Michael Don Pogue v. State, 10-14-00156-CR

Defendant Michael Don Pogue was convicted by a jury of five counts of sexual assault of a child and one count of indecency with a child; punishment set at 15 years and $5,000 fine per count.
On May 28, 2013, Pogue voluntarily went to a private polygraph examination after meeting Detective Bagwell; polygraph examiner Wood administered the test, read and obtained signed releases and an Article 38.22 waiver.
After the polygraph indicated deception, Bagwell (who had been outside the exam room) spoke with Pogue, read Miranda/Article 38.22 warnings, and Pogue made oral admissions; an audio recording of that interview was introduced.
Pogue moved to suppress the May 28 statement as not freely and voluntarily made; the trial court denied the motion after a Jackson v. Denno hearing and found Pogue was not in custody during the polygraph and that he knowingly waived rights before speaking to Bagwell.
Defense also objected to (1) the presence/conduct of transport officers before the venire, (2) portions of the State’s closing argument as burden-shifting, and (3) the trial court’s cumulation (consecutive) of sentences; the court overruled each objection.
The Tenth Court of Appeals affirmed, rejecting Pogue’s challenges to suppression, venire strike, prosecutor argument, and cumulative sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Motion to suppress statement	Pogue: statement involuntary due to coercion after failing polygraph; waiver not knowing/voluntary	State: Pogue volunteered for polygraph, was warned and waived Article 38.22/Miranda before Bagwell interview, no coercion	Court: Affirmed denial—totality shows voluntary waiver; distinguishable from Martinez where warnings omitted earlier
Objection to venire panel (transport officers)	Pogue: officers’ positioning and alleged conversation revealed custody and prejudiced jury	State: officers were inconspicuous, defendant in plain clothes, no evidence jurors heard anything	Court: Overruled—no showing of actual prejudice; presence of armed guards not inherently prejudicial
Prosecutor’s closing argument (alleged burden-shifting)	Pogue: prosecutor shifted burden by implying he should have produced witnesses/records	State: comments addressed defendant’s ability to subpoena relatives/records (not silence), defendant testified	Court: Overruled—comments permissible; did not penalize exercise of right not to testify
Cumulative (consecutive) sentencing	Pogue: court lost authority to cumulate because jury verdict read and accepted May 21 and he began serving sentence then	State: sentencing was not orally pronounced until May 22; court properly pronounced consecutive terms then	Court: Affirmed—oral pronouncement occurred May 22; cumulation timely and properly ordered

Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007) (standard for appellate review of suppression; deference to trial court fact findings)
Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008) (distinguishes voluntariness standards under federal due process/Miranda and state law Article 38.22)
Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App. 2008) (polygraph-related facts where failure to warn earlier rendered later statement involuntary)
Sterling v. State, 830 S.W.2d 114 (Tex. Crim. App. 1992) (presence of armed guards not inherently prejudicial; defendant must show actual prejudice)
Holbrook v. Flynn, 475 U.S. 560 (U.S. 1986) (presence of visible security may be nonprejudicial; context matters)
Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002) (court must orally pronounce consecutive sentences at time and place of sentencing to validly cumulate)