                                     NO.    IO-l4«OOt5(p-C£    IZH2-I5

                                             ™THE                       ORIGINAL
                             COURT         OF   CR.\tvUNA\_ APPEALS

                                        OF      TEXAS



                                                                            RECEIVED IN
                              M\CHA£L           DON   POGrUE          COURT OF CRIMINALAPPEA
         FILED lU                                        Pe+i+ioner
COURT OF CRI,\::,^i/.ppr *                                                 DEC 2 1 2015
       p-~   r> ^   .—
                                                                       AfcelAcosta, Clerk
    AbelAcosta, Qe..;        TWE     STATE       OF TEXAS
                                                      Respondent




                             FftofA -\W mvrH &ts\cicV Courl / Tohr\son
                             Counfy , Texas Cftose. Wo. FH3 33Z



                                   CoorV o£ Appeals &>r AV»€
                                   TeM-K OisVricl-    o£ Tetfcis


                     VETITlOM FOK DISCRETION^ "REVIEW

                                                       \k\<LWh£U bow (Wxr, pro id


                                                       3S72 F.M. 3<ro £.
                    WO ORAL ARGUMENT                   LW.'tN^A/TX T73SM
                         "REaOESTEO
               TABL€ OF CONTENTS



Sto.-Vewec^ of i-V\e &xse
(Yodedoful VAvsVorv/                                            .z

QoesVioft For Rev/ieu) Ho. i    _                             —3
     Goes Le^'vs\ccV»*o(N aUou) police "to use
     Coercive measures a&.& £xkyt Gvjide^ce -Yo
     ga^ a 34ccYemec^ -from a suspec+ ujVvd
     ao^ctecl -Vo speak u)tW\ 4tav\?
 GtOes^DA For Review No, Z          .                           $
      dxr\ TttxnsparV Odicers ConducV -Y&uxxcdl
      <*pp<tW\- \<s -froA-t o*1 poo5pecrh\/e ^ococS VloVxVe
      his don5^4u4-»'ooA\ ri^hV (\of <Vo cipp€ao (A Costai/'?
 Quezon ^     &>v\eu> No ,3                  ;                   £
     Ca(\ <x cfe&ndaxvte Sentence be omAK/ pco-
      noofNceof in his presence a.t\dl be CumokxW
      ors another cW/?
fhx^c 4W V*We£                                                   7
A^pendhV _




                                u
         INDEX         OF AUTV-\QR\T1ES

CASE LAW


 Grracia v 6-hxYe      30$ S.U). 3a         <*2, (oM-feSl

 Qxcckei<x V StaVe     SI0!   S,U. za       370



 (\WdUn3 VSVocVe. 10 S»UJ. 3d \3>\                     .     0>
 W<Kc\\(\t7_ V SY*Ve     ^7z       S,u). 6? 15"              *A

 NesbvY V S-W*Ve     ^7       S.w. ^a        G>4_            M

 Ne+Kery V SW-Ye M2 S.tu. Zcl kS&                            H


STATUTES
Tex.CC, P, 4z,o^_                                           -J*
Tex. P.C. 31, O^ (a) (O                                      -5




                              in
                  NO.    10-IM-OOIS-(o-CR


                         IN    THE
             CoufTT OF       C£\N\iMM-. APPEArLS
                        OF    TFXAS




                  MICHAEL OOtsJ       PoGcUE
                                      fo&A-iY-ione^
                              V


                 TTHE    STATE        OP   TEXAS
                                      ReS£or\da<\"b


                PeYiVon \<\ Qto)sz Nb 10 m-oois-fe-efc.
              From Ue HV3TV* CMsYsmcY courY, Tohf\6or\
                        Texas <xag^ -Vta
                Oour-Y ©£ Ap^ecAs -&r Y-V»e, TetvVYs
                         0\$WY o-C- Tejcas,


            Petitxom for dtscretxona0^ Review


TO TUE VA&N0RM5LE TOOCcES OF THE 0-£buT OF CfcTMX NAU
APPEALS OFT£US-

    KAULUAfcL DON Po&OE pe.-Y{Y\otNS +W (WY -Yo oevM'e^ A-^€
><%><weAY a4&VW<va Ws CocwUitxx -for-<W CouaYs o£ &*«**
assaotf oY1 a cW\\A acd or>e Coo(\Yr o£ ir\detc(\>/ uuYV\ a. GhM
             STATEMENT QF        THE CASE

     Appea.tUn4 was ihch'cVed -for 4uieWe. C&onYs oY1 Soojal
assault o£ (X child cod Xndeeen^y uh'YV\ a. Child. On Way
5) Zoi3/ 4-he 5YaY€. cxlca.ndonned 6oon-U G(\e, Tu)o( Three, Four,
Ei'^htr, and Eleveny \^xvim^ SIX OounY* U ^. VOL "3, pp.H-S),
A£kc one day o-f jury selection, 4hece uuerc noY enough pcrt€(\4ia|
^orvj wembeos o<\ -Yhe varune panal acd AY\e. coucY d\sVY\i'6S€d YW.
paxvU, CR.^> Vol. 3/ p. 25rt).
      On (YWy ^ ZolM, Appellant had a. hearing <da Lte MoY-ioa
4o Suppress claiming 4-Wd h\'£> 54x4e naervY uoa5 r>oY volun4«\py ,
 <xnd U305 CGeccecL The &>l>c4 denied 4W MoY-ton -Yd Suppress
 C£,$>. V5\, 4 p, ksy
      The ^ocy -found Appellan-Y <^°»l-Yy o£ *Pwe CoonYs o£ 5exua4
AssaolY ©£- o< (LKM and ©n.e (t©or\Y o£ XiNolecency ujt4-h a CKild
On W&y 21, 2oi4 C£«R. Vol, 7 pp. SV5TZ),
     ApptjlanY re^ues^d 4hx4 a ^ucy InsYru^Yi'on be a^e* Ce-
O^uacdinoi 4he OHoY-ibr* -for CuwulocYwe 5enYec\Ge5 C^.R. Vol. 1, pp.
\oz- idbY ojWcK uA5 denied .
     "The ^urvi (Xssess-ed piMr>6hfnen4 a +i'4Ueen years. \n ~VKe
Te*&s &e.par4tnenY o^ CrWwvxl ^us-Wc-e ajhd o^S/OOO.oo -(W o^>
eadix C6onY Cfc>R. Vol. 7 pp. r2ff~t3o,)oc\ crWj £1,2013.
     On (YUn| Z2./-Z0I-0; 4-Yie sWt preseoWa i4s MoYibn 4^r
torno\odu/-«. 5enYeoces. Appellant ob^ecYfd 4o 4h* MoYton *TV
(?0(JCY-« 'The coorY cxcttnVedi 4V\e W-o-Vvon and nnade 5en4e.nces
on CooftY^ One. 4kcou<^h F\V* aomolojYvVe and 4he. senY-ence on
C&uPrY six w<XS 4b be. 5ervAedl Concurrently uji-YV\ CounYs One, Two
and Thoee CR.R. Vol.*, pp. tf-*0. H<yYice ^ Appeal u>0£ 4imelv|
avutn <xnd perfcYedL
                   PROCEDURAL U\STO^i

      The jud^enwvY o4 AppelUn4^5 Ioamic4ib*\ nxv4 enlW
on max| Zl,20i^. Appellan4s no4fc.e o^ appeal toas 4\melx/ -PiW-
On ^ep^ewsher Hf zoiS", 4-W TcnYVx (Lour4o4 Appeab issued an
onpobUshtd opinion bvj Tus-Yice Rex bas/h Mxmfob Appellant
CD^wiLcYton . Kta COoYioA -for Rehe^cm^ u;as -fiWJ.
               question     for    Review      noi

  OOES     LECr\SLAT\ON ALLOW PoLlcG T6 USE           (LOERCWE
  MEAS^URE5 ANb FALSE EVIDENCE TO &A\*J A STATC-
  MENT FFteM A 5US>Pe^T WHO A&REED To 5PEAK* W\TH
  THErwT

       The Qev/ieuA/\^ COtorV erred in -Cmdih^ 4uaY YY\e COerwe
  mefiLssures used uaere perwM$5(Lb\e by police 4o oiyYafn °-
 54ecW\en4 beosujse e\.ppel\anY^ cu^need 4e> speajc unVV\ 4lve<v\.
       /4ppeiKn-Y o<\ <V\^y 2#, 2013 -took ck p©ly<^n3^)h 4dV-
 rv\r. U)oods 4he examiner 4oU app-e-lknA his was decep4we.
 (R.R, V&t. 4,p 20}.
      Mi\ (AJoocli \tl-Y 4W room and OeY. Bop^oell an-Ured (n
 •4Ke ffcom and raid <xpp<>llanY his OMpanda cnahYs <xnd <\sled
 \£ Vie ujooW 5£eoJ<: u>VU\ W^, He a<jC6esd[. B^u^ll beo^an
4He mYeryou) uuiYVs "BeYuJeen T. E. sWemen-Y ajr\d 4^e reSolY*
 o( 4-Ve 4esY,-VY\e, e\J\denc-e is ov/eccoWlfnin^ your c^udVy'
Cfc.£. 5W4e's ExMdZ,. Aod.t> ^ecLoodiAc^.
     Were 4We ^pellanV believes Y-he po\y^ocopV\ cesolY \s an
elemenY 4W- aaf\ be. osed a^ainsh h\W\ \n Cooc4, Yk Oeeewed
rn\nanda ooc^i^s keW 4W. exam Q-od si^nect cv C^lease Yo
henje 4Ve cesulYs <y> -Yo 4V\<l police. 0<^ SUV? ExMot 2_ oY
May ?, zoW). Under ^Kose ojaomh<^> cind Ba<^eUs sY^Wnenh
aA 4ta ic£Avnnnv\ o£ 4Ve. inYeovi'euo, appellan4 beheued 4be
4csY tuould b^. used in coor4 aaoAnsY h/\nv
    fceJY. lW>dl d*A Aot A-Ui-Kj ,-Wmper, ©r cdW a. doeuOflent
or priced <^idence under Tex. fcc. m.&\. He did pneSenY a
pdLvmwU 4*sY- and reWl 4o tt <* evident*. to.3v^l\ 4^en vn<>
Iftkf *fe*. PC. 3T7,o^ ^ <<> u3hen he pceseMs «W/YVu^" *s
euicUtnce knoioinj US oo4. Ba^uoell a\so \<\ 4V\e \nY-eovneuj +old
*ppelWn4 4h*Y 4ne ^Vdoesn'-l \ieC^^^ SW\cs G^MZ, A^^'o
 ^/Wlknf t»^clec -tofc pressure o^e a. sY^^^enY 4o ben^^vY
his cWflucW bemuse 4he Ycs4 u)otoU s^ooo him as * W> ^nc[
he 54id 00 one \\Vc«5 ^ l<W\ Gcn<xc\a V 6k4e ^^ ^« ^ S7°
6u5ped- ^e a sYtdemenh 4n 5ome tenc-Cvi do Kii C^mcYoPi
                          ^3
    The police t^c4ic5 USed by Baojuie.ll 4^Uoujed by ihe
 im<v\edid4e in^-emc^odkon o.£Wr -Y-he polygraph 4<?s4 is a
Coercive meassure Stfie MacYinex- V SYtxYe zvrz. js>ujs 3d 6Is', fczfl,
     IWyuelA -fealed 4o 4t.ll. appell^nY *VV\e 4e<>4 ujos noY
BJidence and in ad missaJble in courY 3ee HesW\\ V SV*Ye 2,-2.-7
5, (jo. 3d G^Mp c|Uo4ioQ MeYWeoy VSWYe G^Z, 5>UJ, Zo( ^£,,700^
 0-CCtcee5 had-tta. CC5fons itavldy 4o \YvtorM app-ellant 4ha4 4-h€
 4esY- results Could no4 be. used ad 4o\<d and any tnenVon
 ot 4V\e Y-es4 \'s pfoh\b\4ed.
    Appellxn4 did tudjjie his ri^hYs befcrc 4ta, -YesY cxnd be4nt
4\\e \n4err\^cJU"onf his ujav/ion does n©4 ailoua police 4o
 violode his H^hYf) and. H~Ke \auJ by pnesen4\n^ m!&€ euideoce
ound usih^ coerdivf-c me^ssurc^ 4o produce a s4adconenT-
uu\YW>u4 4hese yiolcdibn^ yWl ©uYcome o[ 4he Yn4e.o\^ccVit>A
and 4nud ujoulcl Vvtue been cW-fcrcrvt.




                              ^4
                QUESTION FOR RFVIEW NO, *.

   CAM TRANSPORT OFFICERS CofyTbUCT TOvgA&OS A^PELL^MT
  IM FROMT OF ?R65PECTWE FURORS VIOLATE Ul<> CONST
   ITUTIONAL R\GcHT NOT TO- AFPEA^ XM CAJSTODV

   ARfrUWEMT

        The reviewing Ceu<4 hdd \\ u^s no4 hcirr(\-Po\ do ~Vhe
  Appal\on4 cu\d heU -Yhcd <YY\e ConcUd O^ YY\e Toans por4 oWceci
 uios a*>Y- improper,
       boring a bravk in 4-V\e Voir diet as 4W bad4?f and ;jud$e
 Bo6u>or4Y\ ouere noY pnesenY, pns5pec4\vje '^orocs todne^Sed -+W •Yttw
 5por4 o-PYVcerS sY*u\d on bo4h S\de& o£ Akz appellanY as Yve
 uoas in CosYody . This a^xvje ^YKe impr&ssion do 4ta pcosped-iW
furors he u>a.S in Cus4tdy, <*s 4Wy discussed ujho uj<vS o^oi'n^
^o u>akk him -&rs4 while 44\ey uxn4 4o 4K-e badKcoom( R,R. Vol 5",
PP, \is,nc).                                  , ,p       J
      tk^e 4W dranspocd oWioecS , uoho are Ciot um4orrYved
deputes, loeoe dressed \{\ "Tohteon CootvYy Corfe^kWl EdcdiYy
On\4rm5 X4 uuas eAe^c 4b c^nv^one dhey 4rcn60or4 °^a (^uacd
poisoners, <^4 4c Cooc4fco<n sturdy. Theyne appe^nee and
Convention ,n 4W\4 o4 Vne pmspec4\Ve ^Y f*«d <^Ue- "+**
impress/on 4h«e anpellan4 ux^s in cosYody { R.R. vol s~, pp, 176-
     Append asked 4he cou<4- 4* Cc\t\tio 4W> cameras 4o
ihoui 4he Cour4 4*ve £ond*4 o*4hose oncers The feuieu*^
Ca,rY err^d in aaceein^ 4W- 4he 4r\cd Cour4 oU no4 abuse
ds dxsaredion by denin^ appellant request This holding
by dhe n^v/ieuJ.V^ Could ,uJ<\s \nC0As4i\^+ wd* Loj^V
5Ycde SZ3 S.w. 2d Z<^ ojhere a. de-fcndanY- Vs harmed
 byTes4oa{nV6 because \4 robs him o-f his eonsVi-VuWal
 presumpYion ot innocence.
     Revjieunna CoorV Vxs4 i+s decision on 4ha4 vY was un~
Knou), tf pnospec4we furors Kea^d 4W carw^W The d^S-
Oo$S\b<\ \>j *\Ve CoutV and a4Wnies Sboui 4key diol UXVOLS",^.
            QUESTION FOR R^V\EW NO,3

  CAM A DEFENDANTS StZNTENCe £>E ORALLN
  PROKSOONCEO XN VYlS PRESENCE AND %E CUMVi-
   L&TED ON ANOTHER OA^f 7

 The neuieuJindj Coo<+ b^>^d its opinion 4ho4 4Ke appellant
 5en4ence was ncd orally pronounced un4i\ (Y\<w 22,20m
 Vf\ his present. The £ouf4 &ded do ap/)ly Tex, C,c, ft,
 Hz.o^ Sec, \; and -ftxiled Maddioaj^^^ 10 5.W. 3d
 toi, Ho cohere a defendants 5endeoc€ brains 4o sW4
 dhe day iY is pa>n<oucec(. ^Vie, records shouo delendaflVs
 Sen-lence iua$> pronounced ih his presence and ydopr\er\V
ujab en-Yeccd on PO^ za; z.oi4.
     On Way Zl,<Zoi4 docvna 4he pui\\<>V\rfltfYlr phas-e a£4he
dnW^dKe \ufvj Seo4ences appellant do IS y^ac£> on all
^onds. CSua^e 'VSoScuorAK djY 4W4 dime pconounctdi appellarfe
 <£A^-(\cc<> in Ws presence (£,R. VOL. 7 pp. \it-\3o),LDocket
T3ook Repocd pp. 3;4), At dkad +\me d ojGlS Pnade knOcoA
do 4W app^UavvV -\He lenadh o£ his dcrdences and cuhere
Con-Anemenl ujould be,
     AppeUan-b serdeaces' Luhene poooooOced m 4\\e seot-
endncv phase oC- 4he dnidLL The puihshmcA-V pha£>e Cs -Vhe
S^n-Vcncvoa pV\as<e 5ee Q^xdo< VSdare 30ft 5, to. 3d (^2.,
 ^4-65".
     Appellant beapjc\ serving his sen-knee ad dhe ad-
 \oomen4 o£ d\ve Coori cvncK Could r>oh haft ikem (5uM~
 olcded 4ke nex4eiay<TKe jodae ^^oula h*we made 4te
 order ad dwe pronooc\cemend ofr dW 5er\4eo.Ce 5e-e
 (AflJUio^ V/ sWk'*&uu. \?>\ 5enYence and (Wkwent IMI.




                           J^(p
            PRANER TOR R£L\£F


     For +he 4kreopin^ reasons s-Y^ded, 4he app^HanV^
Cons4tY-uYion<xl r\^hVs tofcce \Moloded and Y>is uuas denied
O.-Cxlr 4rial \{\ Cause too. F42332., Therefcoe appellant
pcay5 dhat 4Vs <?oort ^nant his pe4\4ibn 'Poediscret-
lomany Keuiewj a.nd upon reJ/euihncj -Yhe jod3ement enYeoed
belou), reverse, 4Ws CVuse and remand it 4oC oeuJ deiaL



                              Respecd-ftjI\y 5obrv\ idked

                              MieWneJ Don Pogoe; pro $£
                              TDCT #    R3-2-S/7
                              Poloflsky Unit
                              327T     F,nn.3SD S
                              LwiV^sdon/TX 77351




                         ^7
             Certificate: of service

      X hereby eerdtCy 4WY a ttMje and correct ^>PV
 0?- 4ta -feceaoincj P^4i4»i>rt 4br 0^cce4iWry RtNieuo h°6
 been -fecuuaftW &/ ^s. tf*Wl, Fir^Y Class, ^stq^e ftx\^
 4o A+k>rney 4r tHe S^tl bale Vlavwa, aA Z04 £, Bu&Jo
 Av/e, 5ude -Z-C*T. Cleburne/Texas, 76?033 and 4o 4he 5Yate
 ft\>sec4ina A4Wy,cd &A Box P42, Austin,Texas 1S7&-7,
 and *oai> placed \f\ tl\e ^risi'on mad Be* on -vhls dhe. \MTYI
 day of December, 2.01s".


                                        MieJuel Poqvt
                                        Appzi[ar)tf pco4e

     X, micKael bon &gue,TMo Yt \S32-S17, beih^ po&«ty
inCaceeitdd \(\ 4h« Pdon^ky Onrt o4 4ta TQCQ6 Department o-f
Grimms I~0usYioe to Y&K C&oMy, Texas\ \Zed^ and ckdacc ovdec
peneAYy ot pce^ony ^VvxV 4W 4ore^oin^ ^-Wemen-B ane d^-e
and (Weci, £xecu4e4 on 4\\ls dhe WTVl cUy of December,


                                            M\ck.ef Pogue "ttTDCJ
                                            V\ZZ^\1




                         M
APPENDIX




 M
                              TENTH COURT OF APPEALS
:hief Justice                             McLennan
                                          McLennan County
                                                    County Courthouse
                                                            Courthouse
  Tom Gray
                                         501 Washington Avenue, Rm 415
rustice                                      Waco, Texas 76701-1373                                c,erk
  Rex D.Davis                  Phone: (254) 757-5200           Fax:(254)757-2822                     Sharri Roessler
  AI Scoggins


                                                September 17,2015



               In accordance with the enclosed Memorandum Opinion, below is the judgment in the
          numbered cause set out herein to be entered in the Minutes ofthis Court as ofthe 17th day of
          September, 2015.

          10-14-00156-CR        MICHAEL DON POGUE v. THE STATE OF TEXAS - ON APPEAL
                                FROM THE 413™ DISTRICT COURT OF JOHNSON COUNTY - TRIAL
                                COURT NO. F48332 - AFFIRMED - Memorandum Opinion by Justice
                                Davis:


                "This cause came on to be heard on the transcript ofthe record ofthe Court below, and the
          same being considered, because it is the opinion of this Court that there was no error in the
          judgment, it is ordered, adjudged and decreed by the Court that the judgment be in all things
          affirmed, and that the appellant pay all costs in this behalf expended and that this decision be
          certified below for observance."
                                        IN THE
                          TENTH COURT OF APPEALS


                                 No. 10-14-00156-CR


MICHAEL DON POGUE,
                                                            Appellant
v.




THE STATE OF TEXAS,
                                                            Appellee




                           From the 413th District Court
                              Johnson County, Texas
                              Trial Court No. F48332



                          MEMORANDUM OPINION


      A jury convicted Appellant Michael Don Pogue of five counts of sexual assault of

a child and one count of indecency with a child and assessed his punishment at fifteen

years' imprisonment and a $5,000 fine for each count. The trial court ordered the

sentences for the sexual-assault-of-a-child counts to run consecutively to each other and

the sentence for the indecency-wifh-a-child count to run concurrently with the sexual-

assault-of-a-child counts. This appeal ensued.
                                    Motion to Suppress

         In his first issue, Pogue contends that the trial court erred in denying the motion
tosuppress his statement because the statement was notmade freely and voluntarily.
         We review a trial court's ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). In reviewing thetrialcourt'sdecision, we do notengage in our ownfactual review.

Romero v. State, 800 S.W.2d 539,543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857,

861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and

judge ofthecredibihty ofthewitnesses and theweight tobegiven their testimony. Wiede
v. State, 214 S.W.3d 17,24-25 (Tex. Crim. App. 2007); State v. Ross, 32S.W.3d 853,855 (Tex.

Crim. App. 2000), modified on other grounds by State v. Cullen, 195S.W.3d 696 (Tex. Crim.

App. 2006). Therefore, we give almost total deference to the trial court's rulings on (1)

questions of historical fact, even if the trial court's determination of those facts was not

based on an evaluation of credibility and demeanor; and (2) application-of-law-to-fact

questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at

673; Montanez v. State, 195 S.W.3d 101,108-09 (Tex. Crim. App. 2006);Johnson v. State, 68

S.W.3d 644,652-53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions

do not turn on the credibility and demeanor of the witnesses, we review the trial court's

rulings on those questions de novo. Amador, 221 S.W.3d at 673;Johnson, 68 S.W.3d at 652-

53.


        When reviewing the trial court's ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24;

Pogue v. State                                                                        Page 2
Kelly v. State, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes

explicitfact findings,we determine whether the evidence,when viewed in the light most

favorable to the trial court's ruling, supports those factfindings. Kelly, 204 S.W.3d at 818-

19. We then review the trial court's legal ruling de novo unless its explicit fact findings

that are supported by the record are also dispositive of the legal ruling. Id. at 819.

        Before trial, Pogue filed a motion to suppress any oral statement given by him on

May 28, 2013. He alleged that, on that date, Cleburne Police Detective Sean Bagwell

interviewed him at the Wood & Associates Polygraph Service offices and that he made

statements during the interview concerning an investigation of sexual assault that

allegedly occurred in Johnson County.         Pogue alleged, however, that he did not

knowingly, intelligently, freely and voluntarily waive the rights set out in section 38.22

of the Code of Criminal Procedure and that the evidence was taken in violation of the

United States and Texas Constitutions.

        The trial court held a Jackson v. Denno hearing. Bagwell testified that he met with

Pogueat the police department and explained the allegations againsthim. Poguewas not

under arrest at that time. Pogue denied the allegations against him and agreed to submit

to a polygraph examination to prove that he was telling the truth. Bagwell did not
threaten arrest, violence, or restraint to get Pogue to agree to take the exam. Bagwell

called Wood &Associates and scheduled an appointment for that afternoon. Bagwell did

not take Pogue to the exam; Pogue travelled to the exam withhis wife and stepson.
        Clayton Wood, a polygraph examiner atWood &Associates, testified that Pogue
arrived separately from Bagwell for the polygraph examination. Before the exam, Wood
Pogue v. State                                                                           Pa§e 3
reviewed a release form with Pogue. The release explained the voluntariness of the

polygraph examination, described the different phases of the exam, explained to whom

the results would be released, and included a liability waiver. Poguesigned the release.

Wood also read Pogue a waiver of rights drafted in accordance with article 38.22 of the

Code of Criminal Procedure. Pogue acknowledged that he understood those rights,

signedthe waiver, and agreed tospeakwithWood. Wood thenconducted thepolygraph

exam. Wood did not make Pogue any promises or threaten him, and Pogue did not

appear intoxicated, tired,or confused. At the conclusion of the exam, Wood briefly spoke

with Pogue about the results and gave Pogue an opportunity to make any additional

admissions. Wood then told Bagwell, who was in a separateconference room during the

exam, the results of the exam. The results were: "Deception indicated." Wood also

observed what appeared to be attempts by Pogue to change his physiological functions

during the exam. Bagwell then spoke to Pogue.

        Bagwell testified that while the exam was being conducted, he was not able to

view or hear anything that was going on. Wood came out of the exam room at one point

and told Bagwell that Pogue was using classic countermeasures and that Wood was

going to discuss the countermeasures with Pogue and attempt to get a valid exam. After

more time passed, Wood came out of the exam room again, said that they did get a valid

exam, and said that Pogue showed to be deceptive in answering relevant questions.

Wood said that he had talked to Pogue about the results and that Pogue maintained his

denial of the allegations. Bagwellthen went into the room where Pogue was waiting and

asked him for consent to sit and talk with him. Pogue consented. Bagwell also read

Pogue v. State                                                                    Page 4
Pogue hisMiranda warnings andmade surethatPogue understood thathewas notunder
arrest or detained and that Bagwell could not compel him to speak. Pogue then made
some admissions to Bagwell that corroborated the allegations made against him. Bagwell
took a phone call from the district attorney's office and confirmed that there were no

issues with making an arrest. At that point, Bagwell decided that Pogue was no longer
free toleave but did notarrest Pogue immediately. Bagwell continued theinterview but
then eventually arrested Pogue. An audio recording of the interview was admitted into
evidence.


         Pogue testified that he agreed to go to the police station on May 28, 2013, and
agreed to takea polygraph exam. He drove himself to the exam, along withhiswife and

stepson. At the conclusion of the exam, Wood left the room, then came back, and told

him that he was being deceptive.            Wood never mentioned anything about

countermeasures. Bagwell then came in, and Pogue agreed to talk to him. Pogue said

that Bagwell basically told him that if he did not do something that day, Pogue would

never have a chance to defend himself or make himself believable to anyone. Bagwell

also told Pogue that he appeared arrogant and selfish and that the evidence was

overwhelming becauseof the allegedvictim'sstatement and the results of the polygraph.

Pogue stated that he felt pressure to go along with what Bagwell was saying to benefit

himself. He did not feel like he could leave or that the interview was voluntary.

        The trial court denied Pogue's motion to suppress and made the following

findings of fact and conclusions of law:



Pogue v. State                                                                      Page 5
                 The Court finds that on May 28, 2013, the Defendant, Michael Don
         Pogue, met with Clayton Wood atWood's Polygraph Service inArlington,
         Tarrant County, Texas. The Defendant, arrived atWood's Polygraph onhis
         own accord and was not in police custody at the time he arrived. The
         Defendant wastheninterviewed by Clayton Wood. TheDefendant wasnot
         in custody during the course of this interview or at the conclusion of the
         interview.    When the interview with Clayton Wood concluded, the
         Defendant was interviewed by Detective Sean Bagwell of the Cleburne
         Police Department and provided Detective Bagwell with an oralstatement
         (State's Exhibit No. 1). Before providing this statement, Detective Bagwell
         read the Defendant his rights in accordance with Article 38.22 Section 2(a)
         of the Texas Code of Criminal Procedure. After hearing these rights, the
         defendant knowingly, intelligently, and voluntarily waived those rights
         directly or implicitly and agreed to talk with Detective Bagwell and did
         then and thereafter provide an oral statement to Detective Bagwell. This
         oral statement, including the reading and subsequent waiver of the
         Defendant's rights, were recorded by a device that was capable of making
         anaccurate recording. The Defendant was notin custody during thecourse
         of this interview. After the Defendant provided this statement, he was
         placed into custody. The court finds that the Defendant was not incustody
         when he provided this oral statement, State's Exhibit No. 1, to Detective
         Bagwell.



                 The Defendant, Michael Don Pogue, did knowingly, intelligently
         and voluntarily provide an oral statement, State's Exhibit No. 1, to
         Detective Sean Bagwell, on May 28,2013.

         Article 38.21 of the Code of Criminal Procedure provides: "A statement of an

accused may be used in evidence againsthim if it appears that the samewas freely and

voluntarily made without compulsion or persuasion, under the rules hereafter

prescribed." Tex. CODE Crim. Proc. Ann. art. 38.21 (West 2005). A defendantmay claim

that his statement was not freely and voluntarily made, and thus may not be used as

evidence against him, under several different theories: (1) article 38.22, section 6—

general voluntariness; (2) Miranda, as expanded in article 38.22, sections 2 and 3; or (3)


Pogue v. State                                                                         Page 6
the Due Process Clause. Oursboum v. State, 259 S.W.3d 159,169 (Tex. Crim. App. 2008).

        A statement may be involuntary under the Due Process Clause or Miranda only

when there is police coercion or overreaching. Id. at 169-70. Trickery or deception does

not make a statement involuntary unless the method was calculated to produce an

untruthful confession or was offensive to due process. Creager v. State, 952 S.W.2d 852,

856 (Tex. Crim. App. 1997). The court of aiminal appeals in Oursboum noted that the

United StatesSupremeCourt in Colorado v. Connelly collected casesin which courts found

statements involuntary under Miranda or the Due Process Clause. Oursboum, 259 S.W.3d

at 170 (citing Colorado v. Connelly, 479 U.S. 157,163 n.l, 107 S.Ct. 515,520 n.l, 93 L.Ed.2d

473 (1986)). These cases involve police overreaching and involve fact scenarios such as

the following:

        (1) the suspect was subjected to a four-hour interrogation while
        incapacitated and sedated in an intensive-care unit; (2) the suspect, while
        on medication, was interrogated for over eighteen hours without food,
        medication, or sleep; (3) the police officers held a gun to the head of the
        wounded suspect to extract a confession; (4) the police interrogated the
        suspect intermittently for sixteen days using coercive tactics while he was
        held incommunicado in a closed cell without windows and was given
        limited food; (5) the suspect was held for four days with inadequate food
        and medical attention until he confessed; (6) the suspect was subjected to
        five days of repeated questioning during which police employed coercive
        tactics; (7) the suspect was held mcomrnunicado for three days with little
        food, and the confession was obtained when officers informed him that
        their chief was preparing to admit a lynch mob into the jail; (8) the suspect
        was questioned by relays of officers for thirty-six hours without an
        opportunity for sleep.

Id. at 170-71 (footnotes omitted).

        Sections 2 and 3 of article 38.22 apply to an accused's custodial-interrogation

statementsand provide that only"warnedand waived" statements maybe admitted. Id.

Pogue v. State                                                                          Page 7
at 171; see Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2,3 (West Supp. 2014). That is, an

accused's custodial-interrogation statement is not admissible unless, before making the
statement, he received the warnings provided in article 15.17 or article 38.22, section 2(a)

or section 3(a) (which incorporate the requirements of Miranda), and he knowingly,
intelligently, and voluntarily waived those rights. Oursboum, 259 S.W.3d at 171-72; see

Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2,3; see also Tex. Code Crim. Proc. Ann. art.

15.17 (West 2015) (requiring magistrate to give warnings consistent with Miranda after

accused's arrest).

        Under the CourtofCriminal Appeals' precedents, section 6 ofarticle 38.22 applies

to both an accused's custodial and non-custodial statements.        Id. at 171. Claims of

^voluntariness under article 38.22, section 6canbe,but need not be, predicated on police

overreaching of the sort required under a due-process analysis. Id. at 172. Under articles

38.21 and 38.22, section 6, we may consider, in addition to any allegedly coercive police

conduct, factors such as the suspect's youth, intoxication, mental retardation, or other

disability that would not raise a federal due-process claim. Id. at 172-73. Under articles

38.21 and 38.22, fact scenarios that can raise a state-law claim of ^voluntariness include

the following:

       (1) the suspect was ill and on medication and that fact may have rendered
       his confession involuntary; (2) the suspect was mentally retarded and may
       not have "knowingly, intelligently and voluntarily" waived his rights; (3)
       the suspect "lacked the mental capacity to understand his rights"; (4) the
        suspect was intoxicated, and he "did not know what he was signing and
        thought it was an accident report"; (5) the suspect was confronted by the
       brother-in-law of his murder victim and beaten; (6) the suspect was
       returned to the store he broke into "for questioning by several persons
        armed 'with six-shooters.'"

Pogue v.State                                                                         Pa8e 8
Id. (footnotes omitted).    "'Voluntariness' under both constitutional and state law

doctrines is to be measured according to the totality of the circumstances." Smith v. State,

779 S.W.2d 417,427 (Tex. Crim. App. 1989).

         Pogue argues that his statement was involuntary because he was coerced into

giving it based on the fact that he failed the polygraph exam. Pogue supports his
argumentby citingJudge Price'sconcurring opinionin Martinez v. State, 272 S.W.3d 615,

629 (Tex. Crim. App. 2008) (Price, J.,concurring), which includes the statement,"A failed

polygraph ispractically aseffective as a coerced confession in so demoralizing a suspect
that subsequent Miranda warnings willlack theirintendedefficacy."

        In Martinez, police arrested Martinez for hisinvolvement in a robbery and murder.

Id. at 617-18. He was not given Miranda warnings upon arrest; nevertheless, he was

brought to police headquarters and questioned about the crimes, which he denied

knowing anything about. Id. at 618. Officers then took Martinez to a police polygrapher

who spent three to four hours administering a polygraph test to him. Id. After the

polygraph test, officers again took Martinez into custody, informed him that he had failed

the polygraph test, and took him to municipal court, where a magistrate gave him

Miranda and other statutory warnings for the first time. Id. Upon Martinez's "prompt

return" to the central holding station, officers again questioned him about the robbery

and murder.      Id.   Officers repeated the Miranda warnings, and Martinez gave a

videotaped statement regarding the incident in which he made mcriirunating statements.

Id. The Court of Criminal Appeals concluded, however, that "the absence of Miranda


Pogue v. State                                                                       Page 9
warnings at the beginning of the interrogation process was not a mistake based on the

interrogating officers' mistaken belief that appellant was not in custody, but rather a

conscious choice." Id. at 624. The court held that because no curative measures were

taken to offset the damage done by the failure to warn at the outset, the second statement

given to the policewas involuntary and should have been excluded. Id. at 627.

         This case is distinguishable from Martinez. Here, Pogue had not been arrested

when he agreed to take the polygraph exam. In fact, he drove himself to the location to

take the exam. Also, Pogue was advised ofhis Miranda warnings bothbefore taking the

polygraph exam as well as before the interview with Bagwell, and Pogue elected to

proceed. We conclude that, based on the totality of the circumstances, the trial court did

not abuse its discretion in concluding that Pogue's statement was voluntarily given.

Because we have concluded that the trialcourt did not abuse its discretion in concluding

that Pogue's statement was voluntarily given, we hold that the trial court did not err in

denying Pogue's motion to suppress his statement. We overrule Pogue's first issue.

                              Objection to Strike Venire Panel

        In his second issue, Pogue contends that the trial court erred in overruling his

objection to strike the venire panel.

        The relevant facts are as follows. Outside the presence of the venire panel just

before the jury was impaneled, the following exchange took place:

                       [Defense Counsel]: Okay. Let me read [Pogue's objection]
        into the record: That the Defendant would ask the Court to strike the panel
        based on the conduct of the transport officers in front of the venire or the
        prospective jurors that could have indicated that he was in custody.
        Specifically, that they stood beside him on either side, his left and right side,

Pogue v. State                                                                              Page 10
        while prospective jurors were still in the courtroom, and discussed whether
        or not who was going to watch the Defendant while they went to the
        bathroom, or something like that. And that's all I have on it.

                      [Prosecutor]: Can I address the Court?

                      THE COURT: Please.


                      [Prosecutor]: We would ask the record to reflect that the
        transport officer was seated behind the Defendant over here next to the wall
        in an inconspicuous position, and there is no evidence that any jurors heard
        any such conversationsnor that the conversationsever took place. And the
        Court may have some observations on what the Court's observed during
        the proceedings about --

                      THE COURT: The placement of transport officers and the
        Deputy in this courtroom during a trial is pursuant to a plan. It's not a
        random thing. It's not any different in this trial than any other trial.
        Transport officers, one has been stationed at the back of the room which is
        my requirement, and the other one has been here in the chair next to the
        wall. And my Deputy has actually been on the opposite side of the room
        from where he's normally stationed at his desk. He's been on the opposite
        side of the room over by the door where the Jury is, but they're spread out,
        one on the left side of the courtroom, one at the back of the courtroom, one
        by the Jury door, which is where I like for them to be. They've been quiet.
        They've not said anything. They've not approached the Defendant.
                      In other cases I've had twice as many transport officers and
        Deputies in the courtroom when a situation requires it. They're here for a
        number of reasons. They're here primarily to protect Mr. Pogue from
        anybody in the audience who decides they want to do him any harm.
        That's the primary goal that I have for them is when we get into a situation
        where we might have relatives of someone who perceives there to be a
        victim. I don't want them corning across the railing and coming into a
        situation where they would hurt Mr. Pogue. I have no - - from any of my
        dealings with Mr. Pogue, I have no real concerns about his threat to
        anybody's safety, but they're also here for that particular reason if that
        should become necessary. So I've got a very standard arrangement. I
        would overrule the objection.



                      [Prosecutor]: Judge, we would also ask the record to reflect,
        and maybe the Court did that while I was thinking, you may have been

Pogue v. State                                                                         Page 11
         talking, but the Defendant is in plain clothes, he's not handcuffed nor
         shackled in any shape, form or fashion, and is - - appears to be a person
         not in custody as far as his dress and the lack of handcuffs or shackles.

                       THE COURT: That's correct. In different cases where I've
         had - - assessed the situation to be of a different level of threat, I have
         required restraints on the legs of Defendants or a shock belt that I use for
         people who are - - have demonstrated a reluctance to control themselves
         in the courtroom. Neither ofthose devices arebeing used today.

         Unlike the shackling and handcuffing of a defendant at trial, or the trying of a

defendant in prison garb, thepresence of armed guards during a trial is notinherently
prejudicial and thus a defendant who wishes to assert error in the trial court must

demonstrate actual prejudice. Sterling v. State, 830 S.W.2d 114,117-18 (Tex. Crim. App.

1992) (citing Holbrook v. Flynn, 475 U.S. 560,106 S.Ct. 1340,89 L.Ed.2d 525 (1986)). Pogue

argues that the deputies standing on either side of him discussing which one was going

to watch him while the other went to the bathroom prejudiced the venire panel because

the panel then knew that he was in custody. We disagree. Assuming Pogue's allegations

are true and that prospective jurors were still in the courtroom during the deputies'

discussion, the record does not indicate that the prospective jurors heard the discussion.

The record in this case does not reflect that the deputies caused any distraction or

confusion to the venire panel. We thus conclude that the trial court did not err in

overruling Pogue's objection to strike the venire panel. See id. at 118. We overrule

Pogue's second issue.

                              Improper Jury Argument

        In his third issue, Pogue contends that the trial court erred in overruling his

objection to theState's closing argument. Pogue argues thattheState's closing argument

Pogue v. State                                                                          Page 12
 improperly shifted theburden of proof to him. The standard of reviewfor a trialcourt's

 ruling on an objection asserting improper jury argument is abuse of discretion. Whitney
 v. State, 396 S.W.3d 696,705 (Tex. App.—Fort Worth 2013, pet. ref'd).
          The relevant exchange was as follows:

                         [Prosecutor]: ....
                         There was discussion about - - there was discussion about
         witnesses to the case and who wasn't called and who was called. [Defense
         Counsel] mentioned that why doesn't the State call the Defendant's sons,
         Jimmie and Dale and whoever else is in the house. Well, as [Defense
         Counsel] also mentioned, the State and the Defense have equal subpoena
         power. Equal subpoena power. They're relatives of the Defendant, so if
         they had anything good tosay for the Defendant, what doyou think would
         have happened?

                         pefense Counsel]: Your Honor, I object to that. That's a[n]
         unlawful shifting ofthe burden ofproof tothe Defendant, and I object toit.
                         [Prosecutor]: Response. Equal subpoena power. He has the
         power to call the witness as well.

                         THE COURT: Overruled.


                         [Prosecutor]: I guarantee you, use your common sense, who
         has access to those individuals? If they had anything good to say, they
         would have been here for him.


                         In regard to the pills and the medicine, he never told Detective
         Bagwell that he was on pills or medicine that day. And, in fact, like
         [Prosecutor] mentioned, Defense has equal subpoena power. They can
         subpoena documents. They can subpoena pharmacy records to show that
         he had a prescription. We neversaw that. We never evenheard ofanysort
         of ailment that he would have --


                       [Defense Counsel]: Your Honor, I object to him unfairly
         shifting the burden of proof to the Defendant to prove his innocence. I
         object to it.

                     THE COURT: The Jury Charge has the specific instructions
         on the burden of proof. Overrule.

Pogue v. State                                                                              Page 13
                       [Prosecutor]: The Defense has the power to subpoena these
         records, and theDefense brought it up in opening. There's no evidence, no
         evidence whatsoever. Again, I guarantee you, ifit were there, you would
         see it,and we didn't see records ofhim receiving hisprescriptions because
         they don't exist.

         A prosecutor may comment on a defendant's failure to produce witnesses and

evidence so long as the comment does not fault the defendant for exercising his right not
to testify. Jackson v. State, 17 S.W.3d 664,674 (Tex. Crim. App. 2000). In this case, Pogue
waived his right not to testify and testified during the guilt/innocence phase.
Furthermore, the prosecutor's comments were directed toward Pogue's abihty to
subpoena his sons as witnesses and to subpoena his pharmacy records, not toward

Pogue's testimony or lack thereof. We therefore conclude that the trial court did not

abuse its discretion by overruling Pogue's objection. Weoverrule Pogue's third issue.

                                   Cumulative Sentences


        In his fourth issue, Pogue contends that the trial court erred in overruling his

objection to assessing cumulative sentences.

        Before trial, the State filed a motion for cumulative sentences. On May 21,2014,

the jury returned its punishment verdict. The court read the verdict in open court and

accepted the verdict. The trial court released the jury, and the following exchange then

took place:

                      THE COURT: I prefer we set the sentencing at 9 a.m., that
        way I can be prepared for the pending motion [for cumulative sentences]
        and each side will have an opportunity to make an argument on that.

                       [Defense Counsel]: Yes, sir.


Pogue v. State                                                                      Page 14
                      THE COURT: So the sentencing for Mr. Pogue will be at 9
         a.m. in the morning.

                      THE COURT: We'll be in recess until tomorrow morning at
         9.


         The next day, on May 22, 2014, the trial court conducted the sentencing hearing.
The trial court heard brief arguments onthe State's motion for cumulative sentencing and
then stated as follows:


                      THE COURT: Mr. Pogue, please stand. This case was tried
        before thisCourtand a Jury thisweek. Michael DonPogue came before the
        Court and a Jury and entered a plea of not guilty to the six counts against
        him in the indictment. The evidence was submitted and the Jury was
        charged by this court, and after deUberating, the Jury returned a verdict of
        guilty on each count charged against you. The Court has - - accepts the
        Jury's verdict and has accepted the Jury's verdict, and the Punishment
        Phase was heard. The evidence was submitted, the Jury was charged and
        returned a verdict assessing your punishment. The Jury did not
        recommend probation. The Court accepts the Jury's verdict.
                     It is the judgment of this Court that you are guilty of each
        offense alleged against you in the indictment. You should be punished in
        accordance with the Jury's instructions and the Jury's verdict.
                    Do you have any legal reason why sentence should not be
        pronounced against you at this time?

                      [Defense Counsel]: Without surrendering my objections,
        otherwise, no, sir.

                      THE COURT: Finding nothing to bar the pronouncement of
        the sentence against you, I hereby sentence you in Count One to a term of
        15 years in the Texas Department of Criminal Justice Institution Division. I
        further assess a fine of $5,000. That sentence will start today and you will
        be given credit against that sentence for any time that you have served to
        date.
                       With regard to Count Two of the indictment, I sentence you
         to a term of 15years in the Texas Department of Criminal JusticeInstitution
        Division. The sentence in Count Two will start when the sentence in Count
        One ceases to operate. I further assess a fi[n]e of $5,000.
                      With regard to Count Three in the indictment, I sentence you
        to a term of 15years in the TexasDepartment of Criminal JusticeInstitution

Pogue v. State                                                                         Page 15
        Division. The sentence in Count Three will start when the sentence in
         Count Two ceases to operate. I further assess a fine of $5,000 in Count
         Three.
                      With regard to Count Four in the indictment, I sentence you
         to a term of 15 years in the TexasDepartment of Criminal Justice Institution
        Division. The term in Count Four will start when the term in Count Three
        ceases to operate. I further assess a fine of $5,000 in Count Four.
                      With regard to Count Five in the indictment, I sentence you
         to a term of 15years in the TexasDepartment of Criminal Justice Institution
        Division. The sentence in Count Five will start when the sentence in Count
        Fourceases to operate. I furtherassess a fine of$5,000 withregard to Count
        Five.
                      With regard to Count Six, I'll sentence you to a term of 15
        years in Texas Department of Criminal Justice Institution Division, and the
        sentence in Count Six will run concurrent with Count One, Two and Three,
        if need be. I further assess a fine of $5,000.
                      At this time, I'll remand you into the custody of the Johnson
        County Sheriff for transport to the Texas Department of Criminal Justice
        Institution Division to carry out your sentence.

That same day, the trial court signed an order cumulating sentences in accordance with

the oral pronouncement. On May 23,2014, the trial court signedjudgments imposingthe

sentences orally pronounced.

        If a trial judge wants to "stack" a defendant's sentences so that they run

consecutively, he must make such an order at the time and place that sentence is orally

pronounced. Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002). Once the

defendant is removed from the courtroom and begins serving his sentence, it is too late

to cumulate. Id.


        Pogue argues that the trial court did not have authority to cumulate his sentences

because he began serving his sentence on May 21st when he left the courtroom after the

trial court read the jury's verdict and accepted it. We disagree. "The sentence is that part

of the judgment ... that orders that the punishment be carried into execution in the

Pogue v. State                                                                          Page 16
manner prescribed by law." TEX. CODE CRIM. Proc. Ann. art. 42.02 (West 2006). While
the trial court read the jury's verdict and accepted it onMay 21st, the trial court did not
orally pronounce the sentence in Pogue's presence until May 22nd. In the oral
pronouncement, the trial court ordered the sentences for the sexual-assault-of-a-child

counts to run consecutively to each other. The trial court then entered the same sentences

in its written judgment. We conclude that the trial court did not err in assessing
cumulative sentences. We overrule Pogue's fourth issue.

         Having overruled allofPogue's issues, weaffirm the trial court's judgments.


                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
        Justice Davis, and
        Justice Scoggins
Affirmed
Opinion delivered and filed September 17,2015
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