Stanton, Luke

• Court: Texas Supreme Court
• Decided: January 30, 2015
• Docket: PD-1482-14
• Status: Published

Opinion

/Y{2'M ORIGINAL NO. PD-1482-14

NO. PD-1483-14 RECESVEDS'M COURT OF CRMmAPPALS NO. PD-iJ484--14 JAN 30 2015 IN THE

COURT OF CRIMINAL APPEALS OF TEXAS .'*

LUKE ADAM STANTON/ SR./ Appellant/Petitioner FILED IN COURT OF CRIMINAL APPEALS

THE STATE OF TEXAS/ Appellee/Respondent JAN <3 l<~ - Abel Acosta, Cierk ON DISCRETIONARY REVIEW FROM THE

EIGHTH DISTRICT COURT OF APPEALS

EL PASO/ TEXAS

CAUSE NO. 08-12-00293-CR/ 08-12-00294-CR/ AND 08-12-00295-GR

FROM APPEAL FROM THE 211th JUDICIAL DISTRICT COURT

DENTON COUNTY/ TEXAS

CAUSE NO. F-2011-1911-C/ F-2011-1912-C/ AND F-2011-1913-C

PETITION; FOR.DISCRETIONARY REVIEW

LUKE STANTON #1830011 TDcg - Michael unit 2664 FM 2054 TN. COLONY/ TEXAS 75886

Appellant/Petitioner

ORAL ARGUMENT IS REQUESTED TABLE OF CONTENTS Page

INDEX OF AUTHORITIES ii

INDEX OF AUTHORITIES (Cont.) iii Constitution Provisions

Rules of Evid.

In the Record

STATEMENT REGARDING ORAL,ARGUMENT 1

STATEMENT REGARDING CASE 2

STATEMENT OF PROCEDURAL HISTORY 3

QUESTIONS PRESENTED FOR REVIEW 3

1. Did the EIGHTH District Court of Appeals error in its opinion that the trial court did not abuse its discretion by excluding evidence under Brayd/ that the polygraph Test questions are not evidence/ even after the State "Opened the Door" to reli able and relevant evidence. (RR4: 174-175)

2. Did the EIGHTH District Court of Appeals error in its opinion that the trial court did not abuse its discretion.under Rules of Evidence/ by excluding Investigator Toby Crow's expert opinion testimony/ when the Polygraphia Examination and their Results could be basis of the experts opinion.(RR4:174-175)

ARGUMENT 3

Question No. ONE 4

Factual Background 4 Argument and Authorities 4

Question No. TWO 9 Factual Background 9 Argument and Authorities 10

PRAYER FOR RELIEF 14

CERTIFICATE OF SERVICE 14

APENDIX

Eighth District Court of Appeals (October 10/2014) JUDGMENT "A" Eighth District Court of Appeals (October 10,2014) OPINION "B" INDEX OF AUTHORITIES Page

Brady v. Maryland/ 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) 7,8 Brecht v. Abrahamson, 507 ,U.S. 619, 113 S.Ct. 1710 (1993) .9 Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, (;l:993.):..i... 10,11 Davis v. State, 329 S.W.3d 798, 813-14 (Tex.Crim.App 2010) 12 Decker v. State, 717 S.W.2d 903, 908 (Tex.Crim.App. 1983) 5 Eddings v. Oklahoma, 455 U.S. 104, 102S.Ct. 869 (1982) 5 E.I. duPont de Nemours & Co. v. Robinson, 923 S.W.2d549 (Tex. 1995) 12 General Electrict Co. v. Joiner, 522 U.S. 136,143,.118 S.Ct. 512 (1997) 11 Hartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997) 11 Hernandez v. State, 60 S.W.3d 106 (Tex.Crim.App. 2001) 5 Homes v. South Carolina, 547 I.S. 319,324; 126 S.Ct. 1727 (2006) 13 Hoppes v. State, 725 S.W.2d 536 (FIRST District Court of Appeals) 5 Johnson v. State, 743 S.W.2d 307,309 (Tex.App.-San Antonio 1987) 5 Kelly v. State, 824 S.W.2d 568,572 (Tex.Crim.App. 1992) 11,12 King v. State, 953 S.W.2d 266,271. (Tex.Crim.App. 1997) 3 Kotteakos v. U.S., 328 U.S. 750,776; 66 S.Ct. 1239,1557,1572 (1946) 3 Kyles v. Whitley 514 U.S. 419, 433-34; 115 S.Ct. 1555, 1565-66 (1995) 8 Leonard v. State/ 385 S.W.3d 570/572 (Tex.Crim.App. 2012) 8 2012 Tex.Crim.App. LEXIS 477 at *5 13 Lockett v. Ohio/. 438 U.S. 586/604; 98 S.Ct. 2954, 2964-65 (1978) 5 Long v. State, 10 S.W.3d 389 ((Tex.App.-Texarkana 1999) 4 Lucas v. State, 479 S.W.2d 314,315 ((Tex.Crim.App. 1972) 6 Mak v. Blodgett, 507 U.S. 951; 113 S.Ct. 1363 (1993) 8,9 Morales v. State, 32 S.W.3d 862.865 (Tex.Crim.App 2000) 12 Nicols v. State, 378 S.W.2d 335,337 (Tex.Crim.App. 1964) 9 Ramey v. State, No. AP-75678, 2009 Tex.Crim.App.LEXIS 124 at *44-45 12 Russean v. State, 291 S.W.3d 426,438 (Tex.Crim.App. 2010) 12 Sauceda v. State, 192 S.W.3d 116,123 (Tex.Crim.App. 2001) 5 Sherman v. State, 20 S.W.3d 96 (Tex.App.-Texarkana 2000) 5 Thomas v. State/ 841 S.W.2d 399 (Tex.Crim.App. 1992) 9 Tillman v. State/ 2011 Tex.Crim.App.LEXIS 1343 13 U.S. v. Bagley/ 473 U.S. 667,682; 105 S.Ct. 3375, 3383-84 (1985) 8 U.S. v. Sipe, 388 F.3d 471 (5th Cir. 2004) 8 Webb v. State, 129 S.W.3d 126,129 (Tex.Crim.App. 2004) 8

li INDEX OF AUTHORITIES

(Cont.) Page

Wood v. Bartholomew, 516 U.S. 1, 10; 116 S.Ct. 7 (1995) 8

Wyrick v. Fields, 459 U.S. 42 (1982) 6

Constitution Provisions

United States Constitution Amendment Fourteenth (14th) 8,9

Rules of Evidence

Tex. R. Evid. 107

Tex. R. Evid. 702 11,12,13

Tex. R. Evid. 703 6,10,12,13

Tex. R. Evid 705 6,10,13

Tex. R. Evid. 705(b) 11

Fed. R. Evid. 702 11

In the Records

Appellant's Brief (Tex.App.) (App.Bf: 4-7) 10

Court Clerk Record ( C.R. ) (C.R. at 10; 119; 212-23; 152-54; 166-68) 2

Court of Appeals Opinion • (COA OPINION: 6-10) 3

Reporters Records ( RR ) (RR2:1)(RR3:1)(RR4:1)(RR5:1)(RR6:1; 30-32)(RR8:13-14; 13-16) 2

(RR4:174-175) 3

(RR2:8) (RR4:167-183; 171-173; 174-175; 177-17S; 183-184) 4,6,9,10

(RR4:185) 5,11

6 (RR4:167) (RR3:38) (RR4:49) 7

11 (RR4:185) State's Brief (Tex.App.) (St.Bfi7-8;>9-10; 11) 4,5,9,10,11

APENDIX &

Colirt of Appeals' (October 10, 2014) 08-12-00294-CR 08-12-00295-CR 08-12-00293-CR

in NO. PD-1482-14

NO. PD-1483-14

NO. PD-1484-14

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

LUKE ADAM STANTON, SR., Appellant/Petitioner

V.

THE STATE OF TEXAS, Appellee/Respondent

ON DISCRETIONARY REVIEW FROM THE

EL PASO, TEXAS

CAUSE NOS. 08-12-00293-CR, 08-12-00294-CR, AND 08-12-00295-CR

DENTON COUNTY, TEXAS

CAUSE NOS. F-2011-1911-C, F-2011-1912-C, AND F-2011-1913-C

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Luke Adam Stanton, Sr., Appellant/Petitioner, Pro se, petitions the Court of Criminal Appeals to review the decision affirming his judgment and sentence in Court of Appeals cause numbers: 08-12- 00293-CR, 08-12-00294-CR, and 08-12-00295-CR.

STATEMENT REGARDING ORAL ARGUMENT

Petitioner believes that oral argument would assist the Court in discerning the applicable caselaw and the pertinent fact. Peti tioner, therefore, request oral argument.

- 1 - STATEMENT OF THE CASE

This case involves a prosecution for multiple sexual abuse charges. Luke Adam Stanton, Sr., Petitioner, was indicted on September 29,2011, and charged with:

(F-2011-1911-C) Count I Sexual Assault (C.R. at 119) Tex. Penal Code § 22.011(a)(2)(C) Count 1I-IV. .Indecency' with a Child Tex. Penal Code § 21.11(a)(1)

(F-2011-1912-C) Count I ..Continuous Sexual Abuse of a Young Child (C.R. at 10) Tex. Penal Code § 21.02(b) Count II-IV...Indecency with a Child Tex. Penal Code § 21.11(a)(1)

(F-2011-1913-C) Count I Indecency with a Child!:" Tex. Penal Code § 21.11(a)(1) (C.R. at 10)

The indictment contained an additional allegation the Petitioner had been convicted of a Felony Offence of Conspiracy to distrabute cocain. (8 R.R. at 13-14) '•''•'

A jury trial was conducted on August 20-24, 2012. (2 R.R. at 1);(3 R.R. at 1);(4R.R. at 1);(5R.R. at 1);(6R.R. at 1). The jury found Petitioner guilty on each counts. (6R.R. at 30-32). And the jury assessed a punishment of:

(F-2011-1911-C) Count I 15 Years TDCJ Count II-IV ..15 Yrs each Count consec.

(F-2011-1912-C) Count I ...40 Yrs consec to F-2011-1911-C Count II-IV ..15 Yrs each Count consec.

(F-2011-1913-C) Count I 10 Yrs consec to F-2011-1912-C for a total of One Hundred and Fifty Five (155) Years' confinement in the Institutional Division of the Texas Department of Criminal Justice System. (8R.R. at 13-16; C.R. at 166-68; 152-54; 121-23) The trial court imposed sentences on August 24,2012..And,

Appellant/Petitioner filed Notice of Appeal on August 24,2012.

- 2 - STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals for the Eighth District of Texas issued an OPINION on Friday, October 10,2014. The Court AFFIRMED Petitioner's judgments and Sentences: STANTON V. STATE

No. 08-12-00293-CR, 2014 Tex.App.LEXIS , (Tex.App.-El Paso 2014) No. 08-12-00294-CR, 2014 Tex.App.LEXIS , (Tex.App.-El Paso 2014) No. 08-12-00295-GR, 2014 Tex.App.LEXIS , (Tex.App.-El Paso 2014)

Appellant/Petitioner did not file;/a Motion for Rehearing.

Appellant/Petitioner did timely file a Petition for Discretionary Review, additionally, filed a Motion for Extension of Time.

QUESTIONS PRESENTED, FOR REVIEW

1) Did the EIGHTH District Court of Appeals error in its opinion that the trial court did not abuse its discretion by excluding evidence under Brady, that the Polygraphic test questions are not evidence, even after the State "opened the door" to reliable and relevant evidence.(RR4:174-75)

2) Did the EIGHTH District Court of Appeals error in its opinion.that the trial court did not abuse its discretion under Rules of Evidence, by excluding Investigator Toby Crow's expert opinion testimony, when the Polygraphic Examination and their.Results could be the basis of the experts opinion. (RR4:174-175)

ARGUMENT

This case presents two Constitutional questions ripe for review. In over ruling Petitioner's First point, which concerns Polygraphic Evidence, the Eighth District Court of Appeals issued a decision that fails to address the most per tinent factors, and thereby misapplies the relevant standard. In overruling Petitioner's Second point, which concerns the Investigators expert opinion, as evidence. These exclusions of evidence are in violation of Petitioner's Consti tutional Rights, affirming the trial court's decision to allow the State to present certain evidence. Here, the Eighth District Court of Appeals OPINION meaningfully discussess only one factor; the polygraph examinations being inad missible in Texas Criminal Court Procedures. (COA Opinion: 6-10) But does not address polygraphic evidence to an experts opinion as the Petitioner has below. Petitioner's substantial right is affected "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King jV.: State, 953 S.W.23 266,271 (Tex.Crim.App. 1997)(citing Kotteakos v. U.S., 328 U.S. 750,776)

- 3 - QUESTION NO. ONE

Did the EIGHTH District Court of Appeals error in its opinion that the trial court did.not abuse its discretion by excluding evidence under Brady, that the Polygraphic Test Questions are not evidence, even after the State "opened the door" to reliable and relevant evidence. (RR4:174-175)

Factual Background

In the brief filed in the Court of Appeals, the State summerized its argument as follows: NO error is shown in the denial of Appellant's Poly graph into evidence at trial. And, the door can be opened to such evidence when a false impression of evidence is 'left.. State's brief in the Court of Appeals, SUMMARY OF THE ARGUMENT, Pg 7-8

The argument presented in support of this summary is: The error claimed that the polygraph portion was redacted from Appelx lant's video interview which showed Investigator Crow asking Appellant if he would take a polygraph test. Thereafter, Appellant wanted to induce the Polygraphic Evidence that Investigator Crow sought when abandonment of his investigation, not the polygraphic results. (RR4:171-173) State's brief, in Court of Appeals, ARGUMENT, Pg 9-10

Ag»#.uitieh"&rari.a:urftiU'fchiotei^t-ie3

It is undisputed during trial Investigator (Inv.) Toby Crow testified about his 2009 investigation of allegations of improper sexual conduct made by R.B. and K.B. (RR4:167-183)(St.Bf:9) Appellant's stepdaughters. However, never men tioned that he requested Appellant to take a polygraph test. But incredibily,. immediately thereafter the investigation, abandoned his case.

Appellant's contentions, to introduce the questions through Inv. Crow, of "Appellant's sexual history polygraph - that included all alleged aspects of the Appellant's sexual behavior and the victims list that accurred prior to the offenses of convictions".' At the pre-trial hearing, the State filed a motion in Limine seeking to exclude the polygraph evidence ... the trial court granted the Motion.(RR2:8)(St.Bf:9) But then, during trial/ the State "opened the door" to such evidence when Inv. Crow testified on direct "the only thing I had the bene fit of ... was the testimony of ..., there was no other evidence.."(RR4:183) Appellant contends that the specific question asked, and the techniques employed by the polygraph examiner, would demonstrate for the jury exactly how Appellant answered, particularly "the jury may have been left with the false impression that Appellant did not answer specific questions [the polygraph test]. Long v. State, 10 S.W.3d.. 389 (Tex.App.-Texarkana 1999). When the State asked its own

- 4 - witness about a prior bad act, the trial court erred in not allowing the defen dant to cross-examine the witness on details of that bad act. Sherman v. State,

20 S.W.3d 96 (Tex.App.-Texarkana 2000)

Under Tex.R.Evid. i07 - this Court of Criminal Appeals clarified the rule of optional completeness eight years before Appellant's trial in Sauceda v. State, 192 S.W.3d 116,123 (Tex.Crim.App. 2004). This Court held: "the plain lan guage of [Tex.R."of Evid] Rule 107 indicates that in order to be admitted under the rule, the omitted portion of the statement must be 'on the same subject' and must be "necessary to make it fully understood.'" Id. In other words, in clear contradiction to the prosecutors "fear," the polygraph evidence could have been submitted, it does not show the complainant's made any false allegations in their statements, and its basis induces the alleged sexual behavior of Appel lant from the victims list that allegely accurred, such evidence did not auto matically make the polygraph inadmissible. Notwithstanding, the State, by intro ducing the subject matter covered by evidence that might be inadmissible under the exclusionary rule, the party waives any complaint about admission of the evidence. Hernandez v.. State, 60 S.W.3d 106 (Tex.Crim.App. 2001); Decker v. State, 717 S.W.2d 903,908 (Tex.Crim.App. 1983). Here, in the instant case, Appellant, in raising the exclusionary rule issue contested the matter before the trial Judge to seek submission of the polygraph issue to the.jury,(Johnson v. State, 743 S.W. 3d 307,309 (Tex.App. San Antonio 1987, pet ref'd).). However, trial Judge still ruled, Vl'm going to keep out the polygraph.information."(RR4:185).(St.Bf:11)

In Hoppes, 725- S.W.2d at 536, "Kie;.Fixste;:District Courts©fi Appeals affirmed the judgment to "the use of specific statements from the polygraph examination for impeachment purposes was proper and did not open the* door to disclose to ;.. the jury the results of .the examination." Id. at 536. Additionally,/ in Lockett v. Ohio, 438 U.S. 586,604; 98 S.Ct. 2954, 2964-65; 57 L.Ed.2d 973 (1978); and Eddinqs v. Oklahoma, 455.U.S. 104; 102 S.Ct. 869; 71 L.ED.2d 1 (1982), under con trolling United States Supreme Court authority relaxed standards govern the admission of mitigating evidence in trial. Under these relaxed standards, miti gating polygraph evidence may be admitted if.(1) the prosecutor can cross- examine Inv. Crow's expert opinion on the reliability of the results, and (2) the trial Judge is convinced that Inv. Crow's expert testimony/ to his direct involvement with the polygraph examiner was qualified and the exam was conducted under proper conditions.

- 5 - Here, the case at bar, the trial courts heard Inv. Crow's resume as the expert ^.primary ^investigator" with "Twenty-Seven years" at the Denton County Sheriff Office as the "GURU" Juvenile investigator in crimes.(RR4:167) There fore the trial Judge and the State prosecutors knew that their nontesting expert had sufficient qualifications and reliable data/ as a source normally accepted in that field of expertise.(Tex.R.Evid. 703 and 705) to testify to the polygraph evidence. In 2009 Inv. Crow studied and formed an independent opinion into his investigation/ with the polygraph examiners report and the polygraph test ques tions before abandonment of his case as agreed upon with the Appellant. As in Lucas, the State requested defendant to submit to a polygraph exam, made an .:./'; agreement that if he "passed" the test his case would be dismissed, and that . the results of the test showed that he was not guilty. Thereafter, the Texas, Court of Criminal Appeals held that the State should be allowed ,to introduce evidence that the defendant, in fact, did not pass the polygraph test. Lucas, 479 S.Wi2d 314,315. In the instant case, Appellant passed his polygraph exam relating to the alleged sexual history, of the victims list of bad acts of Appel lant. Appellant twice, answered a seriers of Ten(10) questions: In sum:

Q: Have you ever put your finger in [K'-s] vagina?. A: NO Q: Have you ever with sexual intent fondled [K] in any manner? A: NO Q: Have you ever with sexual intent put your hands on [K] genital? A: NO Q: Have you ever put your hands on [R's] genital? A: NO Q: Have you ever put ointment on [R's] legs? A: NO

Then the polygraph examiner gave his results to Inv. Crow, that Appellant answered these direct questions with NO ATTEMPTED DECEPTION, and has been truth ful in his answers. Again, the trial court abused its.discretion in not allowing Appellant to submit ;the direct polygraph questions and answers to the jury with the State's expert witness Inv. Crow's testimony. When Inv. Crow uses polygraph exams extensively and rely's heavily on their results in evaluating the validity of sexual assault claims, it's an extremely useful diagnostic tool for his interrogation, and a routine part of his investigation. In Wyrick v. Fields, 459 U.S. 42 (1982)(Statements made to polygraph operator - but not the results of exams - may be admissible). With considerations to the results depend on far to many physical and psychological variables and can be manipulated to an extent, depending on the question asked, sometimes capable of detecting deception and worthy as an interrogation tool.

- 6 - In the 2011-2012 Edition of Professor David L. Faigman's Modern Scientific Evidence, included the 2003' report of the National Academy of Science on scien tific evidence for the:.polygraph, noted by the National Research Counsel, one that is especially pertinent to sex offenders order to take and pass polygraph examinations, is that "there is evidence suggesting that truthful members of socially stigmatized groups and truthful examinees who are believed to be guilty or believed to have a high likelihood of being guilty may show emotional and physiological responses in polygraph situation that mimic responses that are expected of deceptive individuals."

In sum, Appellant showed NO ATTEMPTED DECEPTION, the scientific reliability as a general proposition is clear on the truthfulness of the Appellant, noting that nothing in scientific evidence for the polygraph showed Appellant to be untruthful, in fact, even the victims testimony supported the polygraph results, clearly showing the Appellant told the truth when he underwent the examination.

In the Texas/Department of Family and Protective Services Investigation Report dated 2009, case No. 09-106430, #33997830. Interview with K.B., She reported that: "She'got out of the shower and had her towel on ... he tried to make her sit down by pus hing her shoulders down and he then put his fingers inside her."

But yet, during K^B.'s trial testimony: (RR4:49) Q: [State] Was there ever an incident where you came out of the shower wearing a towel that you recall? A: [K.B.] YES A: [K.B.] ... he sat me down on the side of the bed,... And I got up really fast and left the room as guickly as I could. Q:l[State] Did he actually do anything to you at that time? A:[K.B.] NO As further, Interview with R.B., ... denied that anyone had ever touched her inappropriately. She said she would tell. And, during R.B.'s trial testimony: (RR3:38) She states Appellant touched many times. Almost daily, starting in the fourth grade until the end of the eighth grade.

Thereby, making Appellant's sexual history polygraph evidence, pertinent facts for the factfinder to consider in its decision making process. Appellant contends that the Court of Appeals erred in concluding that the State did ,not withhold material, exculpatory evidence at trial, in violation of Brady v. Mary- land, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963), and violates Appellant's

- 7 - United States Constitution Amendment Fourteenth guarantee of due process. Id. at 87, 83 S.a. at 1196-97.

In Wood v. Bartholomew, 516 U.S. 1,10; 116 S.Ct. 7 (1995), Judgment of the Court of Appeals was reversed and remanded because Polygraph Exam's existed .. . evidence is "material" under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exist a "reasonable probability" that had the evidence been disclosed the results at trial would have been dif ferent, Kyles v. Whitley, 514 U.S. 419, 433-434; 115 S.Ct. 1555, 1565-1566; 131 L.Ed.2d 490 (1995); and U.S. v. Bagley, 473 U.S. 667,682; 105 S.Ct. 3375, 3383-84; 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.)Id. at 685; 105 S.a'. at 3385(White, J., concurring in part and concurring in judgment).

In the case at bar, the Eighth District Court of Appeals noted that under Texas Law polygraph exams are inadmissible for all purposes. However, Court of Appeals did not consider that the polygraph evidence was material under Brady. And, the Court did not reason that "[h]ad defense counsel been able to cross- examine the State's witnesses'concithe Appellant's sexual history polygraph," particularly the "victims list of offenses;" that "would have uncovered con flicting statements which could have been used quite effectively at trial." In U.S. v. Sipe, 388 F.3d 471 (5th Cir. 2004), A Brady violation on government's suppression of evidence constituted a new trial. Eventhough, the government arg ues that Sipe knew of or could have discovered with reasonable diligence The United States Court of Appeals FIFTH Cir. were not persuaded. Id. at 481.

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 arbitiary or unreasonable. Webb v. State, 129 S.W.3d 126,129 (Tex.Crim.App. 2004). The ,:•-; results of a polygraph exam are inadmissible, Leonard v. State, 385 S.W.3d. 570, 572 (Tex.Crim.App. 20111). However, results of Appelant's polygraph test were relevant to the trial on the issue of relative culpability and refute the States assertion that no evidence other than State witness'es testimony support the claim that Appellant committed the offenses. Appellant may use evidence that shows he did not participate in the offenses as the prosecution would like the jury to believe. Mak v. Blodgett, 507 U.S. 951; 113 S.a. 1363; 122 L.Efl.2d 742(1993). Therefore, the issue of relative culpability was before the jury. Since relative culpability is an appropriate mitigating factor, the Appellant's polygraph is

- 8 - relevant insofar asit bears on the question, if Appellant participated in the alleged crimes. Id. There were clear issues of relative credibility and cul pability btween Appellant and witness'es, and lack of polygraph evidence en-j abled State Prosecutors to impugn, persuasively, Appellant's credibility be fore the jury, U.S.C.A. Const. Amend. 14. Furthermore, the mere 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 dector test had been unfavorable to [the] Appellant." Nichols v. State, 378 S.W.2d 335,337 (Tex. Crim.App 1964).

In the instant case, as elucidated above, Appellant's polygraph was favor able evidence and pertinent to his trial. And, additionally, to the standards of Brecht v. Abrahamson, 507 U.S. 619; 113 S.Ct.1710; 123 L.Ed.2d 353 (1993), the Appellant met his burden of showing that the exclusion of the polygraph evidence had a "substantial and injurious effect on the verdict because there is a reas onable probability that, had the evidence been admitted, it would have substan tially influenced at least one juror's balancing of aggravated and mitigating factor." And/ this Court (Tex.Crim.App.) made a controlling resolution of favor able material evidence in Thomas v State/ 841S.W.2d399 (Tex.Crim.App. 1992). This Court relies upon its three part test to determine whether the State vio lated Appellant's.Right to due process under the Fourteenth Amendment.. Id. And/ Favorable evidence is any evidence/ including exculpatory and impeachment evid ence that/ if disclosed and used effectivele, may make the difference between conviction and acquittal. Id. at 403,404. .

QUESTION NO. TWO

Did the EIGHTH District Court of Appeals error in its opinion that the trial court did not. abuse its discretion under Rules of Evidence/ by excluding Investigator Toby Crow's expert opinion testimony/ when the Polygraphic Examination and their Results could be the basis of the' experts opinion. (RR4:174-175)

In the brief filed in the Court of Appeals/ the State summerized its arguments as follows. NO error is shown in the denial of the State's wit ness Inv. Toby Crow's expert opinion testomony, that improperly left a false impression on the factfinder/ to his investigation, and, to the abandonment of his investigation. State's brief in the Court of Appeals, SUMMARY OF THE ARGUMENT, Pg 7-8

The argument presented in support of this summary is:

- 9 -