                         NOS. 07-08-0465-CR, 07-08-0466-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 AUGUST 18, 2009
                         ______________________________

            JOEY DELL GRAY AKA JOEY DALE HATFIELD, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

            NO. 47,484-B, 49,270-B; HONORABLE JOHN BOARD, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Joey Dell Gray, appeals the decision of the trial court to adjudicate her

guilty of the offense of indecency with a child in Cause No. 07-08-0465-CR. Following the

adjudication of guilt, the trial court sentenced appellant to a term of confinement in the

Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) of 10 years.

Further, appellant appeals the decision of the same trial court to revoke her community

supervision for the offense of failure to register as a sex offender and sentence of four

years confinement in the ID-TDCJ for that offense. The punishment in the two cases was
ordered to run concurrently.    By one issue, appellant contends that the trial court

committed reversible error when it admitted the results of a polygraph examination into

evidence. We disagree with appellant and affirm the trial court’s judgment.


                          Factual and Procedural Background


      Appellant pled guilty to the charge of indecency with a child on July 23, 2003. She

was placed on deferred adjudication for a period of seven years. Pursuant to the plea

agreement, appellant was required to register as a sex offender. Appellant failed to

register and was subsequently indicted for failure to register as a sex offender. This

charge resulted in another plea of guilty and appellant was placed on community

supervision for a period of four years. On August 6, 2008, a motion to proceed with

adjudication was filed in the indecency case and a motion to revoke probation was filed in

the failure to register as a sex offender case. These motions were subsequently amended

on September 26, 2008. On October 23, 2008, a consolidated hearing was held on both

motions. At the close of the consolidated hearing, appellant was adjudicated guilty of

indecency with a child and sentenced to 10 years confinement in the ID-TDCJ. Appellant

was also found to have violated the terms and conditions of community supervision in the

failure to register case and was sentenced to four years confinement in the ID-TDCJ with

such term of confinement to run concurrently with her sentence in the indecency case.


      During the consolidated hearing, the State offered the testimony of Kay Renshaw,

who is a licensed sex offender treatment provider. Renshaw testified that appellant was

discharged from the sexual offender treatment program she was required to complete for


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failing to maintain a cooperative attitude, failing to demonstrate progress in the treatment

program, and admitting to violating program rules regarding use of drugs and trading

sexual favors for money and drugs. The State also produced the testimony of Karen Leal,

appellant’s community supervision officer. Leal testified about appellant’s admission of

using methamphetamine during her community supervision, engaging in deviant sexual

activity, and failing to perform community service hours as required by the terms of her

community supervision order.


       At the conclusion of the State’s evidence, appellant presented the testimony of her

mother, Shirley Cox. Cox essentially testified appellant’s violation of the trial court’s orders

were due to her lack of education and alleged mental disability of being bipolar. Appellant

testified and denied admitting any illicit drug use, however, she did admit to abusing

prescription drugs on several occasions while on community supervision.


       The State recalled Leal to testify that appellant, although referred to MHMR on

several occasions, was not diagnosed with a bipolar condition. Further, Leal testified that

appellant had never offered any excuse for failure to complete the ordered community

service hours.


       At the conclusion of the hearing, the trial court adjudicated appellant guilty of

indecency with a child and found the allegations that she had violated her community

supervision in the failure to register case to be true. From this judgment, appellant has

appealed alleging that the trial court committed reversible error when it admitted evidence




                                               3
of the results of a polygraph test, that was administered while appellant was in the sex

offender’s treatment program. We affirm the judgments of the trial court.


                                    Polygraph Evidence


       Appellant’s contention is that the trial court committed reversible error when it

allowed the State’s witness, Renshaw, to testify about the results of a polygraph test taken

by appellant as part of the sexual offender’s treatment program.1 The context in which the

challenged testimony was presented is as follows:


       Q. Okay. And what was your first area of concern? What became your first
       area of concern?
       A. As interruptions– and there were a couple of interruptions that we were
       able to get Joey back on track. At one point she was having difficulty with
       drug abuse. She acknowledged that. We got her into an ACADA program.
       She completed that program, continued to group sessions. When we really
       became concerned about Joey was a failed polygraph in May of 2008.
       Trial Counsel: Judge, at this point the Defense objects to any testimony
       about polygraph results. As the Court knows, polygraph results are just not
       admissible.
       The Court: Well, and I would not allow it for purpose of making any ultimate
       determination, but I will allow it as an exception to hearsay just for the state
       of mind of this witness as to why she took the steps that she did with regard
       to her treatment. But I won’t consider it for the truth of the matter asserted.
       Trial Counsel: Okay.


      The State contends that appellant failed to preserve the issue of the polygraph

evidence for review. See TEX . R. APP. P. 33.1(a)(1). Appellant counters that she made a



       1
       The court-ordered sexual offender treatment program was only applicable to the
terms and conditions of the community supervision ordered in connection with the deferred
adjudication granted appellant on the indecency with a child case.

                                             4
timely objection and that, since there was no jury, there was no necessity for a motion for

mistrial and, therefore, all steps necessary to preserve the issue for appeal had been

accomplished. Assuming trial counsel’s statement of “Okay” was not acquiescence to the

trial court’s ruling,2 appellant’s contention is erroneous for another reason. This was not the

only time the issue of polygraph testing was raised. The record reflects that the State,

apparently based upon the trial court’s ruling, returned to the subject a number of times

during the direct examination of Renshaw. Trial counsel never again objected nor indicated

any dissatisfaction with the trial court’s previous ruling. Trial counsel could preserve the

alleged error in the admission of the polygraph testimony by either objecting each time a

question concerning the results of the polygraph test was asked or by obtaining a

continuous or running objection to that line of questioning. See Hudson v. State, 675

S.W.2d 507, 511 (Tex.Crim.App. 1984) (holding that defense counsel must object each time

allegedly inadmissible evidence is offered); Ethington v. State, 819 S.W.2d 854, 858-59

(Tex.Crim.App. 1991) (approving the use of a continuous or running objection to an entire

line of questions). In the case before us, appellant did not object each time nor obtain a

running objection, therefore, the issue has not been preserved for appeal. TEX . R. APP. P.

33.1(a)(1). Accordingly, appellant’s sole issue is overruled.3




        2
       See Holmes v. State, 248 S.W.3d 194, 196 (Tex.Crim.App. 2008) (affirmative
statement of “no objection” when evidence is offered waives right to complain about the
admission of the evidence on appeal); Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App.
1988) (same).
        3
        Although notice of appeal was given in both cases, no issues on appeal were
presented in regards to the revocation of community supervision. Therefore, the court’s
ruling on the motion to revoke is not addressed.

                                              5
                                       Conclusion


      Having overruled appellant’s only issue, the judgments of the trial court are affirmed.




                                                        Mackey K. Hancock
                                                             Justice




Do not publish.




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