                          NUMBER 13-13-00072-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

DANIEL COLEMAN REYNOLDS,                                               Appellant,


                                         v.


THE STATE OF TEXAS,                                                    Appellee.


                   On appeal from the 54th District Court
                       of McLennan County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      By four issues, appellant Daniel Coleman Reynolds challenges his conviction for

continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02 (West 2011).

We affirm.
                                              I. BACKGROUND 1

        Appellant was in a romantic relationship with Catherine and lived with her and

her minor daughter, A.G., and minor son, B.W.2                     The State alleged that between

January 1, 2010 and January 8, 2012, appellant penetrated A.G. anally and vaginally

with his sexual organ, digitally penetrated A.G.’s anus, and touched her vagina with his

hand. The judgment recited that A.G. was six years old at the time of the offenses.

        Before his arrest, appellant submitted to a polygraph exam.                       The State and

appellant entered an agreed motion in limine that neither party, nor any of the

witnesses, would mention the fact that a polygraph was administered or the results of

the test. During the guilt-innocence phase of the trial, the State called A.G.’s brother

B.W. to testify about the consistency of A.G.’s story. 3 B.W.’s testimony referenced the

fact that appellant had taken a polygraph test. The trial judge sustained appellant’s

objection and instructed the jury to disregard B.W.’s comment and not to use it for any

purpose. Appellant moved for a mistrial, but the trial court denied the motion.

        The State called B.W. primarily for the purpose of questioning him about whether

his sister’s version of events had ever changed or if she admitted that she lied. The

State asked B.W. about whether A.G. told him that the abuse occurred at the family’s

old house in Lacy-Lakeview, the new house in Bosqueville, or both. The State asked:

“do you ever remember talking about [the abuse] with her when she told you at the


        1
         This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West 2005).
        2
            We will refer to the minor complainant and her brother by their initials, and their mother by the
fictitious name of “Catherine,” in order to protect the complainant’s privacy.
        3
         B.W.’s age does not appear in the record, but he testified that he was in the fourth and the fifth
grade during the time of the abuse.

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Bosqueville house?” B.W. responded: “Well, no - - well, I remember when she said at

the Bosqueville House.        She said it happened –.” Appellant’s counsel objected on

hearsay grounds. The trial court overruled the objection and permitted B.W. to answer

the question. B.W. then testified: “[w]ell, it actually happened at both houses she said.”

       Appellant filed a pretrial motion to suppress a video recording of an interview with

police where appellant admitted to touching A.G.’s genitals with his hand and his sexual

organ. The trial court denied appellant’s motion to suppress. When the State moved to

admit the evidence at trial, appellant’s counsel stated that he had “[n]o objection.”

       The jury returned a verdict of guilty and imposed a sentence of imprisonment for

life. This appeal followed.

                                         II. DISCUSSION

   A. Legal Sufficiency

       By his first issue, appellant argues that the evidence supporting his conviction is

legally insufficient because there was no evidence that appellant was at least seventeen

years old at the time that he allegedly committed the abuse.

              1. Standard of Review

       In conducting a legal sufficiency review, we view all of the evidence in a light

most favorable to the verdict and ask “whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Garcia v. State, 367

S.W.3d 684, 686–87 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)). The trier of fact, in this case the jury, is the sole judge of the credibility of

witnesses and the weight, if any, to be given to their testimony. Id.; Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). “The reviewing court must give



                                              3
deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443

U.S. at 318–19). In a sufficiency review, “circumstantial evidence is as probative as

direct evidence in establishing the guilt of an actor, and circumstantial evidence alone

can be sufficient to establish guilt.” Id. (citing Guevara v. State, 152 S.W.3d 45, 49

(Tex. Crim. App. 2004)). “Each fact need not point directly and independently to the

guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Id.           If the record supports

conflicting inferences, we presume that the fact finder resolved the conflict in favor of

the prosecution and defer to that resolution. Garcia, 367 S.W.3d at 687; Brooks, 323

S.W.3d at 899.

              2. Applicable Law

       We measure the sufficiency of the evidence supporting a conviction “by the

elements of the offense as defined by the hypothetically correct jury charge for the

case,” applied to the particular facts of the case. Byrd v. State, 336 S.W.3d 242, 246

(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)); see Wheaton v. State, 129 S.W.3d 267, 271–72 (Tex. App.—Corpus Christi

2004, no pet.).    “Such a charge would be one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State's burden of

proof or unnecessarily restrict the State's theories of liability, and adequately describes

the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240.




                                               4
       In this case, the hypothetically correct jury charge for the offense required the

State to prove beyond a reasonable doubt that appellant: (1) committed two or more

acts of sexual abuse; (2) during a period that was at least 30 days in duration; (3) that at

the time of the acts of sexual abuse, the defendant was 17 years of age or older and the

victim was a child younger than 14 years of age. Michell v. State, 381 S.W.3d 554, 561

(Tex. App.—Eastland 2012, no pet.); see TEX. PENAL CODE ANN. § 21.02.

              3. Analysis

       Appellant challenges only the third element, arguing that the evidence is

insufficient because there was never any testimony or mention of his age until after the

jury rendered its verdict (during the punishment phase, appellant’s brother testified that

appellant is twenty-nine years old). Appellant is correct that his age was not mentioned

during the guilt-innocence phase of the trial, but our review of the record reveals that

there were several pieces of information from which the jury could infer that appellant

was at least seventeen at the beginning of the time period alleged by the State. See

Robertson v. State, 21 S.W.3d 554, 558 (Tex. App.—Waco 2000, pet. ref’d) (“The jury

may use common sense and apply common knowledge, observation and experience

gained in the ordinary affairs of life when giving effect to the inferences that may

reasonably be drawn from the evidence.”).          First, Deputy Hunter Herring of the

McLennan County Sherriff’s Department testified without objection that based on his

experience, he believed that this case met the requirements of continuous sexual abuse

of a child. The jury could have inferred that Deputy Herring knew that one of the

elements of continuous sexual abuse of a child is that the defendant was above the age

of seventeen at the time of all of the alleged acts of abuse. Second, the heading of the



                                             5
indictment clearly states that appellant’s date of birth is October 1, 1983. Allegations in

the indictment are not themselves proof of guilt or innocence, but the jury was also able

to see appellant, both in person at the trial and in the recording of the interview that

occurred soon after A.G. made her allegations. We have reviewed the recording, and in

it appellant has the appearance of an adult; he is heavily muscled and sports several

tattoos. His appearance itself is not dispositive, but when combined with the listing of

appellant’s date of birth on the indictment and Deputy Herring’s testimony, we conclude

that the jury could have reasonably inferred that appellant was at least seventeen during

the entire period in which the State alleged that he committed the predicate acts of

sexual abuse. See Robertson, 21 S.W.3d at 558. We overrule appellant’s first issue. 4

    B. Polygraph Testimony

        By his second issue, appellant argues that it was error for the trial court to deny

his motion for a mistrial after B.W.’s testimony revealed that appellant had taken a

polygraph test and, by implication, had failed it.

        1. Standard of Review and Applicable Law

        We review a trial court’s decision not to grant a mistrial for abuse of discretion.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). A mistrial is required only

when the improper question or evidence “is clearly prejudicial to the defendant and is of


        4
           We reemphasize that we do not mean to state, or even suggest, that a jury can infer a fact only
from a defendant’s appearance. Moreover, we note that appellant does not challenge the jurisdiction of
the trial court. If appellant committed the offenses before his seventeenth birthday the trial court in this
case would have been without jurisdiction to try him without an order from the juvenile court waiving
jurisdiction and certifying appellant for prosecution. Appellant’s conviction would be void as a result. See
Ex parte Waggoner, 61 S.W.3d 429, 432 (Tex. Crim. App. 2001) (overturning a conviction when the
appellant had committed the offense the day before his seventeenth birthday); see also TEX. PENAL CODE
ANN. § 8.07(b) (West 2011) (“Unless the juvenile court waives jurisdiction . . . and certifies the individual
for criminal prosecution or the juvenile court has previously waived jurisdiction . . . a person may not be
prosecuted for or convicted of any offense committed before reaching 17 years of age.”).


                                                     6
such a 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).

      “Neither the results of a polygraph test nor the ‘fact’ of failing a polygraph test are

admissible in a Texas criminal proceeding.” Nesbit v. State, 227 S.W.3d 64, 66 n.4

(Tex. Crim. App. 2007) (citing Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App.

1985) (en banc)). “The mere mention of a polygraph examination does not, however,

automatically constitute reversible error.” Martines v. State, 371 S.W.3d 232, 250 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). When a polygraph exam is mentioned at trial

and the defense requests a mistrial, the appellate court must first determine whether the

jury heard the exam results. Jasso v. State, 112 S.W.3d 805, 814 (Tex. App.—Houston

[14th Dist.] 2003, pet. ref’d).   “Generally, when polygraph examination results are

mentioned, but results are not revealed, an instruction to disregard is sufficient to cure

any error.” Id. In reviewing the court’s decision to deny a mistrial, a reviewing court

must 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.” Id.; see Buckley v. State, 46 S.W.3d 333, 337 (Tex. App.—

Texarkana 2001, pet. dism’d).

      2. Analysis

      B.W., A.G.’s brother, testified for the State.      The State called B.W. for the

purpose of establishing if A.G. had ever changed her description of the abuse. The

following exchange occurred during the direct examination:

      Q: You’ve been around? Have you ever heard your sister say that it really
      didn’t happen or I made it up or I lied?”

      A: No, because the next day or so, we found that – because he went in

                                             7
        this lie detector - -.”

        [Defense Counsel]: Objection, Your Honor

        The Court: Sustained

        [Defense Counsel]: Ask the jury to disregard.

        The Court: Instruct the jury to disregard the last comment of the witness
        and not to consider it for any purpose whatsoever.

        [Defense Counsel]: Move for a mistrial, Your Honor.

        The Court: Denied.

        Appellant argues that “by the context of the statement, the jury must have

inferred that Appellant failed a lie detector test.” Appellant agrees that the prosecutor

was not attempting to elicit testimony about the polygraph, but he asserts that denying

the motion for mistrial was error because the reference inevitably helped the State’s

case by bolstering the credibility of A.G. and reducing appellant’s own credibility. The

State responds that the judge’s instruction to disregard was sufficient because B.W. did

not reveal the results of the examination, only that appellant had submitted to a

polygraph, and the judge clearly instructed the jury to disregard the testimony.

        Appellant relies on Nichols v. State, 378 S.W.2d 335, 336 (Tex. Crim. App. 1964)

and Robinson v. State, 550 S.W.2d 54, 59 (Tex. Crim. App. 1977), two cases where the

Texas Court of Criminal Appeals ruled that a curative instruction could not fix the error

of admitting polygraph testimony.             However, in both Nichols5 and Robinson 6 the



        5
           In Nichols, a prosecution for statutory rape, the complainant (who was also the State’s sole
witness) had been “extensively” cross-examined by the defendant’s counsel. On re-direct, the State’s
attorney asked the witness whether she had taken a lie detector test regarding the allegations, and the
witness responded: “Yes sir.” The Texas Court of Criminal Appeals ruled that the judge’s curative
instruction could not fix the error because it bolstered the credibility of the State’s witness. 378 S.W.2d
335, 336 (Tex. Crim. App. 1964).


                                                    8
prosecutor directly sought to elicit testimony about the polygraph test, and the context of

the question clearly implied that the witnesses had passed the polygraph and therefore

bolstered the witnesses’ credibility. See Tennard v. State, 802 S.W.2d 678, 684 (Tex.

Crim. App. 1990) (en banc). In Tennard, the Court observed that in contrast to Nichols

and Robinson, “the witnesses whose polygraph results became apparent were neither

the sole witness nor even a crucial witness,” and other witnesses had testified to the

same information, so the curative instruction was sufficient. Id. In this case, even if the

jury could have inferred the results of the test from B.W.’s testimony, B.W. was not the

State’s sole witness and was not vital to the State’s case because the State presented

other evidence that supported the consistency of A.G.’s testimony, including the

videotaped interview where appellant confirmed much of A.G.’s version of events. In

these circumstances, we conclude that the court’s instruction was sufficient to cure the

error. The trial court accordingly did not abuse its discretion in denying appellant’s

motion for a mistrial. See Tennard, 802 S.W.2d at 684; Jasso, 112 S.W.3d at 814;

Martines, 371 S.W.3d at 252. We overrule appellant’s second issue.

    C. Admission of Interview Recording

        By his third issue, appellant argues that the trial court erred in admitting the video

record of the interview appellant had with a police officer. Appellant filed a pretrial

motion to suppress which the trial court denied. When the State moved at trial to admit

the recording, appellant’s trial counsel stated “No objection, Your Honor.”



        6
         In Robinson, the Texas Court of Criminal Appeals overturned a murder conviction because
testimony expressly set out that the State’s only witness tying the defendant to the murder had taken and
passed a lie detector test as a requirement of the witness’s plea bargain. 550 S.W.2d 54, 59 (Tex. Crim.
App. 1977).


                                                   9
             1. Applicable Law

      It is well-settled law that when a pre-trial motion to suppress evidence is

overruled, the defendant does not need to subsequently object at trial to the same

evidence in order to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904

(Tex. Crim. App. 1988); Shedden v. State, 268 S.W.3d 717, 730 (Tex. App.—Corpus

Christi 2008, pet. ref’d). “However, when the defendant affirmatively asserts during trial

he has ‘no objection’ to the admission of the complained of evidence, he waives an

error in the admission of the evidence despite the pre-trial ruling.” Moraguez, 701

S.W.2d at 904.

             2. Discussion

      Appellant argues that “other than stating ‘No objection’ there is no reason to

believe defense counsel intended to waive complaints about the manner in which the

statements were extracted” from the appellant; however, stating “no objection” is

sufficient to waive error in the admission of evidence. See id. Therefore, we overrule

appellant’s third issue. See id.; Shedden, 268 S.W.3d at 730.

   D. Hearsay Statement

      By his fourth issue, appellant argues that the trial court erred in permitting B.W.

to testify to hearsay regarding what A.G. told him about where the family was living

when the abuse started.

             1. Standard of Review and Applicable Law

      We review a trial court’s decision to admit evidence for abuse of discretion.

Doyle v. State, 24 S.W.3d 598, 601 (Tex. App.—Corpus Christi 2000, no pet.). If we

conclude that the trial court abused its discretion, we are to conduct a harm analysis in



                                           10
which we are to disregard all non-constitutional error that did not affect appellant’s

substantial rights. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see

TEX. R. APP. P. 44.2(b). “An error in the admission of evidence is cured when the same

evidence comes in elsewhere without objection.” Valle v. State, 109 S.W.3d 500, 509

(Tex. Crim. App. 2003).

              2. Discussion

        At trial, the following exchange occurred during the State’s direct examination of

B.W.:

        Q. Okay. Now, I want to ask you something specific, um, about what
        [A.G.] said about the houses and about if something happened at both
        houses. Um, do you remember talking about that with her when she told
        you at the Bosqueville House?

        A. Well, no - - well, I remember when she said at the Bosqueville House.
        She said it happened –

        Appellant’s counsel objected on hearsay grounds.         The trial court overruled

appellant’s objection, and B.W. answered: “[w]ell, it actually happened at both houses

she said.” Before this point in the trial, Catherine had already testified that A.G. told her

that abuse occurred at both houses. Deputy Herring also testified that A.G. told him the

same thing during his initial interview with her. Appellant did not object to the testimony

of either witness. Because the same evidence had already been introduced without

objection, we conclude that the error in admitting B.W.’s testimony, if any, was

harmless. See TEX. R. APP. P. 44.2(b). We overrule appellant’s fourth issue. See

Valle, 109 S.W.3d at 509.




                                             11
                                       III. CONCLUSION

          We affirm the judgment of the trial court.




                                                 ___________________
                                                 NORA L. LONGORIA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of December, 2013.




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