TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 0974413, HONORABLE TOM BLACKWELL, JUDGE PRESIDING
The complaining witness was appellant's twelve-year-old son, who lived with appellant's former wife but spent the week of spring break 1997 with appellant. The boy testified that during that week, appellant showed him pornographic videos, masturbated in the boy's presence, and had the boy masturbate as well. Appellant repeatedly touched the boy's penis with his hand, placed the boy's penis in his mouth, and penetrated the boy's anus with his penis. On one occasion, appellant had the boy penetrate appellant's anus. On July 30, 1997, after the complainant's outcry to his mother, appellant gave police a written statement admitting that he masturbated in front of the boy and penetrated the boy with his penis, but asserting that he did these things only once. This statement was admitted in evidence. A doctor who examined the complainant testified that the boy's anus had an appearance consistent with repeated anal penetration.
In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant argues that without his confession, which he contends should not have been admitted, the State's evidence does not meet this test. This argument fails for three reasons. First, the confession was properly admitted in evidence, as we will discuss below. Second, we would consider the confession in determining the legal sufficiency of the evidence even if it had been erroneously admitted. See Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996). Third, the evidence is sufficient even without the confession. The complainant's testimony, standing alone, establishes all elements of the three offenses for which appellant was convicted. Point of error one is overruled.
When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict. Instead, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). We must maintain appropriate deference to the jury's verdict, however, and will reverse for factual insufficiency only when the verdict is so against the great weight of the evidence as to be clearly wrong and unjust. Reina v. State, 940 S.W.2d 770, 773 (Tex. App.--Austin 1997, pet. ref'd); see Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).
Appellant retracted his confession at trial, testified that he did not commit the alleged offenses, and suggested that his son had falsely accused him because he was angry about being punished for his misconduct at school. A defense social worker also testified that appellant does not fit the profile of a pedophile. The jury was the exclusive judge of the credibility of the witnesses and the weight to give their testimony. Castellano v. State, 810 S.W.2d 800, 807 (Tex. App.--Austin 1991, no pet.); Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). After considering all the testimony, for both the prosecution and the defense, we do not find the guilty verdicts to be so against the great weight of the evidence as to be clearly wrong or unjust. Point of error two is overruled.
Finally, appellant urges that his confession was the involuntary product of a polygraph examination, and that its admission in evidence violated his rights to due process and due course of law. See U. S. Const. amend. XIV; Tex. Const. art. I, § 19; Tex. Code Crim. Proc. art. 38.23(a) (West Supp. 1999). The relevant facts are undisputed. We review the district court's application of law to the facts de novo. See Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999).
When first interviewed by the police, appellant denied having sexual contact with his son. Appellant agreed to take a polygraph examination, and did so on July 30, 1997. Before the exam was administered, appellant was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). At the conclusion of the polygraph exam, appellant was told by the examiner that the results indicated he was being deceptive. At this point, appellant admitted a single act of sexual assault, the polygraph examiner left the room, and appellant was questioned further by the investigating officer. After again being advised of his Miranda rights, appellant gave the written confession summarized previously.
Appellant correctly points out that polygraph examinations are considered unreliable and their results are not admissible in evidence. See United States v. Scheffer, 523 U.S. ___, 140 L. Ed. 2d 413 (1998). It is appellant's argument that use of a polygraph examination as an interview technique renders any subsequent inculpatory statement involuntary and inadmissible. Appellant asserts that the "pressure of being told that he was deceptive on the examination" caused him to "conform[ ] his story to match the allegations" against him.
The Texas Court of Criminal Appeals has held that the use of the polygraph as a means of interrogation does not violate an accused's constitutional rights or render a subsequent confession involuntary. Webb v. State, 291 S.W.2d 331, 334 (Tex. Crim. App. 1956). Appellant cites no authority to the contrary. Appellant asserts that he was compelled to take the polygraph, but this assertion is not supported by the record. There is no evidence that the police used threats or promises either to induce appellant to take the polygraph exam or to give his subsequent confession. The uncontradicted testimony is that appellant made an appointment to take the examination and came to the police substation at the appointed time. There is no evidence that appellant was uncomfortable in any way while at the substation. Although appellant was not under arrest or in custody, he was advised of his rights both before the polygraph exam and before he gave his subsequent statement. After giving the statement, appellant was permitted to leave and go home.
The use of the polygraph examination in this case did not violate appellant's constitutional rights. Telling appellant he was deceptive on the examination did not, in itself, render appellant's subsequent confession involuntary. In the absence of any evidence of coercion, the district court correctly concluded that appellant's confession was voluntary and admissible. Point of error three is overruled.
The judgment of conviction is affirmed.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Kidd and Patterson
Affirmed
Filed: September 10, 1999
Do Not Publish
d that appellant does not fit the profile of a pedophile. The jury was the exclusive judge of the credibility of the witnesses and the weight to give their testimony. Castellano v. State, 810 S.W.2d 800, 807 (Tex. App.--Austin 1991, no pet.); Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). After considering all the testimony, for both the prosecution and the defense, we do not find the guilty verdicts to be so against the great weight of the evidence as to be clearly wrong or unjust. Point of error two is overruled.
Finally, appellant urges that his confession was the involuntary product of a polygraph examination, and that its admission in evidence violated his rights to due process and due course of law. See U. S. Const. amend. XIV; Tex. Const. art. I, § 19; Tex. Code Crim. Proc. art. 38.23(a) (West Supp. 1999). The relevant facts are undisputed. We review the district court's application of law to the facts de novo. See Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999).
When first interviewed by the police, appellant denied having sexual contact with his son. Appellant agreed to take a polygraph examination, and did so on July 30, 1997. Before the exam was administered, appellant was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). At the conclusion of the polygraph exam, appellant was told by the examiner that the results indicated he was being deceptive. At this point, appellant admitted a single act of sexual assault, the polygraph examiner left the room, and appellant was questioned further by the investigating officer. After again being advised of his Miranda rights, appellant gave the written confession summarized previously.
Appellant correctly points out that polygraph examinations are considered unreliable and their results are not admissible in evidence. See United States v. Scheffer, 523 U.S. ___, 140 L. Ed. 2d 413 (1998). It is appellant's argument that use of a polygraph examination as an interview technique renders any subsequent inculpatory statement involuntary and inadmissible. Appellant asserts that the "pressure of being told that he was deceptive on the examination" caused him to "conform[ ] his story to match the allegations" against him.
The Texas Court of Criminal Appeals has held that the use of the polygraph as a means of interrogation does not violate an accused's constitutional rights or render a subsequent confession involuntary. Webb v. State, 291 S.W.2d 331, 334 (Tex. Crim. App. 1956). Appellant cites no authority to the contrary. Appellant asserts that he was compelled to take the polygraph, but this assertion is not supported by the record. There is no evidence that the police used threats or promises either to induce appellant to take the polygraph exam or to give his subsequent confession. The uncontradicted testimony is that appellant made an appointment to take the examination and came to the police substation at the appointed time. There is no evidence that appellant was uncomfortable in any way while at the substation. Although appellant was not under arrest or in custody, he was advised of his rights both before the polygraph exam and before he gave his subsequent statement. After giving the statement, appellant was permitted to leave and go home.
The use of the polygraph examination in this case did not violate appellant's constitutional rights. Telling appellant he was deceptive on the examination did not, in itself, render appellant's subsequent confession involuntary. In the absence of any evidence of coercion, the district court correctly concluded that appellant's confession was voluntary and admissible. Point of error three is overruled.
The judgment of conviction is affirmed.
Marilyn Aboussie, Chief Justice
Before Chief Justice Abo