                                                                           PD-1600-15
                                                          COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                       Transmitted 12/21/2015 11:24:21 AM
                                                         Accepted 12/21/2015 12:45:33 PM
                                                                           ABEL ACOSTA
THE STATE OF TEXAS       §                                                         CLERK
                         §
                         §
                         §
                         §
          v.             §                Cause No. PD-1600-15
                         §
                         §
                         §
                         §                                December 21, 2015
STEPHEN DEMOND ODOM, §
                Appellee §

  **************************************************************
                       IN THE
             COURT OF CRIMINAL APPEALS
                   AUSTIN, TEXAS

     REPLY IN OPPOSITION TO
       STATE’S PETITION FOR
     DISCRETIONARY REVIEW
 FROM THE NINTH COURT OF APPEALS
        JEFFERSON COUNTY
               ORAL ARGUMENT REQUESTED

                     DAVID W. BARLOW
                     ATTORNEY AT LAW
                        EDISON PLAZA
                 350 PINE STREET, SUITE 315
                  BEAUMONT, TEXAS 77701
                 TELEPHONE: (409) 838-2168
                  FACSIMILE: (409) 838-3145
                david.barlow@davidwbarlow.com
                  TEXAS BAR NO. 00793305
                    IDENTIFICATION OF THE PARTIES

      Pursuant to Tex. R. App. Proc 68.4(a), a complete list of the names of all

interested parties is provided below so the members of this Honorable Court may at

once determine whether they are disqualified to serve or should recuse themselves

from participating in the decision of the case.

Appellee:                        Stephen D. Odom, #1911586
                                 French Robertson Unit
                                 12071 FM 3522
                                 Abilene, Texas 79601

Defense Attorneys on the Trial: Audwin Samuel and Sean Villery-Samuel
                                1965 Park Street
                                Beaumont, Texas 77701

Defense Attorney on the Appeal: David W. Barlow
                              Edison Plaza
                              350 Pine Street, Suite 315
                              Beaumont, Texas 77701

Prosecutor on the Trial:         Lindsey Scott
                                 Jefferson County Courthouse
                                 1085 Pearl
                                 Beaumont, Texas 77701

Criminal District Attorney:      Robert J. “Bob” Wortham
                                 Jefferson County Courthouse
                                 1085 Pearl
                                 Beaumont, Texas 77701

Trial Judge Presiding:           John B. Stevens, Jr.
                                 Jefferson County Courthouse
                                 1085 Pearl
                                 Beaumont, Texas 77701
                                          TABLE OF CONTENTS


INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATE’S GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

                  STATE’S GROUND FOR REVIEW NO. ONE: The Court of Appeals
                  (sic) opinion erroneously precludes the State from offering impeachment
                  evidence under Tex. Rule Evid. (sic) 611(b) in all instances where the
                  evidence consists of the defendant’s failure to take a polygraph test.. 5

                  STATE’S GROUND FOR REVIEW NO. TWO: The Court of
                  Appeals (sic) opinion effectively erroneously renders any mention of a
                  polygraph (even in instances where there was no polygraph exam) as
                  error per se, even when the question is asked to correct a false
                  impression and perjurous (sic) statement made by a defendant during
                  trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                              i
                                              AUTHORITIES

CASES                                                                                                        PAGE

Cade v. State, 2015 Tex. Crim. App. Unpub. LEXIS 156 2015)(not designated for
     publication) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Castillo v. State, 739 S.W.2d 280 (Tex. Crim. App.1987). . . . . . . . . . . . . . . . . . . . 6

Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . 6

Nethery v. State, 692 S.W.2d 686 (Tex. Crim. App.1985). . . . . . . . . . . . . . . . . 6, 13

Nichols v. State, 378 S.W.2d 335 (Tex. Crim. App. 1964).. . . . . . . . . . . . . . . . . . 13

Peterson v. State, 157 Tex. Cr. R. 255, 247 S.W.2d 110 (1951). . . . . . . . . . . . . . . 7

Tennard v. State, 802 S.W.2d 678 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . 6

U.S. v. Allard, 464 F.3d 529 (5th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                          ii
              STATEMENT REGARDING ORAL ARGUMENT

      The grounds for review herein advanced by the State of Texas are well settled

in Texas jurisprudence. Oral argument will not be helpful to the Court. However, as

the State of Texas has requested oral argument in its Petition, Odom hereby requests

oral argument in response.




                                         iii
THE STATE OF TEXAS               §
                                 §
                                 §
                                 §
                                 §
                v.               §       Cause No. PD-1600-15
                                 §
                                 §
                                 §
                                 §
    STEPHEN DEMOND ODOM, §
                        Appellee §
  **************************************************************
                               IN THE
                     COURT OF CRIMINAL APPEALS
                           AUSTIN, TEXAS

           REPLY IN OPPOSITION TO
             STATE’S PETITION FOR
           DISCRETIONARY REVIEW
       FROM THE NINTH COURT OF APPEALS
              JEFFERSON COUNTY
        **************************************************************

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Stephen Demond Odom, Defendant in cause number 13-16301

in the Jefferson County Criminal District Court, John B. Stevens, Jr., Judge Presiding,

and Appellant before the Ninth Court of Appeals, and respectfully submits this reply

to the Court of Criminal Appeals in response to the Petition for Discretionary Review

filed by the State of Texas herein.

                                          1
                         STATEMENT OF THE CASE

      Appellant was indicted by a Jefferson County grand jury in a multi-count

indictment for the offense of injury to a child. Appellant plead not guilty to both

counts, and trial was to a jury. Following the presentation of evidence, and after

arguments of counsel and deliberations, the jury found Appellant guilty of count one

of the indictment. After the presentation of punishment evidence, and after further

arguments of counsel and deliberations, the jury assessed punishment at incarceration

in the Texas Department of Criminal Justice for life.




                                          2
                STATEMENT OF PROCEDURAL HISTORY

      After conviction in the trial court, Appellant perfected Notice of Appeal to the

Ninth Court of Appeals. The Court found error, reversed the conviction and sentence,

and remanded the cause to the trial court for re-trial. The State filed a motion for

rehearing, which was overruled by the Court of Appeals. The State then filed its

Petition for Discretionary Review with this Honorable Court.




                                          3
        STATE’S GROUNDS FOR REVIEW

GROUND FOR REVIEW NO. ONE: The Court of
Appeals (sic) opinion erroneously precludes the State from
offering impeachment evidence under Tex. Rule Evid. (sic)
611(b) in all instances where the evidence consists of the
defendant’s failure to take a polygraph test.

GROUND FOR REVIEW NO. TWO: The Court of
Appeals (sic) opinion effectively erroneously renders any
mention of a polygraph (even in instances where there was
no polygraph exam) as error per se, even when the question
is asked to correct a false impression and perjurous (sic)
statement made by a defendant during trial.




                            4
                                    ARGUMENT

             STATE’S GROUND FOR REVIEW NO. ONE: The
             Court of Appeals (sic) opinion erroneously precludes the
             State from offering impeachment evidence under Tex. Rule
             Evid. (sic) 611(b) in all instances where the evidence
             consists of the defendant’s failure to take a polygraph test.

             STATE’S GROUND FOR REVIEW NO. TWO: The
             Court of Appeals (sic) opinion effectively erroneously
             renders any mention of a polygraph (even in instances
             where there was no polygraph exam) as error per se, even
             when the question is asked to correct a false impression
             and perjurous (sic) statement made by a defendant during
             trial.

      The gravamen of the State’s theory under which it asks this Honorable Court

to exercise its discretion herein is based upon an erroneous, conclusory premise: the

Odom lied during his trial. The trial below was to a jury. The jury was the fact

finder, not the State of Texas. The veracity of Odom, just as any other witness,

including those testifying for the State of Texas, was the purview of the jury. The

jury is who decided who lied (if anyone), who did not lie, and whom to believe.

However, the State would have this Honorable Court believe that its conclusory

opinion that Odom lied was a fact, that the Ninth Court of Appeals should have

known that it was a fact, and that, therefore, the appellate court erroneously held that

the issue of whether Odom was “uncooperative” with law enforcement could not be

impeached with polygraph evidence. Glaringly absent from the State’s petition is any

                                           5
support or authority for its argument.

      The State contended before the Court of Appeals that the issue of a polygraph

was not being offered by the State to show that Odom did not submit to a polygraph,

but rather to impeach him by showing that he was uncooperative for not submitting

to a polygraph. The appellate court held that there was a plethora of evidence before

the jury already regarding the cooperation of Odom with law enforcement. The Court

of Appeals held that the prejudicial effect of allowing polygraph testimony was

immensely outweighed by any probative value, even if it was offered as impeachment

evidence. The State argues in its petition that, in effect, it should have been allowed

to impeach Odom with “truthful” information establishing Odom committed perjury.

While the State is entitled to its own opinion, it is not entitled to its own facts. The

jury determines the facts herein, not the State of Texas. The fallacy of the State’s

argument is its reliance on its own arbitrary conclusion to support its premise. It is

simply bootstrapping its desired conclusion as the basis for its petition.

      It has long been settled that the existence and results of a polygraph

examination are inadmissible for all purposes in Texas, even if the State and the

appellant agree to its admissibility. Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App.

2007); Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990); Castillo v.

State, 739 S.W.2d 280, 293 (Tex. Crim. App.1987); Nethery v. State, 692 S.W.2d 686

                                           6
(Tex. Crim. App.1985); Peterson v. State, 157 Tex. Cr. R. 255, 247 S.W.2d 110

(1951) (Emphasis added). The State simply ignores the fact that polygraph testimony

is inadmissible for all purposes. Impeachment is a purpose. The record below shows

the testimony regarding the polygraph. Appellant was testifying in his own behalf

and was being cross examined by the prosecutor as reflected beginning at R.R. V-79,

to-wit:

                   “THE STATE: Q. Once the police told you that this

            was child abuse, that someone had hurt Jakyra and that’s

            what killed her, were you interested in finding out who had

            done that?

                   APPELLANT: A. Of course. Yes, ma’am.

                   Q.    And you became aware that they suspected

                         you, right?

                   A.    Yes, ma’am.

                   Q.    They told you that, didn’t they?

                   A.    Yes, ma’am.

                   Q.    And were you interested in helping to

            eliminate yourself as a suspect?

                   A.    Was I interested?

                                         7
                     Q.   Yeah. Did you want to eliminate yourself as

            a suspect?

                     A.   Yes, ma’am.

                     Q.   But you did at some point become

            uncooperative with the police? Do you dispute that?

                     A.   No, ma’am. I didn’t become uncooperative.

            I did everything they asked me to. I was not never

            uncooperative.

                     Q.   At some point, did you stop returning their

            calls?

                     A.   No, I never stopped returning their calls. I

            talked to Lieutenant Curl and explained to him what my

            lawyer told me to do and that my lawyer would get in touch

            with me.

                     THE COURT:         You-all come on up here.”


      The trial court then held that the allegation that Appellant had refused to submit

to a polygraph examination “even before he hired an attorney” would be admissible

because, according to the trial court, Appellant “opened his own door there.” The



                                           8
trial court attempted to justify its clearly erroneous ruling as reflected at R.R. V-81,

to-wit:

                    “THE COURT: It’s allowable at this stage. He

             volunteered that statement (that Appellant did everything

             they asked me to). I think he put himself into it. He’s

             opened his own door there. I wasn’t going to let it in, but

             I’m certainly not going to let him volunteer statements after

             he answered the question that misleads the jury. I know

             you worked on that before but he can’t volunteer an

             additional statement; and that opened the door, in all

             fairness, to everything. I don’t like this whole subject

             matter, but he can’t make a statement if it’s not an accurate

             one. He had given an answer, and then he went further.

             ....

             The jury can’t be mislead. The whole thing is the rules of

             evidence are pursuing the truth; but when he makes that

             statement and it’s proffered that that contradicts what he

             just said, then in all fairness, the jury is entitled to know

             what it is. I don’t like polygraphs but, nonetheless, when

                                           9
              he makes - - he answered the question. It still didn’t open

              the door. It was his next statement.”

      Appellant objected to its admission based upon Rule 403, Tex. R. Evid. The

trial court overruled Appellant’s objection stating that:

              “Well, if they asked him to take a polygraph that I wouldn’t

              have otherwise introduced or allowed the admission of,

              when he makes that last statement, that is not a fair,

              accurate, truthful, honest statement; and he volunteered

              that. State has an opportunity to respond”

       The trial court further attempted to justify its erroneous introduction of the

existence as reflected at R.R. V-83, to-wit:

              “THE COURT: Now, let me add one other guiding

              principle that this Court looks at and it’s found under

              Article 101 of the Texas Rules of Evidence or under 102.

              For purpose and construction of the rules, the rules are

              construed to secure fairness, elimination of unjustifiable

              expense and delay, promotion of growth and development

              of the law of evidence - - and here what I find to me the

              most important - - to the end that the truth may be

                                           10
            ascertained. Well, that’s not what we’re doing if we don’t

            finish that thought that’s been put out there from a

            volunteered statement that after his - - again, he completed

            his answer, and then he ventured into the uncharted water

            on his own of that statement. I don’t like it.

            ....

            We’re not going to end that because, truly, as we all agree,

            it is apparently not factual and not a truthful statement

            that’s before the jury. All right. And it wasn’t - - again,

            because he volunteered the statement, I think the State, in

            all fairness under the rules, is allowed to refute, if they can

            directly refute that. So, your objection is overruled on that

            regard.”

      At trial, Odom was then forced to defend himself against the inaccurate, untrue

suggestion that he refused to submit to a polygraph as shown beginning at R.R. V-84,

to-wit:

            “THE STATE Q. Mr. Odom, you said you did everything

            that the police asked you to do. That’s not true, is it? It’s

            a yes or no question.

                                          11
APPELLANT A. Yes, ma’am.

Q.    Because they asked you to submit to a polygraph

      examination, didn’t they?

A.    Yes, ma’am.

Q.    And you refused to do that, didn’t you?

A.    I didn’t refuse.

Q.    You didn’t?

A.    I did not refuse.

Q.    Well, did you submit to one?

A.    I didn’t submit to one because they supposedly had

been getting with my lawyer or over to my lawyer and

setting up an appointment with my lawyer. I was doing

what my lawyer asked you to do.

Q.    Really? You told them you’d take a polygraph when

you left; but you never would come back and take one,

would you?

A.    I did tell them that I would take one.

Q.    Yeah, you told them that?

A.    Yeah, but after I talked - -

                            12
             Q.     You didn’t show up to take it, did you?

             A.     They never told me a definite day to show up.

             Q.     Didn’t you make an appointment and you didn’t

             show up and they kept trying to call you?

             A.     No, ma’am, I didn’t.

             ....

             Q.     The point is you never did show up and take one, did

                    you?

             A.     It was never a point in time to take one.

             Q.     So, that is no, right?

             A.     No, ma’am.”

      The Ninth Court of Appeals correct held that this Honorable Court has

consistently held that both polygraph results and questions regarding whether a

witness took a polygraph are inadmissible at trial, citing opinions of this Court from

1951 until 2007. The State incorrectly states in its petition that the Court of Appeals

relied on this Honorable Court’s opinion in Nethery v. State, 692 S.W.2d 686 (Tex.

Crim. App. 1985). While Nethery was one of the over 18 cases the Court of Appeals

cited in its opinion, it was not what the appellate court primarily relied upon in its

opinion. The court’s opinion relies heavily upon this Honorable Court’s opinion in

                                             13
Nichols v. State, 378 S.W.2d 335 (Tex. Crim. App. 1964). This Honorable Court has

addressed issues similar to Nichols most recently as 2015. Cade v. State, 2015 Tex.

Crim. App. Unpub. LEXIS 156 2015)(not designated for publication). Nichols has

not been disavowed by this Honorable Court. The State’s petition presents no

argument nor reason as to why the Court should do so now.

      In a desperate attempt to try to find some scintilla of support for its premise

herein, the State directs this Honorable Court’s attention to U.S. v. Allard, 464 F.3d

529 (5th Cir. 2006). The only things distinguishing the cause sub judice from Allard

are the facts and the law. The facts herein are not the facts in Allard, supra. The

reasons for the admissibility of a polygraph under federal law are based on facts

severely different from the facts in the case at bar. The law herein is not the law in

Allard, supra. The United States Court of Appeals for the Fifth Circuit discusses and

applies the federal rules of evidence in Allard. The Texas rules of evidence are

applicable herein, not federal rules.

      It is overwhelmingly obvious that a polygraph examination was never

definitively scheduled, which is why Odom never submitted to one. Therefore, it is

clearly disputed whether Odom committed perjury as the State would have this

Honorable Court believe. The State’s argument as to why this Court should grant

review embarrassingly lacks any factual or legal reasons for this Honorable Court to

                                         14
do so. Rule 66.3, Tex. R. App. Proc. It is beyond dispute the Ninth Court of Appeals

carefully and meticulously considered its opinion, as the Court took over one year

after submission to issue its opinion. For these reasons, the State’s Petition for

Discretionary Review clearly must be denied.




                                        15
                                 PRAYER

     WHEREFORE, PREMISES CONSIDERED, Odom urges this Honorable Court

to deny the State’s Petition for Discretionary Review from the Ninth Court of

Appeals.

                                          Respectfully submitted,

                                           /s/ David W. Barlow
                                          DAVID W. BARLOW
                                          ATTORNEY AT LAW
                                          Edison Plaza
                                          350 Pine Street, Suite 315
                                          Beaumont, Texas 77701
                                          Telephone: (409) 838-2168
                                          Facsimile: (409) 838-3145
                                          david.barlow@davidwbarlow.com
                                          Texas State Bar No. 00793305




                                     16
                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing Reply in

Opposition to State’s Petition for Discretionary Review From the Ninth Court of

Appeals was served upon the Hon. Robert J. “Bob” Wortham, Jefferson County

Criminal District Attorney, Jefferson County Courthouse, 1085 Pearl, Suite 300,

Beaumont, Texas, 77701, thompson@co.jefferson.tx.us, attorney for the State of

Texas, Petitioner, and upon the Hon. Lisa C. McMinn, State Prosecuting Attorney,

P.O. Box 13046, Austin, Texas, 78711-3046, information@spa.texas.gov, by

electronic service via www.efile.txourts.gov, on this the 21st day of December, 2015.



                                              /s/ David W. Barlow
                                              DAVID W. BARLOW




                                         17
          APPENDIX A

Selected Testimony from Cross Examination
       of Stephen Demond Odom by
              State of Texas
                                                                                                      78




 1    A.         Ye s ,          ma'am.

                Q . Yo u w e n t i n f o r y o u r s e c o n d i n t e r v i e w w i t h t h e

     detective, and your attorney was asking you about this. At

     some point, I guess you decided you wanted an attorney; is that

     right?

                A.    Ye s ,      ma'am.

                Q. But you really -- you became uncooperative with the

 8 police before you had hired an attorney in this case, hadn't

 9 you?

10    A.        Is        that        a   question?

11         Q.              Ye a h .

12     A.            No,         ma'am.

13 Q. I mean, weren't there things the police wanted you

14 to do that you were not willing to do, even when you did not

15 have an attorney?

16     A.            No,         ma'am.

17 Q. That's not true? Are you saying you cooperated with

18 them and did everything that they asked of you?

19   A.    I    did        whatever         they       asked   me    to    do.

20   MR.         A.        SAMUEL:            Yo u r    Honor,      may      we     approach?

21        THE             C O U R T:        Come         on    up.

22 (Bench Discussion Outside Hearing of the Jury)

23    MR.            A.     SAMUEL:            She's      trying      to     lead     him        to

24 the point about him not giving a polygraph and was not

25 cooperative. He stated that he cooperated with the police, and



                                          RENE MULHOLLAND, CSR, TCRR

                                                   409-835-8410
                                                                                                           7 9




 1 we object to anything alluding to the fact that he was not

 2 cooperating because he refused to take a polygraph.

 3    MRS.           S C O T T:          Judge,         I    just    believe         that       he's

 4 opened the door for this because he lead him down the line of

 5 questioning saying that the only way he did not cooperate with

 6 the police, the only way --

                                   T H E C O U R T: I t ' s n o t c o m i n g i n y e t . I t ' s n o t

 8 going in yet.

                                   MRS. SCOTT: Okay.

                                   T H E C O U RT: G o t o s o m e t h i n g e l s e .

                                    (Bench Discussion Concluded)

1 2 B Y M R S . S C O T T:

13 Q. Once the police told you that this was child abuse,

1 4 t h a t s o m e o n e h a d h u r t J a k y r a a n d t h a t ' s w h a t k i l l e d h e r, w e r e

1 5 y o u i n t e r e s t e d i n fi n d i n g o u t w h o h a d d o n e t h a t ?

16     A.       Of       course.         Ye s ,    ma'am.

17 Q. And you became aware that they suspected you, right?

18       A.        Ye s ,         ma'am.

19    Q.       They         told    you     that,       didn't      they?

20      A.         Ye s ,         ma'am.

21   Q. And          were         you    interested          in   helping      to    eliminate

22 yourself as a suspect?

23      A.        Was         I     interested?

24   Q.       Ye a h .   Did       you    want     to       eliminate     yourself        as    a

25 suspect?



                                        RENE MULHOLLAND, CSR, TCRR
                                                  409-835-8410
25   added   that   statement.




                            RENE MULHOLLAND, CSR, TCRR

                                   409-835-8410
                                                                                                                        81




 1 that contradicts what he just said?

                                M R S . S C O T T: Ye s .

                                THE    C O U R T:            What    is   that?

                                MRS.       S C O T T:        He     refused      to    submit       to   a

 5 polygraph examination even before he hired an attorney.

 6     THE        C O U R T:        It's          allowable                at         this        stage.           He

 7 volunteered that statement. I think he put himself into it.

 8 He's opened his own door there. I wasn't going to let it in,

 9 but I'm certainly not going to let him volunteer statements

1 0 a f t e r h e a n s w e r e d t h e q u e s t i o n t h a t m i s l e a d s t h i s j u r y. I k n o w

11 you worked on that before but he can't volunteer an additional

1 2 s t a t e m e n t ; a n d t h a t o p e n s t h e d o o r, i n a l l f a i r n e s s , t o

1 3 e v e r y t h i n g . I d o n ' t l i k e t h i s w h o l e s u b j e c t m a t t e r, b u t h e

14   can't    make      a   statement        if       it's    not    an    accurate          one.    He      had

1 5 g i v e n a n a n s w e r, a n d t h e n h e w e n t f u r t h e r.

16       MR.         S.        SAMUEL:                  I         understand             that.

17     MRS.         S C O T T:       So,          I         can      get        into         it   now?

18     THE        C O U R T:       The            jury         can't        be        mislead.               The

19 whole thing is the rules of evidence are pursuing the truth;

20 but when he makes that statement and it's proffered that that

21 contradicts what he just said, then in all fairness, the jury

22 is entitled to know what it is. I don't like polygraphs but,

23 nonetheless, when he makes -- he answered the question. It

2 4 s t i l l d i d n ' t o p e n t h e d o o r. I t w a s h i s n e x t s t a t e m e n t .

25      MR.        S.       SAMUEL:                   Secondary                 statement.                With



                                    RENE MULHOLLAND, CSR, TCRR

                                                      409-835-8410
                                                                                                         82




 1 that being said, still for the record, I would make a 403

     objection on the grounds that any probative value is

     substantially outweighed by the prejudicial effect, as well as
  . I mi sieadi ng.

                                T H E C O U R T: W e l l , R u l e 4 0 3 s t a t e s t h a t

 6 relevant evidence may be excluded if it's prejudicial or is

 7 substantially outweighed by the danger of unfair prejudice,

 8 c o n f u s i o n o f t h e i s s u e s o r m i s l e a d i n g t h e j u r y. N o w, t h i s

 9 Court has considered polygraph issues -- that is, someone not

10 taking a polygraph or taking a polygraph or the results

11 thereof -- to be dangerous ground for presentation because this

12 Court's own experience with polygraphs is that it is not a

13 perfect science. That's why it's not allowed to be entered

14 into or else we would do away with the jury. We would just do

15 polygraphs. This Court is not going to be the catalyst for

16   that    road    to   be   taken.

17     However,            again,        as     I    reviewed           the      record,           and

1 8 I s u s t a i n e d t h e o b j e c t i o n o f n o t a l l o w i n g i t i n t h e fi r s t p l a c e

19 but when a statement is made by -- again, I would note the

20 question, "But you did at some point become uncooperative with

21 the police. Do you dispute that?" That was a yes or no. And

22 he answered, "No, ma'am, I didn't become uncooperative." He

23 answered the question; and then he volunteered on his own next

24 statement, "I did everything they asked me to do."

25     Well,        if    they      asked           him    to     take       a    polygraph



                                   RENE MULHOLLAND, CSR, TCRR

                                               409-835-8410
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 1   that     I   wouldn't           have      otherwise     introduced       or    allowed      the

 2 admission of, when he makes that last statement, that is not a

 3 f a i r, a c c u r a t e , t r u t h f u l , h o n e s t s t a t e m e n t ; a n d h e v o l u n t e e r e d

 4 that. State has an opportunity to refute that.

 5    MR.           8.     SAMUEL:                  So,     your      ruling        is     overruled,

 6   Yo u r   Honor?

 7    THE         C O U R T:             Yo u ' r e   making          an     objection            of       403?

 8            MR.              S.             SAMUEL:            Correct.

 9     THE          C O U R T:            I     am     fi n d i n g   that         under       these

10 circumstances, based upon the balancing test under 403, that

11 t h i s i n f o r m a t i o n u n d e r t h e s e p a r t i c u l a r c i r c u m s t a n c e s a r e n o t

12 information that he refused to take the polygraph, is not

13 excluded under these, as its probative value is not

14 substantially outweighed by the danger of unfair prejudice.

15      Now,             let        me        add     one      other       guiding          principle

16 that this Court looks at and it's found under Article 101 of

1 7 t h e Te x a s R u l e s o f E v i d e n c e o r u n d e r 1 0 2 . F o r p u r p o s e a n d

18 construction of the rules, the rules are construed to secure

1 9 f a i r n e s s , e l i m i n a t i o n o f u n j u s t i fi a b l e e x p e n s e a n d d e l a y ,

20 promotion of growth and development of the law of evidence --

2 1 a n d h e r e w h a t I fi n d t o b e t h e m o s t i m p o r t a n t - - t o t h e e n d

22 that the truth may be ascertained. Well, that's not what we're

2 3 d o i n g i f w e d o n ' t fi n i s h t h a t t h o u g h t t h a t ' s b e e n p u t o u t t h e r e

24 from a volunteered statement that after his -- again, he

25 completed his answer, and then he ventured into the unchartered



                                              RENE MULHOLLAND, CSR, TCRR
                                                      409-835-8410
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 1   water      on    his    own      of    that     statement.       I   don't    like    it.


                                   MRS.      S C O T T:   I   know.

                                   THE      C O U R T:    I   don't   like   all   of     that   but


     agai n


                                   MR. S. SAMUEL: Just to be clear, it's

     overruled?


                                   T H E C O U R T: W e ' r e n o t g o i n g t o e n d t h a t

 8 b e c a u s e , t r u l y, a s w e a l l a g r e e , i t i s a p p a r e n t l y n o t f a c t u a l

 9 a n d n o t a t r u t h f u l s t a t e m e n t t h a t ' s b e f o r e t h e j u r y. A l l

10 right. And it wasn't -- again, because he volunteered the

11 s t a t e m e n t , I t h i n k t h e S t a t e , i n a l l f a i r n e s s u n d e r t h e r u l e s

12 is allowed to refute, if they can directly refute that. So,

13 your objection is overruled on that regard.

14        (Bench              Discussion                      Concluded)

                                   T H E C O U RT: H o l d o n . Yo u m a y m o v e f o r w a r d .

1 6 B Y M R S . S C O T T:

1 7 Q . M r. O d o m , y o u s a i d y o u d i d e v e r y t h i n g t h a t t h e

18 police asked you to do. That's not true, is it? It's a yes or

19 no question.

20       A.      Ye s ,       ma'am.

21 Q. Because they asked you to submit to a polygraph

22 examination, didn't they?

23      A.      Ye s ,       ma'am.

24 Q. And you refused to do that, didn't you?

25       A.       I       didn't           refuse.




                                      RENE MULHOLLAND, CSR, TCRR

                                                   409-835-8410
                                                                                                             8 5




 1       Q.         Yo u            didn't?

              A.     I       did    not     refuse.

              Q. Well, did you submit to one?

              A. I didn't submit to one because they supposedly had

      been getting with my lawyer or over to my lawyer and setting up

      a n a p p o i n t m e n t w i t h m y l a w y e r. I w a s d o i n g w h a t m y l a w y e r

      asked you to do.

 8 Q . R e a l l y ? Yo u t o l d t h e m y o u ' d t a k e a p o l y g r a p h w h e n

 9 you left; but you never would come back and take one, would

10    you?

11            A .        I    did    tell   them    that   I    would      take      one.

1 2            Q.        Ye a h , y o u t o l d t h e m t h a t ?

1 3           A .        Ye a h , b u t a f t e r I t a l k e d - -

14             Q.        Yo u d i d n ' t s h o w u p t o t a k e i t , d i d y o u ?

15            A .        T h e y n e v e r t o l d m e a d e fi n i t e d a y t o s h o w u p .

16             Q.        Didn't you make an appointment and you didn't show

17 up and they kept trying to call you?

18      A.     No,           ma'am,         I   didn't.

19      THE         C O U R T:         Hold        on.     One        at         a     time.    She's

20 really good, but she can't take both people speaking over each

21 other. She gets to ask the question and then you have a fair

2 2 o p p o r t u n i t y t o a n s w e r. D o n ' t s t e p a n y b o d y s p e a k i n g . R e s t a t e

23 your question.

24      MR.         A.       SAMUEL:            Yo u r         Honor,        I       object.    The

25 question was asked, and it was answered. I also object that



                                       RENE MULHOLLAND, GSR, TCRR
                                                   409-835-8410
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 1 counsel is being argumentative.

                                      T H E C O U R T: O v e r r u l e d . I ' l l a l l o w y o u , o f

      course, to renew your objection. Let's move through this

      point. Go forward.

 5 B Y M R S . S C O T T:

 6 Q. The point is you never did show up and take one, did

 7 you?

 8    A.    It    was         never         a   point   in    time     to   take      one.

 9    Q.         So,         that      is       no,   right?

10         A.          No,       ma'am.

11 Q . M r. O d o m , d i d y o u e v e r, w h e n y o u w e r e t a k i n g c a r e

12 of, Jakyra abuse any drugs or take any drugs?

13               A .         Ye s , m a ' a m .

14               0.          What drugs would you take?

15               A .         I smoked marijuana.

16               Q.          Did you ever do anything else?

17               A .         No, ma'am.

18               Q.          Did you ever, while you were taking care of Jakyra

19    abuse      PCP?


20               A .         No, ma'am.

21               Q.          Benzodi azepi nes?

2 2              A .         No, ma'am.

2 3              Q.          Or ecstasy?

2 4              A .         No, ma'am.

2 5              Q.          A1cohol?




                                            RENE MULHOLLAND, CSR, TCRR
                                                      409-835-8410
            APPENDIX B

Selected Testimony from Re-Direct Examination
         of Stephen Demond Odom by
            O d o m ' s Tr i a l C o u n s e l
                                                                           108




 1 Q. Did you ever strike Jakyra?

                 A.     No,         sir.

                 Q. Did you ever see any injuries that would lead you to

     believe someone had struck Jakyra?

 5     A.              No,          sir.

 6 Q. When you met with Detective Curl and he began to

 7 question you, he asked you to take a polygraph?

 8               A .     He asked me would I take one.

 9               Q.      And your response was?

10               A .     Ye s , I w o u l d .

11               Q.      And to your knowledge, is a polygraph a perfect

12   instrument?

13 A. From what my lawyer told me, no.

14 Q. But yet and still, you were willing to take it?

15          A.           Ye a h .

16 Q. But they never gave you a date to come take it?

17 A. No, they never gave me a date.

18 Q. Now, there was some questions about you smoking

19 marijuana. Did you ever smoke marijuana in the presence of

20 Jakyra?

21 A. Not in the presence, but I have.

22   Q.     But         not    in      her   presence?

23     A.              No,      sir.

24 Q. At any time, did you smoke marijuana in the same

25   room    with       her?




                                       RENE MULHOLLAND, GSR, TCRR

                                                409-835-8410
