Jannise v. State

789 S.W.2d 623, 1990 WL 79479

• Court: Court of Appeals of Texas
• Decided: May 10, 1990
• Docket: 09-88-089 CR
• Status: Published

Opinions

BURGESS, Justice,

concurring and dissenting.

I concur in the remand on the issue of punishment, but respectfully dissent to the affirmance on the issue of guilt.

I agree with the majority’s holdings regarding the additional sexual offenses involving C.C. and the outcry testimony.

The question of the admissibility of the acts between appellant and A.H. is a more complex one. Arguably, the admission of the acts against A.H. which occurred on November 29, 1985 [the indicted offense date] were admissible as “res gestae” of the acts against C.C. on that date. The majority holds the other acts a.re also admissible because of “res gestae” and they are part of a continuing transaction or continuous episode. Ordinarily, extraneous offenses, even sexual ones, against a third party, are not admissible. Boutwell v. State, 719 S.W.2d 164 (Tex.Crim.App.1985). I find no case involving extraneous offenses on consecutive dates. In Turner v. State, 754 S.W.2d 668 (Tex.Crim.App.1988) this court was reversed after approving the admission of an extraneous offense against a third party which occurred one month after the indicted offense. Turner v. State, 716 S.W.2d 569 (Tex.App. — Beaumont, 1986). In Alexander v. State, 692 S.W.2d 563 (Tex.App. — Eastland 1985) the Eastland court held evidence admissible that the appellant had molested a six year old girl “at about the same time” he molested the four year old complainant. The Court of Criminal Appeals remanded the case, Alexander, 753 S.W.2d 401 (Tex.Crim.App.1988) so the appeals court could determine the admissibility of the extraneous offense in light of Boutwell.1

The majority holds the continuous transaction exception under TEX.R.CRIM.EVID. 404(b) applies. I disagree. While the rule does not define continuous transaction, many cases have construed the phrase “criminal episode” to include the period immediately before or after the act of sexual assault. Burns v. State, 728 S.W.2d 114, 116 (Tex.App. — Houston [14th Dist.] 1987, pet. ref’d) and cases cited therein. There is no evidence in this case that the children were being held against their will or under any force, threats or duress during this four day period. In fact, appellant’s wife was present the entire time. Under these facts, each night’s assaults were separate acts and not a continuous transaction. The extraneous offenses against A.H. were not admissible and it was error to place those before the jury. I am unable to determine beyond a reasonable doubt that the error made no contribution to the conviction or punishment. TEX.R.APP.P. 81(b).

If the extraneous acts against A.H. were not admissible, then the State should not have argued them before the jury and this too was obviously error.

I also disagree to the majority’s holding concerning the omission of an extraneous offense instruction from the jury charge. Appellant was entitled to an instruction from the court limiting the jury’s consideration of the extraneous offenses to those purposes for which they were admitted. Crawford v. State, 696 S.W.2d 903, 907 (Tex.Crim.App.1985).

I also do not agree on the issue of the polygraph examination. The state argued below, the trial court agreed, and the majority now agrees, that under the rule of optional completeness, TEX.R.CRIM.EVID. 107, they were allowed to account for the morning time period or fully explain the purpose of the Houston trip and thus the polygraph examination was admissible. How can the state avail themselves of that rule since they initiated the testimony concerning the Houston trip?

While the rule prohibiting the results of a polygraph examination being placed in evidence is long standing and apparently quite firm, Crawford v. State, 617 S.W.2d 925 (Tex.Crim.App.1980), cert. denied, 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 431 (1981), there does not appear to be any express rule on the fact that a polygraph test was taken. In Lee v. State, 455 S.W.2d 316 (Tex.Crim.App.1970) there was the mention of a warning that the accused did not have to take a lie detector test. The court found the question was not designed to elicit the answer given and concluded the answer was unresponsive. They held no reversible error. In Paredes v. State, 368 S.W.2d 620 (Tex.Crim.App.1963) which also involved an unresponsive answer that the defendant had been taken “to a polygraph machine”, the court found no error. No evidence was presented that a test was even given much less any results, nor was any instruction requested. Likewise, there was no reversible error in Roper v. State, 375 S.W.2d 454 (Tex.Crim.App.1964) when there was an unresponsive answer that a test had been run and the result was not given. Each of these eases involved unresponsive answers. This is clearly not the case here. This case is more akin to Nichols v. State, 378 S.W.2d 335 (Tex.Crim.App.1964) where the court held the question to the prosecutrix whether she had taken a lie detector test was highly improper, clearly inadmissible and prejudicial. They further held the error could not be cured by instruction. See also Banda v. State, 727 S.W.2d 679 (Tex.App. —Austin 1987, no pet.). Using the rationale of Nichols, the trial court erred in admitting the evidence of the polygraph test being given.

Under my analysis, reversible error occurred during the guilt/innocence stage and thus, there should be a complete remand. While I concur in the majority’s partial remand, I must respectfully file this dissent.

1 . In an unpublished opinion, the Eastland court reversed and remanded to the trial court.