      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00173-CR



                                    Brian Taylor, Appellant

                                                v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
           NO. 38660, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                                          OPINION


               Brian Taylor was charged with two counts of indecency with a child by contact.

See Tex. Penal Code § 21.11(a)(1) (setting out elements of offense). The victim in this case,

G.S., was the daughter of Taylor’s girlfriend, and she was twelve years old at the time of the

offenses. Prior to his arrest, Taylor went to the police station to discuss the case. During his

interview with the police, Taylor admitted that he had sexual intercourse with G.S. in another

county and later admitted that he also touched G.S. in a sexual manner on different occasions.

A video recording of his interview with the police was admitted into evidence during the trial. At

the end of the guilt or innocence phase, the jury found Taylor guilty of both counts.

               During the punishment phase, Taylor entered pleas of not true to enhancement

allegations asserting that he had been previously convicted of prior felony offenses, and the State

introduced pen packets regarding those prior offenses. See Davis v. State, 268 S.W.3d 683, 715
(Tex. App.—Fort Worth 2008, pet. ref’d) (explaining that State may establish prior conviction

alleged for enhancement purposes by introducing pen packets, which are certified copies of

judgments and sentences). After considering the evidence presented during the punishment phase,

the jury found beyond a reasonable doubt that Taylor had been previously convicted in Illinois of the

felony offense of aggravated criminal sexual abuse. In light of the jury’s determinations, the district

court imposed a sentence of life imprisonment for each count. See Tex. Penal Code §§ 21.11(d)

(explaining that indecency with child by contact is second-degree felony), 12.42(c)(2)(B) (mandating

that defendant be sentenced to life imprisonment if he is convicted of indecency with child by

contact and has previously been convicted of offense listed in statute).

                 In seven issues on appeal, Taylor contends that the district court erred by failing to

conduct a hearing outside the presence of the jury regarding the admissibility of outcry statements

made by G.S. to a counselor working for the Hill Country Children’s Advocacy Center, by admitting

outcry statements made by G.S. to the counselor regarding an extraneous act committed by Taylor,

by failing to give the jury an instruction addressing the voluntariness of the statements that he made

to the police during his interview, by admitting evidence regarding the statements that he made to

the police, by failing to grant a mistrial after evidence referencing his polygraph exam was presented

to the jury, by allowing into evidence pen packets that contained information showing how parole

law and good-time credit had been applied to him previously, and by admitting evidence regarding

the extraneous offense allegedly committed by him against G.S. We will affirm the district court’s

judgments of conviction. In reaching our decision, we will address Taylor’s seventh issue after

considering his first two issues for ease of reading but will address his remaining issues in the

order briefed.

                                                   2
                                    STANDARD OF REVIEW

               Although not all of the issues urged by Taylor require the same standard of review,

most of the issues presented by Taylor are reviewed under an abuse-of-discretion standard. Under

that standard, a trial court’s ruling will only be deemed an abuse of discretion if it is so clearly

wrong as to lie outside the zone of reasonable disagreement, Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002), or is arbitrary or unreasonable, State v. Mechler, 153 S.W.3d 435, 439

(Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that the trial court’s decision

“is reasonably supported by the record and is correct under any theory of law applicable to the case.”

Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).


                                           DISCUSSION


Hearing Regarding Outcry Statements

               In his first issue on appeal, Taylor contends that the district court erred by failing to

hold “a hearing outside the presence of the jury to determine the admissibility of outcry statements”

made by G.S. to Amy Calloway, who worked for the Hill County Children’s Advocacy Center.

Those statements were admitted into evidence through the testimony of Calloway. When presenting

this issue on appeal, Taylor notes that article 38.072 of the Code of Criminal Procedure authorizes

the admission of outcry statements made by children under the age of fourteen who are the victims

of sexual offenses, but Taylor asserts that before those statements may be admitted, the trial court

is obligated to convene a hearing outside the presence of the jury and determine whether the

statements are reliable. See Tex. Code Crim. Proc. art. 38.072. Specifically, the statute provides that



                                                  3
an outcry statement “is not inadmissible because of the hearsay rule if,” among other things, the

following conditions are satisfied: “the trial court finds, in a hearing conducted outside the presence

of the jury, that the statement is reliable based on the time, content, and circumstances of the

statement.” Id. art. 38.072, § 2(b). On appeal, Taylor asserts that the district court did not make the

requisite reliability finding or consider the factors provided by the legislature for that determination;

on the contrary, Taylor contends that the district court improperly based its ruling on an agreement

between the State and his trial attorney that the outcry testimony was reliable. Taylor insists that the

agreement by the parties does not satisfy the requirements of article 38.072 and that the admission

of the outcry statement through Calloway’s testimony was improper, violated the requirements of

article 38.072, and deprived him of a fair trial.1




        1
          In his first, second, and seventh issues on appeal, Taylor asserts that the alleged errors are
constitutional in nature and, accordingly, require that less harm be shown before a reversal is
warranted. See Tex. R. App. P. 44.2. As support for the assertion, Taylor primarily refers to
Sanchez v. State, 354 S.W.3d 476 (Tex. Crim. App. 2011). Although we do not reach the issue of
harm in any of those issues and, accordingly, need not consider whether those issues are of a
constitutional dimension, we note that Taylor’s reliance on Sanchez seems misplaced. Unlike the
present case, in Sanchez, the “outcry witness suffered a loss of mental faculties and was unavailable
to testify at trial,” and “the trial court allowed the outcry witness’s testimony from a pre-trial
hearing to be read to the jury” over Sanchez’s objection. Id. at 478. The court of criminal appeals
determined that a hearing held under article 38.072 “is intended only to determine the reliability of
the complainant’s out-of-court statement,” that the “defendant’s opportunity for cross-examining the
outcry witness at such a hearing is inadequate to allow the admission of the hearing testimony at
trial,” and that “admitting testimony from an Article 38.072 hearing at a trial when the witness is
unavailable violates the Sixth Amendment.” Id. at 478, 489. In this case, the outcry witness was
available to testify at trial and was subject to cross-examination by Taylor during trial. Moreover,
Taylor’s seventh issue concerns evidence of extraneous offenses under article 38.37 of the Code of
Criminal Procedure, which is not an issue that the court in Sanchez addressed. See Tex. Code Crim.
Proc. art. 38.37.

                                                     4
               Although Taylor argues on appeal that the district court did not make a reliability

determination or consider the relevant factors, the record before this Court reveals that he made no

objection regarding the admission of the outcry statements either during the pre-trial hearing held

outside the presence of the jury or during Calloway’s testimony at trial. On the contrary, during the

pre-trial hearing, Taylor agreed with the State that the outcry statement was reliable. Specifically,

the record shows that the following exchange occurred:


       [State]: And then the last issue we can handle really quickly is the outcry witness, the
       hearing on the outcry witness. I think [Taylor] is willing to stipulate it was done at
       the Hill Country CAC, Children’s Advocacy Center. The same protocols to ensure
       the reliability of the statement were assured, that the alleged victim in this case
       understood what the truth was, understood what a lie was, was able to communicate
       to the interviewer. The interview was done prior to indictment and prior to complaint
       for the arrest of the defendant and all of those protocols were followed to . . . show
       the reliability of the statement.

       [Taylor]: And we did -- they did give us access to the HCAC tapes with her and so
       we could -- I mean, you can clearly see where the outcry comes, so I don’t have any
       problems with this outcry witness.

       [Court]: Okay. So that’s just stipulated that whoever you’ve designated as your
       outcry witness is your outcry witness.

       [State]: Amy Calloway.

       ...

       [State]: The only thing that we’ve got, Judge, we want to make sure that on the outcry
       witness -- that you ruled that the outcry witness is -- the reliability of the tape, that
       we’ve gone through the protocol and used the same protocol from the CAC, the
       Children’s Advocacy Center, the Hill Country Children’s Advocacy Center. I’ve
       discussed that with opposing counsel and that that – the normal protocol of assuring
       that the child knows the difference between the truth and a lie and the way she was
       able to articulate produces reliability of the tape and the outcry witness.




                                                  5
        [Court]: And y’all made that representation to the Court this morning, but, [Taylor],
        you agree that that’s all fine?

        [Taylor]: I do, Your Honor.

        [Court]: All right. So if I need to make a finding, I will make that finding based upon
        your agreement.


                In light of the preceding, we must conclude that Taylor has waived any alleged

error regarding the admission of evidence concerning the outcry statements. See Thomas v. State,

No. 03-11-00254-CR, 2013 Tex. App. LEXIS 10661, at *4-5 (Tex. App.—Austin Aug. 23, 2013,

no pet.) (mem. op., not designated for publication) (concluding that defendant did not preserve

complaint that trial court did not convene article 38.072 hearing or make required findings because

he did not object to trial court’s alleged failure to continue hearing or object to testimony at trial);

Bradshaw v. State, No. 03-10-00415-CR, 2012 Tex. App. LEXIS 6193, at *13 (Tex. App.—Austin

July 26, 2012, pet. ref’d) (mem. op., not designated for publication) (determining that defendant

waived complaints that outcry was unreliable and that no hearing was held because he failed to

make these objections during testimony discussing outcry); Garcia v. State, 228 S.W.3d 703, 707

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (explaining that defendant waived complaint

regarding lack of article 38.072 hearing by failing to request hearing); Cates v. State, 72 S.W.3d 681,

698 (Tex. App.—Tyler 2001, no pet.) (deciding that because defendant did not object to trial court’s

alleged failure to hold 38.072 hearing and because defendant did not request 38.072 hearing,

defendant waived issue on appeal); see also Tex. R. Evid. 802 (explaining that “[i]nadmissible

hearsay admitted without objection may not be denied probative value merely because it is hearsay”);

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (providing that trier-of-fact “is

                                                   6
entitled to give probative value to” hearsay evidence admitted without objection), overruled in part

on other grounds by Robinson v. State, No. PD-0421-14, 2015 Tex. Crim. App. LEXIS 763, at *14

n.32 (Tex. Crim. App. July 1, 2015).

                Moreover, although we need not discuss the issue further, we do note that during

the pre-trial hearing held outside the presence of the jury, the State mentioned that protocols were

used to ensure the reliability of the statement and to ensure that G.S. understood the difference

between the truth and a lie, and Taylor agreed that the proper protocols were used. In addition, based

on that agreement, the district court stated that it was making any finding necessary for the admission

of evidence regarding the outcry. See Tex. Code Crim. Proc. art. 38.072. Finally, Taylor has not

referred us to and we have been unable to find any authority standing for the proposition that parties

cannot stipulate that the relevant reliability requisites were satisfied.

                For all of these reasons, we overrule Taylor’s first issue on appeal.


Admission of Outcry Statements Regarding Extraneous Offense

                In a related set of arguments in his second issue, Taylor contends that during

Calloway’s testimony, she was improperly allowed to discuss statements made by G.S. regarding an

extraneous offense that was not the subject of the trial and “that occurred on a different date and in

a different county.” Specifically, Calloway related that G.S. informed her that Taylor penetrated

or attempted to penetrate her vagina with his penis when they were in his truck after stopping on the

way to pick up Taylor’s nephew. During the trial, Taylor argued that the testimony should not be

admitted because it was hearsay, because the testimony addressed “a different offense,” and because

“that outcry is . . . different from the outcry” concerning the offenses at issue in this case. In

                                                   7
response, the State asserted that Calloway was the outcry witness for the extraneous offense as well

and that the evidence was admissible under articles 38.072 and 38.37 of the Code of Criminal

Procedure. See Tex. Code Crim. Proc. arts. 38.072 (allowing outcry witness to testify regarding

statements made by child victim of sexual offense provided that certain criteria are satisfied),

38.37 (addressing admissibility of evidence of other crimes committed by defendant against child

who is victim of alleged offense). When making its ruling, the district court explained “[o]n that

representation . . . I overrule those objections and it’s -- I’ll admit it.”

                On appeal, Taylor contends that the district court erred by allowing Calloway to

testify as an outcry witness regarding that extraneous offense without convening an article 38.072

hearing and without making a reliability determination regarding those outcry statements. However,

as summarized above, Taylor did not object to the testimony on the grounds presented on appeal.

Accordingly, we must conclude that Taylor has failed to preserve this issue for appeal. See Thomas,

2013 Tex. App. LEXIS 10661, at *4-5; Bradshaw, 2012 Tex. App. LEXIS 6193, at *13; see also

Garcia, 228 S.W.3d at 707 (explaining that general objection on hearsay grounds does not preserve

complaint that outcry testimony was not admissible because no hearing was convened outside

presence of jury and because no reliability determination was made).

                For these reasons, we overrule Taylor’s second issue on appeal.


Evidence of Extraneous Offense

                In his seventh issue on appeal, Taylor asserts that the district court abused its

discretion “by admitting evidence of [the] extraneous offense” described above in which Taylor

allegedly attempted to insert or did insert his penis into G.S.’s vagina on a trip to pick up his nephew.

                                                    8
See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (explaining that evidentiary rulings

are reviewed for abuse of discretion). That offense was alleged to have occurred in another county

weeks before the alleged offenses at issue in this case. During a pretrial hearing, Taylor argued that

evidence regarding the extraneous offense should not be admitted under Rule of Evidence 403

because “any probative value is outweighed by the prejudice in this case and [because] the events

are remote enough and different enough that 403 applies.” See Tex. R. Evid. 403 (allowing trial

court to exclude otherwise relevant evidence if probative value is substantially outweighed by

danger of unfair prejudice). In response, the State argued that the probative value of the evidence

is not outweighed by the danger of unfair prejudice under Rule 403 and that the evidence was

admissible under article 38.37 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art.

38.37 (deeming evidence of extraneous acts between defendant and child victim admissible in trial

for sexual offense). After the State responded, the district court overruled Taylor’s objection and

determined that the evidence was admissible under article 38.37.

               On appeal, Taylor urges that the district court abused its discretion by admitting

evidence regarding the extraneous offense without complying with the requirements of article

38.37. See id. Specifically, Taylor urges that the district court erred by failing to make a finding

“that the evidence would be adequate to support a finding by the jury that [Taylor] committed the

extraneous offense beyond a reasonable doubt” as required by sections 2 and 2-a of article 38.37.

Id. art. 38.37, §§ 2, 2-a. Section 2 of the provision authorizes the admission of evidence showing

that the defendant has committed a separate sexual offense “for any bearing the evidence has on

relevant matters, including the character of the defendant and acts performed in conformity with the



                                                  9
character of the defendant,” id. art. 38.37, § 2(b); however, before evidence may be admitted under

that section, the trial court is obligated to “conduct a hearing outside the presence of the jury for” the

purpose of determining whether “the evidence likely to be admitted at trial will be adequate to

support a finding by the jury that the defendant committed the separate offense beyond a reasonable

doubt,” id. art. 38.37, § 2-a.

                As a preliminary matter, we note that Taylor did not object to the admission of the

evidence during the trial under article 38.37 and instead asserted that the evidence should not be

admitted under Rule of Evidence 403. Accordingly, it does not appear that Taylor preserved this

issue for appeal. See Tex. R. App. P. 33.1(a)(1) (requiring party to make timely objection to preserve

complaint for appeal); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (providing that

appellate issue must comport with specific objection made at trial).

                Even assuming that Taylor had preserved this complaint, we would still be unable to

conclude that the district court abused its discretion by admitting evidence of the extraneous offense.

Taylor is correct that section 2-a of article 38.37 requires a trial court to make a determination

regarding the sufficiency of the evidence of an extraneous offense before the evidence is admitted

under section 2. Tex. Code Crim. Proc. art. 38.37, § 2-a. Section 2 is a broadly written provision

that allows the evidence to be admitted “for any bearing the evidence has on relevant matters,”

including proof of character conformity, and authorizes the admission of evidence that the defendant

has committed sexual offenses against individuals other than the victim at issue. Id. art. 38.37, § 2.

However, article 38.37 also authorizes the admission of evidence that the defendant has committed

extraneous sexual offenses against the victim to be admitted for more limited purposes without



                                                   10
requiring a trial court to make a determination regarding the sufficiency of the evidence beforehand.

Specifically, section 1 authorizes the admission of evidence of other crimes committed “by the

defendant against the child who is the victim of the alleged offense” that is the subject of a trial for

its bearing on “the state of mind of the defendant and the child” as well as “the previous and

subsequent relationship between the defendant and the child.” Id. art. 38.37, § 1(b).

                Given that the extraneous offense at issue was committed by Taylor against G.S.

and given that the crime alleged in this issue was indecency with a child by contact, we believe that

the district court could reasonably have determined that evidence indicating that Taylor penetrated

or attempted to penetrate G.S.’s vagina with his penis was relevant to Taylor’s state of mind for

the offenses at issue as well as the nature of the prior relationship between Taylor and G.S. and

determined that the evidence was admissible under section 1 of article 38.37. Id.

                As set out above, Taylor did object to the admission of the evidence under Rule 403.

See Tex. R. Evid. 403. On appeal, Taylor contends that the district court abused its discretion by

overruling his objection without conducting “a balancing test to determine if the danger of unfair

prejudice substantially outweighed the probative value of the evidence as it was required to do.”

See Mozon v. State, 991 S.W.2d 841, 846 n.6 (Tex. Crim. App. 1999) (stating that once Rule 403

objection is made, “the trial court has no discretion as to whether or not to engage in the balancing

process”). But see Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.—Fort Worth 2008, pet. ref’d)

(explaining that Rule 403 does not require that balancing analysis be on record and that when

objection is overruled, there is presumption that trial court “applied a rule 403 balancing test and

determined the evidence was admissible”).



                                                  11
                The evidence regarding the extraneous offense was admitted through the testimony

of Officer Low, G.S., and Calloway. In addition, evidence of the offense was also introduced

through a video recording of an interview of Taylor by Officer Low and through the admission of

a transcript of that interview.

                In his testimony, Officer Low explained that during his first conversation with Taylor,

Taylor denied engaging in any improper sexual activity with G.S.; however, Officer Low related that

during his second interview, Taylor “admitted to having intercourse with [G.S.] in a parking lot of

the Marriott Hotel in Horseshoe Bay.” Similarly, G.S. testified that on one occasion when she went

with Taylor to pick up Taylor’s nephew, Taylor attempted to have sex with her by trying to put his

penis into her vagina. Regarding her interview with G.S., Calloway recalled that G.S. stated that

Taylor touched her when they were “by the lake by a building with barbed wire and that she was

usually half asleep when it happen[ed]” and that Taylor “raped me.” Further, Calloway testified that

G.S. stated that Taylor touched her everywhere, including her chest and groin area, with his hand and

that Taylor used his penis to touch her vagina and attempted to penetrate her vagina.

                On the video, Taylor admitted that he had sex with G.S. “right there at the Marriott”

by the lake. More specifically, he stated that while they were in his truck, she started “playing with

me,” that “she got on top . . . and started taking her clothes down,” that he raised the steering wheel

up, that “they say I went inside but I didn’t know I did—far as I knew it was just between her legs,”

that they moved to the other side of the truck when “we were doing it,” and that he placed his penis

in her vagina. In addition, Taylor stated that everything that G.S. had described about that event

was true. Further, he clarified that he only had sex with G.S. on that one occasion but “you know

her grabbin’ and playin’ and shit like that. It’s been several times.”

                                                  12
                Although Taylor objected to the admission of evidence regarding the extraneous

offense in a hearing before the trial, Taylor did not object to the evidence each time it was admitted

during the trial. See Mitchell v. State, 68 S.W.3d 640, 643 (Tex. Crim. App. 2002) (explaining that

if previously objected to evidence is introduced from another source without objection, defendant

may not challenge admission on appeal). In particular, Taylor made no objection when the transcript

of the video was admitted into evidence or during any of G.S.’s extensive testimony discussing the

extraneous offense. Moreover, although Taylor stated “I’m just going to renew my objection that

I had earlier to any other offenses” during the portion of Officer Low’s testimony discussing

information that he learned from Calloway, Taylor made no subsequent objection during

Officer Low’s testimony when he later testified regarding admissions that Taylor made during the

interview, including that Taylor had sexual intercourse with G.S. in a hotel parking lot. Furthermore,

although Taylor objected to Calloway’s testimony on the grounds that her testimony concerning

statements G.S. made was hearsay, pertained to a different offense that is not the subject of the trial,

and was not proper outcry testimony, Taylor did not object to Calloway’s testimony on Rule 403

grounds.2 Accordingly, because the evidence regarding the extraneous offenses was admitted into

evidence through multiple sources without objection, any error potentially stemming from the

admission over Taylor’s initial objection was cured. See Luu v. State, 440 S.W.3d 123, 127 (Tex.

App.—Houston [14th Dist.] 2013, no pet.) (providing that party must object every time inadmissible




        2
          Taylor did object on Rule 403 grounds to the admission of a short video showing part of
the interview of G.S. by Calloway. No statements concerning the extraneous offense or the offenses
at issue were made on the video, and the propriety of the admission of that video is not an issue in
this appeal.

                                                  13
evidence is offered or request running objection and that any error in admission of evidence is

cured when evidence comes in without objection).

               For all of these reasons, we overrule Taylor’s seventh issue on appeal.


Jury Instruction on Voluntariness

               In his third issue on appeal, Taylor asserts that the district “court erred by failing to

give the jury an instruction regarding the voluntariness of [his] statement to police” in which he

admitted to committing the offenses at issue as well as the extraneous offense discussed above.

Specifically, Taylor requested an instruction stating that the jury could not consider as evidence any

statement that he made “unless the evidence convinces you beyond a reasonable doubt that the

statement was made voluntarily,” but the district court denied that request.

               When reviewing an alleged jury-charge error, appellate courts first determine

whether an error exists. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the court determines that there was an error, it then

decides whether the error resulted in harm sufficient to warrant a reversal. Kirsch, 357 S.W.3d

at 649; Ngo, 175 S.W.3d at 743. On appeal, Taylor asserts that the instruction should have been

given under article 38.22 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 38.22,

§§ 6, 7; see also Oursbourn v. State, 259 S.W.3d 159, 176 (Tex. Crim. App. 2008) (explaining that

section 6 of article 38.22 applies “to both an accused’s custodial and non-custodial statements”).3




       3
          On appeal, Taylor does not present a due-process claim asserting that his statement was the
result of police overreach. See Oursbourn v. State, 259 S.W.3d 159, 169-70 (Tex. Crim. App. 2008)
(discussing various types of arguments concerning whether statement was made voluntarily).

                                                  14
That provision provides that “[i]n all cases where a question is raised as to the voluntariness of a

statement of an accused, the court must make an independent finding in the absence of the jury as to

whether the statement was made under voluntary conditions” and that if the court finds “as a matter

of law and fact that the statement was voluntarily made, evidence pertaining to such matter may be

submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt

that the statement was voluntarily made, the jury shall not consider such statement for any purpose

nor any evidence obtained as a result thereof.” Tex. Code Crim. Proc. art. 38.22, § 6.

                “If a reasonable jury could find that the facts, disputed or undisputed, rendered [a

defendant] unable to make a voluntary statement, he is entitled to a general voluntariness instruction

when he has raised a question of the voluntariness of his statement.” Oursbourn , 259 S.W.3d

at 176. The defendant has the burden of producing “evidence at trial from which a reasonable jury

could conclude that the statement was not voluntary,” and “there is no error in refusing to include

a jury instruction where there is no evidence before the jury to raise the issue.” Vasquez v. State,

225 S.W.3d 541, 545 (Tex. Crim. App. 2007). When discussing the type of evidence that would

warrant an instruction regarding the voluntariness of a statement made to police, the court of criminal

appeals has listed the following types of evidence as “fact scenarios that can raise a state-law claim

of involuntariness” under article 38.22: evidence that the suspect “was ill and on medication and that

fact may have rendered his confession involuntary”; “was mentally retarded and may not have”

voluntarily, intelligently, and knowingly waived his rights; lacked the capacity to comprehend his

rights; was intoxicated, did not know what he was signing, and mistakenly believed that document

signed was something other than a confession; “was confronted by the brother-in-law of his murder



                                                  15
victim and beaten”; and “was returned to the store he broke into” so that he could be questioned by

individuals who were armed with pistols. Oursbourn, 259 S.W.3d at 172-73 (internal citations

omitted). Further, the court of criminal appeals has determined that evidence that a suspect was

bipolar and was in a manic or depressed state at the time that the statement was made sufficed to

raise a general voluntariness question under article 38.22 “because a reasonable jury could conclude,

based on this evidence, that the statement was not voluntary.” Id. at 181; see also id. at 173

(explaining that although “youth, intoxication, mental retardation, and other disabilities are usually

not enough, by themselves, to render a statement inadmissible under Article 38.22, they are factors

that a jury, armed with a proper instruction, is entitled to consider”); Vasquez v. State, 179 S.W.3d 646,

658 (Tex. App.—Austin 2005) (explaining that facts that weigh against voluntariness determination

include “lengthy interrogation, threats of violence, and detention incommunicado without advice

of counsel or friends” as well as accused’s age, “low intelligence,” and “lack of education”), aff’d,

225 S.W.3d 541.

                When arguing that he should have been given an instruction, Taylor notes that the

interview lasted for several hours, that he was not given Miranda warnings, and that he was not

expressly told that he was free to leave and asserts that those factors were present in a prior opinion

by this Court in which we determined that a trial court erred by failing to give an instruction on

voluntariness. See Vasquez, 179 S.W.3d 646.

                Prior to the district court denying Taylor’s request for the jury instruction during

trial, Taylor moved to suppress the video on the ground that the statements that he made on

the video were not voluntarily made. During a hearing outside the presence of the jury regarding



                                                   16
the voluntariness of Taylor’s statements, Officer Low was called to the stand. In his testimony,

Officer Low stated that he had two conversations with Taylor and that the second conversation was

the one that was recorded. Further, when describing this second conversation, Officer Low recalled

that Taylor had asked for the second interview and requested that arrangements be made so that he

could take a polygraph test during the second interview, that Taylor drove himself to the police

station, that Taylor was never placed under arrest during the interview, that Taylor was never read

his Miranda rights, that Taylor was interviewed by three different police officers over a period of

approximately three to four hours, and that Taylor never asked to talk to a lawyer. Regarding the

length of the interview, Officer Low estimated that the polygraph lasted approximately one and a half

hours of the total interview, that he interviewed Taylor after he finished the polygraph, and that his

interview with Taylor lasted approximately 30 minutes. In addition, Officer Low explained that

none of the officers told Taylor that he was obligated to stay in the interview room; on the contrary,

Officer Low testified that all three officers told Taylor that no matter what he said that day, he was

not going to be arrested. Furthermore, Officer Low explained that Taylor had previous experience

with the criminal justice system and had been imprisoned for the sexual assault of a minor.

Moreover, although Officer Low admitted that he never expressly told Taylor that he was free to

leave at any time, Officer Low testified that Taylor kept his keys to his car and “could have left at

any time.” In fact, Officer Low testified that Taylor left after the interview was over and was not

arrested until several days later.




                                                 17
               At the end of the suppression hearing, the district court made the following findings4

when denying the motion to suppress:


       Based upon the totality of the circumstances, the fact that the defendant voluntarily
       presented himself, the defendant was there at his request to apparently take a
       polygraph -- the officer’s testimony I find credible that the defendant maintained his
       keys. He was free to leave at any point in time. The fact that he wasn’t arrested
       until several days subsequent. The arrest warrant was not obtained until the next
       day is what the evidence is. Based on that totality of the circumstances, I don’t even
       find four hours to be a long interview with three different officers. And, I mean,
       apparently he was told repeatedly. Also, he’s an experienced person in the criminal
       justice system, having been in prison before. That gives him even more opportunity
       to know what his rights are than if this was his first encounter. For all those reasons,
       I will deny your request.


               When called to the stand during the trial, Officer Low testified that Taylor kept his

keys and cell phone during the interview, that the interview was “a noncustodial interview,” and

that Taylor left the police station after the interview.5 A video of the interview by Officer Low was

       4
         “When the voluntariness of a statement is challenged, a trial court is required to make
findings with regard to its determination,” but that requirement is deemed complied with “if the
court dictates its findings and conclusions to the court reporter and those findings are made part of
the appellate record.” Vasquez v. State, 179 S.W.3d 646, 654 (Tex. App.—Austin 2005), aff’d
225 S.W.3d 541 (Tex. Crim. App. 2007).
       5
          On appeal, Taylor contends that there is evidence that he might have been coerced into
making the statements at issue. When making this assertion, Taylor seems to be referring to a
portion of Officer Low’s testimony in which Officer Low related that he told Taylor at some point
that if he kept lying, “I’m going to hammer your ass and you’re going to end up going to prison for
life.” That statement is not present on the video admitted as an exhibit, but our examination of
the video reveals that Officer Low did not seem to become irritated by some of the perceived
inconsistencies in Taylor’s statement until well after Taylor freely admitted to having committed
the extraneous offense at issue as well as having touched G.S. in an inappropriate sexual manner
on other occasions. See Rian v. State, No. 03-07-00599-CR, 2009 Tex. App. LEXIS 6378, at *11
(Tex. App.—Austin Aug. 11, 2009, pet. ref’d) (mem. op., not designated for publication) (noting
that police conduct during interview “may escalate an initially voluntary inquiry into custodial
interrogation”).

                                                  18
admitted as an exhibit during the trial. For admission purposes, the video was edited to remove

portions occurring before and after the interview by Officer Low that were not relevant to the issues

during trial, and Taylor did not object to the admission of the shortened video. The video is

approximately 30 minutes in length and is generally consistent with Officer Low’s testimony during

the trial and during the suppression hearing. In particular, the video shows that Officer Low told

Taylor that he would not be arrested that day no matter what he said to the police, that Taylor never

requested to stop the interview, and that no attempts were made to prevent Taylor from leaving or

to pressure him to stay.6

                As summarized above, during the suppression hearing and during the trial, no

evidence was presented establishing that Taylor was either physically or mentally ill when he made

the statements, that he was on any medication or other drugs when he made the statements, that he

lacked the mental capacity to understand the statements that he was making or the consequences

from making those statements, or that those statements were not voluntarily made. On the contrary,

even though Taylor was not expressly told that he could leave at any time during the interview, the




       6
         On the video, Taylor does state that an “attorney just told me that, uh, by her age limit I go
to prison for life,” but Taylor never requested to talk to an attorney or stated that he was represented
by counsel. Moreover, as set out above, Taylor went to the police station voluntarily after asking
the officers to arrange a polygraph exam, was told that he would not be arrested that day, and
retained his car keys and cell phone. Cf. id. at *11-12 (explaining that when defendant accepted
invitation to voluntarily answer questions at police station, defendant’s reference to attorney did
not transform interview into custodial interrogation and stating that officers had no obligation
under Fifth Amendment to honor request for attorney if defendant was not in custody); see also State
v. Scheffield, No. 03-12-00669-CR, 2014 Tex. App. LEXIS 13831, at *17 (Tex. App.—Austin
Dec. 30, 2014, no pet.) (mem. op., not designated for publication) (concluding that statement
indicating that defendant did not know if he wanted to continue non-custodial interview without
talking to lawyer first did not obligate police officers to stop interview).

                                                  19
evidence indicated that the second interview was scheduled at Taylor’s request, that he drove himself

to the interview, that he had his keys and cell phone during the interview, that he was told that he

would not be arrested, that no attempts were made to keep him from leaving, and that he had prior

experience with law-enforcement interactions from a previous arrest and conviction for a similar

offense. Cf. Estrada v. State, 313 S.W.3d 274, 298 (Tex. Crim. App. 2010) (determining that

recording did not raise state-law claim of involuntariness because, in part, defendant “understood

that he was free to leave at any time during the police interrogation”). Moreover, evidence was

introduced establishing that Taylor left the police station at the end of the interview and was not

arrested until a few days later.

                Regarding Taylor’s contention that he made the statements without being given his

Miranda warnings, we note that an accused is not entitled to Miranda warnings unless he is in police

custody at the time that the statements are made, State v. Scheffield, No. 03-12-00669-CR, 2014 Tex.

App. LEXIS 13831, at *13 (Tex. App.—Austin Dec. 30, 2014, no pet.) (mem. op., not designated

for publication), and nothing in the record in this case supports a determination that Taylor was in

custody at the time that he made the statements at issue, see Dowthitt v. State, 931 S.W.2d 244, 255

(Tex. Crim. App. 1996) (explaining that suspect is in custody when he is physically deprived of

freedom, when he is told that he cannot leave by law-enforcement personnel, when law-enforcement

personnel create situation in which reasonable person would believe that his freedom of movement

has been restricted, and when law-enforcement officials “manifest[] to the suspect” that probable

cause to arrest exists but do not tell suspect that he is free to leave under circumstances that would

lead reasonable person to believe that he is under restraint in manner similar to arrest).



                                                 20
               Moreover, we believe that Taylor’s reliance on our prior opinion in Vasquez is

misplaced. In Vasquez, Vasquez denied having committed the crime for seven hours in an interview

with the police before admitting to having killed the victim, 179 S.W.3d at 650-54, but in the present

case, Taylor admitted to committing the extraneous offense and to touching G.S. in an inappropriate

sexual manner relatively early on in his interview with Officer Low. Furthermore, although Taylor

notes that his interaction with the police lasted for several hours, the length of the interview was in

part due to the fact that Taylor had requested to take a polygraph exam during the prescheduled

interview, and Officer Low explained that he interviewed Taylor after Taylor finished the polygraph.

               In addition, although Taylor notes that Vasquez also freely drove to the police station,

unlike the current case, the police in Vasquez took custody of Vasquez’s car keys and did not return

the keys for several hours, and the police asked Vasquez to remove his boots when he attempted to

leave and did not return the boots. Id. at 652-54. Furthermore, unlike Taylor, Vasquez repeatedly

asked to go home, to see his wife, and to call his wife, but the officers “ignored his requests and

changed the subject or gave an off-putting excuse to delay Vasquez,” including stating that he could

not go inside his home because the police were searching it. Id. at 651-52. Moreover, although the

police informed Vasquez that the door was unlocked and that he could leave at any time, the police,

unlike the police questioning Taylor, “effectively block[ed] the door” and moved their chairs close

to Vasquez, “crowding him in the far corner of the interview room.” Id. at 650, 652. Perhaps most

importantly, unlike the current case, when the police officers questioned Vasquez, he communicated

his “problems with depression,” mentioned the medication that he was currently taking, and

discussed that he had attempted to commit suicide several times, and the police told Vasquez that



                                                  21
they would get him the medication that he needed if he told them what happened. Id. at 653; see also

Oursbourn, 259 S.W.3d at 181 (relying on evidence that suspect was suffering from mental-health

symptoms when he made statement as support for affirming appellate court’s determination that

defendant should have been given instruction regarding voluntariness).

                In light of the preceding, we must conclude that a reasonable jury could not have

determined that the facts above rendered Taylor unable to make voluntary statements and that the

evidence relied on by Taylor, without more, was insufficient to warrant an instruction on voluntariness.

For all of these reasons, we conclude that the district court did not err by denying Taylor’s request

for an instruction on voluntariness, and we overrule Taylor’s third issue on appeal.


Admission of Video Recording of Taylor’s Statement to Police

                In his fourth issue on appeal, Taylor contends that the district court erred by failing

to grant his motion to suppress the video recording discussed above. When presenting this issue,

Taylor repeats his assertions from the previous issue and argues that the video should have been

suppressed under article 38.22 of the Code of Criminal Procedure because his statement was not

voluntary. See Tex. Code Crim. Proc. art. 38.22. As proof of this assertion, Taylor again argues that

he was subjected to a lengthy interview by the police, that he was never told that he could leave, and

that the police never gave him his Miranda warnings.7


        7
          Unlike the last issue, in this issue, Taylor explicitly refers to the fact that on the video he
told Officer Low that a lawyer had told him that he could go to prison for life for this offense. In
light of this statement, Taylor urges that he “discussed his lawyer with his interrogators” but that the
police never offered to end the interview or to allow him to call his lawyer. However, the video was
not played for the district court prior to the court making its ruling on the motion to suppress.
Moreover, although Taylor’s trial attorney mentioned during her argument in the pretrial hearing that

                                                   22
                 “Appellate courts review a trial court’s ruling on a motion to suppress by using a

bifurcated standard, giving almost total deference to the historical facts found by the trial court

and analyzing de novo the trial court’s application of the law.” State v. Le, 463 S.W.3d 872, 876

(Tex. Crim. App. 2015). Under that standard, the record is “viewed in the light most favorable to

the trial court’s determination, and the judgment will be reversed only if it is arbitrary, unreasonable,

or ‘outside the zone of reasonable disagreement.’” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim.

App. 2014) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)); see also id.

(explaining that trial court’s ruling on motion to suppress will be upheld if it is correct on theory of

law applicable to case regardless of whether trial court based its ruling on that theory). Moreover,

the trial court is the exclusive and sole judge of the credibility of the evidence and witnesses

presented during the suppression hearing, “particularly where the motion is based on the

voluntariness of a confession,” and “great deference is accorded to the trial court’s decision to

admit or exclude such evidence.” Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007).




“there was mention of a lawyer,” the only evidence before the court at the time of its ruling regarding
any discussion of a lawyer was Officer Low’s testimony that Taylor did not ask to talk to a lawyer
or mention a lawyer. See Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012) (providing
that “appellate review of [a trial court’s] ruling on the motion to suppress is ordinarily limited to that
evidence presented at the pretrial hearing—the evidence that was before the court at the time of its
decision”). In addition, Taylor asserts that the police induced him into making the statements by
telling him that he would not be arrested that day no matter what he said. However, no evidence or
argument regarding this concern was presented to the district court during the pretrial hearing.
Moreover, to the extent that the district court could have been concerned that those types of
statements by police officers might serve as an improper inducement, that potential concern would
likely have been alleviated by the testimony establishing Taylor’s prior involvement with the
criminal justice system.

                                                   23
Accordingly, the trial court’s ruling will only “be overturned on appeal where a flagrant abuse of

discretion is shown.” Id.

               As set out earlier, when the district court denied Taylor’s request to suppress the

video after convening a hearing on the voluntariness of the statements, the district court found that

Officer Low’s testimony was credible and that Taylor voluntarily attended the interview to perform

a polygraph, retained possession of his keys, was free to leave, did leave, was not arrested until

days later, and had previous experience with law-enforcement personnel that gave him a better

understanding of what his rights were. Moreover, the district court determined that the length of the

interview was not problematic under the circumstances. Accordingly, the district court concluded

that the statements were voluntarily made.

               During the suppression hearing, as discussed earlier, Officer Low testified that Taylor

asked the officers to schedule the interview so that he could take a polygraph, that Taylor drove

himself to the interview, that none of the officers placed Taylor under arrest, that Taylor never asked

for a lawyer, that Taylor retained custody of his car keys during the interview and could have left at

any time, that all of the officers told Taylor that he was not going to be arrested that day no matter

what he said, that the officers did not read Taylor his Miranda rights because he was not in custody,

and that Taylor was allowed to leave at the end of the interview. Moreover, Officer Low explained

that Taylor had previous experience with law enforcement from his prior arrest and conviction for

a similar offense and that although he did not specifically state that Taylor was free to go, Taylor

knew that he was free to leave because he drove himself there and had his keys and because he was

told that he would not be arrested.



                                                  24
               In addition, no evidence was introduced that any of the officers attempted to prevent

Taylor from leaving in any way or that Taylor was not competent or was incapacitated at the time

of the interview. Furthermore, although Officer Low testified that the interview lasted between

three and four hours, he estimated that one and a half hours of that time was taken up by the

polygraph that Taylor requested and that his portion of the interview lasted around 30 minutes and

took place right after Taylor took the polygraph. Finally, although Taylor complains that he was not

given his Miranda warnings, nothing in the record before the district court during the pretrial hearing

indicated that the interview was a custodial interrogation. See Dowthitt, 931 S.W.2d at 255; see also

Scheffield, 2014 Tex. App. LEXIS 13831, at *11-13 (determining that interview was not custodial

interrogation where defendant voluntarily drove to police station, was told that he could leave at any

time, was never physically restrained, and was allowed to leave at end of interview).

               In light of the record before the district court when it ruled on the motion to

suppress and in light of the district court’s role in making that ruling, we cannot conclude that the

district court abused its discretion by determining that the statements were voluntarily made and by

denying Taylor’s motion to suppress. See Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000)

(explaining that determination regarding whether statement is voluntary is made based on totality

of circumstances). Accordingly, we overrule Taylor’s fourth issue on appeal.


Evidence Concerning Polygraph

               In his fifth issue on appeal, Taylor argues that the district court abused its discretion

by failing to grant his request for a mistrial after testimony regarding the fact that he took the

polygraph was presented to the jury. See Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App.

                                                  25
2010) (providing that appellate courts review trial court’s denial of motion for mistrial under

abuse-of-discretion standard of review); see also Robinson v. State, 550 S.W.2d 54, 58-61

(Tex. Crim. App. 1977) (reversing conviction where State elicited testimony that only witness tying

defendant to murder had taken and passed lie detector test); Martines v. State, 371 S.W.3d 232, 250

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (explaining that testimony regarding polygraph

examination’s existence or results is inadmissible for any purpose because polygraphs are inherently

unreliable and have tendency to unduly persuade jurors). Before the trial started, Taylor filed a

motion in limine asking the district court to order the State not to mention, among other things,

“[a]ny participation [by Taylor] in a polygraph test or its results.” The State agreed, and the district

court granted the request.8 During the trial, Officer Low was called to the stand to discuss Taylor’s

interview with the police. After the State asked Officer Low if he “reschedule[d] for another interview

at a later time,” Officer Low responded that Taylor “asked for a polygraph. He said, ‘I want to take

a polygraph.’” Immediately after Officer Low made the statement, Taylor objected, and the district

court sustained the objection and instructed the jury to “disregard any mention or consideration of

[a] polygraph.” Taylor also moved for a mistrial, but the district court denied that request.




        8
          In his motion, Taylor argued without citation to authority that evidence of “participation in
a polygraph [is] highly prejudicial in that it influences the jury to convict the Defendant for being
a criminal generally, rather than for being guilty of the offense on trial.” On appeal, Taylor suggests
that because the district court granted his motion in limine, his assertion that mentioning the
polygraph would be prejudicial to the case became “the law of the case.” Accordingly, Taylor insists
that the fact that his desire to submit to a polygraph was mentioned automatically deprived him
of a fair trial. However, Taylor does not cite any authority for this proposition. Moreover, even
assuming that a trial court could order that any violation of a motion in limine would result in an
automatic mistrial, we are not persuaded by the record before us that the district court in this case
evidenced that intention when it granted the motion in limine.

                                                  26
               As summarized above, Officer Low made the statement regarding the polygraph

after being asked whether he attempted to reschedule the interview, and nothing in the remainder of

the record indicates that the State anticipated that Officer Low would mention Taylor’s desire to take

a polygraph test in his response. Shortly after Officer Low mentioned Taylor asking for a polygraph

test, a bench conference was called to discuss Taylor’s objection. During the hearing, the State

indicated that it had instructed Officer Low not to mention the polygraph and asked for permission

to “instruct my witness again.” Moreover, Officer Low apologized for making the statement.

               Recently, in Cade v. State, the court of criminal appeals analogized an “unanticipated

answer” mentioning a polygraph exam to “cases in which a bystander or witness made a spontaneous

outburst that interfered with the normal proceedings of a trial.” No. AP-76,883, 2015 Tex. Crim.

App. Unpub. LEXIS 156, at *50 (Tex. Crim. App. Feb. 25, 2015) (not designated for publication);

see also id. at *53 (explaining that record did not support finding that prosecutor’s question was

designed to elicit answer regarding polygraph or that prosecutor could have anticipated answer). In

light of this analogy, the court stated that a trial court’s instruction to disregard will generally be

sufficient to cure any harm because courts “presume that the jury will follow those instructions,”

id. at *51, and later determined that the defendant had failed to overcome the presumption that the

trial court’s instruction to disregard was sufficient to cure any harm where the evidence supporting

the jury’s determination was substantial; where the reference to the polygraph result was “brief,

unsolicited, and concerned an extraneous matter”; and where “the State did not attempt to capitalize

on the reference.” Id. at *54; see also Martines, 371 S.W.3d at 250 (noting that mere mention of

polygraph examination does not automatically constitute reversible error).



                                                  27
                Although the statement in Cade was made during the punishment phase rather than

the guilt or innocence phase as in this case, 2015 Tex. Crim. App. Unpub. LEXIS 156, at *53, we

believe that the analysis from Cade still has applicability to the facts here. The evidence supporting

Taylor’s guilt was substantial because he admitted to committing the crimes during his interview

with the police and because the video of that admission was played for the jury. See Reynolds v.

State, No. 13-13-00072-CR , 2013 Tex. App. LEXIS 15216, at *12 (Tex. App.—Corpus Christi

Dec. 19, 2013, pet. ref’d) (mem. op., not designated for publication) (concluding that instruction to

disregard was sufficient to cure any alleged error where, among other things, there was other

evidence incriminating defendant, including videotape of interview of defendant by police).

Moreover, Officer Low’s reference to the polygraph was brief, and perhaps most importantly,

Officer Low did not disclose the results of the polygraph and simply related that Taylor

communicated that he wanted to take a polygraph test. See Martines, 371 S.W.3d at 251 (relating

that instruction to disregard will generally be sufficient to cure any error resulting from testimony

mentioning polygraph when results are not revealed); Buckley v. State, 46 S.W.3d 333, 336

(Tex. App.—Texarkana 2001, pet. ref’d, untimely filed) (explaining that if “a witness gives a

nonresponsive answer that mentions a polygraph test,” courts consider whether the results were

revealed and that there is generally no error in refusing to grant mistrial if results are not revealed).

In addition, nothing in the record indicates that the State was attempting to elicit any mention of a

polygraph examination or its results when it was questioning Officer Low,9 and the State made no


        9
         On appeal, Taylor notes that at the time of the trial, Officer Low had 21 years of law-
enforcement experience and urges that “it is logical to infer” that an officer with that many years of
service will have experience “testifying in criminal cases and following the evidentiary rulings

                                                   28
mention of the polygraph throughout the remainder of the trial. Cf. Buckley, 46 S.W.3d at 337

(noting that there may be error in refusing to grant mistrial even when results were not disclosed if

questions asked by State were designed to elicit response regarding polygraph and if effect of

evidence was to impeach defensive theory or bolster State’s case).

               In light of the preceding, we cannot conclude that the district court abused its

discretion by failing to grant Taylor’s request for a mistrial. Cf. Hinojosa v. State, 4 S.W.3d 240,

253 (Tex. Crim. App. 1999) (explaining that in general “a mistrial is only required when the

improper evidence is ‘clearly calculated to inflame the minds of the jury and is of such a character

as to suggest the impossibility of withdrawing the impression produced on the minds of the

jury’” (quoting Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990))). Accordingly,

we overrule Taylor’s fifth issue on appeal.


Pen Packets

               In his sixth issue on appeal, Taylor asserts that the district court abused its discretion

“by allowing into evidence pen-packs which contain information regarding how parole law and

good-time credit have been specifically applied to” him in the past. See Davis, 329 S.W.3d at 803

(providing that appellate courts review ruling regarding admission of evidence for abuse of

discretion). As mentioned previously, Taylor pleaded not true to the enhancement allegations, and




of the court while testifying.” From these propositions, Taylor seems to imply that Officer Low’s
testimony regarding the request for a polygraph could not have been inadvertent. However, Officer
Low did not testify regarding any prior experience as a witness, and as discussed previously, nothing
in the record before this Court supports the idea that the State was acting in bad faith when it
questioned Officer Low.

                                                  29
the State introduced the pen packets as an exhibit as proof of those allegations. The exhibit contains

information regarding Taylor’s prior convictions in Illinois, shows when Taylor was incarcerated,

lists the imposed sentences, and chronicles when Taylor was actually released from incarceration.

                On appeal, Taylor argues that although juries are permitted to consider the existence

of parole law when assessing punishment, see Tex. Code Crim. Proc. art. 37.07, § 4, juries are not

permitted to consider how parole law will be applied to a particular defendant, see Hawkins v. State,

135 S.W.3d 72, 84 (Tex. Crim. App. 2004); Harwood v. State, 961 S.W.2d 531, 544 (Tex.

App.—San Antonio 1997, no pet.). Moreover, Taylor contends that admitting the pen packets without

redacting the portions showing how parole had previously been applied to Taylor essentially invited

the jury to improperly consider parole in its punishment calculation.

                After the exhibit was admitted, neither party referred to the portions of the exhibit

indicating that Taylor had previously been released on parole, and no argument was made that the

parole information in the exhibit should be used for determining the punishment at issue in this case.

Cf. Helleson v. State, 5 S.W.3d 393, 398 (Tex. App.—Fort Worth 1999, pet. ref’d) (considering

whether there was error when during its closing State told jury to consider parole law and instructed

jury to “do the math” for parole in that case). Moreover, the record reveals that the State’s purpose

in presenting the pen packets along with the testimony authenticating the packets was to establish

the enhancement allegations that Taylor had previously been convicted. Cf. Mata v. State, No. 13-

02-00218-CR, 2008 Tex. App. LEXIS 3907, at *7-8 (Tex. App.—Corpus Christi May 22, 2008,

pet. dism’d) (not designated for publication) (overruling issue asserting that defendant’s trial counsel

did not provide effective assistance of counsel when counsel failed to object to State’s reference to

pen packet during punishment phase because court determined that pen packet was not introduced

                                                  30
as evidence on operation of parole and instead was introduced as evidence of enhancement

allegations of prior crimes). For these reasons, we cannot conclude that the district court abused its

discretion by admitting the portions of the pen packets chronicling when Taylor was released from

custody for his prior convictions.

                Furthermore, although we need not address the matter further, we do not believe that

Taylor would be able to establish that the alleged error resulted in the requisite degree of harm

needed to reverse the conviction and remand for a new punishment hearing. See Tex. R. App. P.

44.2(b) (explaining that for non-constitutional errors in criminal cases, error must be disregarded

unless it affected defendant’s substantial rights); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim

App. 2004) (stating that erroneous admission of evidence is non-constitutional error). During the

punishment phase, neither side referred to the information in the pen packets suggesting that Taylor

had previously been released on parole. Moreover, although the district court imposed a life sentence

on Taylor, that sentence was mandated after the jury determined that Taylor had previously been

convicted of aggravated criminal sexual abuse in Illinois because that offense was substantially

similar to a conviction under Texas law for the offense of sexual assault of a child, see Tex.

Penal Code § 12.42(c)(2)(B), and Taylor did not contest the evidence presented by the State

establishing that he committed the offenses listed in the pen packet or that his prior conviction was

substantially similar to the offense of sexual assault of a child, see id. § 22.011 (proscribing offense

of sexual assault).10


        10
          In particular, an investigator for the State, Michelle Blindert, testified that she compared
the fingerprints from Taylor, Taylor’s social security number, and Taylor’s tattoos with those from
the individual that was the subject of the pen packets and determined that Taylor was the individual
discussed in the pen packets. Further, the pen packets contained photos of the individual that was

                                                  31
               For all of these reasons, we overrule Taylor’s sixth issue on appeal.


                                          CONCLUSION

               Having overruled all of Taylor’s issues on appeal, we affirm the district court’s

judgments of conviction.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: October 14, 2015

Publish




previously incarcerated in Illinois, and Blindert explained that she compared Taylor’s booking photo
for the offense in question with the photos from the pen packets and that the photos were a match.
In addition, Blindert explained that when Taylor was previously convicted of aggravated criminal
sexual abuse, the state of Illinois proved that he “placed his penis in the vagina of” a victim who was
between the ages of thirteen and seventeen years old and that Taylor was at least five years older than
the victim. After Blindert finished her testimony, the State called Randy Ortega, who testified that
he works for the Department of Public Safety and makes determinations regarding whether a
defendant’s conviction in another jurisdiction for an offense is substantially similar to a sex offense
in Texas for the State’s sex-offender-registration program. In his testimony, Ortega explained that
the crime of aggravated criminal sexual abuse as proscribed by the state of Illinois is substantially
similar to the Texas offense of sexual assault of a child. See Tex. Penal Code § 22.011 (setting out
elements of offense of sexual assault).

                                                  32
