                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00225-CR


RICHARD B. REED                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1413225R

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                                    OPINION

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      A jury convicted Appellant Richard B. Reed of two counts of aggravated

sexual assault of a child under fourteen and one count of indecency with a child

by exposure,1 all charged in a single indictment. Upon his plea of true to the

habitual allegation, the trial court sentenced him to thirty-five years’ confinement


      1
       See Tex. Penal Code Ann. § 22.021(a)(2)(B) (West Supp. 2015), §
21.11(a)(2) (West 2011).
as a habitual offender.

      Appellant brings four points on appeal, challenging the admissibility of the

testimony of three witnesses identified as outcry witnesses and the trial court’s

denial of his motion for mistrial in response to the jury’s hearing and seeing a

video recording of a police officer asking Appellant if he would submit to a

polygraph exam. Because the trial court committed no reversible error, we affirm

the trial court’s judgment.

Brief Facts

      R.P., Appellant’s sister’s granddaughter, was the complainant in all three

cases. R.P. lived with her grandparents and referred to her grandmother, who

was her guardian, as her mother or her mom. R.P. testified at trial that when she

was nine years old and living with her grandparents, Appellant spent the night at

their house one night. R.P. woke up in the middle of the night because she felt

“like [she was] being touched . . . [i]n [her] butt.” R.P. testified that this happened

two or three times, including at the apartment where Appellant lived with his

mother, R.P.’s great-grandmother, whom R.P. called “Big Granny.” R.P. further

testified that more than once at Big Granny’s apartment, Appellant touched her

with his fingers “in [her] bad spot where [she] go[es] pee.” Finally, R.P. testified

that Appellant showed her his “bad spot” once.

      Ashley Johnson, formerly a forensic interviewer for the Alliance for

Children in Tarrant County, testified at trial. Johnson had performed a forensic

interview of R.P. on May 8, 2013. Johnson stated that not all children react the


                                          2
same way to sexual abuse and that some children have a difficult time talking

about what happened to them. Johnson then testified that R.P. had told her that

Appellant “touched [R.P.] on the inside of her bad spot, which is what she

referred to as her vagina,” “that that happened more than one time,” “that he put

his finger inside of her butt,” and “that he had also showed her his bad spot.”

      Saginaw Police Officer Brandon Badovinac testified as the investigating

officer. Badovinac interviewed Appellant twice, and videos of the interviews were

produced at trial as State’s Exhibits 3 and 4. When the videos were offered,

Appellant’s attorney approached the bench and objected to showing the jury the

part of State’s Exhibit 3 during which Appellant was asked if he would take a

polygraph exam.     Outside the presence of the jury, the parties played the

interviews for the trial court and agreed on when to stop the videos. When

State’s Exhibit 3 was played for the jury, however, it was not stopped before the

jury heard Badovinac ask Appellant, “Would you be willing to take a polygraph

exam?”

      At that point, the prosecutor asked to approach the bench. When the trial

court asked defense counsel if he wanted the jury to be instructed to disregard,

he objected, “I don’t think it can be cured by an instruction.” The trial court

excused the jury, and defense counsel moved for a mistrial.            One of the

prosecutors argued that the harm could be cured by an instruction, that the other

prosecutor had stopped the video at the agreed-upon time, and “that’s not the

time on the video now. I have no explanation how that happened.” The trial


                                         3
court stated that the playing of the challenged portion was inadvertent.

      After a pause in the proceedings, the trial court informed the parties of his

intention to deny the motion for mistrial and to instruct the jury to disregard.

Defense counsel objected to the trial court’s planned instruction to the jury and

argued that it would be impossible for the jury to disregard and that “[t]he jury

[wa]s left to consider either he took it or passed, or he refused to take it,

therefore, he must have done it. And I don’t know that there is any way that we

can receive a fair trial after this has happened.” The trial court again denied the

motion for mistrial. The trial court instructed the jury, “[W]ith regard to State’s

Exhibit No. 3, you heard testimony that the detective asked [Appellant] if he

would take a polygraph. You are instructed to disregard that question and to not

consider it for any purpose whatsoever. It will be disregarded.”

      In State’s Exhibit 4, Appellant’s second interview with the police, Appellant

admitted that he spanked R.P. over her clothes once in Fort Worth and once in

Saginaw. He told the police that he felt something “wet” when he swatted her,

and he concluded that his fingertip must have or might have accidentally gone

into her anus on both occasions, but he insisted that such actions were not

intentional or sexual.

      The State next called Veronica Swink, who interviewed R.P. on April 19,

2013, before Johnson conducted the forensic interview. The trial court held a

hearing outside the presence of the jury to conduct a voir dire examination before

Swink testified in front of the jury. Swink stated that in 2013, she worked for


                                         4
Child Protective Services investigating referrals. She received a referral from a

school regarding possible physical neglect of R.P.

      Swink investigated R.P.’s home and found no reason to believe that she

was being neglected, but as part of the routine questioning of R.P., Swink asked

R.P. if anyone had ever touched her inappropriately.        R.P. responded that

Appellant “had touched her bad spot.” Swink questioned R.P. more about what

she meant and spoke to R.P.’s grandparents.

      At the conclusion of the voir dire questioning, defense counsel objected

that Swink’s testimony was inadmissible hearsay and not admissible as outcry

testimony because, although Swink was actually the first person to whom R.P.

had reported her allegations, Johnson had already testified as the outcry witness,

and Swink did not add anything new to Johnson’s testimony. The State argued

that the testimony was relevant because in Appellant’s opening statement,

defense counsel had argued that R.P. had been coached to make an outcry of

sexual abuse. Specifically, defense counsel had stated in his opening statement

that R.P. had spoken with Johnson and Brenda Crawford from Cook Children’s

Medical Center’s CARE team, “[a]nd on every single opportunity that a

professional had to speak with [R.P.], we received more details to this crafted

story.” The State pointed out that after R.P. made an outcry to Swink, Swink had

not questioned her further.

      The trial court replied that Johnson had provided more detailed information

than Swink and also recognized that it had “hear[d defense counsel] question the


                                        5
motive for the statements being made by the witness.” The trial court therefore

overruled the objection and found “the testimony . . . reliable based upon the time

and content and circumstances.” Swink then testified before the jury, and the

State elicited essentially the same information that she had given in voir dire.

      The next day of trial, the State called Crawford to testify. The trial court

allowed a voir dire examination outside the presence of the jury. Crawford stated

that she had conducted a sexual assault examination of R.P. and that during the

examination, R.P. had told her that her grandmother’s brother had touched R.P.

“in a bad spot right here,” and then R.P. had “pointed to her genitalia and her

butt.” Crawford stated that they talked about identifying body parts and that R.P.

used the term “bad spot” to mean genitalia. Crawford stated that R.P. told her

that Appellant had forced her to look at his “bad spot” and had ejaculated.

Crawford further stated that she had asked R.P. if Appellant had used any

lubricant, and R.P. had said that he had used baby oil.

      The State argued that Crawford’s testimony was admissible because new

information was obtained from Crawford that the prior outcry witnesses had not

testified to and because R.P.’s statements to Crawford had been made for

medical diagnosis or treatment. Defense counsel argued that “this [wa]s just a

sham” and “a trick to let the jury hear hearsay.”         The trial court ruled that

Crawford could testify about R.P.’s statements about the baby oil and ejaculation.

      Crawford testified before the jury that she took a history from R.P. as part

of her diagnosis and treatment of R.P. Crawford also testified that R.P. called


                                         6
genitalia a “bad spot,” that R.P. told her that her uncle touched her “in the bad

spot right here,” that R.P. then “pointed to her [own] genitalia and her butt,” and

that R.P. told her that Appellant forced her to look at his penis. Crawford further

told the jury that R.P. had told her that “white stuff” had come out of Appellant’s

penis and that he had used baby oil as a lubricant.

Outcry Witnesses

      Appellant’s first three points on appeal question the propriety of admitting

the testimony of the three outcry witnesses, Swink, Johnson, and Crawford.

      Standard of Review

      We review the trial court’s decisions on the admissibility of evidence for an

abuse of discretion.2 The trial court abuses its discretion when its decisions lie

outside the zone of reasonable disagreement.3          If the trial court’s ruling on

admissibility is correct under any applicable legal theory, we will hold that the trial

court did not abuse its discretion even if it gave a wrong or incomplete reason for

the ruling.4

      Analysis

      The State argues that multiple outcry witnesses may be appropriate when

there are multiple assaultive events over a period of time, and some case law

      2
      Johnson v. State, No. PD-1496-14, 2016 WL 3017842, at *10 (Tex. Crim.
App. May 25, 2016).
      3
          Id.
      4
          De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).


                                          7
supports this position.5 The statute specifically authorizing the admission of a

hearsay outcry statement during the guilt phase of a trial involving allegations of

child sex abuse, however, provides that it pertains only to statements describing

the alleged offense made by the child complainant “to the first person, 18 years

of age or older, other than the defendant, to whom the child . . . made a

statement about the offense.”6    Although the three witnesses’ testimony may

include outcry evidence, other grounds justify the admission of the testimony.

      R.P. testified before any of the three outcry witnesses. Appellant’s cross-

examination of R.P. challenged the truthfulness of her testimony and elicited

repeated responses that R.P. did not remember the events of the offenses. He

effectively impeached R.P. using many of her statements made to Johnson in the

forensic interview. His voir dire and opening statement also introduced a theme

to which he would return with witnesses throughout the trial: that R.P. had been

coached to make an outcry of sexual abuse.         The Texas Court of Criminal

Appeals has held that the State may offer before the jury prior consistent

statements of a child sexual assault complainant under rule of evidence

801(e)(1)(B) when the child is accused of recent fabrication or improper




      5
       Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet.
refused).
      6
       Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A), (2)–(3) (West Supp.
2015) (emphasis added).


                                        8
influence.7 Under this rule, such statements are not hearsay.8 Thus, R.P.’s

statements to both Swink and Johnson could have been properly admitted as

prior consistent statements under rule 801(e)(1)(B).9

      Regarding R.P.’s statements made to Crawford, Crawford testified that she

interviewed R.P. for the purpose of providing medical treatment.         Rule of

evidence 803(4) provides that statements made for medical diagnosis or

treatment are admissible hearsay.10       Given the record, we cannot say that

Crawford had no medical purpose in interviewing R.P.11         Thus, Crawford’s

testimony about R.P.’s statements could have been properly admitted under

evidentiary rule 803(4).

      Because the trial court’s admission of the testimony of Swink, Johnson,

and Crawford regarding R.P.’s statements to them can be justified under the

rules of evidence without reaching the propriety of the admission of the evidence

as outcry evidence, we hold that the trial court did not abuse its discretion by




      7
       Tex. R. Evid. 801(e)(1)(B); Klein v. State, 273 S.W.3d 297, 312–13 (Tex.
Crim. App. 2008).
      8
          Tex. R. Evid. 801(e)(1)(B).
      9
          See id.; Klein, 273 S.W.3d at 312–13.
      10
           Tex. R. Evid. 803(4).
      11
      See id.; see also Berman v. State, No. 02-12-00119-CR, 2014 WL
2145592, at *5 (Tex. App.—Fort Worth Aug. 20, 2014, pet. ref’d).


                                          9
admitting the evidence.12 We overrule Appellant’s first three points.

Polygraph

      In his fourth point, Appellant argues that the trial court reversibly erred by

denying his motion for mistrial after the jury saw and heard State’s Exhibit 3, a

video recording, that included Badovinac asking Appellant whether he would be

willing to submit to a polygraph exam. Despite a prior agreement between the

State and Appellant that the jury would not see or hear that portion of the video,

for some reason the State failed to stop the replay of State’s Exhibit 3. Appellant

argues that the State acted in bad faith, but the trial court found that the

polygraph-request segment was inadvertently played. The trial court sustained

Appellant’s objection to the introduction of the polygraph issue and instructed the

jury to disregard but denied Appellant’s motion for mistrial.

      Standard of Review

      When the trial court sustains an objection and instructs the jury to

disregard but denies a defendant’s motion for a mistrial, the issue is whether the

trial court abused its discretion in denying the mistrial.13      Only in extreme

circumstances, when the harm caused by the improper remark is incurable, that

is, “so prejudicial that expenditure of further time and expense would be wasteful




      12
           See De la Paz, 279 S.W.3d at 344.
      13
           Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).


                                         10
and futile,” will a mistrial be required.14 In determining whether the trial court

abused its discretion by denying the mistrial, we balance three factors: (1) the

severity of the misconduct or prejudicial effect, (2) curative measures, and (3) the

certainty of the conviction absent the misconduct.15 In polygraph cases, we may

also consider whether the party through whom the evidence was elicited showed

bad faith in putting the evidence before the jury and whether the polygraph

evidence strengthened the State’s case.16

      Analysis

      Appellant argues that the disclosure that the police had asked him to

submit to a polygraph examination revealed that he either refused the test or

failed the test. He contends that “results of a polygraph test may be disclosed

not only by an affirmative statement of a witness, but merely by a question

revealing that a polygraph examination has been administered.”17 Because of

their inherent unreliability and tendency to be unduly persuasive, the results of a


      14
        Id. (citation and internal quotation marks omitted); see also Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905
(2004).
      15
       Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
      16
         See Martines v. State, 371 S.W.3d 232, 251 (Tex. App.—Houston [1st
Dist.] June 23, 2011, no pet.).
      17
        See Nichols v. State, 378 S.W.2d 335, 337 (Tex. Crim. App. 1964)
(holding that asking whether witness had taken lie detector test was error that
could not be cured by instruction).


                                        11
polygraph examination are not admissible in Texas for any purpose.18            But

generally, an instruction to disregard is sufficient to cure any prejudice when

polygraph evidence is merely mentioned and the results are not disclosed.19

      The trial court found that the display of Badovinac asking Appellant to take

a polygraph was inadvertent and that the parties had agreed that the polygraph

dialogue would not be shown. After the trial court instructed the jury to disregard,

no one raised the polygraph issue during the remainder of the trial. There is also

no evidence that the polygraph question improperly bolstered the State’s case.20

Nor do we see any indication that the polygraph question impacted the jury or its

verdict. R.P. testified that Appellant committed the actions and identified him in

court. The jury also viewed her forensic interview and Appellant’s interviews with

the police and heard the testimony of Swink, Johnson, and Crawford. The jury

had the opportunity to assess the credibility of each witness and each piece of

evidence. We therefore hold that the trial court did not abuse its discretion by

denying Appellant’s motion for mistrial because the instruction to disregard cured

any harm flowing from the mention of the potential polygraph exam. We overrule

Appellant’s fourth point.


      18
       Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985), cert.
denied, 474 U.S. 1110 (1986); Stewart v. State, 705 S.W.2d 232, 234 (Tex.
App.—Texarkana 1986, pet. ref’d).
      19
           Martines, 371 S.W.3d at 252.
      20
           See id. at 251.


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Conclusion

     Having overruled Appellant’s four points, we affirm the trial court’s

judgment.




                                             /s/ Lee Ann Dauphinot
                                             LEE ANN DAUPHINOT
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

PUBLISH

DELIVERED: July 14, 2016




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