

Opinion issued June 23, 2011
 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00172-CR
———————————
Jose Marvin Martines, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 149th District Court
Brazoria County, Texas

Trial Court Case No. 47,974
 

 
O P I N I O N
          A
jury convicted appellant, Jose Marvin Martines, of the offenses of sexual
assault of a child and indecency with a child and assessed punishment at eight
years’ confinement and ten years’ confinement, respectively.[1]  Pursuant to an extradition agreement with El
Salvador, the trial court sentenced appellant solely on the sexual assault
charge.  In four issues, appellant
contends that (1) the State failed to produce sufficient evidence that appellant
committed sexual assault; (2) the trial court erroneously denied
appellant’s motion to suppress a tape recording of a conversation between a
police officer and appellant on the ground that the tape recorder did not
accurately record the conversation; (3) the trial court erroneously admitted
evidence of extraneous offenses involving appellant and the complainant, his
daughter, S.M.; and (4) the trial court erroneously denied appellant’s motion
for mistrial made after a reference to a polygraph examination during jury
deliberations.
          We
affirm.
Background
          On
June 11, 2004, S.M., who was fifteen years old, and who was attending summer
school classes before starting her sophomore year of high school, and her
friend Jessica decided to skip class.  At
some point during the day, one of S.M.’s friends called and told her that the school
principal knew that she and Jessica had skipped school and was looking for
them.  S.M. eventually told her
boyfriend, Brian Flores, her friend Emma, and Jessica that her father,
appellant, had “touched [her] inappropriately.” 
Jessica’s mother called the police, who took S.M. to the Juvenile
Detention Center.  S.M. told Juvenile
Detention Center and Children’s Protective Services (“CPS”) officials, as well
as her aunt, who picked her up from CPS, that her father had touched her inappropriately.
          Shortly
after her initial outcry, S.M. had a forensic interview with Bonnie Martin, the
director of the Brazoria County Alliance for Children.  At trial, S.M. testified that she told Martin
that she had run away from home and school because “[appellant] had touched
[her] inappropriately and had tried to have sexual intercourse with [her,]” and
she did not want to live with him anymore. 
S.M. told Martin that appellant had touched and kissed her breasts on
the morning that she skipped school.  S.M.
stated that she also told Martin about an earlier incident that occurred when
her family had gone to buy her mother a cell phone.  On this occasion, appellant and S.M. returned
to the house to pick up some necessary information, and, when they arrived,
appellant carried her to an empty bedroom and “tried to have sexual intercourse
with [her.]”  She testified that
appellant undressed her and “tried to put his private part in [her] private
part.”  S.M. stated that she pushed appellant
away because “it had hurt.”  Appellant
attempted to have intercourse a second time, but S.M. dressed and walked out of
the room.  The prosecutor clarified that
S.M. told Martin that “[appellant’s] private part or his
penis . . . touched [S.M.’s] private part.”
          S.M.
also testified, on direct examination, that she met with the prosecutor on
three occasions, and on the third occasion, a week before the trial, she told
the prosecutor that “everything [she] had said was a lie.”  S.M. stated that she had lied because she was
afraid that she would get into trouble for skipping school, and, therefore, she
did not want to go home.  She further
testified that she first informed her mother that appellant was touching her
inappropriately on her breasts and buttocks when she was in seventh grade because
she was angry with appellant for hitting her with a belt after he discovered
her talking on the phone to a boyfriend. 
She stated that she told her mother on this occasion in the hope that
her mother would make appellant leave the house.  She also stated that the attempted
intercourse incident did not occur, and she told her mother that appellant had
“touched [her] inappropriately” on that occasion because she was angry with
appellant for refusing to buy her a cell phone. 
S.M. did not recant to her mother until several weeks before the
trial.  S.M. testified that, although she
had described appellant’s alleged conduct to several people, including CPS
officials, family members, and friends, she only recanted to her mother, the
prosecutor, and defense counsel.
          At
this point, the prosecutor informed the trial court that she intended to ask
S.M. about four extraneous offenses involving appellant.  These extraneous offenses included allegations
that appellant had touched S.M.’s breasts beginning when she was twelve years old,
attempted sexual intercourse with S.M., and digitally penetrated S.M.  Defense counsel objected on the grounds that
(1) he received notice of the State’s intent to introduce these extraneous
offenses only six days before the trial started and (2) the extraneous
offense allegations “would be an entirely different crime [from the charged
offense] because the child would be under the age of 14.”  Defense counsel did not move for a continuance
on the basis of surprise.  Defense
counsel also did not object under Rule 403 or otherwise argue that the
prejudicial effect of the extraneous offenses substantially outweighed their
probative value.  He did object “based on
Rule 404.”  The trial court overruled
defense counsel’s objections.
          Before
the prosecutor questioned S.M. about the extraneous offenses, the trial court
gave the following limiting instruction to the jury:
Ladies and gentlemen, you’re
instructed that there may be testimony coming before you in this case in the
next few minutes regarding the Defendant’s having allegedly committed offenses
or bad acts other than those alleged against him in the indictment in this
case.  You cannot consider the following
testimony for any purpose unless you find and believe beyond a reasonable doubt
that the Defendant committed such other offenses or bad acts.  And then you may only consider the same for
its bearing, if it has bearing, on the previous and subsequent relationship
between the Defendant and the child, if any, alleged against him in the
indictment in this case and for no other purpose.
 
S.M. testified that she informed Martin in her
forensic interview that her father started touching her inappropriately when
she was twelve.  S.M. did not recall
telling Martin that appellant had touched her “over her clothes” until the
family moved in with S.M.’s grandmother when she was thirteen or fourteen.  S.M. testified that she told Martin that appellant
began touching her on her “breasts and [her] butt” after the family moved in
with S.M.’s grandmother.  She thought she
told Martin that, at this point, appellant also began touching her under her
clothes.  S.M. did not recall telling
Martin about a second instance of attempted intercourse or about instances of
digital penetration.  S.M. acknowledged
that she may have told Martin that the digital penetration happened once, but
she “[didn’t] exactly remember what [she] told [Martin.]”
          Brazoria
County Sheriff’s Department Investigator R. Rosser testified that he met with
appellant at his house to discuss the allegations against him in June
2004.  It is undisputed that, at the time
appellant spoke to Rosser, he was not in custody and he had not yet been charged.  At the beginning of the conversation, Investigator
Rosser read appellant his Miranda
warnings, explained the allegations against him based on S.M.’s forensic
interview, and asked appellant if he could tape their conversation.  He testified that during the course of the
conversation, appellant admitted to touching and kissing S.M.’s breasts “more
than two times” and stated that the last time he had touched S.M. was on the
day she skipped school.  Appellant did
not explicitly deny the attempted intercourse with S.M.; rather, he stated, “I
don’t recall that.”  Investigator Rosser
testified that it was difficult to hear appellant on the tape because he was
speaking “very lowly” and was “slumped over” in his chair during the
conversation.  Investigator Rosser opined
that appellant “seemed sad” during the conversation.  Approximately ten days after this
conversation, appellant contacted Investigator Rosser and asked to speak with him
a second time.  Although appellant
refused either to provide a written statement or to allow Rosser to record this
conversation, he told Rosser, “I want you to know that everything [S.M.] had
said was true.”
          Appellant
moved to suppress the recording, contending that the tape recorder was not
capable of making an accurate recording, that Investigator Rosser was not
competent in operating the recorder, and that the recording was not
accurate.  At a pre-trial hearing,
Investigator Rosser testified that he recorded the conversation on a five or
six-year-old Sony microcassette tape recorder. 
This tape recorder had a voice-activated recorder that would shut off if
it did not detect any sound for a few seconds and would start recording again
when it “reacts to something.”  Investigator
Rosser agreed with defense counsel that the tape contained background “popping”
noises that sounded like “the tape stopping and then continuing again.”  He further agreed that it was possible that,
due to the “mechanical lag” of the voice-activated feature, the recorder might
miss part of a word or a couple of words before it actually started recording.
          The
trial court stated its findings of fact and conclusions of law on the record at
the suppression hearing.  The trial court
expressly found that:
[A]lthough there are
portions that are difficult to hear, there were no clear admissions anywhere in
the tape that I heard concerning sexual intercourse by the Defendant, but there
were a couple of admissions concerning touching the
breasts . . . .  The proponent, [Investigator]
Rosser, testified sufficiently that the Sony microcassette recorder
was . . . what he claimed it to be, and the tape in the
sections where there were the admissions concerning the touching the breasts
appeared to be clear and unaltered, at least from listening to the context of
the questions and answers.
 
The trial court concluded that the tape recorder was
capable of making an accurate recording, that Investigator Rosser was competent
in operating the recorder, and that the recording was accurate and did not
appear to have been altered.  The court
denied appellant’s motion to suppress.
          Appellant’s
wife, Sandra Martines, testified that when S.M. was in seventh grade, S.M. told
her that appellant was touching her inappropriately on her buttocks and
breasts.  Sandra confronted appellant,
and he told her that he had been playing with S.M., and he asked Sandra to
forgive him if he had touched S.M. inappropriately.  Appellant cried, apologized, and stated that
he “would not do that [anymore.]”  Sandra
testified that S.M. told her in March 2004 that appellant had touched her
inappropriately “like before.”  Sandra
did not remember if she spoke to appellant after this second disclosure.  She testified that she did not inform the
authorities of S.M.’s allegations on either occasion.  Sandra acknowledged that S.M. had recanted to
her, and she testified that she did not tell anyone about S.M.’s recantation.
          Brian
Flores, S.M.’s boyfriend at the time of her outcry, testified that when he
first saw S.M. on June 11, 2004, she was not upset about anything and seemed
“normal.”  After S.M. learned that the principal
knew that she and Jessica had skipped class and was going to call their
parents, she was “terrified” and did not want to go home.  Later that day, S.M. told Brian that she did
not want to go home because “her father would sexually abuse her and harass
her.”  Brian testified that S.M. did not
feel comfortable telling him details and that she cried when she told him, but
she did tell him that appellant would “feel on” her thighs and chest.  He also stated that he had known that S.M.
had “issues” with her father, but he did not know that these issues were sexual
in nature.
          Sharon
Burns, a licensed sex offender treatment provider, testified that CPS referred appellant
to her treatment program.  According to
Burns, appellant stated during his initial intake session that “he had offended
his daughter.”  Burns testified that
appellant expressed remorse for his actions “from the beginning” and told her
that he “didn’t realize the impact of his actions on his family and his
daughter.”  During group sessions,
appellant “appeared remorseful and saddened” and “expressed gratitude for the
opportunity to get help in addressing the issues.”  Burns testified that appellant admitted “the
offense against his daughter” during each of his group sessions from October
2004 to March 2005.  Burns also testified
that “pretrial” therapy participants would “rarely . . . admit
something that’s not true because of the legal nature and the limited
confidentiality that’s explained to them.” 
Burns further stated that it is “not uncommon” for child sexual abuse
victims to recant the allegations before testifying.
          Cory
Greenburg, a licensed counselor with CPS, testified that she met with both S.M.
and appellant.  S.M. did not go into
“explicit detail” regarding the allegations, but “she did confirm that her
father had sexually abused her.”  Greenburg
worked with S.M.’s family for approximately eight months, and S.M. never
recanted during this time period.  Greenburg
also testified that S.M. had “difficulties” after her outcry, including
“flashbacks of the abuse,” difficulty relating to boys her age, and fear of her
father.  Greenburg met with appellant
during October 2004, and she testified that, “one of the first things he told
me was that everything [S.M.] had said in her interview was true, and that he
was not going to deny that he sexually abused her.”  During this meeting, appellant cried several
times, expressed a “great deal of remorse for what he had done,” and said that
he had “made a big mistake.”
          Bonnie
Martin testified that during her forensic interview, S.M. indicated that she had
told several people of the allegations against appellant before she arrived at
CPS:  her friends Jessica, Emma, and
Brian, Jessica’s mother, who advised S.M. to call the police, the police when
they arrived at Jessica’s house, and her aunt on the phone.  Martin agreed with Burns that recantation
among child victims of sexual assault is not unusual.  Martin testified that S.M. gave no indication
during her interview that what she had disclosed was not true.  The trial court admitted into evidence the
DVD recording of Martin’s forensic interview with S.M.
          Appellant
failed to appear for closing arguments, and the trial court granted the State’s
motion for bond forfeiture.
          After
retiring for deliberations, the jury informed the trial court that it wished to
hear the tape recording of Investigator Rosser’s conversation with
appellant.  The trial court had admitted
two portions of the recording into evidence. 
The prosecutor began playing the recording for the jury, but she failed
to press stop immediately at the end of the first section of admissible
material.  As a result, the jury heard
Investigator Rosser ask appellant if he would take a polygraph
examination.  It is undisputed that the
jury did not hear appellant’s answer to this question and no polygraph results,
if any, were mentioned to the jury. 
After the prosecutor belatedly stopped the recording, the trial court
stated, “That’s not admissible in evidence and y’all are to disregard
that.”  The prosecutor then apologized
and stated that she “looked at [the] numbers [on the tape player] wrong.”
          After
the jury returned to deliberations, defense counsel moved for a mistrial and
argued:
Evidence of a polygraph is
not admissible at any time, certainly not after closing arguments.  So, I think in this case this is something
that the jury cannot ignore.  I mean,
they’ve heard the word that it was offered to him.  They have no idea if he took one and passed
it, took one and failed it, or didn’t take it at all.  And in this case I think that the potential
damage is so great that a mistrial has to be granted.
 
The trial court denied the motion for mistrial,
reasoning that the prosecutor did not intentionally fail to stop the recording
until after a polygraph was mentioned, that the court quickly addressed the
issue, that the jurors appeared to understand that they could not consider any
polygraph evidence, and that the jury did not hear whether appellant agreed to
take a polygraph or whether he refused.
          The
jury convicted appellant of sexual assault of a child and indecency with a
child and assessed punishment at eight years’ confinement and ten years’
confinement, respectively.  The trial
court delayed sentencing appellant until February 2010, when he was extradited
from El Salvador.  Pursuant to the
extradition agreement, the trial court sentenced appellant only on the sexual
assault charge.
Sufficiency of the Evidence
          In
his first issue, appellant contends that the State failed to present sufficient
evidence that he sexually assaulted S.M.
 
A.  
Standard of Review
When reviewing the sufficiency of
the evidence, we view the evidence in the light most favorable to the verdict
to determine whether any rational fact-finder could have found the essential
elements of the offense beyond a reasonable doubt.  Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010).  The jurors are
the exclusive judges of the facts, the credibility of the witnesses, and the
weight to be given to the testimony.  Brooks, 323 S.W.3d at 899; Bartlett v. State, 270 S.W.3d 147, 150
(Tex. Crim. App. 2008).  A jury may
accept one version of the facts and reject another, and it may reject any part
of a witness’s testimony.  Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000), overruled on
other grounds, Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009). 
We may not re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact-finder.  Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  We resolve any inconsistencies in the
evidence in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex.
Crim. App. 2000).
B.  
Sexual Assault of a Child
To prove that appellant committed
sexual assault of a child, the State was required to establish that appellant
intentionally or knowingly caused the sexual organ of S.M., a child under the
age of seventeen and who was not appellant’s spouse, to contact appellant’s
sexual organ.  See Tex. Penal Code Ann.
§ 22.011(a)(2)(C) (Vernon Supp. 2010).
A conviction for the offense of
sexual assault of a child is “supportable on the uncorroborated testimony of
the victim of the sexual offense . . . .”  Tex.
Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.]
2004) (“The testimony of a child victim alone is sufficient to support a
conviction for indecency with a child.”), aff’d,
206 S.W.3d 620 (Tex. Crim. App. 2006); Navarro
v. State, 241 S.W.3d 77, 81 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref’d) (holding same).  The State has no
burden to produce any corroborating or physical evidence.  Benton
v. State, 237 S.W.3d 400, 404 (Tex. App.—Waco 2007, pet. ref’d); see also Lee, 176 S.W.3d at 458 (“The
lack of physical or forensic evidence is a factor for the jury to consider in
weighing the evidence.”).  We liberally
construe testimony given by a child victim of sexual assault, and as long as
the child communicates to the fact finder that the touching occurred on a part
of the body within the definition of the statute, the evidence will be
sufficient.  See Lee, 176 S.W.3d at 457.
Appellant contends that the
evidence is insufficient to support the conviction because the State failed to
establish that his sexual organ contacted S.M.’s sexual organ.  S.M.
testified that appellant never entered her and that she “pushed him away
because it hurt.”  Appellant contends
that “[i]t is highly doubtful that the hurt or pain came from the mere contact of
his penis with her vagina,” and, thus, he argues that the State failed to
present evidence of contact.
Sexual assault by contact and
sexual assault by penetration are distinct offenses under Penal Code section
22.011(a)(2).  Tex. Penal Code Ann. § 22.011(a)(2)(A), (C); see also Patterson v. State, 152 S.W.3d
88, 92 (Tex. Crim. App. 2004) (affirming court of appeals’ decision upholding separate
convictions for aggravated sexual assault by penetration and aggravated sexual
assault by contact).  Here, the indictment
alleged that appellant intentionally or knowingly caused S.M.’s sexual organ to
contact his sexual organ; the
indictment did not allege that appellant caused the penetration of S.M.’s
sexual organ.  Thus, the State was not
required to prove that appellant “entered” S.M.
S.M. testified that she told Martin
in her forensic interview that, on one occasion, appellant took her into a room
in their house and “tried to have sexual intercourse” with her.  S.M. recalled that she told Martin that
appellant undressed her and “tried to put his private part in [S.M.’s] private
part.”  S.M. testified that she then told
Martin that she pushed appellant away because “it had hurt.”  Appellant immediately attempted intercourse
again, but S.M. dressed and left the room. 
The prosecutor then clarified:
[State]:        [S.M.], when you talked to [Martin] and
in describing today what you said, [appellant’s] private part or his penis, is
that what touched your private part?
 
[S.M.]:        That’s what I said.
 
[State]:        Okay. 
And he didn’t enter you, but he attempted to enter you; is that correct?
 
[S.M.]:        Yes, that’s what I had said.
 
The trial court admitted into evidence the DVD
recording of S.M.’s forensic interview.
          The
testimony of the child victim alone is sufficient to support a conviction for
sexual assault of a child.  Tex. Code Crim. Proc. Ann. art. 38.07(a);
Lee, 176 S.W.3d at 458.  We conclude that S.M.’s testimony is
sufficient evidence of genital-to-genital contact between appellant and S.M.,
and, thus, the State presented sufficient evidence that appellant caused S.M.’s
sexual organ to contact his sexual organ, as required by the indictment.
Appellant also argues that the
evidence is insufficient to support the conviction because S.M. recanted her
initial outcry prior to trial and testified that she had lied because she was
scared of getting in trouble for skipping school and because she was angry with
appellant for being a strict disciplinarian.
A complainant’s recantation of
earlier outcry testimony does not destroy the probative value of that
testimony.  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).  At the trial in Chambers, the complainant recanted her earlier videotaped outcry
statement in which she told the investigating officer that Chambers had been
molesting her.  Id. at 459–60.  The Court of
Criminal Appeals noted that the jury observed the complainant’s demeanor while
she testified and it was entitled to reconcile conflicts in her testimony and
to disbelieve her recantation.  Id. at 461; see also Saldaña v. State, 287
S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d) (“[I]t is up to the
fact finder to determine whether to believe the original statement or the recantation.  A fact finder is fully entitled to disbelieve
a witness’s recantation.”); Jackson v.
State, 110 S.W.3d 626, 631 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d) (“[A] criminal conviction, which requires proof beyond a reasonable
doubt, may rest on hearsay despite the lack of the complainant’s testimony or
even the complainant’s recantation.”).
On direct examination, S.M. acknowledged
that, a week before the trial, she told the prosecutor that “everything [she]
had said [regarding the allegations against appellant] was a lie.”  S.M. stated that appellant did not touch her
breasts on the morning that she skipped school and that she lied because she
was scared of going home and getting into trouble.  Regarding the alleged attempted intercourse
incident, she testified that she told her mother that appellant had touched her
inappropriately because she was angry due to appellant’s refusal to buy her a
cell phone.  She also stated that she
only recanted to her mother, the prosecutor, and defense counsel, and she did
not recant to anyone until a few weeks before trial.
Sandra Martines testified that S.M.
first told her that appellant had touched her inappropriately on her buttocks
and breasts when she was in the seventh grade. 
When Sandra confronted appellant, he cried, asked forgiveness, and said that
he would not do it again.  Sandra
testified that she did not tell anyone about S.M.’s pre-trial recantation.
Brian Flores, S.M.’s boyfriend at
the time of her outcry, testified that S.M. told him that she did not want to
go home because “her father would sexually abuse her and harass her.”  He further testified that S.M. was reluctant
to tell him any details and that she cried when she told him.
During the tape-recorded
conversation with Investigator Rosser, appellant admitted to touching S.M.’s
breasts “more than twice.”  Appellant
“did not recall” whether he attempted intercourse with S.M.  Later, appellant contacted Investigator
Rosser and asked to speak with him on a second occasion.  During this conversation, appellant stated,
“I want you to know that everything [S.M.] had said was true.”
Similarly, Sharon Burns testified
that appellant admitted that “he had offended his daughter” during both his
initial intake session into the sex offender treatment program and during group
counseling sessions.  Burns described
appellant’s demeanor as remorseful, saddened, grateful for the opportunity to
get help, and worried that he would not see his family again.  Burns also testified that alleged offenders
participating in pretrial therapy would “rarely . . . admit
something that is not true because of the legal nature and the limited
confidentiality [of the group sessions] that’s explained to them.”  Burns and Bonnie Martin, S.M.’s forensic
interviewer, agreed that it was not uncommon for children to recant their
initial allegations prior to trial.
Cory Greenburg testified that S.M.
did not describe the contact in explicit detail, but “she did confirm that her
father had sexually abused her.”  Greenburg worked with S.M.’s family for
approximately eight months, and S.M. never denied that the abuse had
occurred.  Greenburg also met with
appellant in October 2004 and testified that “one of the first things
[appellant] told [Greenburg] was that everything [S.M.] had said in her
interview was true, and that he was not going to deny that he sexually abused
her.”  Greenburg stated that appellant
cried during the meeting, expressed “a great deal of remorse for what he had
done,” and told her that he had “made a big mistake.”
It is the role of the fact finder,
who weighs the evidence and evaluates the credibility of the witnesses, to
determine whether to believe a witness’s outcry or recantation, and “[a] fact
finder is fully entitled to disbelieve a witness’s recantation.”  Saldaña, 287 S.W.3d at 60; see also Maldonado v. State, 887 S.W.2d
508, 509 (Tex. App.—San Antonio 1994, no pet.) (“Just because the complaining
witness recants incriminating testimony does not mean the evidence is
insufficient.”).  In convicting appellant
of sexual assault, the jury made a credibility determination to believe S.M.’s
outcry testimony to Sandra, Brian, Greenburg, and Martin and appellant’s
admissions of guilt to Investigator Rosser, Burns, and Greenburg, instead of
S.M.’s recantation.  We afford almost
complete deference to this determination. 
See Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008); Lee,
176 S.W.3d at 458 (“A court of appeals must show deference to such a jury
finding.”).
Thus, viewing the evidence in the
light most favorable to the verdict, we hold that the State presented
sufficient evidence for a rational fact-finder to have found beyond a
reasonable doubt that appellant sexually assaulted S.M.
We overrule appellant’s first
issue.
Accuracy
of Tape Recording
          In
his second issue, appellant contends that the trial court erroneously denied
his motion to suppress the tape recording of his conversation with Investigator
Rosser because the State did not establish that the tape was a “correct and accurate
recording” of the conversation.
A.  
Standard of Review
We review the denial of a motion to
suppress for an abuse of discretion.  Shepherd v. State, 273 S.W.3d 681, 684
(Tex. Crim. App. 2008) (citing State v.
Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).  When we review a trial court’s denial of a
motion to suppress, we give almost total deference to the trial court’s express
or implied determinations of historical facts while reviewing de novo the
court’s application of the law to those facts. 
Id.; Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We view the evidence in the light most
favorable to the trial court’s ruling.  Wiede v. State, 214 S.W.3d 17, 24 (Tex.
Crim. App. 2007) (quoting State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). 
The trial court is the “sole trier of fact and judge of the credibility
of the witnesses and the weight to be given to their testimony.”  St.
George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).  The trial court may choose to believe or
disbelieve any part or all of a witness’s testimony.  Green
v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996).  We sustain the trial court’s ruling if it is
reasonably supported by the record and correct on any theory of law applicable
to the case.  Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).
B.  
Admissibility of Tape Recording
Appellant contends that the trial
court erred in admitting the tape recording because the State failed to show
that the recording was authentic and correct, as required by the Court of
Criminal Appeals’ decision in Edwards v.
State, 551 S.W.2d 731 (Tex. Crim. App. 1977), and because Investigator
Rosser’s tape recorder was not capable of making an accurate recording, as
required by Code of Criminal Procedure article 38.22, section 3(a)(3).
Article 38.22, section 3(a) sets
forth the requirements for the admission of an oral statement of an accused
“made as a result of custodial interrogation.” 
Tex. Code Crim. Proc. Ann.
art. 38.22, § 3(a) (Vernon 2005); see
also Nguyen v. State, 292 S.W.3d 671, 677–78 (Tex. Crim. App. 2009)
(discussing how the “custody” element of article 38.22 can be satisfied); Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007) (“Article 38.22 of the Texas Code of Criminal Procedure
governs the admissibility of statements made by a defendant during custodial
interrogation in a criminal proceeding.”). 
Appellant concedes that he was not in custody at the time Investigator
Rosser recorded their conversation. 
Thus, because it is undisputed that appellant’s oral statements on the
tape recording were not “made as a result of custodial interrogation,” the
State was not required to establish the five elements of article 38.22, section
3(a) as a predicate for the admission of the tape recording.
Appellant also relies on the
seven-factor test for the admission of audiotape recordings adopted by the
Court of Criminal Appeals in Edwards
to support his contention that the recording at issue here was inadmissible
because the State did not establish that it was authentic or correct.  See 551
S.W.2d at 733.  The Court of Criminal
Appeals has recognized, however, that Edwards
was superseded by the adoption of the Texas Rules of Criminal Evidence, and, thus, Edwards
is “no longer needed as an authoritative guide for admissibility of ‘electronic
recordings’ including ‘sound recordings.’” 
Stapleton v. State, 868 S.W.2d
781, 786 (Tex. Crim. App. 1993); see also
Angleton v. State, 971 S.W.2d 65, 69 (Tex. Crim. App. 1998) (“[W]e find
that attempting to cling to the Edwards
test after the enactment of Rule 901 [of the Texas Rules of Evidence] will
result in unwarranted confusion for practitioners, trial courts, and appellate
courts.  Rule 901 is straightforward,
containing clear language and understandable illustrations.”); Porter v. State, 969 S.W.2d 60, 66 (Tex.
App.—Austin 1998, pet. ref’d) (“The precision that the seven prongs of the Edwards test suggest might be required
in the introduction of such audio tape evidence is no longer
applicable.”).  Thus, because the Texas
Rules of Evidence have superseded Edwards, the State was not required to
specifically establish any of Edwards’
seven prongs to obtain admission of the tape recording.
Instead, the State had to comply with Texas Rule of Evidence 901.  Jones
v. State, 80 S.W.3d 686, 688 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
(“Texas Rule of Evidence 901 governs the admissibility of electronic
recordings.”).  Rule 901 provides that authentication
is “satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.”  Tex. R. Evid. 901(a); Angleton, 971 S.W.2d at 67 (“The State
offered the audio tape as an accurate copy of a recording of a conversation
between appellant and his brother Roger. 
The authentication requirements of Rule 901 would be satisfied by
evidence sufficient to support a finding to that effect.”).  Rule 901(b) contains a nonexclusive list of
methods for authenticating evidence, including testimony from a witness with
knowledge “that a matter is what it is claimed to be.”  Tex.
R. Evid. 901(b)(1); Angleton,
971 S.W.2d at 67.  Appellant does not
contend that the tape recording admitted into evidence is not a recording of his
conversation with Investigator Rosser; rather, he challenges the accuracy of
the recording based on the frequent “pops” caused by the particular tape
recorder.
In Maldonado v. State, 998
S.W.2d 239 (Tex. Crim. App. 1999), the Court of Criminal Appeals addressed
whether two “skips” or “anomalies” in the audio recording of the defendant’s
statement made during custodial interrogation rendered the tape inadmissible
under article 38.22 section 3.  The Maldonado tape contained two
“over-records,” where the record button had been pressed and a total of four
seconds had been recorded over the original contents of the tape.  Id.
at 244.  In analyzing whether the
recording was “accurate and [had] not been altered,” the Court of Criminal
Appeals noted that neither of the two “skips” occurred during the portion of
the recording in which the defendant confessed to the charged crime.  Id.
at 245.  The court framed the issue as a
“question of witness credibility”: 
(1) did the State intentionally use the over-records to disguise
its editing of the tape, or (2) did the brief interruptions occur accidentally,
obscuring nothing of value in the conversation. 
Id.  The court found that, based on the testimony
of a sound recording expert and the interrogating officer, “[t]here is adequate
evidence here to support the latter conclusion that the anomalies were merely
inadvertent and did not affect the overall reliability of the tape.”  Id.  The court concluded that the evidence
“supports the position that the tape was accurate and had not been
impermissibly ‘altered’ in the sense contemplated by Article 38.22
§ 3(a)(3).”  Id.; cf. Quinones v. State,
592 S.W.2d 933, 944 (Tex. Crim. App. 1980) (“The Edwards requirements do not mean that any alteration in a tape
renders the tape per se inadmissible.  If
the alteration is accidental and is sufficiently explained so that its presence
does not affect the reliability and trustworthiness of the evidence, the
recording can still be admitted.”).
Here, Investigator Rosser testified at the suppression hearing regarding
his conversation with appellant. 
Investigator Rosser testified that he used a five or six-year-old Sony
microcassette recorder to record the conversation.  He stated that he did not manually stop and
re-start the tape recorder after he initially started recording.  He identified the two voices heard on the
recording as appellant’s and his, and he testified that the tape offered into
evidence was an accurate copy of the original and had not been altered in any
way.  On the recording, appellant
admitted to touching S.M.’s breasts “more than two times.”  He did not admit to engaging or attempting to
engage in sexual intercourse with S.M.
On cross-examination, Investigator Rosser testified that the tape
recorder had a voice-activated recorder, and he agreed with the following
description of this feature:
[Defense counsel]:          [W]hat
I’m calling a voice-activated recorder would be that you turn the machine on
and if it doesn’t hear anything for a few seconds, it shuts off so that it
doesn’t keep using up the tape.
 
[Rosser]:               Yes.
 
[Defense counsel]:          And
then it will start up again when it reacts to something.
 
[Rosser]:               Yes.
 
Investigator
Rosser also agreed that there were background noises on the tape, which sounded
“like the tape stopping and continuing again” and that a “popping noise” would
occur when the tape recorder “starts up again with the voice.”  He also agreed that it was possible that, due
to this feature, the tape recorder might miss a part of a word or a couple of
words before it actually started recording again after detecting a voice.  Investigator Rosser admitted that a “popping
sound” occurred just before he asked appellant if he admitted to touching S.M.’s
breasts.  On re-direct examination,
Investigator Rosser reiterated that nothing had been edited or deleted from the
tape.
          The trial court entered its findings
of fact and conclusions of law on the record. 
The court specifically found that:
[A]lthough there are portions that are difficult to hear, there were no
clear admissions anywhere in the tape that I heard concerning sexual
intercourse by the Defendant, but there were a couple of admissions concerning
touching the breasts . . . .  The proponent, [Investigator]
Rosser, testified sufficiently that the Sony micro-cassette recorder
was . . . what he claimed it to be, and the tape in the
sections where there were the admissions concerning the touching the breasts
appeared to be clear and unaltered, at least from listening to the context of
the questions and answers.
 
The court
concluded that the tape recorder was capable of making an accurate recording, that
Investigator Rosser was competent in making that recording, and that the
recording was accurate and did not appear to have been altered.
          A review of the tape recording
reflects that the “popping” noises occurred throughout the recording.  Occasionally, the “pops” obscured the
beginning of the first word of a sentence, but it is still possible to understand
Investigator Rosser’s questions and appellant’s answers.  Popping sounds preceded Investigator Rosser’s
questions:  “So you admit to touching
[S.M.’s] breasts?” and “You touched her breasts at the house in Houston, and
then you touched her breasts at [your current house]?”  Appellant’s responses—“I admit
that . . . .” and “Correct,” respectively—were clear, not
obscured by any popping noises, and made logical sense in the context of the questions.  See
Maldonado, 998 S.W.2d at 244 (“In fact, the flow of the conversation and
the background noise on the tape was consistent before and after the
over-records.”).  There is no indication
of any “over-records,” any additions to the tape, or any other alterations.
          Investigator Rosser’s testimony and
the tape itself support the conclusion that the “popping” noises caused by this
particular tape recorder were inadvertent and did not obscure anything “of
value in the dialogue.”  See id. at 245.  We conclude that the record supports the
trial court’s finding that the tape recorder accurately recorded Investigator
Rosser’s conversation with appellant and that the recording has not been
impermissibly altered.  We therefore hold
that the trial court did not abuse its discretion in denying appellant’s motion
to suppress and admitting the tape recording.[2]
          We overrule appellant’s second issue.
Admission
of Extraneous Offense Evidence
Appellant next contends, in his
third issue, that the trial court erroneously admitted evidence of extraneous
offenses involving appellant and S.M. because the offenses were more
prejudicial than probative, in violation of Rules 403 and 404, and because the
State failed to provide reasonable notice that it intended to use the offenses.
A.  
Unfair Prejudice
Appellant first contends that the
prejudicial effect of the extraneous offense evidence outweighs the probative
value because the extraneous offenses allegedly occurred when S.M. was under
fourteen, which constitutes the more serious offense of aggravated sexual
assault of a child.
Generally, evidence of extraneous
offenses is not admissible at the guilt-innocence phase of a trial to prove
that a defendant acted in conformity with his criminal nature and character by
committing the charged offense.  Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 386
(Tex. Crim. App. 1990); Sanders v. State,
255 S.W.3d 754, 758 (Tex. App.—Fort Worth 2008, pet. ref’d).  The Code of Criminal Procedure, however,
provides that in a sexual assault case involving a complainant under seventeen
years of age,
Notwithstanding Rules 404
and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts
committed by the defendant against the child who is the victim of the alleged
offense shall be admitted for its bearing on relevant matters, including:
 
(1) the state of mind of the
defendant and the child; and
 
(2) the previous and subsequent
relationship between the defendant and the child.
 
Tex. Code Crim. Proc. Ann. art. 38.37,
§ 2 (Vernon Supp. 2010).  This statute,
therefore, supersedes the application of Rule 404.  See
Sanders, 255 S.W.3d at 758; Howland
v. State, 966 S.W.2d 98, 103 (Tex. App.—Houston [1st Dist.] 1998), aff’d on other grounds, 990 S.W.2d 274
(Tex. Crim. App. 1999).
          Evidence
that is relevant under article 38.37 is “nevertheless subject to exclusion if
its probative value is substantially outweighed by the danger of unfair
prejudice . . . .”  Sanders, 255 S.W.3d at 760; see Tex.
R. Evid. 403; see also Walker v.
State, 4 S.W.3d 98, 103 (Tex. App.—Waco 1999, pet. ref’d); Poole v. State, 974 S.W.2d 892, 897
(Tex. App.—Austin 1998, pet. ref’d). 
Unfair prejudice “arises from evidence that has an undue tendency to
suggest that a decision be made on an improper basis, commonly an emotional
one.”  Sanders, 255 S.W.3d at 760 (citing Montgomery, 810 S.W.2d at 389). 
When a defendant objects to the admission of extraneous offense evidence
based on Rule 403, the trial court “has a nondiscretionary obligation to weigh
the probative value of the evidence against the unfair prejudice of its
admission.”  Id.; Walker, 4 S.W.3d at
103 (“Upon a proper objection, the trial court is required to conduct a Rule
403 balancing test and determine the admissibility of the evidence.”).  If the trial court overrules the objection,
we assume that the court conducted the balancing test and determined that the
evidence was admissible.  Sanders, 255 S.W.3d at 760; Walker, 4 S.W.3d at 103.  The trial court need not perform this
balancing test on the record.  Sanders, 255 S.W.3d at 760; Poole, 974 S.W.2d at 897.
          The
trial court is required to conduct a Rule 403 balancing test only upon a proper
objection by the defendant.  See Sanders, 255 S.W.3d at 760 (“When a
defendant makes a rule 403 objection . . . .”); Walker, 4 S.W.3d at 103 (“Upon a proper
objection . . . .”); see
also Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997) (“Once a
Rule 403 objection as to prejudice versus probative value is invoked, the trial
judge has no discretion as to whether or not to engage in the balancing test
required by that rule.”).  In an
unpublished memorandum opinion, we previously held that the defendant failed to
preserve his appellate contention that the prejudicial effect of relevant
evidence under article 38.37 substantially outweighed the probative value
because the defendant did not object in the trial court on Rule 403
grounds.  Joseph v. State, No. 01-02-01109-CR, 2004 WL 637924, at *6 (Tex.
App.—Houston [1st Dist.] Apr. 1, 2004, pet. ref’d) (mem. op., not designated
for publication).  In Joseph, defense counsel objected to the
admission of extraneous offense evidence on the grounds that it was irrelevant
and that the testimony “would serve to place [the defendant] on trial for the
physical assault, i.e. ‘in effect trying another case.’”  Id.  We concluded that neither of these objections
“invoked Rule 403 nor complained of any prejudicial value.”  Id.  We held that once the trial court determined
that the evidence was admissible under article 38.37, “it was incumbent upon
[the defendant] to ask the trial court to exclude the evidence by its authority
under Rule 403, on the ground that the probative value of the
evidence . . . is nevertheless substantially outweighed by
the danger of unfair prejudice.”  Id. 
Because Joseph did not object under Rule 403, he failed to preserve that
contention for appellate review.  Id.
          Here,
the prosecutor informed the trial court that she wished to ask S.M. about four
extraneous offenses involving appellant. 
Defense counsel first objected on the ground that he only received six
days’ notice of the State’s intent to use the extraneous offenses.  Defense counsel then made the following
objection:
And we would object because
the allegations that [the State] wants to go into now would be an entirely
different crime because the child would be under the age of 14.  And if any of the jurors have any knowledge
of the law, which they probably have because of the amount of times that this
subject has come up in the newspapers and the news media, then it may adversely
affect their ability to be fair and impartial on the charges which have been
alleged.
 
After discussion with the parties and a brief
recess, during which the trial court drafted a limiting instruction to read to
the jury before the State questioned S.M. about the extraneous offenses,
defense counsel restated his notice objection. 
Defense counsel then made the following Rule 404 objection:
Also, although the language
in the [limiting] instruction comes from the Code of Criminal Procedure, I
believe 38.37, which also specifically negates Rule 404 of the Rules of
Evidence, we would object based on Rule 404. 
I see no reason why we should have a Rule 404 if it’s not going to be,
you know, paid attention to due to a statute.
 
Counsel did not object under Rule 403, nor did he
argue that the prejudicial effect of the extraneous offenses substantially
outweighed their probative value.[3]  The trial court overruled all of defense
counsel’s objections.
          We
conclude that after the trial court determined that the extraneous offense
evidence was admissible under article 38.37, it was appellant’s responsibility
to request that the trial court exclude the evidence under Rule 403 on the
ground that the prejudicial effect of the evidence substantially outweighed the
probative value.  See id.  Because appellant
did not make a proper Rule 403 or unfair prejudice objection in the trial
court, we hold that appellant has not preserved this contention for appellate
review.  See also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)
(“To avoid forfeiting a complaint on appeal, the party must ‘let the trial
judge know what he wants, why he thinks he is entitled to it, and to do so
clearly enough for the judge to understand him at a time when the judge is in
the proper position to do something about it.’”) (quoting Lankston v. State, 827 S.W.2d 907, 908–09 (Tex. Crim. App. 1992)).
          Even if appellant’s objection that
the extraneous offense evidence involved a more serious offense than the charged
offense could be classified as a Rule 403 objection, we note that, when
balancing probative value and prejudicial effect under Rule 403, we give the
trial court wide latitude in admitting extraneous offense evidence and we presume
that “the probative value will outweigh any prejudicial effect.”  Sanders,
255 S.W.3d at 760 (citing Montgomery,
810 S.W.2d at 389).  Therefore, the
objecting party bears the burden “to demonstrate that the probative value is
substantially outweighed by the danger of unfair prejudice.”  Id.
(citing Hinojosa v. State, 995 S.W.2d
955, 958 (Tex. App.—Houston [14th Dist.] 1999, no pet.)).
Appellant’s prejudice argument on appeal consists of the
following:
[T]he extraneous offenses allegedly happened when
[appellant’s] daughter was less than 14 years of age which makes these offenses
the more serious felony of Aggravated Sexual Assault of a Child.  Allowing testimony concerning a more serious
crime of Aggravated Sexual Assault of a Child is more prejudicial than
probative for Appellant.  The prejudicial
effect of [S.M.’s] testimony outweighs its probative value concerning these
offenses which allegedly happened in 2003 and 2004.
 
Appellant
cites no authority for the proposition that a “more serious” extraneous offense
automatically requires a conclusion that the prejudicial effect of the offense
substantially outweighs its probative value. 
Appellant also fails to consider the Court of Criminal Appeals’
conclusion that, in prosecutions for sex offenses against children, “extraneous
acts between the complainant and the defendant are usually more probative than
prejudicial.”  See Boutwell v. State, 719 S.W.2d 164, 178 (Tex. Crim. App. 1985); Poole, 974 S.W.2d at 898.
          We conclude that appellant has not met
his burden of establishing that the prejudicial effect of the extraneous
offenses substantially outweighs the offenses’ probative value.
B.  
Failure to Provide Reasonable Notice
Appellant also contends, in his
third issue, that the trial court erroneously admitted the extraneous offense
evidence because the State only gave six days’ notice of its intent to use the
extraneous offenses.  The State contends
that appellant failed to preserve this complaint for appellate review because
although defense counsel objected to the timeliness of the notice, he did not
request a continuance.  We agree with the
State.
To preserve error regarding the
State’s failure to provide reasonable notice of its intent to use extraneous
offense evidence, the defendant must request a continuance to mitigate the
effects of surprise.  See Martin v. State, 176 S.W.3d 887, 900
(Tex. App.—Fort Worth 2005, no pet.); Koffel
v. State, 710 S.W.2d 796, 802 (Tex. App.—Fort Worth 1986, pet. ref’d)
(citing Lindley v. State, 635 S.W.2d
541, 544 (Tex. Crim. App. 1982)) (“[The defendant’s] failure to request a
continuance when he became aware of the [extraneous offense] evidence waived
any error urged in an appeal on the basis of surprise.”).
Here, the record reflects that
after the State informed the trial court of its intent to offer extraneous
offense testimony through S.M., defense counsel twice objected on the grounds
that he only received six days notice of the State’s intent and that this
notice was not reasonable under Rule 404(b). 
Defense counsel did not, at any point, move for a continuance to allow
additional time to investigate the allegations or prepare a defense.  We therefore conclude that appellant failed
to preserve for appellate review his contention that the State did not provide
reasonable notice of the extraneous offenses. 
See Martin, 176 S.W.3d at 900
(“Having failed to [move for a continuance], Martin has waived any complaint
that he was surprised by the State’s [allegedly untimely] notice.”); see also McDonald v. State, 179 S.W.3d
571, 578 (Tex. Crim. App. 2005) (“Furthermore, had there been legitimate
surprise that required a re-evaluation of trial strategy, the appellant could
have requested a continuance.”).
However, assuming, without deciding, both that appellant
preserved error regarding the reasonableness of the State’s notice and that the
trial court erroneously overruled appellant’s objection regarding timeliness of
the notice, we would still overrule this sub-part of appellant’s third issue
because appellant has failed to demonstrate harm.  Appellant argues on appeal that “[s]ix
days[’] notice was far too short of period of time for Appellant to prepare a
proper defense” and that this error was not harmless “because a jury would have
reached a different verdict had the evidence of a more serious crime committed
against his daughter been excluded.”
The admission of extraneous offense evidence without proper
notice is non-constitutional error subject to a harm analysis under Texas Rule
of Appellate Procedure 44.2(b).  Tex. R. App. P. 44.2(b).  We disregard any error that does not affect
appellant’s substantial rights.  Id.; McDonald,
179 S.W.3d at 578.  We will not reverse a
conviction when, after examining the record as a whole, we have a fair
assurance that the error did not influence the jury or had but a slight
effect.  McDonald, 179 S.W.3d at 578 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).  “[W]e look only at the harm that may have
been caused by the lack of notice and the effect the lack of notice had on the
appellant’s ability to mount an adequate defense.”  Id.
(citing Hernandez v. State, 176
S.W.3d 821, 824 (Tex. Crim. App. 2005)).
Appellant had the opportunity to cross-examine S.M., the
source of the extraneous offense testimony. 
Appellant’s defensive strategy primarily consisted of relying upon
S.M.’s pre-trial recantation and her trial testimony that she was angry with appellant
over his strict discipline and that appellant never touched her
inappropriately.  S.M. provided a
motivation for lying about each instance of alleged abuse.  Appellant does not argue that his defensive
strategy would have changed had the State provided more than six days’ notice
of the extraneous offenses, and given S.M.’s complete recantation of the
charged allegations, her explanation that she made her first outcry to her
mother because she was angry at appellant, and her testimony that she “did not
recall” telling Bonnie Martin about the most serious extraneous offenses in her
forensic interview, “[i]t is hard to imagine that [appellant’s] defense would
have been altered in any meaningful way” had he received greater notice of the
State’s intent to use the extraneous offenses. 
Id.
Because appellant has not demonstrated that the State’s
failure to give reasonable notice of the extraneous offenses would have
affected his trial strategy, “we conclude that the error did not influence the
jury or had but slight effect.”  Id. at 578–79; Hernandez, 176 S.W.3d at 826 (“[A]ppellant has failed to make any
showing of how his defense strategy might have been different had the State
explicitly notified him that it intended to offer the complete tape recording
at trial, or how his defense was ‘injuriously’ affected by the State’s failure
to provide reasonable notice.”).
We overrule appellant’s third issue.
Denial of
Motion for Mistrial
Finally, in his fourth issue,
appellant contends that the trial court erroneously denied his motion for
mistrial made during jury deliberations after the State, in response to a jury
request to hear the tape recording of Investigator Rosser’s conversation with
appellant, played a portion of the tape in which Rosser asked appellant if he
would take a polygraph examination.
A mistrial is required only when
the impropriety is “clearly prejudicial to the defendant and is of such
character as to suggest the impossibility of withdrawing the impression
produced on the minds of the jurors.”  Ladd v. State, 3 S.W.3d 547, 567 (Tex.
Crim. App. 1999).  We review the trial
court’s refusal to grant a mistrial for an abuse of discretion.  Hawkins
v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (citing Simpson v. State, 119 S.W.3d 262, 272
(Tex. Crim. App. 2003)).
Due to 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); Jasso v. State, 112 S.W.3d 805, 813
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).  The mere mention of a polygraph examination
does not, however, automatically constitute reversible error, even if the
results of the exam are revealed.  Tennard, 802 S.W.2d at 683–84; Jasso, 112 S.W.3d at 813.  When a polygraph is mentioned at trial and
defense counsel requests a mistrial, we must first determine whether the
results were revealed to the jury.  Jasso, 112 S.W.3d at 814 (citing Tennard, 802 S.W.2d at 683).  Generally, when polygraph results are mentioned
but not revealed to the jury, an instruction to disregard is sufficient to cure
any error.  Id.  In determining whether
the trial court erroneously refused to grant a mistrial, we may also consider
(1) whether the questioning party exhibited bad faith by asking a question
designed to elicit polygraph evidence; and (2) whether polygraph evidence
bolstered the State’s case.  See id. (citing Buckley v. State, 46 S.W.3d 333, 337 (Tex. App.—Texarkana 2001,
pet. dism’d)).
We have previously noted that “[n]umerous
cases have held that where a witness gives a nonresponsive answer that mentions
a polygraph test was offered or taken, but does not mention the results of such
a test, there is no error in failing to grant a mistrial.”  Kugler
v. State, 902 S.W.2d 594, 595 (Tex. App.—Houston [1st Dist.] 1995, pet.
ref’d); Barker v. State, 740 S.W.2d
579, 582–83 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (finding no error
when witness mentioned that officers had asked defendant if he wanted to take a
polygraph); see also Garcia v. State,
907 S.W.2d 635, 639 (Tex. App.—Corpus Christi 1995) (“Here, there was no
testimony that appellant actually took a polygraph test, nor was it inferred
that he refused to take one.  Further, no
results of the test were revealed to the jury.”), aff’d, 981 S.W.2d 683 (Tex. Crim. App. 1998).
Here, unlike most of the case law
involving the introduction of polygraph evidence, no witness testified that
appellant was offered the opportunity to take a polygraph.  Instead, after the jury had retired for
deliberations, the jury asked to hear the tape recording of Investigator
Rosser’s conversation with appellant. 
The State and defense counsel had previously agreed on which portions of
the tape were admissible, and the prosecutor noted on the record the “counters”
on the tape player that marked the parameters of admissible material.  The prosecutor began playing the tape, but she
failed to stop the tape until after Investigator Rosser asked appellant if he
wished to take a polygraph examination.  The prosecutor and the trial court had the
following exchange:
[State]:        I’m sorry.
 
The
Court:  Okay.  That’s not admissible in evidence and y’all
are to disregard that.
 
[State]:        Judge, that’s my fault.  I looked at my numbers wrong.
 
The prosecutor then played the remaining admissible
portions of the tape for the jury.  After
the jury returned to deliberating, defense counsel moved for a mistrial and
argued:
Evidence of a polygraph is
not admissible at any time, certainly not after closing arguments.  So, I think in this case this is something
that the jury cannot ignore.  I mean,
they’ve heard the word that it was offered to him.  They have no idea if he took one and passed
it, took one and failed it, or didn’t take it at all.  And in this case I think that the potential
damage is so great that a mistrial has to be granted.
 
The trial court explicitly stated its belief that
the prosecutor did not intentionally play the inadmissible portion of the
tape.  The court also stated that it quickly
addressed the problem, that the jury “appeared to understand that [the
polygraph evidence] couldn’t be considered,” and that the jury heard no
indication of whether appellant agreed or refused to take a polygraph.  The trial court denied the motion for
mistrial.
          Although
the prosecutor knew the specific portions of the tape recording that contained
inadmissible material, there is no indication in the record that the prosecutor
deliberately and intentionally failed to stop the recording until after
Investigator Rosser had asked appellant to take a polygraph.  Instead, the only evidence is that the
prosecutor “looked at [the counters on the tape player] wrong,” and, thus, her
failure to stop the tape at the proper moment was merely inadvertent.[4]  Although the jury heard Investigator Rosser
offer a polygraph examination to appellant, there was no indication that appellant
refused to take the examination, nor was there any evidence that appellant
actually took a polygraph.  No polygraph
results were revealed to the jury. 
Furthermore, the trial court promptly informed the jury that polygraph
evidence was inadmissible and briefly instructed the jury to disregard.  The trial court did not belabor the issue or
call undue attention to the polygraph reference.
          We
conclude that the trial court’s instruction to the jury to disregard
Investigator Rosser’s question to appellant sufficiently cured any error
arising from the reference to a polygraph examination.  We therefore hold that the trial court did
not abuse its discretion in denying appellant’s motion for mistrial.  See
Garcia, 907 S.W.2d at 639 (finding no error in denying mistrial when there
was no testimony that defendant took polygraph or refused to take polygraph and
no results were revealed to jury); Kugler,
902 S.W.2d at 595 (noting cases finding no error in denying mistrial when jury was
informed polygraph was offered to defendant but results were not revealed).
          We
overrule appellant’s fourth issue.
 
Conclusion
We affirm
the judgment of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Yates.[5]
Publish.  Tex.
R. App. P. 47.2(b).




[1]
          See Tex. Penal Code Ann.
§§ 21.11(a)(1), 22.011(a)(2)(C) (Vernon Supp. 2010).


[2]
          Even if the trial court
erroneously admitted the recording, we note that Investigator Rosser testified,
without defense objection, regarding appellant’s admissions during the
conversation.  “The admission of inadmissible
evidence can be rendered harmless if the same or similar evidence is introduced
without objection elsewhere during trial.” 
Elder v. State, 132 S.W.3d 20,
27 (Tex. App.—Fort Worth 2004, pet. ref’d); see
also Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error
in the admission of evidence is cured when the same evidence comes in elsewhere
without objection.”).


[3]
          In his brief, appellant states
that defense counsel “objected that [the extraneous offenses’] prejudicial
effect would outweigh their probative value under Rule 404 of the Texas Rules
of Evidence.”  Although defense counsel
made a Rule 404 objection, he never mentioned the prejudicial effect of the
offenses substantially outweighing their probative value.


[4]
          The record also reflects that
defense counsel, in moving for a mistrial, did not intend to suggest that the
prosecutor intentionally played the portion of the recording that contained
Investigator Rosser’s polygraph question.


[5]
          The Honorable Leslie Yates,
retired Justice, Fourteenth Court of Appeals, sitting by assignment.  See
Tex. Gov’t Code Ann.
§ 74.003(b) (Vernon 2005).


