                                   NO. 12-14-00049-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

WALTER FENT GARNER, JR.,                          §       APPEAL FROM THE 8TH
APPELLANT

V.                                                §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §       RAINS COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Walter Fent Garner, Jr. appeals his convictions for three counts of indecency with a child.
Appellant was sentenced to imprisonment for twenty years in the first count and ten years each in
the second and third counts. Appellant raises one issue challenging the trial court’s failure to
order a mistrial after Appellant’s attorney questioned a witness regarding a polygraph
examination. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with three counts of indecency with a child. He
pleaded “not guilty” to all three counts, and the matter proceeded to a jury trial.
       At trial, the trial court granted the State’s oral motion in limine to prevent any mention of
polygraph examinations during the trial. During defense counsel’s cross-examination of a law
enforcement officer who had interviewed Appellant, defense counsel asked the officer whether he
had asked Appellant if he would submit to a polygraph examination. Before any response by the
officer, the prosecutor asked to approach the bench. At the bench, the trial court expressed its
disapproval of defense counsel’s behavior and asked the prosecutor to suggest a remedy. The
prosecutor indicated that he was willing to go ahead with the trial even though defense counsel’s
question might hurt his case. He noted that Appellant did not take a polygraph examination
because he said he had medical problems. The trial court explained to the jury that the question
was improper because polygraph examinations are untrustworthy and instructed the jury to
disregard the question.
       Ultimately, the jury found Appellant “guilty” on all three counts, and the trial court
assessed his punishment at imprisonment for twenty years in the first count and ten years each in
the second and third counts. This appeal followed.


                                DENIAL OF MOTION FOR MISTRIAL
       In his sole issue, Appellant complains that the trial court should have ordered a mistrial
because his attorney mentioned a polygraph examination, and because this error constituted
ineffective assistance of counsel.
Standard of Review and Applicable Law
       A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard, and
its ruling must be upheld if it was within the zone of reasonable disagreement. Coble v. State, 330
S.W.3d 253, 292 (Tex. Crim. App. 2010). The asking of an improper question alone will seldom
call for a mistrial. Hernandez v. State, 805 S.W.2d 409, 413 (Tex. Crim. App. 1990). In most
cases, any harm caused by such a question will be cured by an instruction to disregard the
question. Id. at 413-14. A mistrial is required when the question was clearly calculated to
inflame the minds of the jurors and is of such character as to suggest the impossibility of
withdrawing the impression it produced on their minds. Id. at 414. Whether a particular error
calls for a mistrial depends on the peculiar facts and circumstances of the case. Id.
       Because of the inherent unreliability of polygraph examinations and their tendency to
unduly persuade jurors, testimony regarding their existence or results is inadmissible for any
purpose in a criminal proceeding on proper objection. Martines v. State, 371 S.W.3d 232, 250
(Tex. App.—Houston [1st Dist.] 2011, no pet.). The mere mention of a polygraph examination,
however, does not automatically constitute reversible error, even when the results are revealed. Id.
Generally, when a polygraph examination is mentioned but results are not revealed, an instruction
to disregard is sufficient to cure any error. Id. at 251. In determining whether a mistrial was
necessary, we may also consider any bad faith exhibited in asking the question, and whether the
state’s case was bolstered by the polygraph evidence. Id.




                                                  2
Analysis
         Appellant acknowledges that the mere mention of a polygraph examination does not
necessarily constitute reversible error. But he argues that the trial court in this case should have
ordered a mistrial because his own counsel rather than the State asked the question regarding the
polygraph, and because this error constituted ineffective assistance. Appellant cites no authority
to support his contention that a mistrial is necessary when defense counsel mentions a polygraph
examination, and the facts of this case do not support such a conclusion.
         In a case where the state mentions a polygraph examination, the jury is likely to infer that
the examination had results that were harmful to the defendant. Here, however, where defense
counsel advanced the question, the jury was likely left with the impression that any results were
favorable to Appellant. We conclude that in this case, where bad faith might be inferred on the
part of defense counsel rather than the State, and the question likely bolstered Appellant’s case
and not the State’s, the facts and circumstances did not entitle Appellant to a mistrial. See
Martines, 371 S.W.3d at 251. Furthermore, because defense counsel’s question likely benefitted
Appellant, Appellant’s complaint that his counsel was ineffective is without merit. See Strickland
v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984); Hernandez v.
State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (holding that appellant must show deficient
performance prejudiced his defense).
         The record does not support Appellant’s contention that the trial court abused its discretion
by not ordering a mistrial. Accordingly, we overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
                                                                  GREG NEELEY
                                                                     Justice
Opinion delivered March 18, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)




                                                              3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 18, 2015


                                         NO. 12-14-00049-CR


                                  WALTER FENT GARNER, JR.,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 8th District Court
                              of Rains County, Texas (Tr.Ct.No. 5335)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
