11th Court of Appeals
Eastland, Texas
Opinion
Gloria Posada-Martinez
Appellant
Vs. No. 11-02-00231-CR -- Appeal from Collin County
State of Texas
Appellee
The jury convicted Gloria Posada-Martinez of recklessly injuring a child and assessed her punishment at confinement for a term of 5 years in the Institutional Division of the Texas Department of Criminal Justice. The jury also imposed a fine of $2,000. Based upon the jury=s recommendation, the trial court suspended the imposition of the confinement portion of the sentence and placed appellant on community supervision for 5 years. Appellant brings 2 issues on appeal, asserting that the trial court should have granted a mistrial when one of the State=s witnesses made reference to a polygraph examination during his trial testimony. We affirm.
Appellant=s conviction arises from the death of her 6-month-old son. The child=s babysitter discovered that the child was extremely ill after appellant dropped off the child with the babysitter. A medical examination of the child revealed that he had been seriously abused. The child subsequently died as a result of the abuse. An autopsy of the child revealed a closed head injury as the cause of death. The police initially identified three possible suspects as the perpetrator of the abuse: (1) appellant; (2) the father of the child (appellant=s boyfriend); and (3) the babysitter. The police subsequently eliminated the father and the babysitter as suspects.
Prior to the commencement of voir dire examination, defense counsel presented a handwritten motion in limine to the prosecutor and the trial court for consideration. The motion sought to prevent the State and its witnesses from making any reference to polygraph examinations at trial. The following discussion occurred at that time with respect to the motion in limine:
[DEFENSE COUNSEL]: With regardsBthere=s also a motion in limine regarding testimony of a polygraph, I would like Your Honor to instructBare we in agreement about that?
[PROSECUTOR]: Yes, I agree with that.
[DEFENSE COUNSEL]: Okay. Sign that. I would like Your Honor to instruct the Prosecutor to instruct all of his witnesses not to mentionBany mention of a polygraph taken by any of the witnesses.
THE COURT: Yes, and it is granted. He=ll agree to that I=m sure.
[DEFENSE COUNSEL]: Here=s the motion with both our signatures agreeing to it.
THE COURT: The witnesses should be admonished, if you think one might be going to do so.
[PROSECUTOR]: Yes, sir.
The motion contained signature lines for defense counsel, the prosecutor, and the trial court, each of whom signed the motion. The statements Aagreed to by defense@ and Aagreed to by state@ preceded the respective signature lines for the defense counsel and the prosecutor.
The mention of a polygraph examination occurred during the direct examination of Oscar Perez, a deputy employed by the Collin County Sheriff=s Office. The State called Deputy Perez as a witness to provide testimony regarding appellant=s behavior and demeanor with respect to the death of her child. Deputy Perez accompanied appellant and the child=s father to Cook=s Children Hospital in Fort Worth so that they could be with the child at the time that he was taken off life support. Deputy Perez referred to a polygraph examination in the following dialogue with the prosecutor:
Q: And did you transport them back to the Collin County Detention Facility?
A: Yes.
Q: During that time, were you able to note the demeanor and discussions between the two?
A: On the way back, she did most of the talking. There was no weeping on either of the two. The gentleman, he was pretty much quiet the whole time. [Appellant] did the majority of the talking. They just pretty much carried on a conversation; but, again, she did the majority of the talking and thenB
Q: Do you know what she was saying?
A: She spoke of how B she asked him if he had failed the polygraph test that B that they had taken.
Upon defense counsel=s objection to Deputy Perez=s testimony, the trial court considered the matter outside of the jury=s presence. Defense counsel argued that the testimony violated the motion in limine and requested a mistrial. Defense counsel also asserted that the testimony had harmed the defense to the extent that an instruction to the jury to disregard the testimony could not cure the harm. The prosecutor responded by arguing that any harm caused by the testimony could be cured by an instruction because the testimony did not reveal the results of the polygraph examination. The prosecutor further asserted that he had instructed all of the witnesses not to mention a polygraph examination and that he did not try to elicit that information from Deputy Perez with his question. The trial court expressed concern during the hearing that an instruction to disregard might unduly emphasize the testimony concerning a polygraph examination. Defense counsel agreed with this concern. The hearing concluded with the trial court informing the parties that it would delay ruling on the matter until the next morning of trial.[1]
The trial court revisited the issue at the beginning of the next day=s proceedings in another hearing conducted outside of the jury=s presence. The State argued that the holding in Richardson v. State, 624 S.W.2d 912 (Tex.Cr.App.1981), applied since there was no testimony regarding the results of a polygraph examination.[2] Relying on Richardson, the State argued that an instruction to disregard would be sufficient to cure the harm created by Deputy Perez=s testimony. The trial court agreed with the State=s contention by overruling the motion for mistrial and instructing the jury to disregard any testimony regarding a polygraph examination.
Both of appellant=s issues on appeal concern the trial court=s denial of her request for a mistrial. The State initially asserts that appellant did not properly preserve error with respect to her request for a mistrial because she did not ask for an instruction to disregard prior to asking for a mistrial. The State also contends that appellant waived her request for a mistrial when defense counsel initially objected to the giving of an instruction to disregard.
Three steps are necessary to preserve error as to an adverse trial court ruling regarding evidence admitted or placed before the jury: (1) a specific, timely objection; (2) a request for an instruction to disregard; and (3) a motion for mistrial. Fuller v. State, 827 S.W.2d 919, 926 (Tex.Cr.App.1992); Lusk v. State, 82 S.W.3d 57, 60 (Tex.App. B Amarillo 2002, pet=n ref=d). To preserve error, the specific objection must be pressed to the point of obtaining an adverse ruling, whether that is a ruling on the objection, the request that the jury be instructed to disregard the evidence, or the motion for mistrial. Fuller v. State, supra at 926; Lusk v. State, supra at 60. As noted in Lusk:
The exact sequencing of the procedural steps is not so critical as is the fact that the movant persists in seeking all available relief from the trial court, until the trial court effectively denies relief to which the movant is entitled. For example, if the objection is overruled, an adverse ruling has been immediately obtained. And, in regard to the sequencing of requests for all available relief, it has been held that the sequence of requesting a mistrial, which request was overruled, followed by requesting an instruction to disregard which was granted was sufficient to preserve error as to the failure to grant a mistrial. (Citations omitted)
Lusk v. State, supra at 60. We find that appellant preserved error because she obtained an adverse ruling on her request for a mistrial.
In her first issue, appellant contends that the trial court erred in denying her motion for mistrial based on the language of the motion in limine.[3] Appellant=s motion in limine contained the following statement: AAny mention by any witness regarding a polograph (sic) examination of anyone in this case would be extremely predjudicial (sic) & inadmissible & would neccessitate (sic) a mistrial.@ Appellant contends that this language in the motion in limine constituted a binding agreement between the parties and the trial court which required the granting of a mistrial if anyone mentioned a polygraph examination at trial.
As noted by Justice Onion in Harnett v. State, 38 S.W.3d 650, 655 (Tex.App. - Austin 2000, pet=n ref=d), no formal provision is made for motions in limine in the Texas Code of Criminal Procedure or elsewhere. A ruling on a motion in limine does not purport to be one on the merits but one regarding the administration of the trial. Harnett v. State, supra at 655. A motion in limine does not preserve error irrespective of whether the motion is granted or denied. Harnett v. State, supra at 655. Traditionally, the remedy for a violation of a ruling on a motion in limine rests within the trial court=s discretion. Brazzell v. State, 481 S.W.2d 130, 131 (Tex.Cr.App.1972). Given the tenuous nature of a motion in limine, we disagree with appellant=s contention that a provision in a motion in limine restricted the remedies which the trial court could impose in the exercise of its discretion for a violation of a limine ruling. Appellant=s first issue is overruled.
In her second issue, appellant contends that the harm created by Deputy Perez=s testimony was such that it could not have been cured by an instruction to disregard and argues that the testimony created the implication that appellant had taken and failed a polygraph examination. Appellant also asserts that the testimony occurred as a result of Abad faith questioning@ by the prosecutor.
Because of their inherent unreliability and tendency to be unduly persuasive, the existence and results of polygraph examinations are inadmissible for any purpose in a criminal proceeding on proper objection. Tennard v. State, 802 S.W.2d 678, 683 (Tex.Cr.App.1990). However, the mere mention of a polygraph examination does not automatically constitute reversible error even if the results of the exam are revealed. See Tennard v. State, supra at 684. When a polygraph exam is mentioned at trial and defense counsel requests a mistrial, the reviewing court must first determine whether the examination results were revealed to the jury. See Tennard v. State, supra at 684. Generally, when a witness mentions that a polygraph test was offered or taken but the results are not revealed, an instruction to disregard is sufficient to cure any error. See Tennard v. State, supra at 684; Richardson v. State, supra at 914-15. However, when the results are revealed to the jury, an instruction to disregard alone is insufficient; and the reviewing court must conduct a harm analysis to determine whether the error merits reversal of the trial court=s judgment. See Tennard v. State, supra at 684.
As noted previously, the challenged portion of Deputy Perez=s testimony was as follows: A[S]he asked him if he had failed the polygraph test that B that they had taken.@ Appellant argues that this statement informed the jury that both she and the child=s father had been administered a polygraph examination. Appellant further contends that the statement revealed the results of her polygraph examination by creating the implication that she must have failed the polygraph examination or else she would not have been prosecuted. We disagree with appellant=s argument that Deputy Perez=s statement revealed the results of her polygraph examination. Under appellant=s analysis, the mere mention of a polygraph examination being administered to a defendant would constitute a statement revealing the results of the examination in every case because the jury would always infer that the defendant failed the examination. We disagree with appellant=s assertion that a jury would always make this blanket inference. Deputy Perez=s statement did nothing more than inform the jury that both appellant and the child=s father had been administered a polygraph examination. Therefore, the trial court=s instruction to disregard the statement was sufficient to cure the harm caused by the statement under Richardson. Richardson v. State, supra at 914-15.
In determining whether the trial court erroneously failed to grant a mistrial, the reviewing court may also consider: (1) whether the questioning party exhibited bad faith by asking a question designed to elicit polygraph evidence and (2) whether polygraph evidence bolstered the State=s case. Buckley v. State, 46 S.W.3d 333, 336‑37 (Tex.App. ‑ Texarkana 2001, pet=n dism=d, untimely filed); Sparks v. State, 820 S.W.2d 924, 927‑28 (Tex.App. ‑ Austin 1991, no pet=n). Appellant contends that Deputy Perez=s testimony about a polygraph examination occurred as a result of a bad-faith questioning by the prosecutor. However, the record does not support this contention. The prosecutor asked Deputy Perez: ADo you know what she was saying?@ Deputy Perez replied: AShe spoke of how B she asked him if he had failed the polygraph test thatBthat they had taken.@ The prosecutor only asked Deputy Perez if he comprehended what appellant stated. He did not ask Deputy Perez to reveal the contents of appellant=s statement. Deputy Perez=s reference to the substance of appellant=s statement was an unresponsive answer to the prosecutor=s question. Furthermore, the prosecutor had a legitimate basis for asking Deputy Perez if he knew what appellant was saying. Deputy Perez based his testimony regarding appellant=s demeanor on conversations between appellant and the child=s father which were conducted in Spanish. The trial court did not abuse its discretion in denying appellant=s request for a mistrial. Appellant=s second issue is overruled.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
March 18, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The testimony by Deputy Perez and the hearing to consider it occurred late in the day.
[2]A[W]here a witness gives an unresponsive answer which mentions a polygraph test but does not mention the results of such test, there is no error in failing to grant a mistrial where the objection has been sustained and the jury instructed to disregard.@ Richardson v. State, supra at 914-15.
[3]The trial court did not enter a separate order granting the motion in limine. Instead, the trial judge simply signed the bottom of the motion in limine on a line labeled AJudge Presiding.@