NUMBER 13-12-294-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KAREN RUTH WILLIAMSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 410th District Court of Montgomery County, Texas.
MEMORANDUM OPINION1 Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Garza A jury found appellant, Karen Ruth Williamson, guilty of the Class A
misdemeanor offense of criminal mischief for damaging her neighbor’s vehicle. See
1 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). TEX. PENAL CODE ANN. § 28.03(a), (b)(3) (West 2011). The trial court assessed her
punishment at confinement for ninety days, a $500 fine, and $1,000 in restitution. The
trial court suspended the sentence and placed appellant on community supervision for
one year. By a single issue, Williamson argues that the trial court erred in denying her
motion for a mistrial after the detective who investigated the case testified that he could
not remember whether he offered her an opportunity to take a polygraph examination.
We affirm.
I. BACKGROUND
On March 31, 2010, Lois Hesser was leaving her mother’s house in Pinehurst,
Texas. Hesser testified that while she was inside her car, Williamson approached and
began striking the car with a bag that appeared to contain apples or grapefruit. During
Williamson’s trial, the State called Vince Hatfield, a detective with the Montgomery
County Sheriff’s Department, to testify regarding his conversations with Williamson.
During direct examination, the following exchange occurred:
Q. [Prosecutor]: And so what happened—what happened after you walked around her house and down the street?
A. [Hatfield]: She [Williamson] had, again, just denied any involvement, said that she hadn’t seen Lois since December, reiterated her story. I don’t recall if I offered her a polygraph examination or—
Williamson’s counsel objected to the indirect introduction of polygraph
examination evidence. Outside the presence of the jury, the trial court heard testimony
from Detective Hatfield that Williamson initially agreed to take a polygraph examination,
but later refused to do so. With the jury present, the trial court sustained defense
counsel’s objection, instructed the jury to disregard the detective’s statement, told the
2 jury that no polygraph examination had been taken, and denied Williamson’s request for
a mistrial.
II. DENIAL OF MISTRIAL
By her sole issue, Williamson argues that the trial court erred in denying her
motion for a mistrial. Specifically, Williamson complains that the trial court’s denial of a
mistrial was erroneous because: (1) the prosecutor exhibited bad faith by asking the
detective a question designed to elicit evidence that Williamson was offered a polygraph
examination; and (2) the mention of the possibility of a polygraph examination bolstered
the State’s case. The State responds that the mere mention that Williamson may have
been offered a polygraph examination did not constitute reversible error. We agree with
the State.
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); see also Steer v. State,
No. 13-11-00758-CR, 2013 WL 2146722, at *1 (Tex. App.—Corpus Christi May 16,
2013, no pet.) (mem. op., not designated for publication). 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). 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 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). The asking of
3 an improper question will seldom call for a mistrial because any harm can usually be
cured by an instruction to disregard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim.
App. 2000). A mistrial is required only when the improper question is clearly prejudicial
to the defendant and is of such character as to suggest the impossibility of withdrawing
the impression produced on the minds of jurors. Id.
The results of a polygraph examination are inadmissible. Leonard v. State, 385
S.W.3d 570, 577 (Tex. Crim. App. 2012). The mere mention of a polygraph
examination, however, is not necessarily reversible error. Renesto v. State, 452 S.W.2d
498, 500 (Tex. Crim. App. 1970); Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d). In determining whether a trial court erroneously
failed to grant a mistrial, a reviewing court may also consider: (1) whether the
questioning party exhibited bad faith in asking the question designed to elicit polygraph
evidence, and (2) whether polygraph evidence bolstered the State’s case. See Jasso,
112 S.W.3d at 814 (citing Buckley v. State, 46 S.W.3d 333, 336–37 (Tex. App.—
Texarkana 2001, pet. dism’d)). However, in order for the 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 detector test had been unfavorable to [the]
appellant.” See Nichols v. State, 378 S.W.2d 335, 337 (Tex. Crim. App. 1964).
When, as here, a witness gives a nonresponsive answer that mentions a
polygraph test, but does not mention the results of the test, there is no error in not
granting a mistrial. Martines v. State, 371 S.W.3d 232, 251 (Tex. App.—Houston [1st
Dist.] 2011, no pet.); Barker v. State, 740 S.W.2d 579, 583 (Tex. App.—Houston [1st
Dist.] 1987, no pet.). When a witness on direct or cross examination testifies that either
4 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. Hannon v. State,
475 S.W.2d 800, 803 (Tex. Crim. App. 1972); Renesto, 452 S.W.2d at 500; Roper v.
State, 375 S.W.2d 454, 457 (Tex. Crim. App. 1964); Gregory v. State, 56 S.W.3d 164,
174 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). A trial court errs in denying a
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NUMBER 13-12-294-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KAREN RUTH WILLIAMSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 410th District Court of Montgomery County, Texas.
MEMORANDUM OPINION1 Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Garza A jury found appellant, Karen Ruth Williamson, guilty of the Class A
misdemeanor offense of criminal mischief for damaging her neighbor’s vehicle. See
1 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). TEX. PENAL CODE ANN. § 28.03(a), (b)(3) (West 2011). The trial court assessed her
punishment at confinement for ninety days, a $500 fine, and $1,000 in restitution. The
trial court suspended the sentence and placed appellant on community supervision for
one year. By a single issue, Williamson argues that the trial court erred in denying her
motion for a mistrial after the detective who investigated the case testified that he could
not remember whether he offered her an opportunity to take a polygraph examination.
We affirm.
I. BACKGROUND
On March 31, 2010, Lois Hesser was leaving her mother’s house in Pinehurst,
Texas. Hesser testified that while she was inside her car, Williamson approached and
began striking the car with a bag that appeared to contain apples or grapefruit. During
Williamson’s trial, the State called Vince Hatfield, a detective with the Montgomery
County Sheriff’s Department, to testify regarding his conversations with Williamson.
During direct examination, the following exchange occurred:
Q. [Prosecutor]: And so what happened—what happened after you walked around her house and down the street?
A. [Hatfield]: She [Williamson] had, again, just denied any involvement, said that she hadn’t seen Lois since December, reiterated her story. I don’t recall if I offered her a polygraph examination or—
Williamson’s counsel objected to the indirect introduction of polygraph
examination evidence. Outside the presence of the jury, the trial court heard testimony
from Detective Hatfield that Williamson initially agreed to take a polygraph examination,
but later refused to do so. With the jury present, the trial court sustained defense
counsel’s objection, instructed the jury to disregard the detective’s statement, told the
2 jury that no polygraph examination had been taken, and denied Williamson’s request for
a mistrial.
II. DENIAL OF MISTRIAL
By her sole issue, Williamson argues that the trial court erred in denying her
motion for a mistrial. Specifically, Williamson complains that the trial court’s denial of a
mistrial was erroneous because: (1) the prosecutor exhibited bad faith by asking the
detective a question designed to elicit evidence that Williamson was offered a polygraph
examination; and (2) the mention of the possibility of a polygraph examination bolstered
the State’s case. The State responds that the mere mention that Williamson may have
been offered a polygraph examination did not constitute reversible error. We agree with
the State.
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); see also Steer v. State,
No. 13-11-00758-CR, 2013 WL 2146722, at *1 (Tex. App.—Corpus Christi May 16,
2013, no pet.) (mem. op., not designated for publication). 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). 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 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). The asking of
3 an improper question will seldom call for a mistrial because any harm can usually be
cured by an instruction to disregard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim.
App. 2000). A mistrial is required only when the improper question is clearly prejudicial
to the defendant and is of such character as to suggest the impossibility of withdrawing
the impression produced on the minds of jurors. Id.
The results of a polygraph examination are inadmissible. Leonard v. State, 385
S.W.3d 570, 577 (Tex. Crim. App. 2012). The mere mention of a polygraph
examination, however, is not necessarily reversible error. Renesto v. State, 452 S.W.2d
498, 500 (Tex. Crim. App. 1970); Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d). In determining whether a trial court erroneously
failed to grant a mistrial, a reviewing court may also consider: (1) whether the
questioning party exhibited bad faith in asking the question designed to elicit polygraph
evidence, and (2) whether polygraph evidence bolstered the State’s case. See Jasso,
112 S.W.3d at 814 (citing Buckley v. State, 46 S.W.3d 333, 336–37 (Tex. App.—
Texarkana 2001, pet. dism’d)). However, in order for the 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 detector test had been unfavorable to [the]
appellant.” See Nichols v. State, 378 S.W.2d 335, 337 (Tex. Crim. App. 1964).
When, as here, a witness gives a nonresponsive answer that mentions a
polygraph test, but does not mention the results of the test, there is no error in not
granting a mistrial. Martines v. State, 371 S.W.3d 232, 251 (Tex. App.—Houston [1st
Dist.] 2011, no pet.); Barker v. State, 740 S.W.2d 579, 583 (Tex. App.—Houston [1st
Dist.] 1987, no pet.). When a witness on direct or cross examination testifies that either
4 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. Hannon v. State,
475 S.W.2d 800, 803 (Tex. Crim. App. 1972); Renesto, 452 S.W.2d at 500; Roper v.
State, 375 S.W.2d 454, 457 (Tex. Crim. App. 1964); Gregory v. State, 56 S.W.3d 164,
174 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). 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.)
(finding trial court did not err in denying motion for mistrial where deputy provided
nonresponsive testimony that the defendant was offered but refused to take a polygraph
examination).
B. DISCUSSION
Williamson argues that the State’s question constituted reversible error because
it was asked in bad faith. Detective Hatfield’s answer to the State’s question was
nonresponsive. Cf. Nichols, 378 S.W.2d at 336 (finding harmful error where prosecutor
directly asked statutory rape victim if she had taken a polygraph examination). Here,
the prosecutor did not directly ask Hatfield about a polygraph examination. Moreover,
Hatfield merely mentioned that he might have asked Williamson if she wanted to take a
polygraph exam, not whether she actually took an exam, and certainly did not mention
any results of an exam. Williamson also asserts that “it is likely that the two [the
prosecutor and Hatfield] had an understanding that that piece of information would
innocently be brought before the jury.” Williamson, however, provides no evidence
5 indicating that Hatfield and the prosecutor had a prior agreement to bring up the
polygraph-offer evidence before the jurors.
Williamson also argues that Hatfield’s mention of a polygraph examination
unjustly bolstered the State’s case against her. According to Williamson, “[m]ention of
the polygraph would have left the jury to wonder what the results of any examination
might have been.” Bolstering occurs when an item of evidence is improperly used by a
party to add credence or weight to some earlier unimpeached piece of evidence offered
by the same party. Guerra v. State, 771 S.W.2d 453, 474 (Tex. Crim. App. 1988). In
the instant case, Williamson’s assertion is without merit because the trial court advised
the jury that no polygraph examination was taken.
When polygraph evidence is only mentioned and no results are disclosed, an
instruction to disregard is sufficient to cure any error. See Tennard v. State, 802
S.W.2d 678, 684 (Tex. Crim. App. 1990). Reviewing courts must presume that a jury
follows a court’s instruction to disregard testimony, absent some proof from the record
that the jury did not or could not follow such an instruction. See Thrift v. State, 176
S.W.3d 221, 224 (Tex. Crim. App. 2005). Accordingly, the trial court did not abuse its
discretion in instructing the jury to disregard the mention of a polygraph exam and in
denying Williamson’s motion for mistrial. We overrule Williamson’s sole issue on
appeal.
6 III. CONCLUSION
We affirm the trial court’s judgment.
________________________ DORI CONTRERAS GARZA, Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 25th day of July, 2013.