Shane Douglas Rainey v. State ( 2006 )

Opinion filed June 15, 2006

Opinion filed June 15, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00174-CR

                                                    __________

                               SHANE DOUGLAS RAINEY, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                Trial Court Cause No. CR16-992

                                                                   O P I N I O N

Upon his open plea of guilty, the trial court convicted Shane Douglas Rainey of aggravated sexual assault and assessed his punishment at thirty years confinement. We affirm.

In his first and second issues on appeal, appellant argues that the trial court erred in failing to grant his motion for new trial.  Appellant contends that he should have received a new trial because the State failed to comply with the trial court=s standing pretrial order and because the State failed to disclose exculpatory evidence.  Both of appellant=s contentions involve the results of appellant=s polygraph examination.

We review a trial court=s denial of a motion for new trial under the abuse of discretion standard.  Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).  We do not substitute our judgment for that of the trial court; but, rather, we decide whether the trial court=s decision was arbitrary or unreasonable.  Charles, 146 S.W.3d at 208; Lewis, 911 S.W.2d at 7. We must view the evidence in the light most favorable to the trial court=s ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party.  Charles, 146 S.W.3d at 208.  Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable review of the record could support the trial court=s ruling.  Charles, 146 S.W.3d at 208.

 On March 26, 1998, the trial court signed a AStanding Pretrial Order in Criminal Cases.@  The order requires the State to provide the Aresults of any and all scientific tests of whatever nature made by an [sic] State agency . . . the result of which would in any manner be material to the guilt or innocence of the Defendant.@ The record shows that appellant agreed to take a polygraph examination administered by Matthew Mull of the Texas Department of Public Safety.  Shortly after Sergeant Mull administered the polygraph examination, appellant admitted committing the offense. Appellant argues that the State failed to provide him with the results of the polygraph in violation of the trial court=s order.  Appellant also contends that, by not providing the results, the State failed to disclose favorable evidence in accordance with Brady v. Maryland, 373 U.S. 83 (1963).   

Suppression of exculpatory or even favorable evidence to a defendant violates due process when the evidence is material to either guilt or punishment.  Brady, 373 U.S. at 87.  To demonstrate a violation of due process rights, the defendant must show the following:  (1) that the State failed to disclose evidence; (2) that the evidence was favorable to the defendant; and (3) that the fact that the evidence was not disclosed created a probability sufficient to undermine the confidence in the outcome of the proceeding.  Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).

At the sentencing hearing, appellant=s trial attorney questioned appellant about the circumstances of his taking the polygraph examination.  During the hearing on his motion for new trial, appellant testified that Sergeant Mull informed him upon the completion of the polygraph examination that he did not pass.  At that hearing, the prosecutor argued that he discussed the polygraph examination with appellant=s trial attorney.  The record does not establish that the State failed to comply with the trial court=s order to provide the results of all tests made by the State or that the State failed to provide exculpatory evidence. Further, appellant has not shown that the results of the polygraph examination were favorable or that the failure to disclose the results would undermine the competence in the outcome of the proceeding. 

Moreover, the record does not show that appellant objected at any time that the State failed to provide the results of the polygraph examination.  Therefore, appellant has not preserved this complaint for review.  Tex. R. App. P. 33.1(a).  The trial court did not abuse its discretion in denying appellant=s motion for new trial.  Appellant=s first and second issues on appeal are overruled.

In his third issue on appeal, appellant argues that he received ineffective assistance of counsel.  To prevail on an ineffective-assistance-of-counsel claim, the familiar Strickland v. Washington^[1] test must be met.  Wiggins v. Smith, 539 U.S. 510 (2003); Andrews v. State, 159 S.W.3d 98, 101‑02 (Tex. Crim. App. 2005).  Under Strickland, we must determine whether counsel=s performance was deficient and, if so, whether the defense was prejudiced by counsel=s deficient performance.   Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 668; Andrews, 159 S.W.3d at 101.  Appellate review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  This deferential standard applies to ineffective assistance that occurs during the punishment phase of trial.  Flowers v. State, 133 S.W.3d 853, 856 (Tex. App.CBeaumont 2004, no pet.).

Appellant specifically complains that his trial counsel was ineffective in allowing evidence of the polygraph examination to be admitted during the sentencing hearing. Because of their inherent unreliability and tendency to be unduly persuasive, the existence and results of polygraph examinations are inadmissible for any purpose in a criminal proceeding on proper objection.   Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990).  During the sentencing hearing, appellant=s trial counsel asked appellant whether a police officer asked him to take a polygraph examination.  Appellant testified that he agreed to take a polygraph examination and that, as a result of the polygraph examination, he gave a voluntary statement. 

Appellant testified that he cooperated with the police and that he voluntarily gave a statement in which he admitted his involvement in the offense.  Appellant further testified that he turned himself in to police after an arrest warrant was issued.  Appellant has not shown that the decision to admit that he voluntarily agreed to a polygraph examination was not based upon trial strategy.   See Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).  Moreover, appellant has not shown that he was prejudiced by any deficiency in his trial counsel.  Appellant=s third issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

June 15, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.

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^[1]Strickland v. Washington, 466 U.S. 668 (1984).