Jerry Leon Fry, Jr. v. State ( 2004 )

11th Court of Appeals

Eastland, Texas

Opinion

Jerry Leon Fry, Jr.

            Appellant

Vs.            No. 11-03-00002-CR – Appeal from Howard County

State of Texas 

            Appellee

            The jury convicted Jerry Leon Fry, Jr. of the aggravated sexual assaults of his minor step-granddaughters, Kr. S., K. S., and H. S. The jury assessed punishment at 99 years confinement for each of the offenses. The trial court sentenced appellant based on the jury’s assessment, ordering that the 99-year sentences run concurrently. On appeal, appellant raises two issues, complaining of (1) testimony regarding a polygraph examination and (2) jury charge error. We affirm.

Background Facts

            The grand jury indicted appellant for the offenses of aggravated sexual assault in three separate counts. In Count I, the indictment alleged that appellant, on or about April 30, 2002, intentionally and knowingly caused the penetration of the female sexual organ of Kr. S. by appellant’s finger. In Count II, the indictment alleged that appellant, on or about April 30, 2002, intentionally and knowingly caused the penetration of the female sexual organ of K. S. by appellant’s tongue. In Count III, the indictment alleged that appellant, on or about April 30, 2002, intentionally and knowingly caused the penetration of the female sexual organ of H. S. by defendant’s sexual organ.

            During trial, the State called Howard County Deputy Sheriff Scott Ginetti as a witness. Deputy Ginetti was the investigating officer in this case. During cross-examination, appellant’s counsel asked Deputy Ginetti whether he had ever measured a doll house that was on appellant’s property. Deputy Ginetti said that he had not measured the doll house and that the only time he had gone back to appellant’s residence was to inform appellant of a tentative polygraph date. Appellant’s counsel objected to the “polygraph” testimony as nonresponsive, and the trial court sustained the objection. The trial court also struck the testimony from the record. Appellant’s counsel then moved for a mistrial on the ground that the “polygraph” testimony was irreparably harmful. The trial court dismissed the jury and had the court reporter read back the “polygraph” testimony. After a recess, the trial court instructed the jury regarding the reference to the polygraph. The trial court informed the jury that results of polygraphs were not admissible as evidence, that there was no evidence that the defendant had refused to take a polygraph examination, and that the jury should disregard the evidence in its entirety. After the trial court’s instructions, the prosecutor also moved for mistrial. The prosecutor asserted that the trial court’s instructions prejudiced the State’s case because they compared appellant to a “perfectly innocent” person. The trial court denied both motions for mistrial. Appellant’s counsel moved the trial court to poll the individual jury members “as to the Court’s instruction.” The trial court polled the jury members, and all of the jury members assured the trial court that they would follow the instructions and disregard the evidence in its entirety. The trial proceeded.

            The State presented testimony from two outcry witnesses, two nurse examiners, and the minor victims. At the time of trial, H. S. was 12 years old, Kr. S. was 11 years old, and K. S. was 9 years old. During H. S.’s testimony, she indicated on drawings that appellant touched her female sexual organ with his sexual organ. She referred to appellant’s sexual organ as his “private.” She said that she felt appellant’s “private” go inside of her. She testified that the incident occurred about a few years ago. During Kr. S.’s testimony, she indicated on drawings that appellant touched her sexual organ with his hand. She said that, when appellant touched her, she felt his hand go inside her private area. She also said that appellant touched her private area with his hand numerous times during a period of several years. K. S. indicated on the drawings that appellant touched her sexual organ with his mouth. She testified that she felt appellant’s tongue go inside her private area. She also said that appellant touched her private area with his hand on a number of occasions.

            Appellant testified that the minors’ allegations were not true. He also said that he never sexually assaulted the minors.

            The trial court included the following instruction in Paragraph XIII of the jury charge:

            You are instructed that according to the law an actor may be convicted for unlawful conduct alleged to have occurred “on or about” a specific date in time. In order to convict it is not necessary the State prove that the offense took place on the specific date alleged in the indictment. It is required, however, for conviction, that the State prove the offense occurred prior to the date the indictment was presented and that the indictment be presented before the expiration of the applicable period of limitations for the offense charged. The period of limitations for the offenses alleged in Counts I, II, III, of the indictment is ten (10) years from the date of the 18th birthday of the victims of the offense. The indictment in each of these three charges was presented on the 19th day of June, 2002.

Appellant’s counsel objected to Paragraph XIII of the jury charge, asserting, among other things, that it allowed the jury to convict appellant on a less than unanimous verdict. The trial court overruled appellant’s objections to the charge. The jury found appellant guilty of all three counts of aggravated sexual assault.

Polygraph Testimony and Trial Court’s Polygraph Instructions

            In appellant’s first issue, he argues that the trial court erred in denying his motion for mistrial. Appellant asserts that Deputy Ginetti’s “polygraph” testimony and the trial court’s “polygraph” instructions to the jury inferred that appellant refused to take a polygraph examination.

            The results of a polygraph test are not admissible at trial for any purpose, whether they are offered on behalf of the State or the defendant. Nethery v. State, 692 S.W.2d 686, 700 (Tex.Cr.App. 1985), cert. den’d, 474 U.S. 1110 (1986). When a witness testifies that a defendant refused to take a polygraph test, the trial court may be required to grant a mistrial. See Kugler v. State, 902 S.W.2d 594, 595-97 (Tex.App. – Houston [1st Dist.] 1995, pet’n ref’d). However, when a witness mentions that a polygraph test was offered or taken, but does not mention the results of the test, the trial court does not err in denying a motion for mistrial. See Richardson v. State, 624 S.W.2d 912, 914-15 (Tex.Cr.App.1981); Hannon v. State, 475 S.W.2d 800, 803 (Tex.Cr.App.1972); Roper v. State, 375 S.W.2d 454, 457 (Tex.Cr.App.1964); Richardson v. State, 823 S.W.2d 710, 712 (Tex.App. – San Antonio 1992, pet’n ref’d); Barker v. State, 740 S.W.2d 579, 583 (Tex.App. – Houston [1st Dist.] 1987, no pet’n). In such cases, a trial court’s instructions to the jury to disregard the evidence are sufficient to cure any error that the testimony may have caused. See Kugler v. State, supra at 595.

            Deputy Ginetti testified that he went to appellant’s residence to inform appellant of a tentative polygraph date. There was no testimony that appellant refused to take a polygraph exam. The trial court instructed the jury that there was no evidence that appellant refused to take a polygraph exam and that the jury was to disregard the polygraph testimony in its entirety. The jurors gave the trial court their assurances that they would follow the instructions to disregard the evidence. The trial court’s instructions were sufficient to cure any error that Deputy Ginetti’s “polygraph” testimony may have caused. The trial court did not err in denying appellant’s motion for mistrial. See Roper v. State, supra at 457; Richardson v. State, supra at 712; Barker v. State, supra at 583. Appellant’s first issue is overruled.

Jury Charge

            Appellant argues that the trial court’s instructions in Paragraph XIII of the jury charge – that it was not necessary for the State to prove that the offenses took place on the specific date alleged in the indictment – allowed the jury to convict him on a less than unanimous verdict. Appellant relies on Francis v. State, 36 S.W.3d 121, 125 (Tex.Cr.App.2000)(op. on reh’g), to support his argument. In Francis, the defendant was charged with indecency with a child. The State offered proof of four acts of indecency that occurred on different dates. The State elected to proceed on two of the acts, one involving the defendant’s touching of the minor’s breasts and the other involving the defendant’s touching of the minor’s genitals. Francis v. State, supra at 122. The trial court submitted the offenses to the jury in a disjunctive instruction that allowed the jury to convict if it found that the defendant had “engage[d] in sexual contact by touching the breast or genitals of [the] victim.” (Emphasis in original) Francis v. State, supra at 122. The Court of Criminal Appeals held that the disjunctive submission was error because it was conceivable that six members of the jury convicted the defendant on the breast-touching offense and six members convicted him on the genital-touching offense. Francis v. State, supra at 125. Therefore, the trial court’s charge in Francis permitted the jury to convict appellant on a less than unanimous verdict.

            In this case, appellant argues that, although the indictment alleged that appellant committed single sexual assault offenses against each of the minors, the minors testified about multiple acts occurring over several years. Appellant asserts that Paragraph XIII of the jury charge permitted the jury to consider the evidence of these multiple acts and, therefore, allowed the jury to convict him on a less than unanimous verdict. Appellant’s counsel made the following objection at trial:

[Paragraph XIII] would permit – given the multiplicity of dates and times that are in evidence would permit some jurors to believe some dates and times, others to believe other dates, and even a third group perhaps to believe another date as to a particular complaining witness, and thereby arrive at a unanimous verdict upon different theories or on different proof as such, it violates the unanimous verdict requirement of the Texas Constitution.

            This case is distinguishable from Francis. In this case, appellant was charged with three separate sexual assault offenses, one in each count of the indictment. The trial court submitted a separate question on each of the offenses. The trial court gave separate instructions to the jury on each of the offenses instructing the jury that, before a conviction was warranted, the State was required to prove the offense beyond a reasonable doubt. Paragraph XIII specifically required the State to prove that “the offense occurred prior to the date the indictment was presented.” Unlike Francis, this case did not involve a disjunctive submission of separate offenses to the jury.

            The trial court’s instruction in Paragraph XIII was a correct statement of the law. In each count of the indictment, the grand jury alleged that appellant committed the offense “on or about” April 30, 2002. The use of “on or about” language in the indictment permitted the State to prove a date other than the one alleged in the indictment “as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex.Cr.App.1997). The instruction in Paragraph XIII was not error.

            The trial court’s charge did not permit the jury to convict appellant on a less than unanimous verdict. Appellant’s second issue is overruled.

This Court’s Ruling

            The judgment of the trial court is affirmed.

January 8, 2004                                                                      TERRY McCALL

Do not publish. See TEX.R.APP.P. 47.2(b).                         JUSTICE

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.