TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00456-CR
William Lee Self, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0943511, HONORABLE MIKE LYNCH, JUDGE PRESIDING
A jury convicted appellant of murder and assessed punishment at fifty-years' imprisonment. Tex. Penal Code Ann. § 19.02 (West 1994). (1) In two points of error, appellant complains that the court erred in denying his motion for mistrial when a police officer revealed that a witness had taken a polygraph exam and that there is legally insufficient evidence to support a conviction for murder. (2) We will affirm the trial court's judgment of conviction.
BACKGROUND
Appellant William Lee Self was convicted of murdering his mother, Pauline Self. The victim was found dead in her home after having been strangled with an electrical cord. At the time of the murder, the victim was living with Clark Self ("Clark"), appellant's brother, in a trailer home. Clark testified at trial for the State. There was no sign of forced entry at the victim's home on the night of the murder. The evidence showed that the only people with keys to the victim's home were the victim, appellant, and Clark.
On cross-examination, appellant's counsel asked Austin Police Sergeant Vasquez why he had not taken Clark's statement until days after the initial interview. Sgt. Vasquez responded that he had not taken Clark's statement earlier because the police were busy focusing on other details of the investigation. When recalling his and Clark's course of conduct on the day of the murder, Sgt. Vasquez testified that he had returned from the scene of the crime to the station house where Clark had taken a polygraph exam. Appellant's counsel objected that the testimony regarding the polygraph exam was nonresponsive and prejudicial. The court sustained the objection and instructed the jury to disregard the reference to the polygraph exam and not to consider it for any purpose. Appellant's counsel moved for a mistrial, which was denied by the trial court.
DISCUSSION In point of error one, appellant alleges that the trial court improperly denied his motion for a mistrial when Sgt. Vasquez revealed that Clark had taken a polygraph exam. Evidence of the results of a polygraph exam is not admissible on behalf of the State or the defendant for any purpose. Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 1110 (1986); Lee v. State, 455 S.W.2d 316, 321 (Tex. Crim. App. 1970). When evidence reveals that a polygraph exam was administered, but does not expressly disclose the results of the exam, an instruction to disregard is generally sufficient to cure any harm. See Banda v. State, 727 S.W.2d. 679, 681-682 (Tex. App.--Austin 1987, no pet.). The witness in the instant cause did not expressly disclose the results of the polygraph exam, and the trial court gave an instruction to disregard.
A curative instruction to disregard will be deemed insufficient to cure any harm, however, when the witness impliedly reveals the results of a polygraph exam. See Nichols v. State, 378 S.W.2d. 335, 338 (Tex. Crim. App. 1964); Sparks v. State, 820 S.W.2d 924, 927 (Tex. App.--Austin 1991, no pet.). In Nichols the State asked its own witness whether, without disclosing the results, she had taken a polygraph examination concerning her accusation of rape. Likewise, in Sparks the State asked its witness whether he had taken a polygraph examination. In both instances, the courts held that the questioning impliedly disclosed the results of the exams and that therefore the error was incurable. In Sparks, this Court reasoned that the results were implied largely "because the State [had] purposefully initiated th[e] line of questioning and presumptively would not elicit testimony unfavorable to its case." Sparks, 820 S.W.2d at 929. In determining whether the colloquy between witness and counsel impliedly reveals the results of a polygraph examination, we earlier observed that courts have focused on whether counsel intended to elicit the answer given and whether the witness mentioned the polygraph examination in bad faith. Id. at 927.
Unlike Nichols and Sparks, the objectionable testimony in the instant cause was a nonresponsive answer to a question asked by the defense. Sgt. Vasquez's mention of the polygraph was a nonresponsive answer to defense counsel's question about the time frame and sequence of the events on the day of the murder. In both Nichols and Sparks it was the prosecutor who, knowing the test results, specifically asked the witness about a polygraph examination. In the present case, the cross-examining defense counsel could not have foreseen the answer to his question. Moreover, the record does not reflect that Sgt. Vasquez answered the question in bad faith.
In Sparks, we detailed three issues to be considered in determining whether the mention of a polygraph examination constitutes reversible error. First, we noted that the only reason for administering a polygraph test is to determine whether a witness is telling the truth. Unlike in Nichols and Sparks, however, the jury in the instant cause was not told the nature or subject of the questions asked Clark during the polygraph examination. Thus, the truth of his answers and whether he "passed" does not conclusively imply anything.
Second, we must ask whether Sgt. Vasquez's mention of the polygraph examination bolstered Clark's testimony. Finally, we must determine whether the testimony impliedly revealed the results of the polygraph examination.
Appellant theorizes that the police originally suspected that Clark was the murderer. Appellant assumes that the police asked Clark whether he killed his mother and that Clark proved his innocence when he "passed" the polygraph examination. Appellant contends that the jury must have inferred that (1) Clark was asked whether he killed his mother; (2) he denied wrongdoing; and (3) he "passed" the exam because he was the State's key witness, rather than an indicted defendant. Positing that the only two suspects were Clark and appellant, appellant argues that the mere mention of a polygraph exam bolsters the State's theory that he killed his mother.
Appellant's argument however rests upon some unfounded assumptions. Appellant assumes that (1) Clark was a suspect; (2) the police asked Clark about the murder; (3) he denied killing his mother; and (4) the polygraph examination proved that he was being truthful. Given that the State did not elicit Sgt. Vasquez's testimony, there is no basis on which to make these assumptions.
One could as easily speculate that Clark made statements implicating himself or another or covered up for his brother. In this scenario, the polygraph could only impeach Clark's veracity because he would have failed the exam. Given the conflicting possibilities of what questions were asked of Clark and why, one cannot say what the results of the polygraph examination were. Without knowing what questions were asked, the jury could not know Clark's answers or whether the polygraph examination reflected truthful or false responses. We overrule point of error one.
In point of error two, appellant claims that there is legally insufficient evidence to support a conviction for murder. Reviewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
The jury, as the trier of fact, is the judge of the credibility of the witnesses and the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). The jury is entitled to accept or reject all or any part of the testimony by witnesses for the State or the accused. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988). Reconciliation of evidentiary conflicts is solely a function of the trier of fact. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). The fact-finder may draw reasonable inferences and reasonable deductions from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.--Corpus Christi 1988, pet. ref'd).
In determining whether the evidence is legally sufficient to support the conviction, we will consider the evidence in the light most favorable to the jury's verdict. After so viewing the evidence, we will determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). This standard of review is applicable in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990).
On November 13, 1991, the night of the murder, appellant told Bill Ehrlich, a friend with whom appellant lived, that he was going dancing. Appellant did not return home that night and did not contact Ehrlich for over a year after the murder. In the time that appellant lived with Ehrlich, this was the only time he failed to return the next day after having left for the evening.
Police attempted to locate appellant for fifteen months following the murder. During that time they contacted his sister, his brother, his friends, and his two ex-wives. Except for limited contacts, none of these people heard from appellant or had knowledge of his whereabouts. Although flight alone is not enough to support a guilty verdict, it is a circumstance from which an inference of guilt may be drawn. Harris v. State, 645 S.W.2d. 447, 458 (Tex. Crim. App. 1983).
On November 18, four days after the murder, appellant telephoned his ex-wife, Bea Self, and told her that his mother had killed herself. He explained that his mother had accidentally wrapped her massager cord around her neck while asleep and was choked to death as she rolled back and forth in her sleep. The fact that the murder weapon was a massager cord had not been made public at that time; a newspaper story covering the murder simply described the murder weapon as an electrical cord. Appellant then told his ex-wife that he and his brother Clark had had their mother cremated. Clark, however, testified that he did not hear from appellant until three months after the murder.
When appellant did contact his brother on February 14, 1992, he first asked how their mother was doing despite having previously told his ex-wife that his mother was dead. Clark told appellant that their mother had been murdered and that the police wanted to speak with him. Appellant told Clark that he would contact the police, yet he failed to do so. Instead, appellant continued his flight until police located him in Santa Monica, California on March 23, 1993.
Appellant's car was found abandoned at a Houston motel on or about December 27, 1991. When Sergeant Vasquez examined appellant's car, he found a piece of Clark's mail. The evidence suggests that the letter was delivered to the address shared by Clark and the victim sometime between November 6 and November 20, 1991. Clark and appellant were the only two people with keys to the mailbox. Thus, despite appellant's contention, there was some evidence linking him to the scene of the crime.
Considering the evidence adduced at trial in the light most favorable to the verdict, we hold that there is sufficient evidence for a rational jury to have found beyond a reasonable doubt that appellant was guilty as charged in the indictment. We overrule point of error two.
CONCLUSION
Having overruled both of appellant's points of error, we affirm the judgment of the trial court.
Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: March 20, 1996
Do Not Publish
1. 1 This offense took place before September 1, 1994 and is governed by the law in effect at the time the offense occurred. Because the code amendments effective September 1, 1994 have no substantive effect on this offense, we cite the current code for convenience.
2. 2 Appellant has also filed a pro se brief alleging additional points of error. There is no right to a hybrid representation. While not required to do so, we have reviewed the contentions raised in the pro se brief and find them to be without merit. See Turner v. State, 805 S.W.2d 423, 425 n.1 (Tex. Crim. App. 1991), cert. denied, 502 U.S. 870 (1991).
App.--Corpus Christi 1988, pet. ref'd).
In determining whether the evidence is legally sufficient to support the conviction, we will consider the evidence in the light most favorable to the jury's verdict. After so viewing the evidence, we will determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). This standard of review is applicable in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990).
On November 13, 1991, the night of the murder, appellant told Bill Ehrlich, a friend with whom appellant lived, that he was going dancing. Appellant did not return home that night and did not contact Ehrlich for over a year after the murder. In the time that appellant lived with Ehrlich, this was the only time he failed to return the next day after having left for the evening.
Police attempted to locate appellant for fifteen months following the murder. During that time they contacted his sister, his brother, his friends, and his two ex-wives. Except for limited contacts, none of these people heard from appellant or had knowledge of his whereabouts. Although flight alone is not enough to support a guilty verdict, it is a circumstance from which an inference of guilt may be drawn. Harris v. State, 645 S.W.2d. 447, 458 (Tex. Crim. App. 1983).
On November 18, four days after the murder, appellant telephoned his ex-wife, Bea Self, and told her that his mother had killed herself. He explained that his mother had accidentally wrapped her massager cord around her neck while asleep and was choked to death as she rolled back and forth in her sleep. The fact that the murder weapon was a massager cord had not been made public at that time; a newspaper story covering the murder simply described the murder weapon as an electrical cord. Appellant then told his ex-wife that he and his brother Clark had had their mother cremated. Clark, however, testified that he did not hear from appellant until three months after the murder.
When appellant did contact his brother on February 14, 1992, he first asked how their mother was doing despite having previously told his ex-wife that his mother was dead. Clark told appellant that their mother had been murdered and that the police wanted to speak with him. Appellant told Clark that he would contact the police, yet he failed to do so. Instead, appellant continued his flight until police located him in Santa Monica, California on March 23, 1993.
Appellant's car was found abandoned at a Houston motel on or about December 27, 1991. When Sergeant Vasquez examined appellant's car, he found a piece of Clark's mail. The evidence suggests that the letter was delivered to the address shared by Clark and the victim sometime between November 6 and November 20, 1991. Clark and appellant were the only two people with keys to the mailbox. Thus, despite appellant's contention, there was some evidence linking him to the scene of the crime.
Considering the evidence adduced at trial in the light most favorable to the verdict, we hold that there is sufficient evidence for a rational jury to have found beyond a reasonable doubt that appellant was guilty as charged in the indictment. We overrule point of error two.
CONCLUSION
Having overruled both of appellant's points of error, we affirm the judgment of the trial court.
Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: March 20, 1996
Do Not Publish
1. 1 This offense took place before September 1, 1994 and is governed by the law in effect at the time the offense occurred. Because the code amendments effective September 1, 1994 have no substantive effect on this offense, we cite the current code for convenience.
2. 2 Appellant has also filed a pro se brief alleging additional points of error. There is no right to a hybrid repr