDonald, who was scheduled to marry appellant within days of trial, testified she telephoned appellant at his apartment and talked to him at approximately 8:20 a.m. on December 17, 1989, a time that coincides with the time that the burglary occurred. Favors, on the other hand, testified that she was with appellant in his apartment the entire morning of the burglary and that neither of them left the apartment, although she never told police this information before testifying in court. Favors, however, did not hear the phone ring in the apartment or hear appellant talk to anyone other than the police on the morning of the burglary. She also testified that appellant was clean shaven on December 16, the day before the burglary.

The State and the defense closed their respective presentations of the evidence on August 22, 1990. On August 23, over appellant's objection, the State was allowed to re-open its evidence in order to call as a rebuttal witness, Devon Poe. ³ He testified as to his activities on the day of the burglary and denied that he stole the truck or committed the burglary. After further testimony regarding in-custody questioning by one Sergeant Oliver, the following exchange occurred:

PROSECUTOR: Did you explain to Sergeant Oliver what you had done on Sunday, December 17?

Poe: Yes.

PROSECUTOR: Did you give him information on names and phone numbers of your aunt and uncle? ⁴

Poe: Yes.

PROSECUTOR: Did you ever agree to take a polygraph test--

MR. GRIZZARD [Defense Attorney]: Judge, objection.

Poe:--Yes

GRIZZARD: Judge, a polygraph--

THE COURT: Ladies and gentlemen of the jury, you're not to consider the last question or answer for any reason.

MR. GRIZZARD: I move for a mistrial.

THE COURT: Request denied.

DISCUSSION

Because of its inherent unreliability, and its tendency to be unduly persuasive, the results of a polygraph examination are not admissible in Texas for any purpose. Nethery v. State, 692 S.W.2d 686, 700 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); Stewart v. State, 705 S.W.2d 232, 234 (Tex.App.1986, pet. ref'd). The results of a polygraph test may be disclosed not only by an affirmative statement of a witness, but merely by a question revealing that a polygraph examination has been administered. Nichols v. State, 378 S.W.2d 335, 337 (Tex.Crim.App.1964).

The State concedes the question, "Did you agree to take a polygraph test," was improper and the answer inadmissible. Nevertheless, the State argues that the inquiry only established that Poe had agreed to take a test. No results were disclosed, nor was it even established that Poe had taken a polygraph examination. Therefore, the State argues, the instruction was sufficient to cure the error without the necessity of a new trial.

The State relies on cases cited in Banda v. State, 727 S.W.2d 679 (Tex.App.1987, no pet.), as support for the proposition that where the lie detector evidence is only mentioned, and the results are not disclosed, an instruction to disregard is sufficient. In Banda, this Court observed that:

Where the defense insists on a mistrial, the sufficiency of an instruction to disregard polygraph evidence generally depends on whether the results of the exam were revealed to the jury. In all cases we found where an instruction to disregard was held sufficient, lie detector evidence was only mentioned and no results were disclosed. See e.g. Reed v. State, 522 S.W.2d 466 (Tex.Cr.App.1975) (testimony that witness was a polygraph examiner); Hannon v. State, 475 S.W.2d 800, 803 (Tex.Cr.App.1972) (witness stated he had been put on the lie detector); Renesto v. State, 452 S.W.2d 498, 500 (Tex.Cr.App.1970) (unresponsive answer that witness had taken a polygraph); Lee v. State, 455 S.W.2d 316, 321-22 (Tex.Cr.App.1970) (revelation "that he [the defendant] did not have to take the lie detector"); Charles v. State, 424 S.W.2d 909, 913 (Tex.Cr.App.1967) (statement that two persons submitting to investigation had been tested); Roper v. State, 375 S.W.2d 454, 457 (Tex.Cr.App.1964) (disclosure that test given to defendant); Paredes v. State, 368 S.W.2d 620, 621 (Tex.Cr.App.1963) (statement that defendant was taken to a polygraph machine); Giesen v. State, 688 S.W.2d 176, 178 (Tex.App.1985, no pet.) (testimony that rape prosecutrix normally given polygraph exam). Conversely, in all cases where the results were made known to the jury over objection, the prejudice was held to be irreversible and a new trial imperative. See e.g. Robinson [v. State], [550 S.W.2d 54, 61 (Tex.Crim.App.1977) ]; Nichols v. State, 378 S.W.2d 335, 338 (Tex.Cr.App.1964); Jones v. State, 680 S.W.2d 499, 502 (Tex.App.1983, no pet).

Banda, 727 S.W.2d at 681-82. The reviewing court also scrutinizes the manner in which the evidence is revealed. For example, the court reviews whether there was an apparent design to elicit the answer given. Lee, 455 S.W.2d at 322. In those cases cited in Banda where the polygraph information was revealed in an unresponsive answer, one cannot say the question was designed to elicit the inadmissible polygraph testimony. See Hannon, 475 S.W.2d at 803; Renesto, 452 S.W.2d at 500; Lee, supra; Roper, 375 S.W.2d at 456; and Paredes, 368 S.W.2d at 621; see also Marini v. State, 593 S.W.2d 709, 715-16 (Tex.Crim.App.1980). The reviewing court also inquires whether bad faith is evident. See Roper, 375 S.W.2d at 456. Additionally, in Banda, appellant did not renew his request for a mistrial when asked by the trial court what remedy he desired. Finally, the appellant in Banda waived admission of the lie detector results. Banda, 727 S.W.2d at 682.

Here, the prosecutor's direct question clearly was designed...