Johnnie Theddeus Gardner v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00360-CR
JOHNNIE THEDDEUS GARDNER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Johnnie Theddeus Gardner appeals the trial court‘s revocation of
his community supervision and its decision to sentence him to eight years‘
confinement for aggravated sexual assault of a child. In a single point, he argues
that the court erred by admitting and relying on evidence of his failed polygraph
examinations. Because appellant forfeited his complaint about the admission of
the polygraph results, we affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
A Tarrant County grand jury indicted appellant for multiple counts of
aggravated sexual assault of a child. A jury convicted him of one count,
assessed his punishment at ten years‘ confinement, and recommended that he
be placed on community supervision. The trial court entered a judgment ordering
community supervision and imposed several conditions, including some
conditions particularly relating to sex offenders.2 Appellant appealed his
conviction but later obtained dismissal of the appeal.3
Three years later, the State filed a petition to revoke appellant‘s community
supervision, alleging that appellant violated the conditions by (1) failing to
complete psychological counseling and treatment within three years of its
initiation, (2) having contact with minors, (3) living within 1,000 feet of a ―child
safety zone,‖ (4) going within 1,000 feet of a place where children under
seventeen years old commonly gather, (5) failing to install software to block
access to sexually explicit material on two computers in his residence, and
(6) failing to notify his supervision officer within five days of changing
employment. The trial court held a hearing on the State‘s petition, and appellant
2
One of the conditions required appellant‘s 180-day confinement in jail.
Another condition required him to submit to a clinical polygraph test ―as directed
by the supervision officer.‖
3
See Gardner v. State, No. 02-06-00045-CR, 2006 WL 563217, at *1 (Tex.
App.—Fort Worth Mar. 9, 2006, no pet.) (mem. op., not designated for
publication).
2
pled true to the first two allegations listed above and not true to the four
remaining allegations.
The State presented evidence to establish, among other facts, that
appellant had lived with his sister in a house that was approximately four doors
down from a home daycare; that late one night, he went to Sundance Square in
Fort Worth, which his community supervision officer considered a child safety
zone; that he lacked progress in psychological treatment; and that he had
unauthorized contact with his children.4 The trial court found that the first four
allegations listed above were true, revoked appellant‘s community supervision,
and assessed his punishment at eight years‘ confinement. Appellant filed this
appeal.
Admission of Polygraph Results
In his sole point, appellant contends, ―The trial court abused its discretion
in imposing a sentence in reliance on inadmissible evidence that Appellant had
failed numerous polygraph exams during his probation period.‖ He argues, ―To a
great extent the probation revocation hearing was trial by polygraph.‖ During the
4
Appellant offered evidence to contradict the State‘s evidence and explain
some of the circumstances surrounding his acts while he was on community
supervision. Appellant does not challenge evidentiary sufficiency, and his pleas
of true justify the trial court‘s revocation decision; thus, we will not detail all of the
evidence related to the State‘s allegations. See Cole v. State, 578 S.W.2d 127,
128 (Tex. Crim. App. [Panel Op.] 1979); Battles v. State, 626 S.W.2d 149, 150
(Tex. App.—Fort Worth 1981, no pet.).
3
hearing on the State‘s petition to revoke, while the prosecutor was questioning a
community supervision officer, the following exchange occurred:
Q. On any other day throughout the approximately three-year
term of his probation, was he allowed contact with his children?
A. No, ma‘am.
Q. Why was that?
A. He was in constant violations of his conditions of bond, as
in he was failing a polygraph or noncompliance issues --
[DEFENSE COUNSEL]: I‘m going to object to any mention of
polygraph, Judge.
THE COURT: We don‘t have a jury, this is just before me, so
that‘s overruled.
Later in the hearing, as the following excerpt shows, the State again asked
the supervision officer about appellant‘s polygraph exams:
Q. Mr. Roberts, specifically regarding the contact the
Defendant had with his children, are these -- these instances of
contact, did he readily admit these to you?
A. No, this -- the final admission came after the sixth
polygraph of him having admitted to the contact with his children.
Previous ones before that have gone through various stories of
whether he had contact or not. Pretty much continually denying it
until the sixth one.
Q. So he had showed deception on five previous polygraphs
and changed his story each time before he finally told the truth after
the sixth polygraph?
A. Yes, ma‘am.
4
Upon his counsel‘s questioning, appellant also testified about taking the
monthly polygraph exams and about admitting to improperly seeing his children
only after taking five exams. Then, during cross-examination of appellant by the
State, the following colloquy occurred:
Q. And, in fact, you were having contact with [appellant‘s son]
while you were on probation, weren‘t you?
A. No, ma‘am.
Q. Well, you completed a series of polygraphs where you
were asked about contact with him in which you failed repeatedly,
didn‘t you?
A. Yes, ma‘am.
Q. So you could not pass a polygraph regarding having no
contact with your son . . ., could you?
A. No, ma‘am.
Q. And you could not pass the polygraph until you finally --
[DEFENSE COUNSEL]: Judge, we object. The polygraph is
still inadmissible in court. I know it‘s a probation revocation hearing,
but we don‘t have -- we don‘t have anybody here on the polygraph
and we don‘t know what questions were asked.
THE COURT: It‘s overruled.
Q. . . . You could not pass a polygraph regarding having
contact with your other children until you finally admitted after the
sixth polygraph about that contact; is that correct?
A. I think it was the fifth one.
....
5
Q. Right. And, in fact, the last polygraph you failed regarding
your contact with [appellant‘s son] was February 26th of 2009,
wasn‘t it?
A. I‘m not sure about the dates, but . . .
Q. Does that sound about right?
A. I failed all the way up until I got incarcerated.
....
Q. . . . You told the Judge in July you could have completed
your sex offender treatment?
A. And I -- and I still -- and I would have.
Q. And yet you‘re still failing polygraphs?
A. Yes, ma‘am. I failed polygraphs, I -- I have a problem
taking them, I -- I overanalyze the situation, I get nervous.
The State and appellant‘s counsel then continued to ask appellant more
questions about his performance on the polygraph exams.5 Also, appellant used
the polygraph results to explain his answers to some questions that did not
directly concern the polygraph exams.
Polygraph results are generally inadmissible for all purposes. Nesbit v.
State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007); Nethery v. State, 692
S.W.2d 686, 700 (Tex. Crim. App. 1985) (―Even if the State and the defendant
agree and stipulate to use the results of a polygraph at trial, we have held the
5
In his brief, appellant argues that ―having been forced to respond,‖ he
―asked some follow-up questions about the State‘s inquiries about the
polygraphs.‖
6
testimony to be inadmissible.‖), cert. denied, 474 U.S. 1110 (1986); Russell v.
State, 798 S.W.2d 632, 635 (Tex. App.—Fort Worth 1990, no pet.) (―The results
of polygraph examinations are excluded due to their inherent unreliability and
tendency to be unduly persuasive.‖); see Reed v. State, 48 S.W.3d 856, 864
(Tex. App.—Texarkana 2001, pet. ref‘d) (―[P]olygraph evidence is inadmissible at
a bench trial as well as at a jury trial.‖). However, a defendant must assert a
proper, timely objection to the admission of polygraph results to preserve error.
Jasso v. State, 112 S.W.3d 805, 813–14 (Tex. App.—Houston [14th Dist.] 2003,
pet. ref‘d) (explaining that the ―standard set by our high court for the timely
assertion of objections is both demanding and unforgiving‖); see Graham v.
State, 3 S.W.3d 272, 285 (Tex. App.—Fort Worth 1999, pet. ref‘d).
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1); Mosley
v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh‘g), cert.
denied, 526 U.S. 1070 (1999). Also, with some exceptions that do not apply to
this case, to preserve error, a party must continue to object each time the
objectionable evidence is offered or obtain a running objection to the evidence.
Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v.
State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). Thus, a trial court‘s
7
erroneous admission of evidence will not require reversal when other such
evidence was received without objection, either before or after the complained-of
ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). This rule
applies whether the other evidence was introduced by the defendant or the State.
Id.
Although appellant objected to the first portion of the community
supervision officer‘s testimony that mentioned the results of appellant‘s polygraph
tests and objected to a question in the middle of his own testimony, he did not
object to every question or answer that disclosed the results, and he did not
obtain a running objection to the polygraph evidence. His trial counsel also
elicited some of the evidence. Nonetheless, appellant argues that his first
objection preserved error relating to all of the polygraph testimony because
―[f]urther objections were useless as counsel could assume the trial court would
make the same ruling in each instance.‖ But in Leday, the court of criminal
appeals stated,
In requiring an objection every time the objectionable evidence is
offered, we are in a minority of courts which do not follow the general
rule that the repetition of an objection is needless when the court’s
ruling has indicated that an objection to such evidence will definitely
be overruled. See Wigmore on Evidence § 18 (Peter Tillers rev.
1983). Our rule which requires objection to every offer is sometimes
called ―the ‗futility rule‘; that is, despite ruling of judge that evidence
is admissible, party must keep making futile objections on pain of
waiver.‖ 21 Charles Alan Wright & Kenneth W. Graham, Federal
Practice & Procedure § 5039 n. 11.1 (Supp. 1998) (citing Texas
cases). We have found that the general application of this rule has
not proven to be burdensome for defense counsel in many cases.
8
Id. at 717–18 (emphasis added and footnote omitted); see Lane v. State, 151
S.W.3d 188, 193 (Tex. Crim. App. 2004) (relying on Leday to overrule an
evidentiary issue); see also Long v. State, 10 S.W.3d 389, 399 (Tex. App.—
Texarkana 2000, pet. ref‘d) (explaining that the requirement of objecting each
time inadmissible evidence is offered ―remains true with regard to testimony
regarding polygraph examination results‖).
Appellant relies on a 1992 opinion from the Dallas Court of Appeals to
support his argument that repeated objections to evidence are not necessary to
preserve error when they would be useless or futile. See Davis v. State, 831
S.W.2d 839, 845 n.2 (Tex. App.—Dallas 1992, pet. ref‘d); see also Graham v.
State, 710 S.W.2d 588, 591–92 (Tex. Crim. App. 1986) (holding that error was
preserved because a repeated objection would have been futile); Cardenas v.
State, 787 S.W.2d 160, 162 (Tex. App.—Houston [1st Dist.] 1990, pet. ref‘d)
(relying on Graham to hold that error was preserved).6 But we have not found an
opinion from the court of criminal appeals after Leday in which our highest court
retreated from its adoption of the statement that the parties must ―keep making
6
Relying on Graham, other courts of appeals have reached similar
conclusions.
9
futile objections on pain of waiver.‖7 Leday, 983 S.W.2d at 718 & n.5; see Lane,
151 S.W.3d at 193.
Based on Leday and the other cases cited above, we hold that appellant
forfeited his right to complain on appeal about the admission of evidence of his
polygraph results because he did not object each time the results were asked
about or obtain a running objection to evidence of the results. See Tex. R. App.
P. 33.1(a); Tex. R. Evid. 103(a), Leday, 983 S.W.2d at 718–19. We overrule his
only point.
Conclusion
Having overruled appellant‘s sole point, we affirm the trial court‘s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 4, 2010
7
We have also not found any opinion that discusses the apparent conflict
between Graham and Leday (which was more recently decided).
10