William Thomas LEONARD, Appellant v. The STATE of Texas.
No. PD-0551-10.
Court of Criminal Appeals of Texas.
Nov. 21, 2012.
Opinion on Rehearing
WOMACK, J., delivered the opinion of the Court, in which PRICE, JOHNSON, COCHRAN, and ALCALA, JJ., joined.
We withdraw our opinion of March 7, 2012, and issue this opinion in its place.
The appellant‘s deferred-adjudication community supervision was revoked based on the results of polygraph examinations. The Court of Appeals held that this evidence was inadmissible, and therefore the trial court abused its discretion. We shall affirm the Court of Appeals.
I. Background
A. Trial Court Proceedings
The appellant was indicted for aggravated sexual assault. In November 2004, he pled guilty to injury to a child and was placed on deferred-adjudication community supervision for five years. After several amendments, the terms of the appellant‘s community supervision included two provisions relevant to this appeal:
Submit to sex offender treatment and evaluation as directed by the supervision officer. Attend and participate fully in and successfully complete psychological counseling, treatment, and aftercare sessions for sex offenders with an individual or organization as specified by or approved by the Court or the supervision officer. Pay all costs of evaluation, counseling, treatment and aftercare. Treatment must be completed within three years of its initiation, with at least one-third of treatment completed each year.
And:
Must submit to, pay all costs for, and show no deception on any polygraph examination and other diagnostic test or evaluation as directed by the court or supervision officer.
In October 2008, the State petitioned the trial court to proceed to adjudication, alleging that the appellant had violated three terms of his community supervision.1 In the first count, the State alleged that the appellant had violated the “Sex Offender Treatment” condition in two ways:
a) In violation of this condition, [the appellant] was unsuccessfully discharged from sex offender treatment, on or about October 21, 2008.
b) In violation of this condition, [the appellant] failed to complete one-third of sex offender treatment at Michael Strain and Associates within the first year.
In the second count, the State alleged that the appellant had violated the “Polygraph” condition:
In violation of this condition, [the appellant] submitted to polygraph testing and revealed significant criteria indicative of deception, on or about [April 11, 2008,
and December 12, 2007].
In the third count, the State alleged that the appellant had not promptly paid his assessed fine and supervision fees.
At the adjudication hearing, the appellant pled not true to the first and third counts, and the State waived the second count. The State presented two witnesses: Dr. Michael Strain and the appellant‘s probation officer.
Strain was a psychotherapist in whose program the appellant had been enrolled until Strain discharged him from the program. When the State asked Strain why he had discharged the appellant, the appellant objected, citing two cases from this Court that had held that, because polygraphs were unreliable as a matter of law, the results of polygraph examinations were inadmissible.2 The trial court then asked Strain to answer the question. Strain said that he had discharged the appellant “because he had failed five polygraphs.” The appellant renewed his objection; the trial court overruled it, granting the appellant a running objection to all polygraph testimony. When Strain resumed testifying about polygraph results, the appellant requested a Daubert3 hearing to test the validity of the polygraph results. After a lengthy discussion with defense counsel, the trial court held in abeyance the motion for a Daubert hearing and never revisited the matter.
Strain then proceeded to testify that he had discharged the appellant from treatment because he believed that the appellant was not being truthful with him. The appellant had failed three polygraphs prior to April 2007, at which point the appellant “made several admissions” and “cleared” a polygraph.4 After that “cleared” polygraph, the appellant then failed five polygraphs, three of which “questioned him if he had had sexual contact with children, if he had done a sex crime or if he had isolated children,” and two of which “asked only if he had had sexual contact with children or done a sex crime.” Strain said that he believed these polygraph results showed that the appellant was engaged in “secret keeping.”
Strain said that he had no basis, other than the failed polygraphs, to discharge the appellant from the program or to believe that the appellant was being dishonest. The appellant was making satisfactory progress,5 the appellant attended all required sessions, and there was no reason other than the polygraphs to believe the appellant had committed any offenses. Strain testified that he did not conduct the polygraphs, but he did not say who did or give any information about the polygrapher.
The appellant‘s community-supervision officer then testified that the appellant had failed to pay some of his supervision fees on time, but had eventually paid the fees. During cross-examination, defense counsel seemed to have elicited that the periods in which the appellant was behind on his fees corresponded to periods of unemployment.
After this testimony, the parties rested. The State waived the third count of the motion to adjudicate, leaving only the first count.
In his argument, defense counsel observed that Strain had testified that the appellant had completed one-third of his treatment in the first year, showing that count 1b was not true, and that the only possible basis for revocation was count 1a. Defense counsel then argued that Strain‘s testimony regarding polygraph results was “per se inadmissible.” While polygraphs might be acceptable tools for therapists to use during therapy, they could not be “the only reason for putting a man in the penitentiary....”
In issuing its ruling, the trial court distinguished “between admitting polygraphs outright to show that someone did or did not tell the truth and ... considering them as the basis of an expert opinion as to whether someone poses a danger and a risk to this community....” The trial court then explained that it was very concerned that if polygraphs cannot be considered as a tool by the expert who receives them to be able to monitor someone on sex offender probation in this community, then we‘ll be losing a valuable tool to monitor someone‘s honesty, which is the crux of allowing people to continue ... in the community on sex offender probation when they obviously have shown that they are a danger to children in the past.
The trial court found count 1a to be true and count 1b to be false. It then adjudicated the appellant guilty of injury to a child and sentenced him to seven years’ confinement.
B. Court of Appeals
1. Arguments of the Parties
The appellant brought five points of error to the Eleventh Court of Appeals. In three points he argued that the trial court erred by admitting and considering the polygraph testimony, and without this testimony there was insufficient evidence to show that the appellant had violated the terms of his community supervision. In a fourth point, the appellant argued that the trial court erred in denying his request for a Daubert hearing. In his final issue, the appellant argued that the polygraph results were inadmissible hearsay because Strain did not conduct the polygraph examinations.
The State made two arguments for admitting the polygraph results. First, under Rule of Evidence 703, “the facts or data” upon which an expert bases his opinion “need not be admissible in evidence.” The State argued that the import of Strain‘s testimony was not that the appellant failed polygraphs, but that an expert had formed the opinion that the appellant was not being truthful, and, on the basis of this opinion, had discharged the appellant from his treatment program.
In a third point, the State argued that the appellant‘s request for a Daubert hearing was not preserved for review because the trial court never made a final ruling on the matter.
2. Opinion of the Court
Characterizing the adjudication proceeding as “trial by polygraph,” the Court of Appeals sustained the appellant‘s first three points of error and reversed the trial court.6 The Court of Appeals rejected the State‘s Rule 703 argument by noting that the reason polygraph results are inadmissible is because “the Court of Criminal Appeals has determined that, as a matter of law, they are unreliable.”7 Thus, even if the polygraph results were the basis for an expert‘s opinion, the trial court did not have the discretion to consider them. Because the failed polygraph examinations were the sole basis for Strain‘s opinion that the appellant was being dishonest, that opinion was itself inadmissible evidence from the polygraph examinations.
The Court of Appeals did note, however, that there was a “paradox” regarding polygraphs, because a trial court had the authority to require polygraph examinations as a condition of community supervision, but the results of those court-ordered polygraph examinations may not be shown to the trial court.8 The Court of Appeals seemed to resolve this paradox at the end of the opinion by suggesting that while the results of polygraphs are inadmissible, the fact that a defendant failed to take a court-ordered polygraph could be admissible at a revocation hearing.
II. Discretionary Review
We granted the State‘s petition for discretionary review on five grounds. The first four grounds for review reassert the State‘s Rule 703 argument and ask whether the Court of Appeals erred in holding that our cases stating that polygraph results are inadmissible “for all purposes” should take precedence over Rules 703 and 705, which, respectively, allow an expert to base his opinion on inadmissible information and to explain to the trial judge the basis for his opinion even if the information is otherwise inadmissible. In its fifth ground for review, the State asks whether the Court of Appeals “err[ed] in holding that polygraph results are always inadmissible notwithstanding a valid condition of community supervision [requiring that] the Appellant submit to and show no deception on a polygraph examination....”
III. Abuse-of-Discretion Review
Before we address the arguments of the parties, we first address a point passed
The appellant was adjudicated guilty because he failed to complete a sex-offender treatment program. The only issue for an appellate court in this case is whether the trial court abused its discretion in proceeding to adjudication.
The basic facts relevant to that matter do not seem to be in dispute. A condition of the appellant‘s community supervision was that he “successfully complete psychological counseling, treatment, and aftercare sessions for sex offenders with an individual or organization as specified by or approved by the Court or the supervision officer.” The individual in whose treatment program the appellant was enrolled testified that the appellant was discharged from the program without successfully completing it.
This appeal has been merely about the admissibility of evidence regarding why the appellant was discharged. Is that even relevant to determining whether the trial court abused its discretion?
During the adjudication hearing, the trial court seemed interested in this question. At one point, the trial court asked defense counsel:
If we were to proceed hypothetically [and] Mr. Strain got up here and said, “I discharged him,” and that‘s all he can say because it‘s based on polygraphs which are inadmissible, would you feel like that would be the way to proceed in this case? ... [D]ischarge is a violation of his probation, and if it‘s proved to me by a preponderance [of the evidence] that your client was discharged, the Court has the ability, as you well know, to revoke his probation and send him to prison. Now, we can either explore the reasons for that or we cannot.
In a revocation proceeding, the trial court has discretion to revoke community supervision when a preponderance of the evidence supports one of the State‘s allegations that the defendant violated a condition of his community supervision.9 Though defendants are not entitled to community supervision as a matter of right, once a defendant is assessed community supervision in lieu of other punishment, this conditional liberty “should not be arbitrarily withdrawn by the court....” 10 On appeal from a trial court‘s decision to revoke, therefore, appellate courts review the record only to ensure that the trial court did not abuse its discretion.
Upon close examination, however, it is not obvious how an abuse-of-discretion standard applies in this case. The trial court ordered the appellant to “[a]ttend and participate fully in and successfully complete” a program. The evidence at the adjudication hearing showed that the appellant did “[a]ttend” and “participate fully” in the program, both of which were within his power to do. The appellant did not have full control over his ability to “successfully complete” the program, how-
As the trial court suggested, under an ordinary abuse-of-discretion review, our analysis would already be over: Discharge caused the appellant to be in violation, and there was evidence that the appellant was discharged. Such an analysis on our part, however, would be inadequate.
Revocation involves the loss of liberty and therefore implicates due process.11 “The central issue to be determined in reviewing a trial court‘s exercise of discretion in a [community supervision] revocation case is whether the [defendant] was afforded due process of law.”12 It would surely offend due process if a defendant were discharged from his therapy program for a wholly inappropriate reason—such as illegal discrimination or mere caprice—and the bare fact of that discharge were used as a basis to revoke the defendant‘s community supervision. Yet, by an ordinary abuse-of-discretion review, such a revocation would be sustained.
What has happened here is that the trial court, through a condition of the appellant‘s community supervision, made the appellant‘s compliance with the terms of his community supervision subject to the discretion of a third party. In such a case, to determine whether the trial court abused its discretion we must also examine the third party‘s use of its discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision.13
With the standard of review explained, the issues in this case become clearer. If the polygraph results were inadmissible, then the record would not contain a basis for Strain‘s decision to discharge the appellant, and the trial court abused its discretion by adjudicating the appellant guilty.
IV. Polygraph Evidence
The history of this Court‘s dealings with polygraph evidence is long but not very complicated. For more than sixty years, we have not once wavered from the proposition that the results of polygraph examinations are inadmissible over proper objection because the tests are unreliable.
Our first discussion of the reliability of “lie detector’ tests” was a passing note in McKay v. State.14 In that case, a defen-
In Peterson v. State, we weighed in on the admissibility of lie detector results in a more relevant context.16 Peterson had sought to call as a witness “one D.E. Wheeler, the operator of the Keeler polygraph, or lie detector machine, for the Texas Department of Public Safety,” in order to have Wheeler “testify as to the facts observed by him in the giving of such test to the defendant.”17 The trial court had excluded the testimony because “the facts concerning the test would invade the province of the jury and constituted a mere expression of opinion as to the guilt or innocence of the defendant.”18 Though we held that the appellant had not properly preserved the matter for our review, we went on to note “that this Court has not yet authorized the admission of such evidence on behalf of the State, and, until this is done, it cannot be admitted on behalf of the defendant.”19
Several cases over the next decade cited back to this apparent dictum in Peterson as a holding of the Court. In Stockwell v. State, after determining that there had been enough evidence to require the trial court to hold a hearing on juror misconduct, we noted that the misconduct in the case—reading a newspaper article that implied the defendant had failed four lie detector tests—was particularly harmful because lie detector results were inadmissible.20 In Davis v. State, we held that the trial court erred in not granting the defendant a hearing outside the presence of the jury regarding the voluntariness of his confession.21 After the trial court had denied Davis‘s motion for a hearing, he had presented evidence of the voluntariness of his confession, including the fact that he failed two polygraph examinations, to the jury. At the end of the opinion, we noted that we were not “condemning the use of the polygraph as a means of interrogation,” but “upon another trial, the testimony which in effect revealed the results of the polygraph tests should be excluded from the jury.”22 In Placker v. State, the defendant had tried to admit evidence that he had taken and passed a polygraph ex-
It was not until 1964, 23 years after the mention of lie detector tests began appearing in our cases and 12 years after our statement in Peterson, that we had occasion to rule on a case where polygraph evidence had been admitted over objection.25 Nichols v. State was an appeal from a conviction for statutory rape.26 After defense counsel “rather extensively” cross-examined the complaining witness, on redirect the prosecutor asked her, “Without telling me any results, did you take a lie detector test about this?”27 As defense counsel objected, the witness answered in the affirmative. The trial court instructed the jury to disregard, but it did not rule on the defense motion for mistrial.
On appeal, we found “without a single exception, that every court of last resort that has been called upon to decide the question has ruled that results obtained from the so-called lie detector test are not admissible as evidence.”28 Even though the trial court did not deny the motion for a mistrial, we held that it was error not to have granted it because the prejudicial effect of admitting the results of a polygraph examination29 was such that “no amount of instructions on the part of the trial court could remove from the jury the harmful effect created in their minds.”30
Nine years after Nichols, we issued our most important and thorough opinion on polygraph evidence. The defendant in Romero v. State had entered into a signed agreement with the State that he would take a polygraph examination and the results, whatever they showed, would be admitted at trial.31 After he failed the examination, the defendant objected to the admission of the results, claiming that the State had violated the terms of the agreement by giving him methadone shortly before the examination and by using an unqualified polygraph examiner. The trial court admitted the polygraph results over this objection. Aside from the polygraph examiner‘s testimony that the defendant “gave deceptive answers” regarding his role in the offense, the only evidence against the defendant came from accomplice testimony.32
We began our discussion of polygraphs by noting, “No machine or device has perhaps caused greater controversy among ‘experts,’ judges, lawyers, physicians, psychologists, government officials, and the public in general than the polygraph or lie-detector machine.”33 In comparing our cases barring the admission of polygraph results to those of other jurisdictions, we noted our rule “followed the almost unanimous view of American courts.”34
We then listed several potential problems with polygraph examinations that might distort the results, such as the test subject‘s emotional tension, physiological abnormalities, mental abnormalities, unresponsiveness, and unobserved muscular movements that produce ambiguities or misleading indications in the blood-pressure tracing.35 Additionally, we noted several potential problems that were unrelated to the test subject, such as potential errors by the examiner, the lack of standardization in procedures, the difficulty in jury evaluation of examiners’ opinions, and the tendency of the trier of facts to treat polygraph evidence as conclusive.36
Although we noted that our bar on polygraph evidence had received some criticism and that at least two federal district courts (one of which was later overruled) had admitted polygraph evidence,37 we concluded that these authorities were insufficient to overcome the unreliability of polygraphs: “While we are aware of efforts to promote the reliability of polygraph tests and of the claims that they are now more reliable than before, we are convinced at this time that we should adhere to the general rule of exclusion.”38
But would a stipulation between the parties be sufficient to allow the admission of otherwise unreliable evidence? After citing to opinions from other jurisdictions, we agreed with an opinion of the Alaska Supreme Court that regardless of what the parties agreed to, it was our duty to keep unreliable evidence out of trials: “A stipulation for admission does not increase the reliability of polygraph results and therefore should not lead to any deviation from the exclusionary policy.”39 On that basis, we reversed the judgment of the trial court.
Romero was the last time we examined in detail the science and jurisprudence surrounding polygraph examinations, and, in the 39 years since, we have never departed from its holding.40
V. Rule 703 and Reliability
In its first four issues, the State argues that, while polygraph results are inadmissible on their own, an expert who testifies under Rule 702 may, according to Rule 703, base his opinion on inadmissible evidence and, under Rule 705,41 inform the trial court of the basis for his opinion. So, in this case, it would have been permissible for Strain to (1) testify regarding his opinion of the appellant‘s honesty while the appellant was in treatment, (2) base that opinion entirely on polygraph results, and (3) because his opinion was based on the polygraph results, tell the trial court of the polygraph results. The State does not ask us to revisit our holding in Romero and, in its brief on rehearing, concedes that the results of polygraph examinations should continue to be inadmissible “for a number of reasons....” 42
We believe the State‘s interpretation stretches
VI. The “Show No Deception” Provision
In its final ground for review, the State argues that the Court of Appeals erred by stating that polygraph results could not be admitted, even to litigate the provision in the appellant‘s probation condition requiring him to take and “show no deception” on polygraph examinations. The requirement that the appellant “show no deception” on the polygraph, however, strikes us as questionable. At the very least, we do not believe it presents a sufficient basis to compel the admission of polygraph results.
The Court of Appeals cited to a string of lower court cases where “taking a polygraph exam was a term or condition of community supervision,”48 and the State directs us to a lower court opinion that held that a trial court was within its discretion to require polygraph examinations as a condition of community supervision.49 However, the court in that case, after stating our rule that polygraph results were inadmissible, noted that the polygraph condition at issue “was imposed ... not to gather possible evidence for use during a trial but solely to serve as a catalyst for further investigation.”50
One of the suggested terms of community supervision contained in
If polygraph examinations were completely accurate, requiring that the appellant “show no deception” might make sense. As we discussed in Romero, though, there are several potential sources of error in polygraph examination, few (if any) of which are within the test subject‘s control.51 The “show no deception” requirement, by its terms, would cause the appellant to be in violation of his community supervision whenever the polygraph results indicated deception, whether those results were accurate or not. Moreover, it would allow the appellant to comply with the terms of his community supervision if he were to succeed in defeating the polygraph.
The trial court “may impose any reasonable condition [of community supervision] that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.”52 Whether requiring the appellant to submit to a polygraph examination is a reasonable condition is an issue we are not called on to decide today. What we decide is that any such requirement does not justify admitting legally unreliable evidence.53
VII. Conclusion
Because the trial court adjudicated the appellant guilty based on a third party‘s exercise of discretion, we must look at the basis for that underlying exercise of discretion.
Here, the only basis for the third party‘s decision was the results of polygraph examinations.
We hold that Rule 703 does not allow an expert to present opinion testimony based on scientifically unreliable facts or data. Additionally, the “show no deception” requirement in the terms of the appellant‘s community supervision does not provide a basis for admitting unreliable evidence. Therefore, the only evidence supporting revocation was inadmissible. The trial court abused its discretion by adjudicating the appellant guilty.
We affirm the decision of the Court of Appeals
JOHNSON, J., filed a concurring opinion, in which COCHRAN, J., joined.
KEASLER, J., filed a dissenting opinion, in which KELLER, P.J., and HERVEY, J., joined.
MEYERS, J., did not participate.
CONCURRING OPINION
JOHNSON, J., filed a concurring opinion in which COCHRAN, J., joined.
I join the opinion of the Court and note that there appear to be additional reasons for the inadmissability of polygraph results in this case: the testifying therapist is not an expert on polygraphs, and the polygraph results are hearsay as to the therapist. The expert who may base his opinion on inadmissible evidence and explain to the judge the basis for that opinion is the polygrapher, in this case an unknown person who did not testify. The therapist does not qualify as a polygraph expert and therefore should not be allowed to base his opinion on polygraph evidence that is not only inadmissible but hearsay as well.
KEASLER, J., filed a dissenting opinion, in which KELLER, P.J., and HERVEY, J., joined.
I dissent from the Court‘s opinion for two reasons: First, the Court creates an unnecessary and unclear standard of review when evaluating a trial judge‘s revocation of community supervision. Second, the Court firmly establishes a per se rule of exclusion for polygraph examinations by permanently labeling polygraph examinations unreliable as a matter of law. With one broad stroke, the Court closes the book on polygraph examinations regardless of how they are used or the nature of the criminal proceeding in which they are mentioned. The majority‘s inflexible approach incorrectly concludes that, in the limited context of a community-supervision revocation proceeding in which the sole issue was Leonard‘s discharge from court-ordered sex-offender treatment, a sex-offender-treatment expert may never use polygraph-examination results to form an opinion about continued treatment, even if those results constitute only a part of the basis for the opinion.
We have long held that an abuse-of-discretion standard applies when reviewing a trial judge‘s revocation of probation.1 A trial court abuses its discretion by revoking probation when the State has failed to prove a violation by a preponderance of the evidence.2 Today, the Court has created a new variant of the abuse-of-discretion standard because, in its view, the time-tested standard is insufficient to protect against revocations based upon a probationer‘s discharge from therapy for “a wholly inappropriate reason—such as illegal discrimination or mere caprice.”3 The Court identifies this as a due process concern necessary to this case‘s disposition, even though there is nothing in the record to suggest Leonard was discharged for one of these reasons, nor does Leonard assert such a claim. To remedy this perceived issue, the Court announces that appellate courts are required to examine “the third party‘s use of discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision.”4
This new standard is premised on an overly expansive view of due process in revocation proceedings that we have never adopted and that is unsupported by United States Supreme Court precedent. In Ex parte Carmona, a plurality of the Court relied upon the Supreme Court‘s opinions in Gagnon v. Scarpelli5 and Morrissey v. Brewer6 and defined the contours of due process in community-supervision revocations: “To meet the requirements of due process, the final revocation must be pre-
Aside from whether due process requires a new standard of review, the Court‘s new standard is vague and fails to provide sufficient guidance to the lower courts. In addition to being rational, the third party‘s use of discretion must now be “connected to the purposes of community supervision.” With its citation to
Turning to Leonard‘s probation-revocation hearing, George Strain, Leonard‘s treating psychotherapist, testified that he terminated Leonard‘s treatment resulting in an alleged violation of a condition of his probation—the successful completion of sex-offender treatment. Strain testified that he discharged Leonard because he believed Leonard was being dishonest in the course of his treatment. He further testified that, “It‘s important for me to feel that they‘re telling me the truth, that they‘re doing the things they‘re supposed to do so they‘re not putting children at risk.” Although there were times Leonard kept secrets and had not been completely honest about things which were discovered outside of the polygraph examinations, Strain testified that his opinion about Leonard‘s dishonesty was primarily based on Leonard‘s five failed polygraphs. He also testified that polygraph examinations are a normal part of sex-offender treatment and that experts in the field, including himself, reasonably rely upon the results in forming their opinions. Strain stated he uses polygraphs as a way of gauging a person‘s compliance with their treatment contract and the conditions of their probation. He also stated that polygraphs are used as a tool in making treatment decisions and are used to determine whether the person is being honest about their offense, their history, and their assurances of avoiding children, which if not genuine, could pose a community-safety risk. The inability to form opinions from polygraph results would, according to Strain, greatly decrease a therapist‘s ability to provide sex-offender treatment.
Addressing the admissibility of Strain‘s testimony, the Court relies upon our line of cases broadly pronouncing polygraph results inadmissible to conclude that polygraph results are unable to form even a part of the basis of a sex-offender-therapist‘s expert opinion. But our past statements concerning polygraph results do not aptly apply to the present case like the majority presumes. The breadth of the Court‘s holding today is alarming in that it suggests that in any future proceeding, polygraph results—regardless of the context in which they may be considered or the purpose for which they may be proffered—will never be permissible as a matter of law. However, a number of federal circuit courts have either abandoned or never adopted a per se rule of inadmissibility.12 While we have stated “[t]he existence and results of a polygraph examination are inadmissible for all purposes”13 and are not admissible in a Texas criminal proceeding,14 we have never addressed whether (1) the use of polygraph results were improper in a therapy context or a revocation proceeding or (2) whether an expert could rely on the results to render an opinion on a probationer‘s compliance with court-ordered therapy.
Furthermore, unlike some of our past cases, the polygraph results that Strain relied upon were not introduced to show the truth or falsity of a particular answer. The issue was not whether Leonard lied on any particular occasion or in response to a given question, but whether he was generally being honest during the course of his treatment. The polygraph results were offered to explain why Strain believed that Leonard was being dishonest, that such a determination was rational, and that discharging Leonard from treatment was not an arbitrary decision.17
We have previously held that the use of the polygraph is a proper means of investigation.21 Polygraphs are commonly used as investigative tools and are “not used to gather possible evidence for use during a trial, but solely to serve as a catalyst for further investigation.”22 In his brief, Leonard concedes that polygraphs are valid investigative tools and therapeutic aids that may be used.23 Polygraphs in the sex-offender therapy context serve an investigative function in that they assist therapists in their determination of whether a probationer is complying with treatment and progressing and in that they enable therapists to discover antecedents to reoffending.24
Although not addressed by the court of appeals‘s or this Court‘s opinions, Strain provided an additional basis for his conclusion that Leonard was being dishonest apart from his reliance on the failed polygraph examinations. Strain testified that, “There had been times that Mr. Leonard has kept secrets and not been completely honest about things, and those have come
I disagree with the Court‘s overly broad holding that polygraphs can never be reliable or reasonably relied upon to form an expert opinion. I would hold that the trial judge did not abuse her discretion in adjudicating Leonard because Strain (1) learned Leonard was keeping secrets without the use of polygraph results, and (2) properly relied upon Leonard‘s failed polygraph examinations in concluding that Leonard was being dishonest which warranted Leonard‘s discharge from treatment. Because the Court does not so hold, I dissent.
Justice LEHRMANN, concurring.
Justice LEHRMANN, concurring.
On rehearing, the State contends that the Court‘s decision that service by publication in this case failed to comport with due process is faulty because L.R. had appeared at several hearings. Normally, if a defendant appears in open court, the appearance has “the same force and effect as if the citation had been duly issued and served as provided by law.”
George Edward BLACKSHEAR, Appellant v. The STATE of Texas.
No. PD-0889-11.
Court of Criminal Appeals of Texas.
Dec. 19, 2012.
Randall J. Ayers, Houston, TX, for George Edward Blackshear.
David C. Newell, Asst. District Atty., Houston, Lisa C. McMinn, State‘s Attorney, Austin, TX, for State.
OPINION
KEASLER, J., delivered the opinion of the Court, in which KELLER, P.J., PRICE, WOMACK, JOHNSON, HERVEY, COCHRAN, and ALCALA, J.J., joined.
The Fourteenth Court of Appeals held that the trial judge committed reversible
Notes
Throughout this opinion, we will use the terms “adjudication” and “revocation” in such a manner as to reflect the fact that adjudication hearings are a subset of revocation hearings.
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.App.2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984); Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App.1980).The dearth of cases in which polygraph results were admitted, even while numerous cases from this era mention polygraph examinations being used during police investigations, implies a general understanding that polygraph results were not admissible.
Our conclusion in Nichols that the jury inferred the results of a polygraph examination from the context in which it was mentioned is at odds with several contemporary cases in which we held that the mention of a polygraph examination, when the results were not explicitly mentioned, was insufficient to require a reversal or mistrial so long as the reference was not to the defendant taking or not taking a polygraph examination. See Renesto v. State, 452 S.W.2d 498, 500 (Tex.Cr.App.1970) (so holding, and citing several other cases where it was so held). In Roper v. State, 375 S.W.2d 454 (Tex. Cr.App.1964), a witness gave an unresponsive statement that the defendant took a polygraph examination during the police investigation, which, combined with his being on trial, would seem to imply the results. We held that because the question was unresponsive and we detected no bad faith on the part of the prosecutor, the trial court‘s instruction to the jury to disregard was sufficient. Id., at 456-57.
Perhaps the holding in Nichols can be explained by our note that “the state‘s whole case depended entirely upon the testimony of this one 14 year old witness,” and the result of mentioning the polygraph examination was to bolster her credibility. Nichols, 378 S.W.2d at 338.