Clyde Alexis Vanterpool v. the State of Texas ( 2021 )

NUMBER 13-20-00039-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CLYDE ALEXIS VANTERPOOL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 54th District Court
of McLennan County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Silva
Memorandum Opinion by Justice Benavides
By four issues, appellant Clyde Alexis Vanterpool appeals his conviction for two
counts of trafficking of persons, a first-degree felony. See TEX. PENAL CODE ANN.
§ 20A.02. Vanterpool alleges the trial court erred by: (1) denying his motion for mistrial;
(2) overruling his objection to the State’s closing argument in punishment; (3) overruling
his objection to an additional jury instruction during deliberation; and (4) finding that the
State’s notice regarding a punishment witness was reasonable. We affirm.
I. BACKGROUND1
In October 2016, Vanterpool was indicted for two counts of trafficking of persons
and two counts of sexual assault of a child relating to the complaining witnesses in this
case, L.G. and R.H.2 See id. §§ 20A.02, 22.011. Both complainants were under the age
of seventeen at the time the offenses were alleged to have occurred. Prior to trial, the
State abandoned the sexual assault counts.
A. Case in Chief
At trial in December 2019, the jury heard evidence regarding the outcry statements
of L.G. and R.H. Both complainants testified that, at the time of the offense, they were
residing at the Waco Center for Youth (the Center), a center for mental and behavioral
issues. L.G. testified that on December 9, 2015, when he was fifteen years old, he and
R.H. had run away from the Center and spent the night in Cameron Park in Waco. They
convinced a couple they were traveling and needed money, so the couple gave them
twenty dollars for food. L.G. stated that Vanterpool approached them the following
morning while they were sitting at a park bench and started a conversation. L.G. asked
Vanterpool if he could find them marijuana, and Vanterpool said he could, so the boys left
the park in Vanterpool’s vehicle. L.G. explained that Vanterpool took them across Waco
to his home, there were bars on the doors and windows, and the home had a locked gate.
1
This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2
We use initials to protect the identities of the complainants. See TEX. R. APP. P. 9.8 cmt.; Salazar
v. State, 562 S.W.3d 61, 63 n.1 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.).
2
L.G. and R.H. went inside and Vanterpool started pouring them drinks mixed with
whiskey. L.G. believed he had “a lot” of whiskey and noticed Vanterpool was not drinking
much. L.G. said they went into the living room and Vanterpool played a pornographic
video. At this point, L.G. began to feel sick and went into the bathroom. Vanterpool
eventually came in the bathroom to “check on” L.G. and pulled down L.G.’s pants and put
his mouth on L.G.’s penis. L.G. explained that he pushed Vanterpool off, and Vanterpool
then became “agitated” and left the bathroom. L.G. eventually made it back to the living
room, but said he was too “drunk” to look for R.H. and took a “dagger” off the wall and hid
it under the couch for protection.3 R.H. then appeared and told L.G. that Vanterpool had
forced R.H. to have sex with him. L.G. testified that the boys were at Vanterpool’s home
from around 8 a.m. until 2 p.m. when L.G. convinced Vanterpool to take them back to the
park. L.G. eventually returned to the Center without R.H. and asked personnel to find
R.H. because R.H. had threatened to hurt himself.
R.H. testified that he was sixteen years old in December 2019. He agreed that L.G.
and he had run away from the Center and lied about their age to the couple who gave
them money. R.H. said the boys were sitting at a bench in the park on December 10 when
Vanterpool approached them and asked if they wanted to go to his house to drink and
smoke. R.H. noticed Vanterpool’s house looked different than his neighbors’ based on
the bars and gates. R.H. stated he had between five and six glasses of whiskey and got
“very drunk” and “disoriented.” He remembered L.G. going into the bathroom and hearing
him throw up. L.G. came out of the bathroom and told R.H. what Vanterpool had done.
3
Both complainants described Vanterpool’s home as having daggers and swords displayed on the
wall.
3
R.H. explained,
So I know it’s going to take place there. I offer myself to [Vanterpool]
because I know exactly what’s going to happen here. I don’t want it to
escalate. I don’t really like proceeding to violence. No one wants to deal
with that. So [Vanterpool] proceeds to give me oral sex, perform oral sex on
me.”
....
[Vanterpool] takes me into the back room, gives me a condom. I put that on
and proceed to perform anal sex on him.
R.H. also said he took a “dagger” off the wall and hid it in his sock in case things
“escalated.” Once the boys got back to the park and they went their separate ways, R.H.
said he considered “jumping off the cliffs” in the park and it had been a “bad day.” He later
saw a campus police officer and asked for help. R.H. also told the jury that he did not
think they could leave without one of the boys having sex with Vanterpool, and he was
not willing to fight Vanterpool.
Multiple law enforcement officers also testified about the investigation. The initial
responding officer stated that L.G. had told her that there were plaques in the house that
said “Clyde something pool” and described the vehicle they left the park in. The officer
who spoke to R.H. said he was “shaken up,” “nervous,” and “excitable,” and he had a
dagger and was threating his own life. R.H. also later told her that Vanterpool asked for
anal sex, gave R.H. oral sex, and stated he went along with it because he was “afraid for
his life.”
The complainants later gave statements regarding the incident, drew detailed
diagrams of the home, and identified Vanterpool from a photo lineup. Items of clothing of
both boys were collected during a sexual assault exam and sent for DNA testing.
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Vanterpool’s DNA was found on both of the boys.
Kim Clark with the Waco Police Department was the lead detective on the case.
Detective Clark was present when a search warrant was executed on Vanterpool’s home
and testified that the dagger L.G. said he hid was in the exact place L.G. stated he hid it.
Vanterpool came to the Waco Police Department to give a statement, but Detective Clark
explained he was not under arrest and he was free to leave at any time. Vanterpool initially
told Detective Clark that the boys approached him in the park and told him they were
eighteen years old. He said they asked Vanterpool for a ride across town, but Vanterpool
told the boys he would only take them as far as he was going. Vanterpool stated he was
going to the local tax office when he stopped at the park, but he was missing the
documents he needed, so he went home to look for them. Vanterpool told Detective Clark
that he dropped the boys off a few doors down from his house, but fifteen minutes later,
R.H. rang his doorbell and asked to use the bathroom. After letting R.H. in, Vanterpool
said he noticed L.G. in the home later and saw R.H. wiping his hands on a sweaty t-shirt
Vanterpool had taken off. As the interview progressed, Vanterpool stated he had four to
five whiskeys, that the boys were there from around 8:30 a.m. until the afternoon, and he
could not remember if anything had occurred between himself and the complainants.
Vanterpool testified during trial that the boys approached him in the park and said
they were eighteen years old and “traveling.” He said he did not entice them with alcohol
and cigarettes and did not give them whiskey at his home. Vanterpool stated that he did
not see L.G. throw up in the house, was not aware they took anything from his house,
and no sexual acts were performed. Vanterpool explained the boys were at his home for
5
about fifteen minutes in the morning, left, came back around 1:15 p.m. for thirty minutes,
and then he took them back to the park.
After Vanterpool testified, the State brought Detective Clark back as a rebuttal
witness. The interview video was played for the jury wherein Vanterpool stated the boys
were in his house for five to six hours. During the video, Detective Clark referred to a
polygraph examination being possible. When Vanterpool objected to the reference, the
trial court sustained his objection, told the jury to disregard any reference to the polygraph,
and denied Vanterpool’s motion for mistrial.
B. Jury Deliberations
After the case was sent to the jury for deliberations, the jury announced it had
reached a verdict. However, when the trial court looked at the verdict form, it found that
the jury had found Vanterpool guilty of both trafficking of persons counts and the lesser
included counts of sexual assault of a child. See id. The trial court instructed the jury to
return to its deliberations and select only one of the charges. After the jury retired again,
Vanterpool objected to the trial court’s instruction. The jury returned with a unanimous
verdict of guilty of trafficking of persons. See id. § 20A.02.
C. Punishment Evidence
Prior to the start of the punishment phase of the trial, the parties approached the
trial court and explained that a witness, J.B.,4 had come forward the day before and
stated that Vanterpool had assaulted him as well. The State explained that it gave
4
J.B. testified that Vanterpool was his commanding officer in the United States Army. J.B. and
Vanterpool were celebrating J.B. receiving his disability benefits after being discharged from the Army due
to medical reasons.
6
Vanterpool notice as soon as it was aware of the witness, furnished him with a copy of
the interview conducted by the State’s investigator, and that article 37.07 of the code of
criminal procedure controlled this situation. See TEX. CODE CRIM. PROC. ANN. art. 37.07.
Vanterpool argued that it was not reasonable notice. The trial court overruled Vanterpool’s
objection and found the notice reasonable. At the punishment phase, J.B. was allowed to
testify as to an encounter with Vanterpool in 2011 where Vanterpool was drinking and
tried to grab his crotch area multiple times.
D. Punishment Argument
During closing arguments in the punishment phase of trial, Vanterpool made
references to the complainants being runaways and how they repeatedly lied to people
regarding their age so they would not be reported to the police.
In the State’s rebuttal closing, the following occurred:
State: We don’t know where these kids would have been. I
hate that he—that the defense attorney just keeps
talking about them as being runaways and—and
somehow that they’re throwaways. I hate that
somehow the fact—
Defense: Judge, I’m going to object. That’s a—a misstatement of
the testimony in this case.
Court: Overrule the objection.
Following the jury’s deliberation on punishment, Vanterpool was sentenced on
each count to ninety-nine years’ imprisonment in the Texas Department of Criminal
Justice–Institutional Division. The trial court announced that the sentences would run
consecutively. See TEX. PENAL CODE ANN. § 3.03(b)(5)(A). This appeal followed.
7
II. MOTION FOR MISTRIAL
By his first issue, Vanterpool argues the trial court erred in denying his motion for
mistrial following the State’s witness referencing a polygraph examination.
A. Standard of Review and Applicable Law
We review a trial court’s denial of a motion for mistrial for abuse of discretion. Webb
v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). 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). We will not
substitute our judgment for that of the trial court, but rather we decide whether the trial
court’s decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112. Only in
extreme circumstances, when the error is incurable, will a mistrial be required. Hawkins
v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
“Due to 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.” Martines v. State, 371 S.W.3d 232, 250 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (citing Tennard v. State, 802 S.W.2d 678, 683
(Tex. Crim. App. 1990) (en banc)); see Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim.
App. 2012) (op. on reh’g). However, merely mentioning a polygraph examination does
not automatically “constitute reversible error.” Jasso v. State, 112 S.W.3d 805, 813 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d); see also Reyes v. State, No. 13-17-00035-
CR, 2019 WL 1716794, at *5 (Tex. App.—Corpus Christi–Edinburg Apr. 18, 2019, no pet.)
(mem. op., not designated for publication).
8
In determining whether a mistrial should have been granted on this basis,
reviewing courts consider: “(1) whether the question exhibited bad faith by being designed
to elicit that a polygraph was taken or what the results of that polygraph were; and
(2) whether the effect of the evidence is to impeach the defendant’s defensive theory or
to bolster the [S]tate’s case.” Buckley v. State, 46 S.W.3d 333, 337 (Tex. App.—
Texarkana 2001, pet. ref’d, untimely filed); see Jasso, 112 S.W.3d at 813. As a general
rule, if a polygraph examination is mentioned at trial but the results are not revealed, then
an instruction to disregard is sufficient to cure any error. See Tennard, 802 S.W.2d at
683; Martines, 371 S.W.3d at 250; Jasso, 112 S.W.3d at 813.
B. Discussion
When the State called Detective Clark in rebuttal, it played the interview with
Vanterpool for the jury. As the interview played, Detective Clark referred to Vanterpool
being offered a polygraph examination. The following colloquy then occurred:
Vanterpool: Judge, may—may we approach? I’m going to object to
any reference to the offering of a polygraph.
State: May we approach?
Vanterpool: No. I need to make a motion. I’m going to object to any
reference to a polygraph. Prior to the admission of this
particular piece of evidence, I specifically asked the
State to delete any references to polygraph, whether
he took one, whether one was offered. They
represented to me that they did that. Now I feel that the
jury has been tainted because now there’s information
about polygraph out there. And I tried to safeguard and
prevent that from happening. And for whatever
reason—I understand we’re having problems with the
audio equipment. But now the jury has heard
references to [sic] polygraph. Which when I, again, had
no objection to this particular exhibit, it was with the
9
understanding that there will be no mention of
polygraphs. And for those reasons, I’ll—I’ll ask for a
mistrial, Your Honor.
....
State: Prior to—I reviewed a copy of this that was a redacted
copy, Judge, and we had taken all references out of
that. I found one additional reference to that. I asked
that it be taken out. And apparently—I don’t know
what’s going on with—with this. I did review it. They
were taken out previously. This—after this final one
came out, I’m not sure why—why it has that. I agreed
to take them out. They should have been taken out.
And I agree with that, Judge.
Court: Okay. At this point I’m going to instruct the jury to
disregard that evidence for any purpose whatsoever
and I will deny the motion for mistrial.
Vanterpool: Okay. So—just so I’m clear, Your Honor. I am too
asking the jury to disregard any mention of polygraph,
but I am asking for a mistrial.
Court: I understand that. And I directed the—first of all, I’ll
sustain your objection to the evidence itself and I’ve
instructed the jury to disregard it for any purpose
whatsoever and I’m overruling the motion for mistrial.
Vanterpool asserts that the trial court’s instruction to disregard “was not enough to
cure the harm caused by the State’s evidence.” However, Vanterpool needed to show
more than a mere potential harm; he needed to demonstrate an incurable error that was
so harmful as to require to the trial to be redone. See Hawkins, 135 S.W.3d at 77; see
also Reyes, 2019 WL 1716794, at *6. Here, the State had gone through the interview
video and redacted any mention of a polygraph examination being offered, but technical
difficulties caused a different version to play during trial. Detective Clark did not testify
about offering a polygraph, did not mention the results of a polygraph examination or
10
imply that the results of the examination were unfavorable to Vanterpool. Lastly, the trial
court gave an instruction to the jury to disregard the reference to the polygraph
examination, and we presume jurors followed the trial court’s instructions as presented.
See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Vanterpool has failed
to demonstrate why the trial court’s multiple instructions to disregard were ineffective. See
Tennard, 802 S.W.2d at 683; Martines, 371 S.W.3d at 250; Jasso, 112 S.W.3d at 813.
Therefore, we conclude that the trial court did not abuse its discretion in denying
Vanterpool’s motion for mistrial. Webb, 232 S.W.3d at 112. We overrule Vanterpool’s first
issue.
III. STATE’S PUNISHMENT ARGUMENT
By his second argument, Vanterpool alleges the trial court erred in overruling his
objection to the State’s argument during the punishment phase of the trial as laid out in
section D of the background.
During trial, Vanterpool objected to the State’s argument on the basis of
“misstatement of the evidence.” However, in his brief, he states that the argument was
improper because: (1) the prosecutor was expressing her personal opinion, and (2) the
prosecutor was striking at Vanterpool over counsel’s shoulders. In order to preserve a
complaint for appeal, the record must show that the complaint was made to the trial court
by a timely request, objection, or motion that stated the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make the trial
court aware of the complaint, unless the specific grounds were apparent from the context.
TEX. R. APP. P. 33.1(a)(1). “An objection stating one legal basis may not be used to
11
support a different legal theory on appeal.” Villarreal v. State, 590 S.W.3d 75, 79–80 (Tex.
App.—Waco 2019, pet. ref’d). Therefore, because Vanterpool’s complaints on appeal do
not comport with his complaint made at trial, he has not preserved error for our review.
We overrule Vanterpool’s second issue.
IV. JURY INSTRUCTION
By his third issue, Vanterpool states that the trial court erred by instructing the jury
regarding its verdict form.
Article 37.01 of the code of criminal procedure provides that a “verdict” is a written
declaration by a jury of its decision of the issue submitted to it. TEX. CODE CRIM. PROC.
ANN. art. 37.01. Article 37.04 provides that an agreed verdict “shall be read aloud by the
judge,” and “[i]f in proper form and no juror dissents therefrom, and neither party requests
a poll of the jury, the verdict shall be entered upon the minutes of the court.” Id. art. 37.04.
A trial court has no power to change a jury’s verdict unless it is with the jurors’ consent
before they disperse. Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979);
Hernandez v. State, 533 S.W.3d 472, 484 (Tex. App.—Corpus Christi–Edinburg 2017,
pet. ref’d). “‘It is not only within the power, but it is the duty of the trial judge, to reject an
informal or insufficient verdict, call to the attention of the jury the informality or
insufficiency, and have the same corrected with their consent, or send them out again to
consider their verdict.’” Nixon v. State, 483 S.W.3d 562, 567 (Tex. Crim. App. 2016)
(quoting Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim. App. 1989)); see TEX. CODE
CRIM. PROC. ANN. art. 37.10(a).
12
Here, the jury initially announced it had reached a verdict. When the trial court read
the verdict forms, he stated it showed the jury found Vanterpool guilty of trafficking of
persons and of the lesser-included offense of sexual assault of a child. He instructed the
jury as follows:
So, ladies and gentlemen, what I need to do is have you go back to the jury
room. It—it wasn’t real clear in—in the charge. I actually discussed this with
someone about whether or not we should instruct you that you can only find
one of those verdicts. And so what I need you to do is go back and
deliberate, because a finding of guilt on the lesser included offense—you
have to make a finding on one or the other, so it can’t be both. Does that
make sense?
....
And so what I’ll ask you to do is go back to the jury room, continue to
deliberate, and let me know if you can reach a verdict based on that
instruction.
Once the jury had reached a verdict, Vanterpool objected on the record stating:
Just out of an abundance of caution, I would object on behalf of [Vanterpool]
in regards to any additional instructions that were given to the jury regarding
this particular verdict form. Given the fact that I believe that the—in my
opinion, I believe that the verdict form speaks for itself and any additional
comments on it would have been an improper instruction to the jury.
The foreperson certified that the verdict was unanimous and Vanterpool was found guilty
of trafficking of persons, with the foreperson’s signature crossed off of the lesser-included
offense form.
The trial court did not err by sending the jury back for deliberations on the verdict.
Because the initial verdict form contained guilty findings under both the charged offense
and the lesser-included offense, it constituted an insufficient verdict. See TEX. CODE CRIM.
PROC. ANN. art. 37.10(a). Therefore, the trial court had a duty to call the verdict form to
13
the jurors’ attention and send them out again to consider their verdict. See id.; Reese,
773 S.W.2d at 317; see, e.g., Hernandez, 533 S.W.3d at 484 (concluding that “a trial court
does not err when it orders the jury to further deliberate or correct the verdict form after
the jury informs the court it made a mistake in filling out the verdict form”). We overrule
Vanterpool’s third issue.
V. PUNISHMENT WITNESS NOTICE
By his fourth issue, Vanterpool argues that the trial court’s finding of reasonable
notice regarding the State’s punishment witness was error.
A. Standard of Review and Applicable Law
A trial court has broad discretion to admit or exclude extraneous offense evidence.
Ferrer v. State, 548 S.W.3d 115, 118 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d).
The trial court is the authority on admissibility of relevant evidence during the punishment
phase. Id. at 119. An appellate court reviews a trial court’s ruling on the admissibility of
extraneous-offense evidence for an abuse of discretion. Id. A reviewing court should not
reverse a trial court whose ruling was within the zone of reasonable disagreement. Id.Both parties agree that the notice requirement under article 37.07, § 3 of the code
of criminal procedure applies. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3 (“Evidence
of prior criminal record in all criminal cases after a finding of guilt”). The notice requirement
found in article 37.07, § 3(g) states:
[i]f the attorney representing the [S]tate intends to introduce an extraneous
crime or bad act that has not resulted in a final conviction in a court of record
or a probated or suspended sentence, notice of that intent is reasonable
only if the notice includes the date on which and the county in which the
alleged crime or bad act occurred and the name of the alleged victim of the
crime or bad act.
14
Id. art. 37.07, § 3(g). However, “[t]he requirement under this subsection that the attorney
representing the [S]tate give notice applies only if the defendant makes a timely request
to the attorney representing the [S]tate for the notice.” Id. (emphasis added). The
reasonableness of the State’s notice generally turns on the facts and circumstances of
each case. Ferrer, 548 S.W.3d at 119.
B. Discussion
Vanterpool stated that J.B.’s testimony was not included on the State’s notice of
extraneous offenses or bad acts. See TEX. CODE CRIM. PROC. ANN. § 3(g). However, as
the State points out, Vanterpool never filed a request for the State’s notice of intent to
introduce extraneous offenses or bad acts under this section or under Rule 404(b) of the
rules of evidence. See id.; TEX. R. EVID. 404(b).
Even though Vanterpool did not file a request for notice of extraneous offenses or
bad acts, the State provided Vanterpool with notice as soon as J.B. contacted its office.
During the hearing before the court, the State explained J.B. had come forward the day
before and it provided defense counsel with the information required by article 37.07,
§ 3(g), as well as with a copy of the interview conducted by its investigator. See TEX.
CODE CRIM. PROC. ANN. art. 37.07, § 3(g). Upon hearing the explanation and argument of
both parties, the trial court found that the notice given was reasonable and allowed J.B.
to testify. Since the State gave notice as soon as practicable, we would conclude that the
trial court did not abuse its discretion in allowing the testimony even if Vanterpool made
a timely request for notice. We overrule Vanterpool’s fourth issue.
15
VI. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
5th day of August, 2021.
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