Radwan A. Dalu v. Maha Mansour ( 2009 )

NUMBER 13-07-568-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SHELDON WHATLEY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas
MEMORANDUM OPINION
Before Justices Yañez, Garza, and Vela
Memorandum Opinion by Justice Vela
A jury found appellant, Sheldon Whatley, guilty of five counts of aggravated sexual
assault of a child,1 two counts of indecency with a child,2 six counts of prohibited sexual
1
See T EX . P EN AL C OD E A N N . § 22.021(a) (Vernon Supp. 2008).
2
See T EX . P EN AL C OD E A N N . § 21.11(a) (Vernon 2003).
conduct,3 and two counts of sexual assault.4 The jury assessed his punishment at life
imprisonment for each count of aggravated sexual assault of a child, twenty years’
imprisonment for each count of indecency with a child, ten years’ imprisonment for each
count of prohibited sexual conduct, and twenty years’ imprisonment for each count of
sexual assault. The jury assessed a $10,000 fine for each offense, totaling $150,000. The
trial court granted Whatley’s motion for new trial with respect to the six counts of prohibited
sexual conduct, but denied the motion for new trial on all remaining counts.
In five issues, Whatley argues the trial court (1) erred in excluding his exculpatory
polygraph results, (2) erred in refusing to grant a mistrial, (3) applied the wrong standard
when it excluded his polygraph results, (4) erred in denying his motion for new trial with
respect to the remaining convictions, and (5) violated his right to the presumption of
innocence. We affirm.
Whatley does not challenge the legal or factual sufficiency of the evidence to sustain
his convictions. As this is a memorandum opinion, and the parties are familiar with the
facts, we will not recite them here except as necessary to explain the Court's decision and
the basic reasons for it. See TEX . R. APP. P. 47.4.
I. Exclusion of Polygraph Evidence
In his first issue, Whatley contends Detective Michael Hess’s testimony “opened the
door” to controverting evidence that Whatley had taken and passed polygraph tests relating
to each of the allegations against him. At the guilt-innocence phase, Detective Hess
testified that he had worked 26 years for the Corpus Christi Police Department and had
3
See T EX . P EN AL C OD E A N N . § 25.02(a) (Vernon Supp. 2008).
4
See T EX . P EN AL C OD E A N N . § 22.011(a) (Vernon Supp. 2008).
2
worked on child sexual abuse cases for twelve years. He provided the context of the
offenses alleged against Whatley as well as an overview of the investigation. On re-cross-
examination, defense counsel asked him:
Q. What you just testified to, Detective Hess, do you ever spend time
alone with any of the people that have made these accusations?
A. The children?
Q. Uh-huh. Do you ever spend one on one time alone with these
children where there’s no one else to witness what happens?
A. I hate saying do you ever as because I have, but it’s not—it’s not a
common occurrence.
***
Q. What do you do to protect yourself from these very same allegations
being placed upon you?
***
A. I understand. Somebody saying that I touched them or whatever?
Q. Yes.
A. It never really occurred to me . . . .
Q. How would you prove yourself innocent?
A. Me, I’d run down [and] take a polygraph. I’d have no problem doing
that. I mean, you made an allegation about me. I’d be banging on
the door of a polygraph operator saying, come here, hook me up.
Q. And then what if you took the polygraph and passed and you were still
charged with the offense?
A. I can’t imagine that. Why would I get charged if I passed a
polygraph? I mean, you—you—if we went to a courtroom, beyond a
reasonable doubt. My defense attorney would be saying, Your Honor,
my client took a polygraph and he passed and why are we here.
Q. So it’s your policy with the cases that if the accused would take a
polygraph and pass, that that case should be not charged, it should
not go before the jury?
3
A. You said it’s my policy. I don’t get to make that decision. I present
my case to the prosecutor and the prosecutor decides whether those
cases go or not. I’ve never taken a case where the guy passed a
polygraph prior to trial, but I don’t get to make the decision whether
this case goes to the jury or not. Those go to the prosecutor’s office.
Q. But if it was you yourself that was the defendant, you’d want the jury
to know that information?
A. Oh, yeah, but hopefully it wouldn’t get that far. I’d be exonerated
because I took the polygraph and the prosecutor realizes there’s not
a case, you know, whatever.
At this point, defense counsel passed the witness.
After hearing the testimony of Detective Hess, the jury heard the testimony of four
other State’s witnesses. Afterwards, outside the jury’s presence, defense counsel asked
the trial court to allow him, in response to Detective Hess’s testimony, to introduce
evidence that Whatley had taken and passed three polygraph tests. The trial court denied
admission of this evidence, but allowed counsel to make a bill of exception.
A. Standard of Review
A trial court’s ruling admitting or excluding evidence is reviewed on appeal for abuse
of discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). We will
uphold the trial court’s ruling if the record reasonably supports the ruling, and the ruling is
correct under any theory of law applicable to the case. Id. at 418.
B. Admissibility of Polygraph Evidence
Counsel could not introduce Whatley’s polygraph-test results because “[t]he
existence and results of a polygraph examination are inadmissible for all purposes.”
Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990) (per curiam); Castillo v.
State, 739 S.W.2d 280, 293 (Tex. Crim. App. 1987) (consistent holding of the court of
4
criminal appeals is “that evidence of the results of a lie detector or polygraph test is not
admissible on behalf of either the State or the defense”). The court of criminal appeals
recently confirmed this rule. Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007)
(stating that the results of a polygraph test are not admissible in a Texas criminal
proceeding).
Whatley contends that the State “opened the door” to the introduction of his
polygraph results through its witness, Detective Hess. In certain limited instances,
polygraph evidence, which was erroneously admitted at trial, has “opened the door” to
further inadmissible evidence regarding the polygraph results. Long v. State, 10 S.W.3d
389, 398-99 (Tex. App.–Texarkana 2000, pet. ref’d); Hoppes v. State, 725 S.W.2d 532,
536 (Tex. App.–Houston [1st Dist.] 1987, no pet.); see Lucas v. State, 479 S.W.2d 314,
315 (Tex. Crim. App. 1972).
We need not address Whatley’s argument, however, because he failed to object to
Detective Hess’s testimony regarding the consequences of passing a polygraph exam. To
preserve error, it has been consistently held that one must object each and every time
inadmissible evidence is offered. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App.
2003). This rule applies to testimony regarding polygraph examination results. See Long,
10 S.W.3d at 399 (“when a party should have objected to the introduction of inadmissible
evidence that was presented, but failed to do so, that party has not been allowed to
present additional improper evidence under the guise of rebuttal”), Cano v. State, No. 13-
00-106-CR, 2001 Tex. App. LEXIS 4707, at *5-6 (Tex. App.–Corpus Christi July 21, 2001,
no pet.) (mem. op. not designated for publication) (holding appellant failed to preserve
error by failing to object to inadmissible polygraph evidence). We conclude Whatley failed
5
to preserve error because he did not make a timely objection. See Long, 10 S.W.3d at
399. Issue one is overruled.
II. Denial of Whatley’s Motion for Mistrial
In his second issue, Whatley argues the trial court erred when it overruled his
motion for a mistrial. After the State rested its case at the guilt-innocence phase, defense
counsel, outside the jury’s presence, asked the trial court to instruct the jury to “disregard
any previous testimony concerning a lie detector test. . . .” The trial court denied the
request. Counsel then asked for a mistrial, which the trial court denied.
A. Standard of Review
We review a trial court’s denial of a motion for mistrial for abuse of discretion.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Ladd v. State, 3 S.W.3d 547,
567 (Tex. Crim. App. 1999). To constitute an abuse of discretion, the trial court’s decision
must fall outside the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126,
129 (Tex. Crim. App. 2004). Only in extreme circumstances, when the prejudice is
incurable, will a mistrial be required. Hawkins, 135 S.W.2d at 77.
B. Timeliness of the Motion for Mistrial
“In accordance with Rule 33.1, a motion for mistrial must be both timely and
specific.” Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). “A motion for
mistrial is timely only if it is made as soon as the grounds for it become apparent.” Id. An
untimely motion for mistrial will not preserve a complaint for appellate review. Duffey v.
State, 249 S.W.3d 507, 510 (Tex. App.–Waco 2007, pet. ref’d) (citing Young v. State, 137
S.W.3d 65, 70 (Tex. Crim. App. 2004)); see Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.
Crim. App. 1994).
6
In this case, the objectionable nature of Detective Hess’s testimony was apparent
as soon as he said he would have taken a polygraph exam. See Jasso v. State, 112
S.W.3d 805, 813 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d). Yet, Whatley waited
until the State rested before requesting either an instruction to disregard or a mistrial.
Whatley’s motion for mistrial was therefore untimely and failed to preserve his complaint
for appellate review. See Duffey, 249 S.W.3d at 510.
Even assuming Whatley had timely requested the motion for mistrial, we do not
believe the trial court abused its discretion in denying the motion. 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. Jasso, 112 S.W.3d
at 814. In the case before us, no polygraph results were mentioned to the jury. When a
witness gives an unresponsive answer that mentions a polygraph test, but does not
mention the results of the test, there is no error in failing to grant a mistrial. Barker v.
State, 740 S.W.2d 579, 583 (Tex. App.–Houston [1st Dist.] 1987, no pet.) (citing
Richardson v. State, 624 S.W.2d 912, 914-15 (Tex. Crim. App. 1981)); see Tennard, 802
S.W.2d at 684.5
5
In Tennard, the record showed that Officer Maxey had originally arrested Fred Stewart for using one
of the victim ’s credit cards. Tennard v. State, 802 S.W .2d 678, 682 (Tex. Crim . App. 1990) (per curiam ).
Stewart im plicated Paul Bogany in the offense, and Bogany im plicated the defendant. Id. Officer Maxey later
arrested the defendant. Id. The State called Officer Maxey to testify about the defendant’s arrest. Id.
Afterwards, defense counsel tried to discredit Officer Maxey’s testim ony concerning his opinion of Stewart’s
veracity. Id. In relevant part, counsel asked Officer Maxey, “But at any rate, you believed Fred Stewart, with
all his offenses and all the other involvem ent you had concerning Fred Stewart?” Id. at 683. To which Officer
Maxey replied, “Plus I gave him a polygraph test, which confirmed his story, which he passed.” Id. (em phasis
in original). Defense counsel tim ely objected to this testim ony. Id. The trial court sustained the objection,
instructed the jury to disregard the testim ony, but denied counsel’s request for a m istrial. Id. The court of
crim inal appeals stated:
At m ost, the m ention of the polygraph exam served to lend Stewart’s trial testim ony
m ore credibility. The m ajority of his testim ony dealt with [the defendant’s] possession of the
deceased’s property. The State produced several other witnesses who testified to [the
7
Whatley argues that because an instruction to disregard Detective Hess’s testimony
would have been inadequate, the trial court should have granted the mistrial. We disagree.
When a witness on direct or cross examination testifies that either a polygraph exam or lie
detector test was either offered or taken, an instruction to disregard the reference to the
exam is sufficient to cure any harm. See Tennard, 802 S.W.2d at 684; Hannon v. State,
475 S.W.2d 800, 803 (Tex. Crim. App. 1972);6 Renesto v. State, 452 S.W.2d 498, 500
(Tex. Crim. App. 1970);7 Roper v. State, 375 S.W.2d 454, 457 (Tex. Crim. App. 1964);8
defendant’s] possession of the stolen m erchandise, corroborating Stewart’s version of
events.
Under the circum stances, despite the existence of trial error in this instance, we find
beyond a reasonable doubt that said error m ade no contribution to the verdict or to the
punishm ent.
Id.
6
In Hannon v. State, the defendant contended the trial court erred in failing to grant his m otion for a
m istrial after a State’s witness, Bobby Jean Jordan, stated during cross-exam ination that a police officer had
given her a lie detector test. 475 S.W .2d 800, 803 (Tex. Crim . App. 1972). Specifically, defense counsel
asked Jordan, “Did you go down to the police station of your own free will and talk to them ?” She replied,
“[W ]hen I got down there, Lt. Sinclair asked m e if I would go down with him and he questioned and I told him
yes and we went down to som e room and he questioned m e and then he put m e on the lie detector test and
after that he–“. Id. The results of the test were never m entioned. Id. The trial court sustained the objection
to the answer but denied the m otion for m istrial. Id. The court of crim inal appeals stated, “In light of the
prom pt ruling of the court and the instruction to the jury to disregard the testim ony, no reversible error is
shown.” Id.
7
In Renesto v. State, the defendant com plained the trial court erred in failing to grant a m istrial when
a State’s witness, Carey Dulaney, stated he had taken a polygraph test. 452 S.W .2d 498, 500 (Tex. Crim .
App. 1970). Specifically, the State’s attorney asked Dulaney, “Now the following day did you go anywhere with
any Fort W orth police officer?” He replied, “W ell, I went downtown at eight o’clock in the m orning and took
a polygraph test. . . .” Id. The results of the test were never m entioned. Id. The trial court sustained the
objection and instructed the jury to disregard the answer. Id. The court of crim inal appeals stated that
“[U]nder the circum stances presented, we perceive no reversible error.” Id.
8
In Roper v. State, the defendant contended reversible error occurred when the prosecutor asked
Detective Grim es, “Mr. Grim es, on Monday night that the defendant was at the police station, did you take him
anywhere?” 375 S.W .2d 454, 456 (Tex. Crim . App. 1964). He replied, “Yes, sir.” Id. Next, the prosecutor
asked him , “W here was that?” He answered, “W e carried him and run a polygraph test.” Id. At that point,
defense counsel objected and asked for a m istrial. Id. The trial court instructed the jury to disregard the
answer, but denied the m otion for m istrial. Id. at 456-57. The results of the polygraph test were not
m entioned. Id. at 457. The court of crim inal appeals stated that the trial court “properly instructed the jury not
to consider the answer for any purpose and thus no reversible error is reflected.” Id.
8
Gregory v. State, 56 S.W.3d 164, 174 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d).9
A trial court errs in denying a motion for mistrial only in an “extreme case where the
testimony was clearly calculated to inflame the minds of the jury to the point of rendering
any curative instruction useless.” Williams v. State, 798 S.W.2d 368, 373 (Tex.
App.–Beaumont 1990, no pet.).10 Detective Hess’s testimony was not clearly calculated
to inflame the minds of the jury to the point of rendering any curative instruction useless,
especially since he did not mention that Whatley had taken polygraph tests, much less the
results of those tests. Accordingly, the trial court did not abuse its discretion in failing to
grant a mistrial. Issue two is overruled.
III. Standard for Excluding Polygraph Evidence
In his third issue, Whatley contends the trial court excluded his polygraph evidence
without considering its admissibility pursuant to the rules of evidence, but instead relied on
“Texas’[s] per se rule of exclusion” with respect to polygraph evidence. In Ross v. State,
9
In Gregory v. State, defense counsel asked a police officer, “W ell, you talked to the parties or the
com plainants, and then did you go to the D.A.’s office?” 56 S.W .3d 164, 172 (Tex. App.–Houston [14th Dist.]
2001, pet. ref’d). The officer replied, “No. Actually, I had asked the defendant if he wanted to take a
polygraph.” Id. Defense counsel objected to the polygraph reference, asked for an instruction to disregard,
and m oved for a m istrial. Id. The trial court twice instructed the jury to disregard, but denied the m otion for
m istrial. Id. On appeal, the defendant argued the trial court erred in denying the m otion for m istrial because
(1) “the officer’s testim ony was a ‘clear im plication . . . [the defendant] either failed or refused,’ the polygraph
exam ;” (2) no instruction could cure the officer’s com m ent; and (3) the com m ent represented an extrem e
exam ple of a deliberate and calculated injection of inadm issible polygraph evidence to prejudice the defendant
and bolster the com plainants’ credibility. Id. at 173. The appellate court stated that because the officer’s
“com m ent did not reveal whether [the defendant] subm itted to a polygraph exam , m uch less the results, if any,
the trial court’s two im m ediate instructions to disregard the reference were sufficient to cure any error.” Id.
at 174.
10
In W illiams v. State, the defendant com plained the trial court erred by denying his m otion for m istrial
after a deputy testified that defendant refused to subm it to a polygraph exam ination. 798 S.W .2d 368, 372
(Tex. App.–Beaum ont 1990, no pet.). The trial court sustained the defendant’s tim ely objection to the deputy’s
response, instructed the jury to disregard the testim ony, but denied the m otion for m istrial. Id. In denying
relief, the appellate court stated that “this was not an extrem e case where the testim ony was clearly calculated
to inflam e the m inds of the jury to the point of rendering any curative instruction useless. . . . Thus, the
testim ony referring to [the defendant’s] refusal . . . to subm it to a polygraph exam ination was rendered
harm less by the trial court’s instructions to disregard. Id. at 373.
9
the accused argued to the court of criminal appeals that the trial court erred when it denied
his request to impeach a witness’s trial testimony with evidence that the witness had
provided deceptive answers during a polygraph test “without getting into the specifics of
these answers.” 133 S.W.3d 618, 625 (Tex. Crim. App. 2004). The court of criminal
appeals judicially noticed that “‘there is simply no consensus that polygraph evidence is
reliable’”11 and stated that “[we] cannot conclude that the trial court abused its discretion
to exclude the polygraph evidence.” Id. at 626; see Nesbit, 227 S.W.3d at 66 n.4 (stating
that the results of a polygraph test are not admissible in a Texas criminal proceeding); see
also United States v. Scheffer, 523 U.S. 303, 309 (1998) (holding that the exclusion of
polygraph did not unconstitutionally abridge the right of a defendant to present a defense
because “[t]here is simply no consensus that polygraph evidence is reliable”). Because we
are bound by existing precedent12 establishing a per se rule of inadmissibility,13 issue three
is overruled.
IV. Denial of Motion for New Trial
In his fourth issue, Whatley contends the trial court abused its discretion by denying
his motion for new trial on the remaining nine counts, after granting the motion for new trial
with respect to the six counts of prohibited sexual conduct, which were time barred.
11
Ross v. State, 133 S.W .3d 618, 626 (Tex. Crim . App. 2004) (quoting United States v. Scheffer, 523
U.S. 303, 309 (1998)).
12
In Garza v. State, No. 13-06-584-CR, 2007 W L 2429366 *2 (Tex. App.–Corpus Christi Aug. 28,
2007, no pet.) (m em . op., not designated for publication), we stated that “[b]ecause of their inherent
unreliability and tendency to be unduly persuasive, polygraph exam ination results are inadm issible for any
purpose in a crim inal proceeding on proper objection.” (citations om itted).
13
See Hernandez v. State, 10 S.W .3d 812, 818 (Tex. App.–Beaum ont 2000, no pet.).
10
A. Standard of Review
A trial court’s decision to grant or deny a defendant’s motion for new trial is reviewed
only for an abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App.
2007). This discretion, however, is neither unbounded nor unfettered, and it must
ultimately be in the interest of justice and in accordance with the law. Id. at 907. We do
not substitute our judgment for that of the trial court; rather, we look to whether the trial
court’s decision was arbitrary or unreasonable. Holden v. State, 201 S.W.3d 761, 763
(Tex. Crim. App. 2006). In reviewing the decision, we look to the evidence that most favors
the trial court’s decision, and “presume that all factual findings that could have been made
against the losing party were made against the losing party.” Charles v. State, 146 S.W.3d
204, 208 (Tex. Crim. App. 2004). We find an abuse of discretion only when “no
reasonable view of the record could support the trial court’s ruling.” Holden, 201 S.W.3d
at 763.
Whatley argues that “the sheer volume of the counts against [him] likely inflamed
the jury which punished [him] to the maximum [extent] allowable.” He further argues that
“[t]he six prohibited sexual conduct counts likely influenced the jury. The trial court could
have remedied that prejudice by granting a new trial on the remaining nine counts.”
Whatley fails to cite any supporting authority for this argument.
B. Analysis
To preserve an issue for appellate review, “the brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities and
to the record.” TEX . R. APP. P. 38.1(h). “An argument that fails to cite supporting authority
presents nothing for review.” Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000)
11
(citing Tex. R. App. P. 38.1(h); McFarland v. State, 928 S.W.2d 482, 512 (Tex. Crim. App.
1996); see Dunklin v. State, 194 S.W.3d 14, 23 (Tex. App.–Tyler 2006, no pet.); Willis v.
State, 192 S.W.3d 585, 597 (Tex. App.–Tyler 2006, pet. ref’d); Dennis v. State, 151
S.W.3d 745, 752 (Tex. App.–Amarillo 2004, pet. ref’d); King v. State, 17 S.W.3d 7, 23
(Tex. App.–Houston [14th Dist.] 2000, pet. ref’d) (op. on reh’g). Because Whatley has
failed to cite supporting authority for his argument, his issue is inadequately briefed and
presents nothing for review. TEX . R. APP. P. 38.1(h); Rocha, 16 S.W.3d at 20 (argument
that fails to cite to supporting authority in support of claim presents nothing for review).
Nevertheless, the code of criminal procedure requires the jury to “return a finding
of guilty or not guilty in a separate verdict as to each count and offense submitted to them”
and that “[p]unishment shall be assessed on each count on which a finding of guilty has
been returned.” TEX . CODE CRIM . PROC . ANN . art. 37.07, §§ 1c, 2c (Vernon Supp. 2008).
In this case, the punishment charge allowed the jury to assess punishment on each
separate offense. Absent some authority requiring a trial court to grant a new trial when,
in a multi-count indictment, it finds that some convictions are time barred and others are
not, we cannot conclude that the trial court abused its discretion in denying Whatley’s
motion for new trial with respect to the remaining nine counts. Issue four is overruled.
V. Presumption of Innocence
In a supplemental letter brief, Whatley contends the admission of Detective Hess’s
testimony relating to the polygraph examination denied him the right to the presumption of
innocence. See U.S. CONST . amend. XIV. Under the Due Process Clause of the
Fourteenth Amendment, a defendant in state court has the right to the “presumption of
innocence,” i.e., the right to be free from criminal conviction unless the prosecution can
12
prove the defendant’s guilt beyond a reasonable doubt by probative evidence adduced at
trial. Miles v. State, 204 S.W.3d 822, 825 (Tex. Crim. App. 2006) (citing Taylor v.
Kentucky, 436 U.S. 478, 483 n.12, 485-86 (1978)). Texas law explicitly provides for the
right to the presumption of innocence. See TEX . CODE CRIM . PROC . ANN . art. 2.03(b)
(Vernon 2005).
Here, defense counsel did not object to Detective Hess’s testimony relating to the
polygraph. When counsel requested the instruction to disregard this testimony and when
he moved for a mistrial, he did not argue that Whatley’s right to the presumption of
innocence demanded exclusion of this testimony. “‘[T]he party complaining on appeal . .
. about a trial court’s admission, exclusion, or suppression of evidence must, at the earliest
opportunity, have done everything necessary to bring to the judge’s attention the evidence
rule or statute in question and its precise and proper application to the evidence in
question.’” Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (citing Martinez
v. State, 91 S.W.3d 331, 335-36 (Tex. Crim. App. 2002)). A party forfeits an argument by
failing to bring it to the trial court’s attention. Martinez, 91 S.W.3d at 336-37; Dinkins v.
State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (“A defendant must make a timely
objection in order to preserve an error in the admission of evidence.”). Furthermore,
“[o]rdinary rules of evidence, . . . by simply permitting evidence to be admitted at trial, do
not at all subvert the presumption of innocence, because they do not concern whether the
admissible evidence is sufficient to overcome the presumption.” Carmell v. Texas, 529
U.S. 513, 533 n.23 (2000). Even assuming the detective’s testimony infringed upon
Whatley’s presumption of innocence, “constitutional guarantees can be waived by failure
to object properly at trial.” Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002).
13
Fundamental error may be raised for the first time on appeal. See TEX . R. EVID .
103(d) (providing that an appellate court may take notice of fundamental errors affecting
substantial rights although the errors were not preserved at trial). Fundamental errors are
violations of rights which are “waivable only”14 or denials of absolute systemic
requirements15—both of which need not be preserved by objection. Mendez v. State, 138
S.W.3d 334, 341 (Tex. Crim. App. 2004); Saldano, 70 S.W.3d at 888; Marin v. State, 851
S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947
S.W.2d 262 (Tex. Crim. App. 1997). Thus, the question before us is whether Whatley’s
right to avoid the complained of evidence is a right that is either waivable only or an
absolute, systemic requirement. See Saldano, 70 S.W.3d at 889. Whatley refers us to no
authority holding that his right to avoid the polygraph testimony is either a waivable-only
right or an absolute, systemic requirement. To the contrary, “failure to object to polygraph
evidence waives the error.” Sanchez v. State, 222 S.W.3d 85, 90 (Tex. App.–Tyler 2006,
no pet.); Berotte v. State, 992 S.W.2d 13, 17 (Tex. App.–Houston [1st Dist.] 1997, pet.
ref’d) (“admission of testimony about polygraph results is not considered reversible error
in the absence of an objection”).
The court of criminal appeals has “consistently held that the failure to object in a
timely and specific manner during trial forfeits complaints about the admissibility of
evidence. This is true even though the error may concern a constitutional right of the
14
Exam ples of rights that are waivable only include the rights to the assistance of counsel and to a
jury trial. Saldano v. State, 70 S.W .3d 873, 888 (Tex. Crim . App. 2002).
15
Exam ples of absolute system ic requirem ents include jurisdiction of the person, jurisdiction of the
subject m atter, a penal statute’s being in com pliance with the Separation of Powers Section of the state
constitution, a constitutional requirem ent that a district court m ust conduct its proceedings at the county seat,
the constitutional prohibition of ex post facto laws, and certain constitutional restraints on the com m ents of
a judge. Id. at 888-89.
14
defendant.” Saldano, 70 S.W.3d at 889. Because Whatley did not object to the detective’s
testimony, we hold he has failed to preserve his complaint for review. See Mendez, 138
S.W.3d at 342 (“[e]xcept for complaints involving systemic (or absolute) requirements, or
rights that are waivable only, . . . all other complaints, whether constitutional, statutory, or
otherwise are forfeited by failure to comply with Rule 33.1(a)”). We overrule the
supplemental issue.
VI. Conclusion
We affirm the trial court’s judgment.
ROSE VELA
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this 29th day of January, 2009.
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