Whatley v. State, No. 13-07-568-CR (Tex. App. 1/29/2009)
| Decision Date | 29 January 2009 |
| Docket Number | No. 13-07-568-CR.,13-07-568-CR. |
| Parties | SHELDON WHATLEY, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 94th District Court of Nueces County, Texas
Before Justices YAÑEZ, GARZA, and VELA.
A jury found appellant, Sheldon Whatley, guilty of five counts of aggravated sexual assault of a child,1 two counts of indecency with a child,2 six counts of prohibited sexual conduct,3 and two counts of sexual assault.4 The jury assessed his punishment at life imprisonment for each count of aggravated sexual assault of a child, twenty years' imprisonment for each count of indecency with a child, ten years' imprisonment for each count of prohibited sexual conduct, and twenty years' imprisonment for each count of sexual assault. The jury assessed a $10,000 fine for each offense, totaling $150,000. The trial court granted Whatley's motion for new trial with respect to the six counts of prohibited sexual conduct, but denied the motion for new trial on all remaining counts.
In five issues, Whatley argues the trial court (1) erred in excluding his exculpatory polygraph results, (2) erred in refusing to grant a mistrial, (3) applied the wrong standard when it excluded his polygraph results, (4) erred in denying his motion for new trial with respect to the remaining convictions, and (5) violated his right to the presumption of innocence. We affirm.
Whatley does not challenge the legal or factual sufficiency of the evidence to sustain his convictions. As this is a memorandum opinion, and the parties are familiar with the facts, we will not recite them here except as necessary to explain the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
In his first issue, Whatley contends Detective Michael Hess's testimony "opened the door" to controverting evidence that Whatley had taken and passed polygraph tests relating to each of the allegations against him. At the guilt-innocence phase, Detective Hess testified that he had worked 26 years for the Corpus Christi Police Department and had worked on child sexual abuse cases for twelve years. He provided the context of the offenses alleged against Whatley as well as an overview of the investigation. On re-cross-examination, defense counsel asked him:
Q. What you just testified to, Detective Hess, do you ever spend time alone with any of the people that have made these accusations?
A. The children?
Q. Uh-huh. Do you ever spend one on one time alone with these children where there's no one else to witness what happens?
A. I hate saying do you ever as because I have, but it's not—it's not a common occurrence.
* * *
Q. What do you do to protect yourself from these very same allegations being placed upon you?
* * *
A. I understand. Somebody saying that I touched them or whatever?
Q. Yes.
A. It never really occurred to me . . .
Q. How would you prove yourself innocent?
A. Me, I'd run down [and] take a polygraph. I'd have no problem doing that. I mean, you made an allegation about me. I'd be banging on the door of a polygraph operator saying, come here, hook me up.
Q. And then what if you took the polygraph and passed and you were still charged with the offense?
A. I can't imagine that. Why would I get charged if I passed a polygraph? I mean, you—you—if we went to a courtroom, beyond a reasonable doubt. My defense attorney would be saying, Your Honor, my client took a polygraph and he passed and why are we here.
Q. So it's your policy with the cases that if the accused would take a polygraph and pass, that that case should be not charged, it should not go before the jury?
A. You said it's my policy. I don't get to make that decision. I present my case to the prosecutor and the prosecutor decides whether those cases go or not. I've never taken a case where the guy passed a polygraph prior to trial, but I don't get to make the decision whether this case goes to the jury or not. Those go to the prosecutor's office.
Q. But if it was you yourself that was the defendant, you'd want the jury to know that information?
A. Oh, yeah, but hopefully it wouldn't get that far. I'd be exonerated because I took the polygraph and the prosecutor realizes there's not a case, you know, whatever.
At this point, defense counsel passed the witness.
After hearing the testimony of Detective Hess, the jury heard the testimony of four other State's witnesses. Afterwards, outside the jury's presence, defense counsel asked the trial court to allow him, in response to Detective Hess's testimony, to introduce evidence that Whatley had taken and passed three polygraph tests. The trial court denied admission of this evidence, but allowed counsel to make a bill of exception.
A trial court's ruling admitting or excluding evidence is reviewed on appeal for abuse of discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). We will uphold the trial court's ruling if the record reasonably supports the ruling, and the ruling is correct under any theory of law applicable to the case. Id. at 418.
Counsel could not introduce Whatley's polygraph-test results because "[t]he existence and results of a polygraph examination are inadmissible for all purposes." Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990) (per curiam); Castillo v. State, 739 S.W.2d 280, 293 (Tex. Crim. App. 1987) (). The court of criminal appeals recently confirmed this rule. Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007) ().
Whatley contends that the State "opened the door" to the introduction of his polygraph results through its witness, Detective Hess. In certain limited instances, polygraph evidence, which was erroneously admitted at trial, has "opened the door" to further inadmissible evidence regarding the polygraph results. Long v. State, 10 S.W.3d 389, 398-99 (Tex. App.-Texarkana 2000, pet. ref'd); Hoppes v. State, 725 S.W.2d 532, 536 (Tex. App.-Houston [1st Dist.] 1987, no pet.); see Lucas v. State, 479 S.W.2d 314, 315 (Tex. Crim. App. 1972).
We need not address Whatley's argument, however, because he failed to object to Detective Hess's testimony regarding the consequences of passing a polygraph exam. To preserve error, it has been consistently held that one must object each and every time inadmissible evidence is offered. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). This rule applies to testimony regarding polygraph examination results. See Long, 10 S.W.3d at 399 (), Cano v. State, No. 13-00-106-CR, 2001 Tex. App. LEXIS 4707, at *5-6 (Tex. App.-Corpus Christi July 21, 2001, no pet.) (mem. op. not designated for publication) ( appellant failed to preserve error by failing to object to inadmissible polygraph evidence). We conclude Whatley failed to preserve error because he did not make a timely objection. See Long, 10 S.W.3d at 399. Issue one is overruled.
In his second issue, Whatley argues the trial court erred when it overruled his motion for a mistrial. After the State rested its case at the guilt-innocence phase, defense counsel, outside the jury's presence, asked the trial court to instruct the jury to "disregard any previous testimony concerning a lie detector test. . . ." The trial court denied the request. Counsel then asked for a mistrial, which the trial court denied.
We review a trial court's denial of a motion for mistrial for abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). To constitute an abuse of discretion, the trial court's decision must fall outside the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). Only in extreme circumstances, when the prejudice is incurable, will a mistrial be required. Hawkins, 135 S.W.2d at 77.
"In accordance with Rule 33.1, a motion for mistrial must be both timely and specific." Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). "A motion for mistrial is timely only if it is made as soon as the grounds for it become apparent." Id. An untimely motion for mistrial will not preserve a complaint for appellate review. Duffey v. State, 249 S.W.3d 507, 510 (Tex. App.-Waco 2007, pet. ref'd) (citing Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004)); see Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994).
In this case, the objectionable nature of Detective Hess's testimony was apparent as soon as he said he would have taken a polygraph exam. See Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). Yet, Whatley waited until the State rested before requesting either an instruction to disregard or a mistrial. Whatley's motion for mistrial was therefore untimely and failed to preserve his complaint for appellate review. See Duffey, 249 S.W.3d at 510.
Even assuming Whatley had timely requested the motion for mistrial, we do not believe the trial court abused its discretion in denying the motion. When a polygraph exam is mentioned at trial and defense counsel requests a mistrial, the reviewing c...
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