Stanton, Luke

/Y{2'M ORIGINAL
NO. PD-1482-14

NO. PD-1483-14
RECESVEDS'M
COURT OF CRMmAPPALS
NO. PD-iJ484--14
JAN 30 2015
IN THE

COURT OF CRIMINAL APPEALS OF TEXAS .'*

LUKE ADAM STANTON/ SR./ Appellant/Petitioner FILED IN
COURT OF CRIMINAL APPEALS

THE STATE OF TEXAS/ Appellee/Respondent JAN <3 l<~ -
Abel Acosta, Cierk
ON DISCRETIONARY REVIEW FROM THE

EIGHTH DISTRICT COURT OF APPEALS

EL PASO/ TEXAS

CAUSE NO. 08-12-00293-CR/ 08-12-00294-CR/ AND 08-12-00295-GR

FROM APPEAL FROM THE 211th JUDICIAL DISTRICT COURT

DENTON COUNTY/ TEXAS

CAUSE NO. F-2011-1911-C/ F-2011-1912-C/ AND F-2011-1913-C

PETITION; FOR.DISCRETIONARY REVIEW

LUKE STANTON #1830011
TDcg - Michael unit
2664 FM 2054
TN. COLONY/ TEXAS 75886

Appellant/Petitioner

ORAL ARGUMENT IS REQUESTED
 TABLE OF CONTENTS
Page

INDEX OF AUTHORITIES ii

INDEX OF AUTHORITIES (Cont.) iii
Constitution Provisions

Rules of Evid.

In the Record

STATEMENT REGARDING ORAL,ARGUMENT 1

STATEMENT REGARDING CASE 2

STATEMENT OF PROCEDURAL HISTORY 3

QUESTIONS PRESENTED FOR REVIEW 3

1. Did the EIGHTH District Court of Appeals error in its opinion
that the trial court did not abuse its discretion by excluding
evidence under Brayd/ that the polygraph Test questions are
not evidence/ even after the State "Opened the Door" to reli
able and relevant evidence. (RR4: 174-175)

2. Did the EIGHTH District Court of Appeals error in its opinion
that the trial court did not abuse its discretion.under Rules
of Evidence/ by excluding Investigator Toby Crow's expert
opinion testimony/ when the Polygraphia Examination and their
Results could be basis of the experts opinion.(RR4:174-175)

ARGUMENT 3

Question No. ONE 4

Factual Background 4
Argument and Authorities 4

Question No. TWO 9
Factual Background 9
Argument and Authorities 10

PRAYER FOR RELIEF 14

CERTIFICATE OF SERVICE 14

APENDIX

Eighth District Court of Appeals (October 10/2014) JUDGMENT "A"
Eighth District Court of Appeals (October 10,2014) OPINION "B"
 INDEX OF AUTHORITIES
Page

Brady v. Maryland/ 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) 7,8
Brecht v. Abrahamson, 507 ,U.S. 619, 113 S.Ct. 1710 (1993) .9
Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, (;l:993.):..i... 10,11
Davis v. State, 329 S.W.3d 798, 813-14 (Tex.Crim.App 2010) 12
Decker v. State, 717 S.W.2d 903, 908 (Tex.Crim.App. 1983) 5
Eddings v. Oklahoma, 455 U.S. 104, 102S.Ct. 869 (1982) 5
E.I. duPont de Nemours & Co. v. Robinson, 923 S.W.2d549 (Tex. 1995) 12
General Electrict Co. v. Joiner, 522 U.S. 136,143,.118 S.Ct. 512 (1997) 11
Hartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997) 11
Hernandez v. State, 60 S.W.3d 106 (Tex.Crim.App. 2001) 5
Homes v. South Carolina, 547 I.S. 319,324; 126 S.Ct. 1727 (2006) 13
Hoppes v. State, 725 S.W.2d 536 (FIRST District Court of Appeals) 5
Johnson v. State, 743 S.W.2d 307,309 (Tex.App.-San Antonio 1987) 5
Kelly v. State, 824 S.W.2d 568,572 (Tex.Crim.App. 1992) 11,12
King v. State, 953 S.W.2d 266,271. (Tex.Crim.App. 1997) 3
Kotteakos v. U.S., 328 U.S. 750,776; 66 S.Ct. 1239,1557,1572 (1946) 3
Kyles v. Whitley 514 U.S. 419, 433-34; 115 S.Ct. 1555, 1565-66 (1995) 8
Leonard v. State/ 385 S.W.3d 570/572 (Tex.Crim.App. 2012) 8
2012 Tex.Crim.App. LEXIS 477 at *5 13
Lockett v. Ohio/. 438 U.S. 586/604; 98 S.Ct. 2954, 2964-65 (1978) 5
Long v. State, 10 S.W.3d 389 ((Tex.App.-Texarkana 1999) 4
Lucas v. State, 479 S.W.2d 314,315 ((Tex.Crim.App. 1972) 6
Mak v. Blodgett, 507 U.S. 951; 113 S.Ct. 1363 (1993) 8,9
Morales v. State, 32 S.W.3d 862.865 (Tex.Crim.App 2000) 12
Nicols v. State, 378 S.W.2d 335,337 (Tex.Crim.App. 1964) 9
Ramey v. State, No. AP-75678, 2009 Tex.Crim.App.LEXIS 124 at *44-45 12
Russean v. State, 291 S.W.3d 426,438 (Tex.Crim.App. 2010) 12
Sauceda v. State, 192 S.W.3d 116,123 (Tex.Crim.App. 2001) 5
Sherman v. State, 20 S.W.3d 96 (Tex.App.-Texarkana 2000) 5
Thomas v. State/ 841 S.W.2d 399 (Tex.Crim.App. 1992) 9
Tillman v. State/ 2011 Tex.Crim.App.LEXIS 1343 13
U.S. v. Bagley/ 473 U.S. 667,682; 105 S.Ct. 3375, 3383-84 (1985) 8
U.S. v. Sipe, 388 F.3d 471 (5th Cir. 2004) 8
Webb v. State, 129 S.W.3d 126,129 (Tex.Crim.App. 2004) 8

li
 INDEX OF AUTHORITIES

(Cont.)
Page

Wood v. Bartholomew, 516 U.S. 1, 10; 116 S.Ct. 7 (1995) 8

Wyrick v. Fields, 459 U.S. 42 (1982) 6

Constitution Provisions

United States Constitution Amendment Fourteenth (14th) 8,9

Rules of Evidence

Tex. R. Evid. 107

Tex. R. Evid. 702 11,12,13

Tex. R. Evid. 703 6,10,12,13

Tex. R. Evid 705 6,10,13

Tex. R. Evid. 705(b) 11

Fed. R. Evid. 702 11

In the Records

Appellant's Brief (Tex.App.) (App.Bf: 4-7) 10

Court Clerk Record ( C.R. )
(C.R. at 10; 119; 212-23; 152-54; 166-68) 2

Court of Appeals Opinion • (COA OPINION: 6-10) 3

Reporters Records ( RR )
(RR2:1)(RR3:1)(RR4:1)(RR5:1)(RR6:1; 30-32)(RR8:13-14; 13-16) 2

(RR4:174-175) 3

(RR2:8) (RR4:167-183; 171-173; 174-175; 177-17S; 183-184) 4,6,9,10

(RR4:185) 5,11

6
(RR4:167)
(RR3:38) (RR4:49) 7

11
(RR4:185)
State's Brief (Tex.App.) (St.Bfi7-8;>9-10; 11) 4,5,9,10,11

APENDIX &

Colirt of Appeals' (October 10, 2014)
08-12-00294-CR 08-12-00295-CR
08-12-00293-CR

in
 NO. PD-1482-14

NO. PD-1483-14

NO. PD-1484-14

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

LUKE ADAM STANTON, SR., Appellant/Petitioner

V.

THE STATE OF TEXAS, Appellee/Respondent

ON DISCRETIONARY REVIEW FROM THE

EIGHTH DISTRICT COURT OF APPEALS

EL PASO, TEXAS

CAUSE NOS. 08-12-00293-CR, 08-12-00294-CR, AND 08-12-00295-CR

FROM APPEAL FROM THE 211th JUDICIAL DISTRICT COURT

DENTON COUNTY, TEXAS

CAUSE NOS. F-2011-1911-C, F-2011-1912-C, AND F-2011-1913-C

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Luke Adam Stanton, Sr., Appellant/Petitioner, Pro se, petitions
the Court of Criminal Appeals to review the decision affirming his
judgment and sentence in Court of Appeals cause numbers: 08-12-
00293-CR, 08-12-00294-CR, and 08-12-00295-CR.

STATEMENT REGARDING ORAL ARGUMENT

Petitioner believes that oral argument would assist the Court
in discerning the applicable caselaw and the pertinent fact. Peti
tioner, therefore, request oral argument.

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 STATEMENT OF THE CASE

This case involves a prosecution for multiple sexual abuse
charges. Luke Adam Stanton, Sr., Petitioner, was indicted on
September 29,2011, and charged with:

(F-2011-1911-C) Count I Sexual Assault (C.R. at 119)
Tex. Penal Code § 22.011(a)(2)(C)
Count 1I-IV. .Indecency' with a Child
Tex. Penal Code § 21.11(a)(1)

(F-2011-1912-C) Count I ..Continuous Sexual Abuse of a
Young Child (C.R. at 10)
Tex. Penal Code § 21.02(b)
Count II-IV...Indecency with a Child
Tex. Penal Code § 21.11(a)(1)

(F-2011-1913-C) Count I Indecency with a Child!:"
Tex. Penal Code § 21.11(a)(1)
(C.R. at 10)

The indictment contained an additional allegation the Petitioner
had been convicted of a Felony Offence of Conspiracy to distrabute
cocain. (8 R.R. at 13-14) '•''•'

A jury trial was conducted on August 20-24, 2012. (2 R.R. at
1);(3 R.R. at 1);(4R.R. at 1);(5R.R. at 1);(6R.R. at 1). The jury
found Petitioner guilty on each counts. (6R.R. at 30-32). And the
jury assessed a punishment of:

(F-2011-1911-C) Count I 15 Years TDCJ
Count II-IV ..15 Yrs each Count consec.

(F-2011-1912-C) Count I ...40 Yrs consec to F-2011-1911-C
Count II-IV ..15 Yrs each Count consec.

(F-2011-1913-C) Count I 10 Yrs consec to F-2011-1912-C
for a total of One Hundred and Fifty Five (155) Years' confinement
in the Institutional Division of the Texas Department of Criminal
Justice System. (8R.R. at 13-16; C.R. at 166-68; 152-54; 121-23)
The trial court imposed sentences on August 24,2012..And,

Appellant/Petitioner filed Notice of Appeal on August 24,2012.

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 STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals for the Eighth District of Texas issued an OPINION
on Friday, October 10,2014. The Court AFFIRMED Petitioner's judgments and
Sentences: STANTON V. STATE

No. 08-12-00293-CR, 2014 Tex.App.LEXIS , (Tex.App.-El Paso 2014)
No. 08-12-00294-CR, 2014 Tex.App.LEXIS , (Tex.App.-El Paso 2014)
No. 08-12-00295-GR, 2014 Tex.App.LEXIS , (Tex.App.-El Paso 2014)

Appellant/Petitioner did not file;/a Motion for Rehearing.

Appellant/Petitioner did timely file a Petition for Discretionary Review,
additionally, filed a Motion for Extension of Time.

QUESTIONS PRESENTED, FOR REVIEW

1) Did the EIGHTH District Court of Appeals error in its opinion that the
trial court did not abuse its discretion by excluding evidence under
Brady, that the Polygraphic test questions are not evidence, even after
the State "opened the door" to reliable and relevant evidence.(RR4:174-75)

2) Did the EIGHTH District Court of Appeals error in its opinion.that the
trial court did not abuse its discretion under Rules of Evidence, by
excluding Investigator Toby Crow's expert opinion testimony, when the
Polygraphic Examination and their.Results could be the basis of the
experts opinion. (RR4:174-175)

ARGUMENT

This case presents two Constitutional questions ripe for review. In over
ruling Petitioner's First point, which concerns Polygraphic Evidence, the Eighth
District Court of Appeals issued a decision that fails to address the most per
tinent factors, and thereby misapplies the relevant standard. In overruling
Petitioner's Second point, which concerns the Investigators expert opinion, as
evidence. These exclusions of evidence are in violation of Petitioner's Consti
tutional Rights, affirming the trial court's decision to allow the State to
present certain evidence. Here, the Eighth District Court of Appeals OPINION
meaningfully discussess only one factor; the polygraph examinations being inad
missible in Texas Criminal Court Procedures. (COA Opinion: 6-10) But does not
address polygraphic evidence to an experts opinion as the Petitioner has below.
Petitioner's substantial right is affected "when the error had a substantial and
injurious effect or influence in determining the jury's verdict." King jV.: State,
953 S.W.23 266,271 (Tex.Crim.App. 1997)(citing Kotteakos v. U.S., 328 U.S. 750,776)

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QUESTION NO. ONE

Did the EIGHTH District Court of Appeals error in its opinion that the
trial court did.not abuse its discretion by excluding evidence under Brady,
that the Polygraphic Test Questions are not evidence, even after the State
"opened the door" to reliable and relevant evidence. (RR4:174-175)

Factual Background

In the brief filed in the Court of Appeals, the State summerized its
argument as follows: NO error is shown in the denial of Appellant's Poly
graph into evidence at trial. And, the door can be opened to such evidence
when a false impression of evidence is 'left..
State's brief in the Court of Appeals, SUMMARY OF THE ARGUMENT, Pg 7-8

The argument presented in support of this summary is:
The error claimed that the polygraph portion was redacted from Appelx
lant's video interview which showed Investigator Crow asking Appellant if
he would take a polygraph test. Thereafter, Appellant wanted to induce the
Polygraphic Evidence that Investigator Crow sought when abandonment of his
investigation, not the polygraphic results. (RR4:171-173)
State's brief, in Court of Appeals, ARGUMENT, Pg 9-10

Ag»#.uitieh"&rari.a:urftiU'fchiotei^t-ie3

It is undisputed during trial Investigator (Inv.) Toby Crow testified about
his 2009 investigation of allegations of improper sexual conduct made by R.B.
and K.B. (RR4:167-183)(St.Bf:9) Appellant's stepdaughters. However, never men
tioned that he requested Appellant to take a polygraph test. But incredibily,.
immediately thereafter the investigation, abandoned his case.

Appellant's contentions, to introduce the questions through Inv. Crow, of
"Appellant's sexual history polygraph - that included all alleged aspects of
the Appellant's sexual behavior and the victims list that accurred prior to the
offenses of convictions".' At the pre-trial hearing, the State filed a motion in
Limine seeking to exclude the polygraph evidence ... the trial court granted the
Motion.(RR2:8)(St.Bf:9) But then, during trial/ the State "opened the door" to
such evidence when Inv. Crow testified on direct "the only thing I had the bene
fit of ... was the testimony of ..., there was no other evidence.."(RR4:183)
Appellant contends that the specific question asked, and the techniques employed
by the polygraph examiner, would demonstrate for the jury exactly how Appellant
answered, particularly "the jury may have been left with the false impression
that Appellant did not answer specific questions [the polygraph test]. Long v.
State, 10 S.W.3d.. 389 (Tex.App.-Texarkana 1999). When the State asked its own

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witness about a prior bad act, the trial court erred in not allowing the defen
dant to cross-examine the witness on details of that bad act. Sherman v. State,

20 S.W.3d 96 (Tex.App.-Texarkana 2000)

Under Tex.R.Evid. i07 - this Court of Criminal Appeals clarified the rule
of optional completeness eight years before Appellant's trial in Sauceda v.
State, 192 S.W.3d 116,123 (Tex.Crim.App. 2004). This Court held: "the plain lan
guage of [Tex.R."of Evid] Rule 107 indicates that in order to be admitted under
the rule, the omitted portion of the statement must be 'on the same subject' and
must be "necessary to make it fully understood.'" Id. In other words, in clear
contradiction to the prosecutors "fear," the polygraph evidence could have been
submitted, it does not show the complainant's made any false allegations in
their statements, and its basis induces the alleged sexual behavior of Appel
lant from the victims list that allegely accurred, such evidence did not auto
matically make the polygraph inadmissible. Notwithstanding, the State, by intro
ducing the subject matter covered by evidence that might be inadmissible under
the exclusionary rule, the party waives any complaint about admission of the
evidence. Hernandez v.. State, 60 S.W.3d 106 (Tex.Crim.App. 2001); Decker v. State,
717 S.W.2d 903,908 (Tex.Crim.App. 1983). Here, in the instant case, Appellant, in
raising the exclusionary rule issue contested the matter before the trial Judge
to seek submission of the polygraph issue to the.jury,(Johnson v. State, 743 S.W.
3d 307,309 (Tex.App. San Antonio 1987, pet ref'd).). However, trial Judge still
ruled, Vl'm going to keep out the polygraph.information."(RR4:185).(St.Bf:11)

In Hoppes, 725- S.W.2d at 536, "Kie;.Fixste;:District Courts©fi Appeals affirmed
the judgment to "the use of specific statements from the polygraph examination
for impeachment purposes was proper and did not open the* door to disclose to ;..
the jury the results of .the examination." Id. at 536. Additionally,/ in Lockett
v. Ohio, 438 U.S. 586,604; 98 S.Ct. 2954, 2964-65; 57 L.Ed.2d 973 (1978); and
Eddinqs v. Oklahoma, 455.U.S. 104; 102 S.Ct. 869; 71 L.ED.2d 1 (1982), under con
trolling United States Supreme Court authority relaxed standards govern the
admission of mitigating evidence in trial. Under these relaxed standards, miti
gating polygraph evidence may be admitted if.(1) the prosecutor can cross-
examine Inv. Crow's expert opinion on the reliability of the results, and (2)
the trial Judge is convinced that Inv. Crow's expert testimony/ to his direct
involvement with the polygraph examiner was qualified and the exam was conducted
under proper conditions.

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 Here, the case at bar, the trial courts heard Inv. Crow's resume as the
expert ^.primary ^investigator" with "Twenty-Seven years" at the Denton County
Sheriff Office as the "GURU" Juvenile investigator in crimes.(RR4:167) There
fore the trial Judge and the State prosecutors knew that their nontesting expert
had sufficient qualifications and reliable data/ as a source normally accepted
in that field of expertise.(Tex.R.Evid. 703 and 705) to testify to the polygraph
evidence. In 2009 Inv. Crow studied and formed an independent opinion into his
investigation/ with the polygraph examiners report and the polygraph test ques
tions before abandonment of his case as agreed upon with the Appellant. As in
Lucas, the State requested defendant to submit to a polygraph exam, made an .:./';
agreement that if he "passed" the test his case would be dismissed, and that .
the results of the test showed that he was not guilty. Thereafter, the Texas,
Court of Criminal Appeals held that the State should be allowed ,to introduce
evidence that the defendant, in fact, did not pass the polygraph test. Lucas,
479 S.Wi2d 314,315. In the instant case, Appellant passed his polygraph exam
relating to the alleged sexual history, of the victims list of bad acts of Appel
lant. Appellant twice, answered a seriers of Ten(10) questions: In sum:

Q: Have you ever put your finger in [K'-s] vagina?. A: NO
Q: Have you ever with sexual intent fondled [K] in any manner? A: NO
Q: Have you ever with sexual intent put your hands on [K] genital? A: NO
Q: Have you ever put your hands on [R's] genital? A: NO
Q: Have you ever put ointment on [R's] legs? A: NO

Then the polygraph examiner gave his results to Inv. Crow, that Appellant
answered these direct questions with NO ATTEMPTED DECEPTION, and has been truth
ful in his answers. Again, the trial court abused its.discretion in not allowing
Appellant to submit ;the direct polygraph questions and answers to the jury with
the State's expert witness Inv. Crow's testimony. When Inv. Crow uses polygraph
exams extensively and rely's heavily on their results in evaluating the validity
of sexual assault claims, it's an extremely useful diagnostic tool for his
interrogation, and a routine part of his investigation. In Wyrick v. Fields, 459
U.S. 42 (1982)(Statements made to polygraph operator - but not the results of
exams - may be admissible). With considerations to the results depend on far to
many physical and psychological variables and can be manipulated to an extent,
depending on the question asked, sometimes capable of detecting deception and
worthy as an interrogation tool.

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 In the 2011-2012 Edition of Professor David L. Faigman's Modern Scientific
Evidence, included the 2003' report of the National Academy of Science on scien
tific evidence for the:.polygraph, noted by the National Research Counsel, one
that is especially pertinent to sex offenders order to take and pass polygraph
examinations, is that "there is evidence suggesting that truthful members of
socially stigmatized groups and truthful examinees who are believed to be guilty
or believed to have a high likelihood of being guilty may show emotional and
physiological responses in polygraph situation that mimic responses that are
expected of deceptive individuals."

In sum, Appellant showed NO ATTEMPTED DECEPTION, the scientific reliability
as a general proposition is clear on the truthfulness of the Appellant, noting
that nothing in scientific evidence for the polygraph showed Appellant to be
untruthful, in fact, even the victims testimony supported the polygraph results,
clearly showing the Appellant told the truth when he underwent the examination.

In the Texas/Department of Family and Protective Services Investigation
Report dated 2009, case No. 09-106430, #33997830.
Interview with K.B., She reported that: "She'got out of the shower and had
her towel on ... he tried to make her sit down by pus
hing her shoulders down and he then put his fingers
inside her."

But yet, during K^B.'s trial testimony: (RR4:49)
Q: [State] Was there ever an incident where you came out of the shower
wearing a towel that you recall? A: [K.B.] YES
A: [K.B.] ... he sat me down on the side of the bed,... And I got up
really fast and left the room as guickly as I could.
Q:l[State] Did he actually do anything to you at that time? A:[K.B.] NO
As further, Interview with R.B., ... denied that anyone had ever touched her
inappropriately. She said she would tell.
And, during R.B.'s trial testimony: (RR3:38) She states Appellant touched
many times. Almost daily, starting in the fourth grade until the
end of the eighth grade.

Thereby, making Appellant's sexual history polygraph evidence, pertinent
facts for the factfinder to consider in its decision making process. Appellant
contends that the Court of Appeals erred in concluding that the State did ,not
withhold material, exculpatory evidence at trial, in violation of Brady v. Mary-
land, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963), and violates Appellant's

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United States Constitution Amendment Fourteenth guarantee of due process. Id.
at 87, 83 S.a. at 1196-97.

In Wood v. Bartholomew, 516 U.S. 1,10; 116 S.Ct. 7 (1995), Judgment of the
Court of Appeals was reversed and remanded because Polygraph Exam's existed ..
. evidence is "material" under Brady, and the failure to disclose it justifies
setting aside a conviction, only where there exist a "reasonable probability"
that had the evidence been disclosed the results at trial would have been dif
ferent, Kyles v. Whitley, 514 U.S. 419, 433-434; 115 S.Ct. 1555, 1565-1566; 131
L.Ed.2d 490 (1995); and U.S. v. Bagley, 473 U.S. 667,682; 105 S.Ct. 3375, 3383-84;
87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.)Id. at 685; 105 S.a'. at 3385(White,
J., concurring in part and concurring in judgment).

In the case at bar, the Eighth District Court of Appeals noted that under
Texas Law polygraph exams are inadmissible for all purposes. However, Court of
Appeals did not consider that the polygraph evidence was material under Brady.
And, the Court did not reason that "[h]ad defense counsel been able to cross-
examine the State's witnesses'concithe Appellant's sexual history polygraph,"
particularly the "victims list of offenses;" that "would have uncovered con
flicting statements which could have been used quite effectively at trial." In
U.S. v. Sipe, 388 F.3d 471 (5th Cir. 2004), A Brady violation on government's
suppression of evidence constituted a new trial. Eventhough, the government arg
ues that Sipe knew of or could have discovered with reasonable diligence
The United States Court of Appeals FIFTH Cir. were not persuaded. Id. at 481.

A reviewing Court should not substitute its.judgment for that of the trial
court, but rather must decide whether the trial court's decision was arbitiary
or unreasonable. Webb v. State, 129 S.W.3d 126,129 (Tex.Crim.App. 2004). The ,:•-;
results of a polygraph exam are inadmissible, Leonard v. State, 385 S.W.3d. 570,
572 (Tex.Crim.App. 20111). However, results of Appelant's polygraph test were
relevant to the trial on the issue of relative culpability and refute the States
assertion that no evidence other than State witness'es testimony support the
claim that Appellant committed the offenses. Appellant may use evidence that
shows he did not participate in the offenses as the prosecution would like the
jury to believe. Mak v. Blodgett, 507 U.S. 951; 113 S.a. 1363; 122 L.Efl.2d 742(1993).
Therefore, the issue of relative culpability was before the jury. Since relative
culpability is an appropriate mitigating factor, the Appellant's polygraph is

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relevant insofar asit bears on the question, if Appellant participated in the
alleged crimes. Id. There were clear issues of relative credibility and cul
pability btween Appellant and witness'es, and lack of polygraph evidence en-j
abled State Prosecutors to impugn, persuasively, Appellant's credibility be
fore the jury, U.S.C.A. Const. Amend. 14. Furthermore, the mere mention of a
polygraph examination to be reversible error/ an "impression must have been
implanted in the minds of the jurors that the result of the lie dector test had
been unfavorable to [the] Appellant." Nichols v. State, 378 S.W.2d 335,337 (Tex.
Crim.App 1964).

In the instant case, as elucidated above, Appellant's polygraph was favor
able evidence and pertinent to his trial. And, additionally, to the standards
of Brecht v. Abrahamson, 507 U.S. 619; 113 S.Ct.1710; 123 L.Ed.2d 353 (1993), the
Appellant met his burden of showing that the exclusion of the polygraph evidence
had a "substantial and injurious effect on the verdict because there is a reas
onable probability that, had the evidence been admitted, it would have substan
tially influenced at least one juror's balancing of aggravated and mitigating
factor." And/ this Court (Tex.Crim.App.) made a controlling resolution of favor
able material evidence in Thomas v State/ 841S.W.2d399 (Tex.Crim.App. 1992).
This Court relies upon its three part test to determine whether the State vio
lated Appellant's.Right to due process under the Fourteenth Amendment.. Id. And/
Favorable evidence is any evidence/ including exculpatory and impeachment evid
ence that/ if disclosed and used effectivele, may make the difference between
conviction and acquittal. Id. at 403,404. .

QUESTION NO. TWO

Did the EIGHTH District Court of Appeals error in its opinion that the
trial court did not. abuse its discretion under Rules of Evidence/ by
excluding Investigator Toby Crow's expert opinion testimony/ when the
Polygraphic Examination and their Results could be the basis of the'
experts opinion. (RR4:174-175)

Factual Background

In the brief filed in the Court of Appeals/ the State summerized its
arguments as follows. NO error is shown in the denial of the State's wit
ness Inv. Toby Crow's expert opinion testomony, that improperly left a
false impression on the factfinder/ to his investigation, and, to the
abandonment of his investigation.
State's brief in the Court of Appeals, SUMMARY OF THE ARGUMENT, Pg 7-8

The argument presented in support of this summary is:

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