PD-1600-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/21/2015 11:24:21 AM
Accepted 12/21/2015 12:45:33 PM
ABEL ACOSTA
THE STATE OF TEXAS § CLERK
§
§
§
§
v. § Cause No. PD-1600-15
§
§
§
§ December 21, 2015
STEPHEN DEMOND ODOM, §
Appellee §
**************************************************************
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
REPLY IN OPPOSITION TO
STATE’S PETITION FOR
DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
JEFFERSON COUNTY
ORAL ARGUMENT REQUESTED
DAVID W. BARLOW
ATTORNEY AT LAW
EDISON PLAZA
350 PINE STREET, SUITE 315
BEAUMONT, TEXAS 77701
TELEPHONE: (409) 838-2168
FACSIMILE: (409) 838-3145
david.barlow@davidwbarlow.com
TEXAS BAR NO. 00793305
IDENTIFICATION OF THE PARTIES
Pursuant to Tex. R. App. Proc 68.4(a), a complete list of the names of all
interested parties is provided below so the members of this Honorable Court may at
once determine whether they are disqualified to serve or should recuse themselves
from participating in the decision of the case.
Appellee: Stephen D. Odom, #1911586
French Robertson Unit
12071 FM 3522
Abilene, Texas 79601
Defense Attorneys on the Trial: Audwin Samuel and Sean Villery-Samuel
1965 Park Street
Beaumont, Texas 77701
Defense Attorney on the Appeal: David W. Barlow
Edison Plaza
350 Pine Street, Suite 315
Beaumont, Texas 77701
Prosecutor on the Trial: Lindsey Scott
Jefferson County Courthouse
1085 Pearl
Beaumont, Texas 77701
Criminal District Attorney: Robert J. “Bob” Wortham
Jefferson County Courthouse
1085 Pearl
Beaumont, Texas 77701
Trial Judge Presiding: John B. Stevens, Jr.
Jefferson County Courthouse
1085 Pearl
Beaumont, Texas 77701
TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATE’S GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATE’S GROUND FOR REVIEW NO. ONE: The Court of Appeals
(sic) opinion erroneously precludes the State from offering impeachment
evidence under Tex. Rule Evid. (sic) 611(b) in all instances where the
evidence consists of the defendant’s failure to take a polygraph test.. 5
STATE’S GROUND FOR REVIEW NO. TWO: The Court of
Appeals (sic) opinion effectively erroneously renders any mention of a
polygraph (even in instances where there was no polygraph exam) as
error per se, even when the question is asked to correct a false
impression and perjurous (sic) statement made by a defendant during
trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PRAYER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
i
AUTHORITIES
CASES PAGE
Cade v. State, 2015 Tex. Crim. App. Unpub. LEXIS 156 2015)(not designated for
publication) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Castillo v. State, 739 S.W.2d 280 (Tex. Crim. App.1987). . . . . . . . . . . . . . . . . . . . 6
Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . 6
Nethery v. State, 692 S.W.2d 686 (Tex. Crim. App.1985). . . . . . . . . . . . . . . . . 6, 13
Nichols v. State, 378 S.W.2d 335 (Tex. Crim. App. 1964).. . . . . . . . . . . . . . . . . . 13
Peterson v. State, 157 Tex. Cr. R. 255, 247 S.W.2d 110 (1951). . . . . . . . . . . . . . . 7
Tennard v. State, 802 S.W.2d 678 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . 6
U.S. v. Allard, 464 F.3d 529 (5th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ii
STATEMENT REGARDING ORAL ARGUMENT
The grounds for review herein advanced by the State of Texas are well settled
in Texas jurisprudence. Oral argument will not be helpful to the Court. However, as
the State of Texas has requested oral argument in its Petition, Odom hereby requests
oral argument in response.
iii
THE STATE OF TEXAS §
§
§
§
§
v. § Cause No. PD-1600-15
§
§
§
§
STEPHEN DEMOND ODOM, §
Appellee §
**************************************************************
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
REPLY IN OPPOSITION TO
STATE’S PETITION FOR
DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
JEFFERSON COUNTY
**************************************************************
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Stephen Demond Odom, Defendant in cause number 13-16301
in the Jefferson County Criminal District Court, John B. Stevens, Jr., Judge Presiding,
and Appellant before the Ninth Court of Appeals, and respectfully submits this reply
to the Court of Criminal Appeals in response to the Petition for Discretionary Review
filed by the State of Texas herein.
1
STATEMENT OF THE CASE
Appellant was indicted by a Jefferson County grand jury in a multi-count
indictment for the offense of injury to a child. Appellant plead not guilty to both
counts, and trial was to a jury. Following the presentation of evidence, and after
arguments of counsel and deliberations, the jury found Appellant guilty of count one
of the indictment. After the presentation of punishment evidence, and after further
arguments of counsel and deliberations, the jury assessed punishment at incarceration
in the Texas Department of Criminal Justice for life.
2
STATEMENT OF PROCEDURAL HISTORY
After conviction in the trial court, Appellant perfected Notice of Appeal to the
Ninth Court of Appeals. The Court found error, reversed the conviction and sentence,
and remanded the cause to the trial court for re-trial. The State filed a motion for
rehearing, which was overruled by the Court of Appeals. The State then filed its
Petition for Discretionary Review with this Honorable Court.
3
STATE’S GROUNDS FOR REVIEW
GROUND FOR REVIEW NO. ONE: The Court of
Appeals (sic) opinion erroneously precludes the State from
offering impeachment evidence under Tex. Rule Evid. (sic)
611(b) in all instances where the evidence consists of the
defendant’s failure to take a polygraph test.
GROUND FOR REVIEW NO. TWO: The Court of
Appeals (sic) opinion effectively erroneously renders any
mention of a polygraph (even in instances where there was
no polygraph exam) as error per se, even when the question
is asked to correct a false impression and perjurous (sic)
statement made by a defendant during trial.
4
ARGUMENT
STATE’S GROUND FOR REVIEW NO. ONE: The
Court of Appeals (sic) opinion erroneously precludes the
State from offering impeachment evidence under Tex. Rule
Evid. (sic) 611(b) in all instances where the evidence
consists of the defendant’s failure to take a polygraph test.
STATE’S GROUND FOR REVIEW NO. TWO: The
Court of Appeals (sic) opinion effectively erroneously
renders any mention of a polygraph (even in instances
where there was no polygraph exam) as error per se, even
when the question is asked to correct a false impression
and perjurous (sic) statement made by a defendant during
trial.
The gravamen of the State’s theory under which it asks this Honorable Court
to exercise its discretion herein is based upon an erroneous, conclusory premise: the
Odom lied during his trial. The trial below was to a jury. The jury was the fact
finder, not the State of Texas. The veracity of Odom, just as any other witness,
including those testifying for the State of Texas, was the purview of the jury. The
jury is who decided who lied (if anyone), who did not lie, and whom to believe.
However, the State would have this Honorable Court believe that its conclusory
opinion that Odom lied was a fact, that the Ninth Court of Appeals should have
known that it was a fact, and that, therefore, the appellate court erroneously held that
the issue of whether Odom was “uncooperative” with law enforcement could not be
impeached with polygraph evidence. Glaringly absent from the State’s petition is any
5
support or authority for its argument.
The State contended before the Court of Appeals that the issue of a polygraph
was not being offered by the State to show that Odom did not submit to a polygraph,
but rather to impeach him by showing that he was uncooperative for not submitting
to a polygraph. The appellate court held that there was a plethora of evidence before
the jury already regarding the cooperation of Odom with law enforcement. The Court
of Appeals held that the prejudicial effect of allowing polygraph testimony was
immensely outweighed by any probative value, even if it was offered as impeachment
evidence. The State argues in its petition that, in effect, it should have been allowed
to impeach Odom with “truthful” information establishing Odom committed perjury.
While the State is entitled to its own opinion, it is not entitled to its own facts. The
jury determines the facts herein, not the State of Texas. The fallacy of the State’s
argument is its reliance on its own arbitrary conclusion to support its premise. It is
simply bootstrapping its desired conclusion as the basis for its petition.
It has long been settled that the existence and results of a polygraph
examination are inadmissible for all purposes in Texas, even if the State and the
appellant agree to its admissibility. Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App.
2007); Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990); Castillo v.
State, 739 S.W.2d 280, 293 (Tex. Crim. App.1987); Nethery v. State, 692 S.W.2d 686
6
(Tex. Crim. App.1985); Peterson v. State, 157 Tex. Cr. R. 255, 247 S.W.2d 110
(1951) (Emphasis added). The State simply ignores the fact that polygraph testimony
is inadmissible for all purposes. Impeachment is a purpose. The record below shows
the testimony regarding the polygraph. Appellant was testifying in his own behalf
and was being cross examined by the prosecutor as reflected beginning at R.R. V-79,
to-wit:
“THE STATE: Q. Once the police told you that this
was child abuse, that someone had hurt Jakyra and that’s
what killed her, were you interested in finding out who had
done that?
APPELLANT: A. Of course. Yes, ma’am.
Q. And you became aware that they suspected
you, right?
A. Yes, ma’am.
Q. They told you that, didn’t they?
A. Yes, ma’am.
Q. And were you interested in helping to
eliminate yourself as a suspect?
A. Was I interested?
7
Q. Yeah. Did you want to eliminate yourself as
a suspect?
A. Yes, ma’am.
Q. But you did at some point become
uncooperative with the police? Do you dispute that?
A. No, ma’am. I didn’t become uncooperative.
I did everything they asked me to. I was not never
uncooperative.
Q. At some point, did you stop returning their
calls?
A. No, I never stopped returning their calls. I
talked to Lieutenant Curl and explained to him what my
lawyer told me to do and that my lawyer would get in touch
with me.
THE COURT: You-all come on up here.”
The trial court then held that the allegation that Appellant had refused to submit
to a polygraph examination “even before he hired an attorney” would be admissible
because, according to the trial court, Appellant “opened his own door there.” The
8
trial court attempted to justify its clearly erroneous ruling as reflected at R.R. V-81,
to-wit:
“THE COURT: It’s allowable at this stage. He
volunteered that statement (that Appellant did everything
they asked me to). I think he put himself into it. He’s
opened his own door there. I wasn’t going to let it in, but
I’m certainly not going to let him volunteer statements after
he answered the question that misleads the jury. I know
you worked on that before but he can’t volunteer an
additional statement; and that opened the door, in all
fairness, to everything. I don’t like this whole subject
matter, but he can’t make a statement if it’s not an accurate
one. He had given an answer, and then he went further.
....
The jury can’t be mislead. The whole thing is the rules of
evidence are pursuing the truth; but when he makes that
statement and it’s proffered that that contradicts what he
just said, then in all fairness, the jury is entitled to know
what it is. I don’t like polygraphs but, nonetheless, when
9
he makes - - he answered the question. It still didn’t open
the door. It was his next statement.”
Appellant objected to its admission based upon Rule 403, Tex. R. Evid. The
trial court overruled Appellant’s objection stating that:
“Well, if they asked him to take a polygraph that I wouldn’t
have otherwise introduced or allowed the admission of,
when he makes that last statement, that is not a fair,
accurate, truthful, honest statement; and he volunteered
that. State has an opportunity to respond”
The trial court further attempted to justify its erroneous introduction of the
existence as reflected at R.R. V-83, to-wit:
“THE COURT: Now, let me add one other guiding
principle that this Court looks at and it’s found under
Article 101 of the Texas Rules of Evidence or under 102.
For purpose and construction of the rules, the rules are
construed to secure fairness, elimination of unjustifiable
expense and delay, promotion of growth and development
of the law of evidence - - and here what I find to me the
most important - - to the end that the truth may be
10
ascertained. Well, that’s not what we’re doing if we don’t
finish that thought that’s been put out there from a
volunteered statement that after his - - again, he completed
his answer, and then he ventured into the uncharted water
on his own of that statement. I don’t like it.
....
We’re not going to end that because, truly, as we all agree,
it is apparently not factual and not a truthful statement
that’s before the jury. All right. And it wasn’t - - again,
because he volunteered the statement, I think the State, in
all fairness under the rules, is allowed to refute, if they can
directly refute that. So, your objection is overruled on that
regard.”
At trial, Odom was then forced to defend himself against the inaccurate, untrue
suggestion that he refused to submit to a polygraph as shown beginning at R.R. V-84,
to-wit:
“THE STATE Q. Mr. Odom, you said you did everything
that the police asked you to do. That’s not true, is it? It’s
a yes or no question.
11
APPELLANT A. Yes, ma’am.
Q. Because they asked you to submit to a polygraph
examination, didn’t they?
A. Yes, ma’am.
Q. And you refused to do that, didn’t you?
A. I didn’t refuse.
Q. You didn’t?
A. I did not refuse.
Q. Well, did you submit to one?
A. I didn’t submit to one because they supposedly had
been getting with my lawyer or over to my lawyer and
setting up an appointment with my lawyer. I was doing
what my lawyer asked you to do.
Q. Really? You told them you’d take a polygraph when
you left; but you never would come back and take one,
would you?
A. I did tell them that I would take one.
Q. Yeah, you told them that?
A. Yeah, but after I talked - -
12
Q. You didn’t show up to take it, did you?
A. They never told me a definite day to show up.
Q. Didn’t you make an appointment and you didn’t
show up and they kept trying to call you?
A. No, ma’am, I didn’t.
....
Q. The point is you never did show up and take one, did
you?
A. It was never a point in time to take one.
Q. So, that is no, right?
A. No, ma’am.”
The Ninth Court of Appeals correct held that this Honorable Court has
consistently held that both polygraph results and questions regarding whether a
witness took a polygraph are inadmissible at trial, citing opinions of this Court from
1951 until 2007. The State incorrectly states in its petition that the Court of Appeals
relied on this Honorable Court’s opinion in Nethery v. State, 692 S.W.2d 686 (Tex.
Crim. App. 1985). While Nethery was one of the over 18 cases the Court of Appeals
cited in its opinion, it was not what the appellate court primarily relied upon in its
opinion. The court’s opinion relies heavily upon this Honorable Court’s opinion in
13
Nichols v. State, 378 S.W.2d 335 (Tex. Crim. App. 1964). This Honorable Court has
addressed issues similar to Nichols most recently as 2015. Cade v. State, 2015 Tex.
Crim. App. Unpub. LEXIS 156 2015)(not designated for publication). Nichols has
not been disavowed by this Honorable Court. The State’s petition presents no
argument nor reason as to why the Court should do so now.
In a desperate attempt to try to find some scintilla of support for its premise
herein, the State directs this Honorable Court’s attention to U.S. v. Allard, 464 F.3d
529 (5th Cir. 2006). The only things distinguishing the cause sub judice from Allard
are the facts and the law. The facts herein are not the facts in Allard, supra. The
reasons for the admissibility of a polygraph under federal law are based on facts
severely different from the facts in the case at bar. The law herein is not the law in
Allard, supra. The United States Court of Appeals for the Fifth Circuit discusses and
applies the federal rules of evidence in Allard. The Texas rules of evidence are
applicable herein, not federal rules.
It is overwhelmingly obvious that a polygraph examination was never
definitively scheduled, which is why Odom never submitted to one. Therefore, it is
clearly disputed whether Odom committed perjury as the State would have this
Honorable Court believe. The State’s argument as to why this Court should grant
review embarrassingly lacks any factual or legal reasons for this Honorable Court to
14
do so. Rule 66.3, Tex. R. App. Proc. It is beyond dispute the Ninth Court of Appeals
carefully and meticulously considered its opinion, as the Court took over one year
after submission to issue its opinion. For these reasons, the State’s Petition for
Discretionary Review clearly must be denied.
15
PRAYER
WHEREFORE, PREMISES CONSIDERED, Odom urges this Honorable Court
to deny the State’s Petition for Discretionary Review from the Ninth Court of
Appeals.
Respectfully submitted,
/s/ David W. Barlow
DAVID W. BARLOW
ATTORNEY AT LAW
Edison Plaza
350 Pine Street, Suite 315
Beaumont, Texas 77701
Telephone: (409) 838-2168
Facsimile: (409) 838-3145
david.barlow@davidwbarlow.com
Texas State Bar No. 00793305
16
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Reply in
Opposition to State’s Petition for Discretionary Review From the Ninth Court of
Appeals was served upon the Hon. Robert J. “Bob” Wortham, Jefferson County
Criminal District Attorney, Jefferson County Courthouse, 1085 Pearl, Suite 300,
Beaumont, Texas, 77701, thompson@co.jefferson.tx.us, attorney for the State of
Texas, Petitioner, and upon the Hon. Lisa C. McMinn, State Prosecuting Attorney,
P.O. Box 13046, Austin, Texas, 78711-3046, information@spa.texas.gov, by
electronic service via www.efile.txourts.gov, on this the 21st day of December, 2015.
/s/ David W. Barlow
DAVID W. BARLOW
17
APPENDIX A
Selected Testimony from Cross Examination
of Stephen Demond Odom by
State of Texas
78
1 A. Ye s , ma'am.
Q . Yo u w e n t i n f o r y o u r s e c o n d i n t e r v i e w w i t h t h e
detective, and your attorney was asking you about this. At
some point, I guess you decided you wanted an attorney; is that
right?
A. Ye s , ma'am.
Q. But you really -- you became uncooperative with the
8 police before you had hired an attorney in this case, hadn't
9 you?
10 A. Is that a question?
11 Q. Ye a h .
12 A. No, ma'am.
13 Q. I mean, weren't there things the police wanted you
14 to do that you were not willing to do, even when you did not
15 have an attorney?
16 A. No, ma'am.
17 Q. That's not true? Are you saying you cooperated with
18 them and did everything that they asked of you?
19 A. I did whatever they asked me to do.
20 MR. A. SAMUEL: Yo u r Honor, may we approach?
21 THE C O U R T: Come on up.
22 (Bench Discussion Outside Hearing of the Jury)
23 MR. A. SAMUEL: She's trying to lead him to
24 the point about him not giving a polygraph and was not
25 cooperative. He stated that he cooperated with the police, and
RENE MULHOLLAND, CSR, TCRR
409-835-8410
7 9
1 we object to anything alluding to the fact that he was not
2 cooperating because he refused to take a polygraph.
3 MRS. S C O T T: Judge, I just believe that he's
4 opened the door for this because he lead him down the line of
5 questioning saying that the only way he did not cooperate with
6 the police, the only way --
T H E C O U R T: I t ' s n o t c o m i n g i n y e t . I t ' s n o t
8 going in yet.
MRS. SCOTT: Okay.
T H E C O U RT: G o t o s o m e t h i n g e l s e .
(Bench Discussion Concluded)
1 2 B Y M R S . S C O T T:
13 Q. Once the police told you that this was child abuse,
1 4 t h a t s o m e o n e h a d h u r t J a k y r a a n d t h a t ' s w h a t k i l l e d h e r, w e r e
1 5 y o u i n t e r e s t e d i n fi n d i n g o u t w h o h a d d o n e t h a t ?
16 A. Of course. Ye s , ma'am.
17 Q. And you became aware that they suspected you, right?
18 A. Ye s , ma'am.
19 Q. They told you that, didn't they?
20 A. Ye s , ma'am.
21 Q. And were you interested in helping to eliminate
22 yourself as a suspect?
23 A. Was I interested?
24 Q. Ye a h . Did you want to eliminate yourself as a
25 suspect?
RENE MULHOLLAND, CSR, TCRR
409-835-8410
25 added that statement.
RENE MULHOLLAND, CSR, TCRR
409-835-8410
81
1 that contradicts what he just said?
M R S . S C O T T: Ye s .
THE C O U R T: What is that?
MRS. S C O T T: He refused to submit to a
5 polygraph examination even before he hired an attorney.
6 THE C O U R T: It's allowable at this stage. He
7 volunteered that statement. I think he put himself into it.
8 He's opened his own door there. I wasn't going to let it in,
9 but I'm certainly not going to let him volunteer statements
1 0 a f t e r h e a n s w e r e d t h e q u e s t i o n t h a t m i s l e a d s t h i s j u r y. I k n o w
11 you worked on that before but he can't volunteer an additional
1 2 s t a t e m e n t ; a n d t h a t o p e n s t h e d o o r, i n a l l f a i r n e s s , t o
1 3 e v e r y t h i n g . I d o n ' t l i k e t h i s w h o l e s u b j e c t m a t t e r, b u t h e
14 can't make a statement if it's not an accurate one. He had
1 5 g i v e n a n a n s w e r, a n d t h e n h e w e n t f u r t h e r.
16 MR. S. SAMUEL: I understand that.
17 MRS. S C O T T: So, I can get into it now?
18 THE C O U R T: The jury can't be mislead. The
19 whole thing is the rules of evidence are pursuing the truth;
20 but when he makes that statement and it's proffered that that
21 contradicts what he just said, then in all fairness, the jury
22 is entitled to know what it is. I don't like polygraphs but,
23 nonetheless, when he makes -- he answered the question. It
2 4 s t i l l d i d n ' t o p e n t h e d o o r. I t w a s h i s n e x t s t a t e m e n t .
25 MR. S. SAMUEL: Secondary statement. With
RENE MULHOLLAND, CSR, TCRR
409-835-8410
82
1 that being said, still for the record, I would make a 403
objection on the grounds that any probative value is
substantially outweighed by the prejudicial effect, as well as
. I mi sieadi ng.
T H E C O U R T: W e l l , R u l e 4 0 3 s t a t e s t h a t
6 relevant evidence may be excluded if it's prejudicial or is
7 substantially outweighed by the danger of unfair prejudice,
8 c o n f u s i o n o f t h e i s s u e s o r m i s l e a d i n g t h e j u r y. N o w, t h i s
9 Court has considered polygraph issues -- that is, someone not
10 taking a polygraph or taking a polygraph or the results
11 thereof -- to be dangerous ground for presentation because this
12 Court's own experience with polygraphs is that it is not a
13 perfect science. That's why it's not allowed to be entered
14 into or else we would do away with the jury. We would just do
15 polygraphs. This Court is not going to be the catalyst for
16 that road to be taken.
17 However, again, as I reviewed the record, and
1 8 I s u s t a i n e d t h e o b j e c t i o n o f n o t a l l o w i n g i t i n t h e fi r s t p l a c e
19 but when a statement is made by -- again, I would note the
20 question, "But you did at some point become uncooperative with
21 the police. Do you dispute that?" That was a yes or no. And
22 he answered, "No, ma'am, I didn't become uncooperative." He
23 answered the question; and then he volunteered on his own next
24 statement, "I did everything they asked me to do."
25 Well, if they asked him to take a polygraph
RENE MULHOLLAND, CSR, TCRR
409-835-8410
83
1 that I wouldn't have otherwise introduced or allowed the
2 admission of, when he makes that last statement, that is not a
3 f a i r, a c c u r a t e , t r u t h f u l , h o n e s t s t a t e m e n t ; a n d h e v o l u n t e e r e d
4 that. State has an opportunity to refute that.
5 MR. 8. SAMUEL: So, your ruling is overruled,
6 Yo u r Honor?
7 THE C O U R T: Yo u ' r e making an objection of 403?
8 MR. S. SAMUEL: Correct.
9 THE C O U R T: I am fi n d i n g that under these
10 circumstances, based upon the balancing test under 403, that
11 t h i s i n f o r m a t i o n u n d e r t h e s e p a r t i c u l a r c i r c u m s t a n c e s a r e n o t
12 information that he refused to take the polygraph, is not
13 excluded under these, as its probative value is not
14 substantially outweighed by the danger of unfair prejudice.
15 Now, let me add one other guiding principle
16 that this Court looks at and it's found under Article 101 of
1 7 t h e Te x a s R u l e s o f E v i d e n c e o r u n d e r 1 0 2 . F o r p u r p o s e a n d
18 construction of the rules, the rules are construed to secure
1 9 f a i r n e s s , e l i m i n a t i o n o f u n j u s t i fi a b l e e x p e n s e a n d d e l a y ,
20 promotion of growth and development of the law of evidence --
2 1 a n d h e r e w h a t I fi n d t o b e t h e m o s t i m p o r t a n t - - t o t h e e n d
22 that the truth may be ascertained. Well, that's not what we're
2 3 d o i n g i f w e d o n ' t fi n i s h t h a t t h o u g h t t h a t ' s b e e n p u t o u t t h e r e
24 from a volunteered statement that after his -- again, he
25 completed his answer, and then he ventured into the unchartered
RENE MULHOLLAND, CSR, TCRR
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84
1 water on his own of that statement. I don't like it.
MRS. S C O T T: I know.
THE C O U R T: I don't like all of that but
agai n
MR. S. SAMUEL: Just to be clear, it's
overruled?
T H E C O U R T: W e ' r e n o t g o i n g t o e n d t h a t
8 b e c a u s e , t r u l y, a s w e a l l a g r e e , i t i s a p p a r e n t l y n o t f a c t u a l
9 a n d n o t a t r u t h f u l s t a t e m e n t t h a t ' s b e f o r e t h e j u r y. A l l
10 right. And it wasn't -- again, because he volunteered the
11 s t a t e m e n t , I t h i n k t h e S t a t e , i n a l l f a i r n e s s u n d e r t h e r u l e s
12 is allowed to refute, if they can directly refute that. So,
13 your objection is overruled on that regard.
14 (Bench Discussion Concluded)
T H E C O U RT: H o l d o n . Yo u m a y m o v e f o r w a r d .
1 6 B Y M R S . S C O T T:
1 7 Q . M r. O d o m , y o u s a i d y o u d i d e v e r y t h i n g t h a t t h e
18 police asked you to do. That's not true, is it? It's a yes or
19 no question.
20 A. Ye s , ma'am.
21 Q. Because they asked you to submit to a polygraph
22 examination, didn't they?
23 A. Ye s , ma'am.
24 Q. And you refused to do that, didn't you?
25 A. I didn't refuse.
RENE MULHOLLAND, CSR, TCRR
409-835-8410
8 5
1 Q. Yo u didn't?
A. I did not refuse.
Q. Well, did you submit to one?
A. I didn't submit to one because they supposedly had
been getting with my lawyer or over to my lawyer and setting up
a n a p p o i n t m e n t w i t h m y l a w y e r. I w a s d o i n g w h a t m y l a w y e r
asked you to do.
8 Q . R e a l l y ? Yo u t o l d t h e m y o u ' d t a k e a p o l y g r a p h w h e n
9 you left; but you never would come back and take one, would
10 you?
11 A . I did tell them that I would take one.
1 2 Q. Ye a h , y o u t o l d t h e m t h a t ?
1 3 A . Ye a h , b u t a f t e r I t a l k e d - -
14 Q. Yo u d i d n ' t s h o w u p t o t a k e i t , d i d y o u ?
15 A . T h e y n e v e r t o l d m e a d e fi n i t e d a y t o s h o w u p .
16 Q. Didn't you make an appointment and you didn't show
17 up and they kept trying to call you?
18 A. No, ma'am, I didn't.
19 THE C O U R T: Hold on. One at a time. She's
20 really good, but she can't take both people speaking over each
21 other. She gets to ask the question and then you have a fair
2 2 o p p o r t u n i t y t o a n s w e r. D o n ' t s t e p a n y b o d y s p e a k i n g . R e s t a t e
23 your question.
24 MR. A. SAMUEL: Yo u r Honor, I object. The
25 question was asked, and it was answered. I also object that
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1 counsel is being argumentative.
T H E C O U R T: O v e r r u l e d . I ' l l a l l o w y o u , o f
course, to renew your objection. Let's move through this
point. Go forward.
5 B Y M R S . S C O T T:
6 Q. The point is you never did show up and take one, did
7 you?
8 A. It was never a point in time to take one.
9 Q. So, that is no, right?
10 A. No, ma'am.
11 Q . M r. O d o m , d i d y o u e v e r, w h e n y o u w e r e t a k i n g c a r e
12 of, Jakyra abuse any drugs or take any drugs?
13 A . Ye s , m a ' a m .
14 0. What drugs would you take?
15 A . I smoked marijuana.
16 Q. Did you ever do anything else?
17 A . No, ma'am.
18 Q. Did you ever, while you were taking care of Jakyra
19 abuse PCP?
20 A . No, ma'am.
21 Q. Benzodi azepi nes?
2 2 A . No, ma'am.
2 3 Q. Or ecstasy?
2 4 A . No, ma'am.
2 5 Q. A1cohol?
RENE MULHOLLAND, CSR, TCRR
409-835-8410
APPENDIX B
Selected Testimony from Re-Direct Examination
of Stephen Demond Odom by
O d o m ' s Tr i a l C o u n s e l
108
1 Q. Did you ever strike Jakyra?
A. No, sir.
Q. Did you ever see any injuries that would lead you to
believe someone had struck Jakyra?
5 A. No, sir.
6 Q. When you met with Detective Curl and he began to
7 question you, he asked you to take a polygraph?
8 A . He asked me would I take one.
9 Q. And your response was?
10 A . Ye s , I w o u l d .
11 Q. And to your knowledge, is a polygraph a perfect
12 instrument?
13 A. From what my lawyer told me, no.
14 Q. But yet and still, you were willing to take it?
15 A. Ye a h .
16 Q. But they never gave you a date to come take it?
17 A. No, they never gave me a date.
18 Q. Now, there was some questions about you smoking
19 marijuana. Did you ever smoke marijuana in the presence of
20 Jakyra?
21 A. Not in the presence, but I have.
22 Q. But not in her presence?
23 A. No, sir.
24 Q. At any time, did you smoke marijuana in the same
25 room with her?
RENE MULHOLLAND, GSR, TCRR
409-835-8410