In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00038-CR
______________________________
LOYD CRAIG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 14,187
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Loyd Craig was romantically involved with three women, Freda Cline, Rosie Brooks, and Shaniqua Darden. Cline was shot while sitting in her car while Craig was present; the vehicle was then set ablaze, incinerating the body; Brooks admitted she shot Cline at Craig's behest; Darden insisted Craig was with her on the day of the homicide. After Brooks admitted shooting Cline, she pled guilty and was sentenced to twenty-five years' imprisonment; she testified Craig planned and directed the murder. Craig appeals his conviction for the murder of Cline after being convicted and sentenced to sixty years' incarceration. We find: 1) the trial court did not err in overruling Craig's Batson (1) challenge to three of the State's peremptory challenges at jury selection; 2) there was sufficient evidence tending to connect Craig to Cline's murder to corroborate accomplice Brooks' testimony; and 3) the trial court did not err in denying Craig's motion for new trial. We affirm the judgment.
I. Batson Challenge
Craig first argues the trial court erred in denying his challenge to the State's use of peremptory strikes on three veniremembers. See id. A Batson challenge generally gives rise to a three-step process. First, the defendant must make a prima facie case that a veniremember was peremptorily excluded on the basis of race. Next, the State must come forward with race-neutral reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's explanations. The burden of persuasion remains with the defendant to prove purposeful discrimination. In Purkett v. Elem, 517 U.S. 765 (1995), the United States Supreme Court explained that "unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006). The trial court determines whether the defendant has carried his or her burden of proving racial discrimination. Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002). The trial court's determination is accorded great deference; we will not overturn the determination unless it is clearly erroneous. Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999).
A. Prima Facie Claims of Racial Discrimination and the State's Responses
Craig told the trial court, "There were three black members on the first two rows, Jerry Tennison, Shirley Hall, and Darrel Todd, and I noticed all three of them got struck." (2) We move to the State's race-neutral explanations for its strikes. (3)
1. Veniremember Tennison
The State inquired whether potential jurors could consider the whole range of punishment, from community supervision to five to ninety-nine years or life in prison. The State said, "Mr. Tennison, you cannot consider it?" The venireman answered, "Yes sir. I just raised it [his hand] slow."
The State told the trial court Tennison "didn't raise his hand to a critical question until I looked at him and then he raised his hand and said I was just late. That indicated to me that he wasn't going to raise his hand to that question because he didn't do it until I specifically turned to him."
Further, the State indicated that, "[H]is actions indicated to me that he wasn't going along with that."
2. Veniremember Hall
Regarding Hall, the State explained its strike as follows:
THE COURT: Okay. What about Ms. Hall?
[State]: Ms. Hall, if you'll recall was the one that all during my voir dire she sat there like you're standing, just like this.
THE COURT: She was cold?
[State]: And -- but during [the defense] voir dire she wasn't.
THE COURT: You warmed her up, Mr. Fetter.
[State]: Whatever, but she opened up to him.
3. Veniremember Todd
The State explained its strike of veniremember Todd:
[State]: Mr. Todd was the one if you'll recall I asked the question about O. J. Simpson and nobody raised their hand, but he was glaring at me and I made the point of going back and saying, if you'll recall I did a follow-up are you sure and I was looking directly at him because of his facial expression. He was mad at [sic] heck at me for even asking that question and that's why he got struck.
The issue for the trial court and the appellate court at this juncture is the facial validity of the explanation given. Purkett, 514 U.S. at 768; Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex. 1997). In evaluating whether the explanation offered is race neutral, a court must determine whether the peremptory challenge violates the Equal Protection Clause as a matter of law, assuming the reasons for the peremptory challenge are true. Goode, 943 S.W.2d at 445. A race-neutral explanation means that the challenge was based on something other than the juror's race. Id. Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral for purposes of the analysis at step two. Id. We do not see a discriminatory intent in the State's three explanations and therefore proceed to the next step.
B. Defense Burden to Show Pretext
Following the State's presentation of its race-neutral reasons for its peremptory strikes, the defendant then bears the burden to convince the trial court that the State's reasons are pretexts for racially discriminatory use of its strikes. The ultimate burden of proof of a Batson violation rests with the defendant. Craig told the trial court,
Mr. Tennison, you know, he might have been slow in raising up but he answered the question the same as everybody else. And Mr. Todd, you know, I don't remember the glaring and all that stuff but -- nobody raised their hand up and thought O. J. was innocent. You know, he didn't affirmatively make any statements or indicate that he disagreed.
Craig did not rebut the State's description of Hall as "cold."
Regarding Tennison, who the State said was late raising his hand to a question about considering the full range of punishment, an inability to consider the full range of punishment is a race-neutral reason for striking a veniremember. Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim. App. 1993); (4) see also Yarbough v. State, 732 S.W.2d 86 (Tex. App.--Dallas 1987), vacated & remanded on other grounds, 761 S.W.2d 17 (Tex. Crim. App. 1988). After asking the general question to the panel if they could consider life imprisonment as a punishment in the proper murder case, the attorney then stated, "Okay. Mr. Tennison you cannot consider it?" which suggests that Tennison either did not raise his hand or as he stated was "slow" to do so. Craig's only answer was that Tennison "answered the question the same as everybody else." However, Tennison's reaction was apparently not the same as everyone else. Even though Tennison did not give an answer indicating that he was hostile to the State, the State did identify Tennison's tardiness in answering that he could consider a life sentence as a specific, objective reaction which the State interpreted as some hesitancy to consider the entire range of punishment. We cannot determine that such an interpretation was unreasonable or without foundation.
As for venireman Todd, the State said he was "mad at [sic] heck" and "glaring" at him when the latter asked the panel whether anyone thought O. J. Simpson was innocent. Lack of eye contact and attentiveness and no development of a back-and-forth relationship during voir dire has been upheld as a race-neutral explanation. Townsend v. State, 730 S.W.2d 24, 26 (Tex. App.--Texarkana 1987, no pet.). So, too, where a potential juror was "very hostile" toward the prosecutor questioning her, as demonstrated by "her facial expression, even body language, with her arms folded and peering." Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993). The State's explanation for striking Todd was race neutral. Craig responded to the State's explanation by saying, "I don't remember the glaring and all that stuff but -- nobody raised their hand up and thought O. J. was innocent. You know, he didn't affirmatively make any statements or indicate that he disagreed." The defendant must do more than simply state his or her disagreement with some of the State's explanations. The defendant must prove affirmatively that the State's race-neutral explanations were a sham or pretext. Webb v. State, 840 S.W.2d 543, 544 (Tex. App.--Dallas 1992, no pet.); Straughter v. State, 801 S.W.2d 607, 613 (Tex. App.--Houston [1st Dist.] 1990, no pet.). As for Craig's statement to the trial court that "nobody raised their hand up and thought O. J. was innocent," there is no further discussion or questioning by either party with any other panel members on this topic.
Statements about the demeanor or appearance of veniremembers must be judged for their credibility by trial courts, whose findings must be reviewed deferentially by appellate courts. Yarborough v. State, 947 S.W.2d 892, 893 (Tex. Crim. App. 1997). Strikes based on claims not easily verifiable through objective proof should be viewed with ''healthy skepticism,'' but, under this view, the skepticism is to be exercised by the trial court, not by the appellate court. Moss v. State, 877 S.W.2d 895, 899 (Tex. App.--Waco 1994, no pet.) (appellate court owes deference to trial court decision, which should be disturbed only if ''clearly erroneous'').
Craig offered no rebuttal to the State's race-neutral explanation for striking veniremember Hall. A party's failure to offer any real rebuttal to a proffered race-neutral explanation can be fatal to his or her claim. Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002); Ford v. State, 1 S.W.3d 691, 694 (Tex. Crim. App. 1999) (defendant failed to rebut State's reason by cross-examining prosecutor or offering rebuttal evidence).
C. Trial Court Not Clearly Erroneous
When reviewing a Batson objection, we examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002). A ruling is clearly erroneous when, after searching the record, we are left with the definite and firm conviction that the trial court has made a mistake. Goldberg v. State, 95 S.W.3d 345, 385 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd); Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.--Dallas 1999, pet. ref'd). The "clearly erroneous" standard "is a highly deferential standard because the trial court is in the best position to determine whether a prosecutor's facially race-neutral explanation for a peremptory strike is genuinely race-neutral." Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). We may not substitute our opinion for the trial court's factual assessment of the neutrality of the State's explanation for exercising strikes, and we focus on the genuineness, rather than the reasonableness, of the State's asserted nonracial motive. Id. at 534 & n.5 (citing Purkett, 514 U.S. 765).
Reviewing the record before us, we find the State presented racially neutral explanations for the three challenged strikes. Based on Craig's limited rebuttals, we are not "left with the definite and firm conviction that the trial court has made a mistake." We overrule Craig's first point of error.
II. Corroboration of Accomplice-Witness Testimony
A conviction cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). While required by neither common law nor our Federal and State Constitutions, Article 38.14's codification reflects the Texas Legislature's determination that accomplice-witness testimony implicating another "should be viewed with some level of caution." Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994); see also Brown v. State, 159 S.W.3d 703, 707 (Tex. App.--Texarkana 2004, pet. ref'd) (discussing covert witness rule of Article 38.141 and its parallels to Article 38.14's accomplice-witness rule). Article 38.14 requires the corroboration of accomplice-witness testimony, but there is no exact rule as to the amount of evidence required for corroboration. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). "All that is required is that there be some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment." Gill, 873 S.W.2d at 48; cf. Jeffery v. State, 169 S.W.3d 439, 448 (Tex. App.--Texarkana 2005, pet. ref'd) (applying similar analysis for corroboration of covert-witness testimony); Brown, 159 S.W.3d at 707-08. Such evidence may be either direct or circumstantial. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).
The test for weighing the sufficiency of corroborating evidence is to eliminate from consideration the accomplice's testimony, and then examine the remaining testimony and evidence to determine if there is evidence that tends to connect the defendant with the commission of the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Reed, 744 S.W.2d at 125; Hall v. State, 161 S.W.3d 142, 149 (Tex. App.--Texarkana 2005, pet. ref'd). The nonaccomplice testimony does not have to directly link the accused to the crime, it alone need not establish guilt beyond a reasonable doubt, and it need not prove all the elements of the alleged offense. Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; Reed, 744 S.W.2d at 126; Jeffery, 169 S.W.3d at 448. The accused's presence at the scene of the crime is, by itself, insufficient to corroborate an accomplice's testimony. However, "evidence that an accused was in the company of the accomplice close to the time of the offense, coupled with other suspicious circumstances, may tend to connect the accused to the offense." Gill, 873 S.W.2d at 49; see also Reed, 744 S.W.2d at 127; Jeffery, 169 S.W.3d at 447; Brown, 159 S.W.3d at 708. Moreover, while evidence that addresses only motive or opportunity to commit the crime is, by itself, insufficient to corroborate the accomplice-witness testimony, motive or opportunity evidence may be considered in conjunction with other evidence tending to connect the accused to the crime. Reed, 744 S.W.2d at 127. "Cumulative evidence of 'suspicious circumstances' may be sufficient even if none of the circumstances would be sufficient individually." Jeffery, 169 S.W.3d at 447; see also Brown, 159 S.W.3d at 708. In the end, every case "must be considered on its own facts and circumstances--on its own merit." Munoz, 853 S.W.2d at 559; see also Reed, 744 S.W.2d at 126.
A. Craig's Accomplice, Rosie Brooks
Cline had been living with Craig until a few days before her death. Brooks testified that, two days before the murder, she met with Craig and "someone had told him that Freda was out to get him and that she was going to make him pay and he had asked me if I would shoot her and I told him that I would." On the day of the murder, Brooks got Craig's truck from him. Craig and Cline were together in a Dodge Intrepid. They all drove to Eric Harper's house, where Craig and Cline sat in Cline's car in Harper's front yard. When Craig and Cline left, Brooks followed; she got the truck stuck, and Craig called Harper, who came and extricated Brooks and the truck. Brooks testified she followed Craig and Cline "through the country" to an area near Mule Deer and Minx Roads; Craig was outside Cline's car, talking to Cline, who was seated in the driver's seat, when she began apologizing for seeing other men. Brooks said that, at Craig's instruction, she got a pistol he had behind his back. When Cline begged Craig to tell Brooks not to shoot her, Craig said it was not up to him, it was up to Brooks. Brooks also said Craig told her that, if she did shoot Cline, to be sure and shoot her in the head. After Brooks shot Cline, Craig then retrieved a jug of gasoline, which Brooks had purchased at Craig's instruction, from the truck and told her to turn the truck around. Craig then poured the gasoline on Cline and her car and set them ablaze. Craig got in the truck with Brooks, and they left.
Brooks acknowledged that, in her first statement to law enforcement officers, she stated Craig was not with her at the time of the murder.
B. Nonaccomplice Testimony
Setting aside Brooks' testimony, we now consider only other evidence which tends to connect Craig to Cline's murder. Harper testified that, on the night now identified as the night of the murder, Craig pulled into Harper's front yard in a vehicle that looked like Cline's Dodge Intrepid. There was another person in the car with Craig, but Harper could not tell the person's race or gender. Harper said Brooks parked in his yard Craig's blue Chevrolet truck she was driving. When the two vehicles and their occupants then drove away from Harper's residence, Brooks got stuck; Craig called Harper, and he came out and helped get the vehicle out. Cell phone records verify that several calls from Craig's phone were made to Harper's phone on the night of the murder. These incidents corroborate Brooks' testimony and tend to connect Craig to the events preceding the murder.
A few days later, Harper received a call from Craig asking him to meet with Craig at Craig's mother's house. Craig asked Harper if he had heard what happened, to which Harper replied, "I think so." Craig then told him "it" had happened that night, when Brooks and Craig were in the two vehicles in Harper's yard. From the context of the questioning and testimony of this portion of the reporter's record, "it" refers to the death of Cline. Harper said Craig told him the police might come talk to Harper, and Craig had forgotten to tell the police he had been at Harper's house the night of the murder. Craig told Harper that, if Harper told police Craig had been to Harper's house that night, Craig would have to tell police he had forgotten to tell them he had been to Harper's. Harper testified he got nervous and left.
In his written statement, Craig maintained he was with Darden at all times during the night of the murder. However, in an oral statement given to investigators, and received in evidence, Craig admitted he and Brooks drove up and down Mule Deer Road where Cline's burned car and remains were found. Darden, at one time, told police Craig instructed her to tell them he was with her all day on the day of the murder. (5) The State also introduced evidence Craig had dialed Cline's cell phone 111 times the day before the murder and only four times on the day of the murder (all four occurring before 10:00 a.m.). Evidence that an accused was in the company of the accomplice close to the time of the offense, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Gill, 873 S.W.2d at 49.
There was sufficient evidence tending to connect Craig to Cline's murder; we overrule this point of error.
III. Motion for New Trial, Claiming Newly Discovered Evidence
Craig's third point of error claims the trial court erroneously denied Craig's motion for new trial.
Article 40.001 of the Texas Code of Criminal Procedure provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006). Under that statute, a defendant is entitled to have his or her motion for new trial granted if (1) the newly discovered evidence was unknown to the defendant at the time of trial; (2) the failure to discover the new evidence was not due to the defendant's lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002).
Not only does the decision to grant or deny such a motion fall within the sound discretion of the trial court, subject to reversal only on a finding of an abuse of that discretion, but these motions are generally disfavored by the courts and viewed with great caution. Fox v. State, 175 S.W.3d 475, 484 (Tex. App.--Texarkana 2005, pet. ref'd).
Craig's amended motion for new trial claimed entitlement to relief because a newly discovered letter, purportedly from accomplice Brooks to Craig's sister, implicated some other unknown male and said Craig was not involved. In the letter, Brooks denied responsibility for Cline's murder and said she was just at the scene and saw the murder. At the hearing, Craig's sister Teresa Walton said she had received a letter from Brooks sometime in 2004, but put it in a plastic bag with her other mail to be sorted later. She could not find it in time for trial, but did find it in time for the hearing on the motion for new trial. (6) At the hearing, both Walton and Craig's other sister, Pamela Allen, testified they were aware of the contents of the letter and had told both Craig and his trial attorney of the letter and its contents, prior to the trial. This is fatal to Craig's appellate point of error, as the new evidence relied on for a new trial must have been unknown to the defendant at trial. See id. at 485. While we do not address whether the letter was admissible, we point out that it would at most be available for the purpose of impeaching Brooks' trial testimony.
Further, even if the letter had been admitted into evidence at trial, it would be reasonable for the trial court to conclude it was not probable that such evidence would bring about a different result. Undisputedly, Brooks at one time made statements that absolved Craig from all responsibility for the murder and later changed her statement. Even if this letter was found to be authentic, it would have added little to Brooks' previous testimony that Craig was not even present when the murder was committed. That testimony was already before the jury, and Brooks' credibility was thoroughly examined at the trial for this very reason. We overrule this point of error.
We affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: December 4, 2007
Date Decided: January 10, 2008
Do Not Publish
1. Batson v. Kentucky, 476 U.S. 79 (1986).
2. The record is not clear regarding Craig's race. The United States Supreme Court held in
Powers v. Ohio, 499 U.S. 400 (1991), that, under the Fourteenth Amendment, "a criminal defendant
may object to race-based exclusions of jurors effected through peremptory challenges whether or not
the defendant and the excluded juror share the same race." Therefore, the race of a defendant is
irrelevant to a Batson challenge. Id. at 402; Cook v. State, 858 S.W.2d 467, 471 (Tex. Crim. App.
1993) 3. 4. Further, a prospective juror's inability to understand relevant legal concepts provides a
race-neutral explanation for exercising a peremptory strike. See Chiles v. State, 57 S.W.3d 512,
516-17 (Tex. App.--Waco 2001, pet. dism'd, untimely filed) (recognizing that prospective juror's
inability to understand the concepts of insanity defense and single-witness testimony constituted
race-neutral reason); Williams v. State, 939 S.W.2d 703, 706-07 (Tex. App.--Eastland 1997, no
pet.) (recognizing that prospective juror's inability to understand concept of "beyond a reasonable
doubt" constituted race-neutral reason).
5. 6.
ustify;text-justify:inter-ideograph; mso-pagination:widow-orphan'>
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00038-CR
______________________________
CALVIN WAYNE BURNHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 123rd Judicial District Court
Panola County, Texas
Trial Court No. 2005-C-0001
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Calvin Wayne Burnham was charged with four counts of aggravated sexual assault and four counts of indecency with a child, his stepdaughter.[1] Pursuant to a plea of guilty on all counts, he was placed on deferred adjudication community supervision for a period of ten years. Burnham appeals the trial courts subsequent revocation of community supervision, adjudication of guilt, and resulting sentence of fifty years imprisonment for each aggravated sexual assault and twenty years imprisonment for each count of indecency with a child. He claims that the trial court erred in considering evidence resulting from a polygraph examination, erred in adjudicating the Appellant guilty based on evidence received at a hearing that had occurred over seven months earlier, and that the evidence was insufficient to demonstrate he violated a condition of his community supervision. We affirm the trial courts judgment.
I. Standard of Review
The determination of an adjudication of guilt is reviewable in the same manner as that used to determine whether sufficient evidence supported the trial courts decision to revoke community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2010). While the decision to revoke community supervision rests within the discretion of the trial court, it is not absolute. In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.Texarkana 2003, no pet.). To revoke community supervision, the State must prove every element of at least one ground for revocation by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 42.12, § 10 (Vernon Supp. 2010); T.R.S., 115 S.W.3d at 320; Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.Houston [1st Dist.] 1997, no pet.). Preponderance of the evidence has been defined as the greater weight and degree of credible testimony. T.R.S., 115 S.W.3d at 320.
In a revocation hearing, the trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given to the testimony. T.R.S., 115 S.W.3d at 321; Lee v. State, 952 S.W.2d 894, 897 (Tex. App.Dallas 1997, no pet.); Johnson, 943 S.W.2d at 85. The judge may accept or reject any or all of a witnesss testimony. T.R.S., 115 S.W.3d at 321 (citing Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987)). Considering the unique nature of a revocation hearing and the trial courts broad discretion in the proceedings, the general standards for reviewing sufficiency do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.Texarkana 2003, pet. refd). Instead, we review the trial courts decision regarding community supervision revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial courts order. T.R.S., 115 S.W.3d at 321; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Pierce, 113 S.W.3d at 436. If the States proof is sufficient to prove any one of the alleged community supervision violations, the revocation should be affirmed. T.R.S., 115 S.W.3d at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.Texarkana 1995, pet. refd)); Pierce, 113 S.W.3d at 436.
II. Court Could Consider Evidence from Hearing on First Motion to Adjudicate Guilt
As a preliminary matter, Burnham complains that the trial court improperly considered evidence from a hearing on the States first amended motion to adjudicate guilt, in which his competency was timely questioned. At the beginning of the hearing, the trial court appointed Dr. Frank S. Murphy to examine Burnham. Due to the requested competency examination, Burnhams counsel told the court he would not be able to go forward today and requested a continuance of the hearing. The trial court granted the continuance, but allowed Kelly B. Hendricks, the polygraph examiner, to testify because he had travelled 180 miles to attend the hearing scheduled that day. Counsel was allowed to reserve objections to the testimony. After the hearing, Dr. Murphy concluded that Burnham was competent, but recommended treatment for bipolar disorder, prompting agreement between Burnham and the State to reset the hearing for a status evaluation at a later date. Prior to the status evaluation, the State filed a second amended motion to adjudicate guilt.
Burnham argues that the trial court erred in considering Hendricks testimony during the hearing on the first motion to adjudicate, before resolving competency issues. To support his argument, Burnham cites Rogers v. State. 640 S.W.2d 248 (Tex. Crim. App. [Panel Op.] 1981). In Rogers, the court found the trial court was without authority to subsequently revoke community supervision in the absence of allegations or proof of subsequent violations where it had previously decided to continue the defendant upon community supervision. Id. at 252 (op. on rehg); Rains v. State, 678 S.W.2d 308 (Tex. App.Fort Worth 1984, pet. refd) (same). In other words, in the absence of other allegations, a trial court cannot simply change its mind and revoke community supervision once it has decided not to do so. Here, because the revocation hearing was reset pursuant to agreement, and the second amended motion to revoke contained new allegations, Rogers does not apply. Bersuch v. State, 304 S.W.3d 547, 548 (Tex. App.Waco 2009, pet. refd).
Instead, the Texas Court of Criminal Appeals has held that in a second revocation hearing, a trial judge may take judicial notice of evidence obtained in a prior revocation proceeding, provided that he presided over both hearings. Torres v. State, 595 S.W.2d 537 (Tex. Crim. App. [Panel Op.] 1980); see Cisneros v. State, 697 S.W.2d 718, 720 (Tex. App.Corpus Christi 1985, no pet.). The same trial judge presided over both motions to adjudicate guilt. Thus, the trial court did not err in considering evidence obtained at the hearing on the first amended motion when adjudicating guilt based on the States second amended motion.
III. Polygraph Results Are Inadmissible
Because of their inherent unreliability and tendency to be unduly persuasive, Burnham is correct in reciting the rule that polygraph examination results are inadmissible for any purpose in a criminal proceeding on proper objection. See Shiflet v. State, 732 S.W.2d 622, 630 (Tex. Crim. App. 1985).
There is a question of whether Burnham failed to preserve the point of error. Jasso v. State, 112 S.W.3d 805, 81314 (Tex. App.Houston [14th Dist.] 2003, pet. refd). We note that Hendricks was allowed to testify with the courts condition that counsel was able to reserve objections. When Burnhams counsel specifically objected to the admissibility of the polygraph results, the trial court stated, Again, Im just giving you, Counsel, an opportunity to see what hes going to say. . . . . You can reserve your objections. . . . . And Ill note it, and you can be subject to making objections at a later time. The results were received at this time just for the limited purpose of [Hendricks] testimony.
At the conclusion of the hearing on the second amended motion to adjudicate guilt, in which the State did not offer the polygraph results, Burnhams counsel asked to file a brief with the court addressing concerns that the second amended motion contained allegations not heard at the hearing. The judge referenced Hendricks testimony and pointed out that he had heard nothing at the beginning of this that we were having any objection to that evidence coming in. He further stated, I was satisfied, since I havent heard anything to the opposite, about the polygraph that was administered and the admissions he made subsequent to that. It is unclear whether the court treated the results of the polygraph as admitted, and whether it treated counsels request to file a brief as an objection to the results.
Nevertheless, even assuming that the court erroneously admitted the polygraph results over proper objection, because we hold below that the evidence was sufficient to demonstrate violation of at least one condition of community supervision, Burnham was not harmed by its admission. See Tex. R. App. P. 44.2(b); Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006).
IV. Sufficient Evidence Supported the Trial Courts Judgment
The States second amended motion to adjudicate guilt claimed that Burnham violated the following conditions of community supervision requiring him to: maintain suitable employment; pay an assessed $1,336.00 fine at a rate of $15.00 per month; pay community supervision fees of $50.00 each month; submit to sex offender treatment; and commit to sex offender registration requirements.
At the hearing on the second amended motion to adjudicate guilt, administrative deputy Heather Green testified that although Burnham was required to report any change in job status [n]ot later than the 7th day after the date of the change, he failed to do so. Shelby and Panola County community supervision officer Heather Brown stated Burnham was laid off on December 3, 2008, and failed to provide income verification until November 2, 2009, indicating Burnham had not worked in almost a year.[2] She claimed Burnham was absent from sex offender treatment meetings.[3] Brown also testified Burnham had failed to pay fines and community supervision fees pursuant to the courts order. Without objection, the State admitted documentation of Burnhams failure to pay, showing arrearages in each case of between $75.00$185.00, totaling $1,140.00, and administrative notes suggesting Burnham was sent several failure to pay notices.[4]
Most importantly, the State also claimed that Burnham violated the conditions of community supervision requiring him to: avoid injurious or vicious habits, including abstaining from the possession or use of all intoxicating beverages and all unlawful possession of alcohol; refrain from frequenting places where pornographic materials are sold; refrain from possessing recorded materials for the purpose of deviant sexual arousal; avoid contact with the victims family; and stay 500 feet from any school.
[T]he result of a polygraph examination is the conclusion based on the machines graphic indications as to whether the defendant was lying or telling the truth. Marcum v. State, 983 S.W.2d 762, 766 (Tex. App.Houston [14th Dist.] 1998, pet. refd) (citing Castillo v. State, 739 S.W.2d 280, 293 (Tex. Crim. App. 1987)). Statements made to a polygraph examiner during such an examination are generally admissible.[5] Id.; Harty v. State, 229 S.W.3d 849, 851 n.2 (Tex. App.Texarkana 2007, pet. refd); see Shiflet, 732 S.W.2d at 623 (statements against interest made while not in custody admissible).
Hendricks testified that Burnham made several pre-test and post-test admissions. Specifically, he admitted to: consuming wine at Olive Garden, viewing cell phone instant message image photos of girls sending pictures of their breasts and vaginas . . . about 20 to 30 times; frequenting several area gas stations or convenience stores that display pornography; and visiting his brothers house in the evening when school is out because his brothers house is within 500 feet of a school. The examiner testified Burnham shop[ped] at the grocery store where the victims grandmother is the manager, but denied speaking with her. Burnham also claim[ed] that he ha[d] a prescription for Hydrocodone, and admit[ted] possession of crystal methamphetamine when he poured his dads crystal methamphetamine out on the ground once whenever he was trying to help his dad get off crystal meth.
The admissions to Hendricks were sufficient for the trial court to find, in its discretion as sole fact-finder, that Burnham violated at least one condition of his community supervision by a preponderance of the evidence. See T.R.S., 115 S.W.3d at 321. Thus, we affirm the revocation and adjudication of guilt. Id.
V. Conclusion
We affirm the trial courts judgment.
Bailey C. Moseley
Justice
Date Submitted: December 14, 2010
Date Decided: December 15, 2010
Do Not Publish
OPINION ON REHEARING
In the above-captioned case, we affirmed Calvin Wayne Burnhams conviction of four counts of aggravated sexual assault and four counts of indecency with a child, his stepdaughter.[6] Burnham has moved that we rehear the matter, alleging that the State violated Article 42.12, Section 21(b) of the Texas Code of Criminal Procedure in amending its motion to adjudicate guilt after the commencement of taking evidence at the hearing.[7] Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 2010).
To recapitulate, the State filed its first amended[8] motion to adjudicate guilt on May 13, 2009. Among other allegations, the first amended motion alleged Burnham violated conditions of community supervision requiring him to: avoid injurious or vicious habits, including abstaining from the possession or use of all intoxicating beverages and all unlawful possession of alcohol; refrain from frequenting places where pornographic materials are sold; refrain from possessing recorded materials for the purpose of deviant sexual arousal; avoid contact with the victims family; and stay 500 feet from any school. The first amended motion to adjudicate stated that Burnham admitted to polygraph examiner Kelly B. Hendricks that he had: (1) consumed alcohol at an Olive Garden restaurant; (2) possessed methamphetamine; (3) stopped at a grocery store where the victims grandmother worked; (4) gone into gas stations and convenience stores that displayed pornography; (5) reviewed cell phone instant message photos of breasts and vaginas 20 to 30 times; (6) visited his brothers home, which was within 500 feet of a local school; and (7) ingested Hydrocodone, although he had previously reported to his community supervision officer that he was not taking any medications.
At the hearing on the first amended motion to adjudicate guilt on May 29, 2009, Burnhams counsel raised issues of competency, and the trial court appointed Dr. Frank S. Murphy to examine Burnham. The trial court granted a request for continuance made by Burnhams counsel, but allowed the polygraph examiner to testify because he had travelled 180 miles to attend the hearing scheduled that day. Counsel was allowed to reserve objections to the testimony. Dr. Murphy concluded Burnham was competent, but recommended treatment for bipolar disorder. At a setting on August 21, 2009, Burnham and the State agreed to reset the hearing for a status evaluation at a later date due to Burnhams mental health issues, and the trial court was not asked to exercise its discretion to rule on the first amended motion.[9] Prior to the status evaluation, the State filed a second amended motion to adjudicate guilt, adding a single allegation that Burnham failed to remain at his residence for the duration of Halloween night, as required by his Halloween 2009 Guidelines Contract made a part of his conditions of community supervision.
Article 42.12, Section 21(b) of the Texas Code of Criminal Procedure states that in no event may the state amend the motion after the commencement of taking evidence at the hearing. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b). Burnham complains on rehearing that the State violated Section 21(b). However, in order for Burnham to have preserved this error for our review, he was required to lodge a timely, specific objection in front of the trial court. Tex. R. App. P. 33.1; Rogers, 640 S.W.2d at 263 (op. on second rehg); see Burns v. State, 835 S.W.2d 733, 735 (Tex. App.Corpus Christi 1992, pet. refd).[10] We find this was not done.
During the January 2010 hearing on the States second amended motion to adjudicate guilt, Burnhams attorney Clement Dunn announced ready on Burnhams behalf. After evidence was presented and concluded, the following transpired:
MR. DUNN: Your Honor, Im going to make an unusual request, if I may. Before the Court makes a decision on adjudication, would the Court be willing to entertain a brief that we would submit?
THE COURT: Well, I dont see what -- from the evidence Ive heard this morning, is there something you need to point out to me?
MR. DUNN: Well, there are several things that I would point out. And quite frankly, to do the best job, perhaps to be of most service to the Court, I would like a little bit of time to research a little bit of case law and be able to --
THE COURT: Well, what kind of --
MR. DUNN: -- be able to articulate some of these points a little better than I can right now.
. . . .
MR. DUNN: . . . . My concern focuses, Your Honor, in part on coming into court today and having a hearing on what is styled, I believe, a second amended motion, which was filed November 2nd of 2009 and, within that motion, there are allegations that were not heard today. There were previous hearings that occurred before this motion was filed.
THE COURT: There certainly was. I agree. I recall it. I was here. There was a polygraph expert here that gave him a polygraph back in, I guess, May of last year that testified as to points 1 through, I guess -- what was it Mr. Davidson?
. . . .
THE COURT: I think it was probably about five or six . . . . I know you werent benefit of that, but I have heard nothing at the beginning of this that we were having any objection to that evidence coming in. And of course, it was in under previous counsel.
And then, of course, to be frank with you, I think the State was trying their best to try to help your client out in giving him another chance and getting some counseling for this. . . .
THE COURT: . . . . I was satisfied, since I havent heard anything to the opposite, about the polygraph that was administered and the admissions he made subsequent to that. . . . Im going to go ahead and pronounce judgment today. . . .
The court then advised if you point out something that we need to address on guilt-innocence, then Ill be glad to reconsider that. Dunn replied, Your Honor, I appreciate the opportunity. With that understanding for appellate purposes if we ever get to that point, I might say that Ill defer any objections and advise the Court of those in the next few days, if thats acceptable. No objections, briefs, or motions regarding Section 21(b) were filed.
During Burnhams sentencing, the court inquired, Do you have anything to say at this time why the sentence should not be pronounced against you? Dunn replied, We do not, Your Honor.
The purpose of requiring timely, specific objections is to apprise the trial court of a partys complaint and thereby afford the court an opportunity to rule at a time when the error could have been avoided or corrected by the trial court. See Gibson v. State, 726 S.W.2d 129, 131 (Tex. Crim. App. 1987). After receiving the second amended motion to adjudicate guilt, Burnham did not file a motion to quash or otherwise complain to the trial court that the State could not amend its motion because evidence had already been received. Burnham also voiced no objection at the beginning of the hearing. Instead, he announced that he was ready to proceed, evidence was heard, and the parties rested before any complaint was voiced. Burnhams objection was too general to raise the issue of a Section 21(b) violation to the trial court. Rather, it appears that the trial court interpreted it as a complaint on the sufficiency of the evidence presented at the hearing on the second motion to adjudicate guilt. Thus, the record does not demonstrate an express or implied ruling by the trial court finding that the State did not violate Section 21(b) so that we can review the matter. Also, Burnham did not file a motion to arrest judgment or complain about the trial courts procedure in a motion for new trial. Therefore, we find Burnhams main complaint in his motion for rehearing was not preserved. It is overruled.[11]
We deny the motion for rehearing.
Bailey C. Moseley
Justice
Date: January 26, 2011
Do Not Publish
[1]Burnham appeals from this cause number and judgments entered in cause numbers 06-10-00039-CR through 06-10-00045-CR.
[2]Burnham argues that his condition of community supervision did not require him to maintain suitable employment if searching for a job. The condition required him to [m]aintain suitable employment or educational/vocational status; [i]f unemployed and not a student, comply with the instructions of the Supervision Officer concerning employment search, education or training, including providing documentation of such activities. Though the officer testified Burnham had tried to find employment, the court was free to conclude his one-year hiatus from employment of any sort constituted noncompliance with the condition.
[3]After Brown testified without objection that Burnham failed to attend sex offender treatment classes, she was asked what dates he failed to attend. Because Brown referred to the records to determine these dates, Burnham lodged a hearsay objection for lack of direct knowledge.
[4]Burnham argues that the trial court failed to establish that he was able to pay the fines and fees. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2010). The record demonstrates Burnham was indigent and was unemployed until November 2009.
[5]Burnhams counsel objected to any statements that were made to the examiner, although the basis for the objection was not stated. He further lodged an objection that the examiners total testimony [w]as a violation of Article 38.22. However, because submission to a polygraph examination pursuant to conditions of community supervision is not a custodial interrogation, Article 38.22 does not apply. Marcum, 983 S.W.2d at 766.
[6]Burnham appealed from this cause number and judgments entered in cause numbers 06-10-00039-CR through 06-10-00045-CR.
[7]Burnham discussed Section 21(b) in reference to his point of error by emphasizing that the trial court erred in adjudicating the Appellant guilty based on evidence received at a hearing that had occurred over seven months earlier. He argued that because the court should not have considered the polygraph examiners testimony, there was no evidence introduced on these matters during the hearing on the second amended motion to adjudicate, and the additional allegation contained within the second amended motion to adjudicate guilt should not have been considered, Burnham should not have been adjudicated guilty. We disposed of this point of error in our original opinion by holding that the trial court could consider evidence from the previous hearing. Burnham now places emphasis on the filing of the intervening motion to adjudicate guilt. On rehearing, we address Burnhams failure to preserve error on this specific Section 21(b) objection.
[8]An original motion to adjudicate guilt was filed on April 3, 2009.
[9]Burnham also asks the Court to re-evaluate his point of error complaining that the trial court erred in continuing, and then subsequently revoking, Burnhams community supervision. He cites the rule that a trial court is without authority to later revoke community supervision in the absence of allegations or proof of subsequent violations where it had previously decided to continue the defendant on community supervision. Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. [Panel Op.] 1981); Rains v. State, 678 S.W.2d 308 (Tex. App.Fort Worth 1984, pet. refd). We pointed out, in our original opinion, that the first amended motion to adjudicate guilt was reset pursuant to agreement, and the trial court was not asked to exercise its discretion to make a finding as to whether Burnham violated his community supervision. We also stated that because the second amended motion to adjudicate guilt contained new allegations, Burnhams cited cases did not apply. Bersuch v. State, 304 S.W.3d 547, 548 (Tex. App.Waco 2009, pet. refd).
[10]See also Falana v. State, No. 02-07-00065-CR, 2007 WL 4292390, at *4 n.7 (Tex. App.Fort Worth Dec. 6, 2007, no pet.) (not designated for publication) (citing Anderson v. State, Nos. 05-00-01700-CR, 05-00-01701-CR, 05-00-01702-CR, 2001 WL 1346309, at *2 (Tex. App.Dallas Nov. 2, 2001, no pet.) (not designated for publication)); Brietzke v. State, No. 04-99-00518-CR, 2000 WL 682564, at *2 (Tex. App.San Antonio May 17, 2000, no pet.) (not designated for publication); Peña v. State, No. 04-98-00546-CR, 1999 WL 107068, at *2 (Tex. App.San Antonio Mar. 3, 1999, pet. refd) (not designated for publication). Although these unpublished cases have no precedential value, we may take guidance from them as an aid in developing reasoning that may be employed. Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.Amarillo 2003, pet. refd).
[11]Moreover, the rationale for Section 21(b) is to prevent the State from adding new or different grounds for revocation as a result of evidence adduced at the hearing on that particular motion. Washington v. State, 731 S.W.2d 648, 649 (Tex. App.Houston [1st Dist.] 1987, no pet.); Johnson v. State, 633 S.W.2d 687, 689 (Tex. App.Amarillo 1982, pet. refd)). Even if this Court had concluded that error was preserved, we would next determine it was harmless. OHara v. State, 626 S.W.2d 32, 35 (Tex. Crim. App. [Panel Op.] 1981). Both the first and second motions to adjudicate were based upon the same admissions made by Burnham to Hendricks. The only additional allegation in the second amended motion to adjudicate revolved around Burnhams failure to remain in his home on the night of October 31, 2009. This occurrence took place several months after Hendricks testimony. Thus, the States amended motion was not based upon evidence adduced at the revocation hearing where Hendricks testified. Thus, any error would have been harmless.