1

In The

Court of Appeals

Ninth District of Texas at Beaumont

___________________

NO. 09-14-00070-CR

___________________

STEPHEN DEMOND ODOM, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court

Jefferson County, Texas

Trial Cause No. 13-16301

__________________________________________________________________

MEMORANDUM OPINION

A jury found Stephen Demond Odom guilty of intentionally or knowingly 

causing serious bodily injury to Jakyra Leatrice Henderson, a child. See Tex. Penal

Code Ann. § 22.04(a)(1) (West Supp. 2014). In his appeal, Odom argues (1) the 

evidence is insufficient to sustain his conviction; (2) the trial court erred when it 

allowed him to be cross-examined about his response to a request by police that he 

undergo a polygraph; and (3) the prosecutor, in closing, engaged in improper 
2

argument. We conclude the trial court abused its discretion by allowing the 

prosecutor to ask Odom whether he agreed to the request made by police that he 

take a polygraph. We further conclude Odom was harmed by the error in admitting 

the evidence about the requested polygraph. We reverse and remand the case for 

retrial. 

Background

Jakyra, a three-year-old child, died on the morning of January 15, 2012, 

from complications resulting from injuries that she suffered to her abdomen. Dr. 

Tommy Brown, the forensic pathologist who performed Jakyra’s autopsy, ruled 

that Jakyra’s death was the result of a homicide. According to Dr. Brown, Jakyra’s 

injuries were the result of blunt force trauma that she suffered to her abdomen, 

resulting in injuries to her liver, mesentery, pancreas, duodenum, and stomach. 

Detective Mark Hogge, a police officer employed by the City of Beaumont, 

investigated Jakyra’s death. During Odom’s trial, Detective Hogge testified that 

during his investigation, Odom became a suspect because (1) Odom usually cared 

for Jakyra while Jakyra’s mother, Keneste Lennette, was at work; (2) Jakyra was in 

Odom’s care on the day before her death; (3) all of Jakyra’s family members, 

except Odom, cooperated with the police during the investigation of Jakyra’s 

death; and (4) the police believed that Jakyra died at approximately 4:30 a.m., 
3

significantly earlier than the account Odom gave police when he explained how 

she died.

A few days after Jakyra died, Nancy Blitch, an investigator employed by the 

Garth House,1 interviewed J.W., Jakyra’s five-year-old brother. According to 

Blitch, J.W. did not disclose any information to indicate that Odom had caused 

Jakyra any injury. Blitch also testified that J.W. did not appear to be frightened of 

anyone during the interview she conducted of him shortly after Jakyra died. 

After failing to discover any evidence connecting Odom to the injuries 

Jakyra was found to have suffered, the police closed their investigation in Jakyra’s 

case without making an arrest. On the anniversary of Jakyra’s death, a local 

television station broadcast a request by Crime Stoppers for the public’s assistance 

in solving Jakyra’s homicide. Khristella Joseph2 responded to the broadcast.

Khristella reported to Crime Stoppers that, shortly after Jakyra died, J.W. told her 

that he saw Odom “kick and punch [Jakyra] in the stomach to make her stop 

crying.” 

 1 Garth House is a child advocacy center that allows children to state what 

happened to them to a social worker while the stories are being recorded. Other 

agencies can then view the recording to avoid repeated interviews about what 

happened. 

2 During the trial, Khristella testified that she knew Keneste Lennette, 

Jakrya’s mother, because Keneste is her stepfather’s niece. Khristella also 

explained that she knew J.W. and Jakyra. 
4

Khristella testified during Odom’s trial.3 According to Khristella, J.W. also 

told her that he was frightened of Odom. Khristella acknowledged that before 

calling Crime Stoppers, she did not tell Keneste or Jakyra’s grandmother about 

what J.W. said to her before Jakyra’s funeral. Khristella also acknowledged that 

she had received a reward for the information she gave to Crime Stoppers. To 

explain why she did not come forward earlier, Joseph stated that she did not know 

about the results of Jakyra’s autopsy before she heard the television broadcast

indicating that the police needed assistance to solve Jakyra’s homicide. 

Acting on Khristella’s tip, the police arranged for J.W. to undergo a second 

interview with Blitch. The second interview occurred in January 2013. According 

to Blitch, in J.W.’s second interview, she asked J.W. what he came to Garth House 

to talk about: J.W. responded, stating that his mother told him to tell her that Odom 

had punched his sister in the stomach. During the trial, Blitch testified that it was 

difficult to tell if J.W. had been coached before his second interview. Blitch stated 

that during J.W.’s second interview, J.W. told her that he saw Odom strike Jakyra 

 3 Although tips to crime stoppers organizations are generally privileged, 

reports to such organizations under some circumstances may become admissible. 

See Tex. Gov’t Code Ann. § 414.008 (West 2012). The record does not reflect how 

the parties discovered Khristella’s identity. Although Odom raised several 

objections to Khristella’s testimony at trial, none of the objections were pursued in 

Odom’s appeal. 
5

in the stomach. Blitch also testified that J.W. gave her a detailed description of the 

incident when he saw Odom hit Jakyra in the stomach. 

In March 2013, the State indicted Odom for intentionally and knowingly 

causing serious bodily injury to Jakyra by hitting her with his hand. The indictment 

alleges that the incident occurred on or about November 20, 2011. In a second 

count, the State alleged that on or about that same date, Odom recklessly caused

serious bodily injury to Jakyra by hitting her with his hand. 

A total of sixteen witnesses testified during the guilt-innocence phase of the 

case, including Odom, who testified in his own defense.4 The only witness who 

testified that Odom struck Jakyra was J.W. He was seven years old when Odom’s 

trial occurred. Based largely on J.W.’s testimony, the jury convicted Odom for 

knowingly or intentionally injuring Jakyra by hitting her with his hand.

5 Following

the punishment phase of the trial, the jury assessed a life sentence. 

 4 In the punishment phase of the case, the State called no witnesses, but 

Odom and four other witnesses testified for Odom in the punishment phase of the 

case. The witnesses who testified in the punishment phase of the case did not give 

the jury information that indicated that Odom had caused Jakyra’s injuries, and 

Odom continued to assert that he never struck Jakyra while she was in his care.

5 Based on the trial court’s instructions, the jury returned no findings on 

count two of the indictment. 
6

Sufficiency of the Evidence

In issue one, Odom argues that the evidence is insufficient to show that he 

knowingly or intentionally caused Jakyra’s injury. According to Odom, the State’s 

evidence showed only that he intended to engage in the conduct of striking Jakyra 

with his hand, but he argues that the evidence fails to show that he knowingly or 

intentionally caused Jakyra’s injury. In response, the State argues that the record 

contains sufficient evidence to infer that Odom, when he hit Jakyra, intentionally 

or knowingly caused Jakyra to suffer a serious injury. 

When reviewing the sufficiency of the evidence supporting a conviction, an 

appellate court considers all of the evidence in the light most favorable to the 

verdict to decide whether any rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 

U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). In reaching its verdict, a jury is entitled to view the circumstantial evidence 

that is before it in a trial as being just as probative as the direct evidence that is 

relevant to proving a defendant’s guilt. Temple, 390 S.W.3d at 359. Additionally, 

in some cases, a defendant’s guilt may be established by circumstantial evidence 

alone. Id. 
7

In this case, Odom’s first issue challenges whether the evidence before the 

jury was sufficient to show that he acted knowingly or intentionally in causing 

Jakyra’s injury. A defendant’s intent may be inferred from circumstantial evidence 

such as the acts, the words, and the conduct of the defendant. Guevara v. State, 152 

S.W.3d 45, 50 (Tex. Crim. App. 2004). When a jury’s findings depend wholly on 

circumstantial evidence, every fact need not point directly and independently to the 

guilt of the defendant; it is enough if the conclusion is warranted by the combined 

and cumulative force of all the incriminating circumstances. Id. at 49. In resolving 

any conflicting inferences that may arise from the evidence in a case, the jury is the 

sole judge of the credibility and weight to be attached to the testimony of the 

witnesses. Jackson, 443 U.S. at 319. When the record supports conflicting 

inferences, appeals courts are required to presume that the jury resolved such 

conflicts in favor of the verdict, and they must defer to the jury’s resolution of the 

conflicts that exist in the testimony. Temple, 390 S.W.3d at 360 (citing Jackson, 

443 U.S. at 326).

In Odom’s case, both direct and circumstantial evidence points to Odom as 

the person who was responsible for causing the severe internal injuries that were 

discovered during Jakyra’s autopsy. For example, in addition to J.W.’s testimony 

about having seen Odom strike Jakyra in the stomach, there was medical testimony 
8

before the jury that someone with the strength of an adult would be required to 

inflict the severity of the internal injuries that she suffered. Additionally, the 

medical testimony showed that Jakyra had old internal injuries that were healing as 

well as more recent internal injuries. Medical testimony indicated that the pattern 

of new injuries superimposed on older injuries that were healing indicated that 

Jakyra’s injuries were probably not the result of an accident. A pediatrician, called 

as an expert witness by the State, concluded that Jakyra had been a victim of abuse. 

The medical testimony also indicates that a significant amount of force would be 

required to inflict the extent of the internal injuries Jakyra suffered. 

When Odom testified in the guilt phase of the case, he denied that he ever hit 

Jakyra. However, as the sole judge of the credibility of the witnesses, the jury was 

entitled to find that Odom’s denial was not credible. Jackson, 443 U.S. at 319. In 

resolving the conflicting inferences from the evidence, the jury was entitled to

view Odom’s suggestion—that Jakyra’s stomach symptoms were caused by 

drinking soured milk—as suspicious. In this case, the jury was entitled to conclude 

that Jakyra’s injuries were caused by an adult, and to conclude that Odom was the 

adult who caused the injuries to Jakyra’s stomach.

The jury was also entitled to infer that Odom acted knowingly or 

intentionally in causing Jakyra to suffer a serious injury. In criminal cases, the 
9

defendant’s state of mind is almost always proven through circumstantial evidence. 

See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Lopez v. 

State, 630 S.W.2d 936, 942 (Tex. Crim. App. 1982). Intent can be inferred from 

the acts, words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 

(Tex. Crim. App. 1995). A person acts intentionally with respect to his conduct 

when “it is his conscious objective or desire to engage in the conduct or cause the 

result.” Tex. Penal Code Ann. § 6.03(a) (West 2011). A person acts knowingly 

with respect to the result of his conduct “when he is aware that his conduct is 

reasonably certain to cause the result.” Tex. Penal Code Ann. § 6.03(b) (West 

2011). In determining an accused’s intent, the events that occurred before, during, 

and after the offense are relevant to show that the accused acted knowingly or 

intentionally when he caused the victim’s injury. See Pitonyak v. State, 253 S.W.3d 

834, 844 (Tex. App.—Austin 2008, pet. ref’d). 

In this case, the jury was entitled to infer that Odom lied to Keneste about 

the reason that Jakyra began to suffer symptoms on the day before she died, to 

infer that Odom engaged in a course of conduct designed to conceal his role in 

causing Jakyra’s injury after her serious injury became apparent to him, and to 

infer that Odom lied about hitting Jakyra in the stomach. In our opinion, the 

cumulative force of the direct and circumstantial evidence of his guilt was 
10

sufficient to allow the jury to conclude that Odom inflicted the injury intending to 

cause a serious injury. Viewing the entirety of the direct and circumstantial 

evidence in the light most favorable to the verdict, we conclude that a rational jury 

could have found that Odom knowingly or intentionally caused the injury that 

resulted from his conduct. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. 2013); 

Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). We overrule issue one. 

Request for Polygraph

In issue two, Odom complains that the trial court erred by allowing the 

prosecutor to question him about being asked by the police to take a polygraph. In 

response, the State contends that its cross-examination was properly allowed 

because Odom opened the door to the questions about the polygraph when he 

responded to a question from the prosecutor asking if he ever became 

uncooperative in the investigation when he responded by testifying that he did 

“everything [the police] asked [him] to do.” After Odom made that statement, the 

trial court interrupted the proceedings, asked the attorneys to approach the bench, 

and discussed with the attorneys whether Odom opened the door to being 

questioned “in all fairness, to everything.” Given the context of the discussion,6 the 

 6 The transcript of the trial reflects that several questions earlier, the 

prosecutor asked Odom whether he “cooperated with them and did everything that 

they asked of [him]?” Odom responded: “I did whatever they asked me to do.” 
11

trial court’s reference to “everything” clearly referenced the trial court’s earlier 

discussion with the attorneys for the parties about whether it would allow 

testimony about the polygraph to be placed before the jury. At that point, Odom’s 

attorney advised the court that even if the trial court considered the testimony to 

now be relevant, any evidence about the polygraph would be more prejudicial than 

probative on the question of whether Odom had been cooperative with the police. 

See Tex. R. Evid. 403. The trial court denied Odom’s objection, ruling that the 

probative value of Odom’s testimony about the polygraph was “not substantially 

outweighed by the danger of unfair prejudice.”

After the trial court overruled Odom’s Rule 403 objection, the prosecutor 

asked Odom the following questions:

[Prosecutor:] Mr. Odom, you said you did everything that the police 

asked you to do. That’s not true, is it? It’s a yes or no question.

[Odom:] Yes, ma’am.

[Prosecutor:] Because they asked you to submit to a polygraph

examination, didn’t they?

[Odom:] Yes, ma’am.

[Prosecutor:] And you refused to do that, didn’t you?

 

Odom’s attorney objected that the prosecutor was attempting to lead Odom to say 

he did not give a polygraph. The prosecutor responded by arguing that Odom had 

opened the door to being asked about the polygraph. At that point, the trial court 

ruled that the testimony about the polygraph was “not coming in yet.” 
12

[Odom:] I didn’t refuse.

[Prosecutor:] You didn’t?

[Odom:] I did not refuse.

[Prosecutor:] Well, did you submit to one?

[Odom:] I didn’t submit to one because they supposedly had been 

getting with my lawyer or over to my lawyer and setting up an 

appointment with my lawyer. I was doing what my lawyer asked you 

to do.

[Prosecutor:] Really? You told them you’d take a polygraph when you 

left; but you never would come back and take one, would you?

[Odom:] I did tell them that I would take one. 

[Prosecutor:] Yeah, you told them that?

[Odom:] Yeah, but after I talked --

[Prosecutor:] You didn’t show up to take it, did you?

[Odom:] They never told me a definite day to show up.

[Prosecutor:] Didn’t you make an appointment and you didn’t show 

up and they kept trying to call you?

[Odom:] No, ma’am, I didn’t.

. . . .

[Prosecutor:] The point is you never did show up and take one, did

you?

[Odom:] It was never a point in time to take one. 
13

[Prosecutor:] So, that is no, right?

[Odom:] No, ma’am.

On appeal, Odom argues that the evidence about the polygraph was 

inadmissible because his testimony about the circumstances under which he 

refused the request proved to be more prejudicial than probative. Under Rule 403

of the Texas Rules of Evidence, a trial court is allowed to exclude relevant 

evidence if the probative value of that evidence is substantially outweighed by a 

danger of unfair prejudice, confusing the issues, misleading the jury, causing an 

undue delay, or the danger of needlessly presenting cumulative evidence. Tex. R. 

Evid. 403. If the trial court’s ruling is in the zone of reasonable disagreement, the 

ruling will not be found to be erroneous on appeal. See Moses v. State, 105 S.W.3d 

622, 627 (Tex. Crim. App. 2003). A trial court’s ruling on a Rule 403 objection is a 

decision on which a trial court is afforded significant deference. Id.

When a party objects that testimony should be excluded because it would be 

more prejudicial than probative, the trial court is required to engage in a balancing 

process. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) 

(op. on reh’g). Factors considered in a Rule 403 balancing test include: (1) how 

compellingly the evidence will make a fact of consequence more or less probable; 

(2) the potential the prejudicial evidence has to impress the jury “‘in some 
14

irrational but nevertheless indelible way[;]’” (3) the time it will take the proponent 

of the evidence to develop it; and (4) the degree to which the proponent needs the

evidence to prove a fact of consequence; i.e., does other probative evidence before 

the jury already establish the fact at issue, and is this fact related to one of the 

issues in dispute. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 

1997) (quoting Montgomery, 810 S.W.2d at 389-90). In Odom’s case, the unfair

danger posed by the admission of the evidence about the polygraph was that the 

jury would view Odom’s response to the request that he take a polygraph as the 

equivalent of a test result that indicated he struck Jakyra when that was the fact the 

State needed to establish to prove its case. 

With respect to polygraphs, the Court of Criminal Appeals has consistently 

ruled that because such tests are not sufficiently reliable, polygraph results are 

inadmissible at trial. See Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 

2007); Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990); Castillo v.

State, 739 S.W.2d 280, 293 (Tex. Crim. App. 1987); Nethery v. State, 692 S.W.2d 

686, 700 (Tex. Crim. App. 1985); Renesto v. State, 452 S.W.2d 498, 500 (Tex. 

Crim. App. 1970); Placker v. State, 350 S.W.2d 546, 547 (Tex. Crim. App. 1961); 

Davis v. State, 308 S.W.2d 880, 883 (Tex. Crim. App. 1957); Stockwell v. State, 

301 S.W.2d 669, 671 (Tex. Crim. App. 1957); Peterson v. State, 247 S.W.2d 110, 
15

111 (1951). However, Odom did not take a polygraph, so the result is not the 

matter that the State sought to place before the jury. Nevertheless, even when the 

result of a polygraph is not disclosed, the Court of Criminal Appeals treats 

questioning a witness about whether the witness took a polygraph as error. See

Reed v. State, 522 S.W.2d 466, 468-69 (Tex. Crim. App. 1975); Hannon v. State, 

475 S.W.2d 800, 802-03 (Tex. Crim. App. 1972); Renesto, 452 S.W.2d at 500; 

Washburn v. State, 318 S.W.2d 627, 637 (Tex. Crim. App. 1958). The hostility to 

evidence about polygraphs appears to be based on the view by courts that juries 

function better than polygraphs at producing reliable results, and the concern that 

juries might use evidence about polygraphs, a test viewed by courts as unreliable,

as highly relevant and persuasive regarding a person’s credibility as related to the 

defendant’s guilt. See Russell v. State, 798 S.W.2d 632, 635 (Tex. App.—Fort

Worth 1990, no pet.); Banda v. State, 727 S.W.2d 679, 682 (Tex. App.—Austin 

1987, no pet.). 

In Odom’s case, the danger of the evidence about the polygraph concerns its 

potential to indelibly impress the jury that Odom was guilty, when the purpose for 

which the evidence was being offered was to impeach his statement that he fully 

cooperated with police. In Odom’s trial, the State offered the evidence about the 

polygraph to impeach Odom’s statement that he had done all that the police asked 
16

him to do. The Court of Criminal Appeals opinion in Nichols v. State, 378 S.W.2d 

335 (Tex. Crim. App. 1964), is instructive regarding whether the admission of the 

evidence about the polygraph in Odom’s case was error. In Nichols, the prosecutor 

asked a prosecution witness to tell the jury, without disclosing the results, whether 

she had submitted to a polygraph. Id. at 336. The witness indicated that she had 

taken a polygraph. Id. In reversing the defendant’s conviction, the Court of 

Criminal Appeals found the question harmful because the question implied that the 

witness would have passed the polygraph even though the result was never 

admitted. Id. In Nichols, the trial court instructed the jury that it could not consider 

the evidence about the polygraph for any purpose, but even the trial court’s 

instruction was insufficient to overcome the harm resulting from the prosecutor’s 

question. Id. at 337-38. The Nichols Court stated: “We think it fair to observe that 

the only reason that anyone would possibly take a lie detector test would be to 

determine whether or not they were telling the truth.” Id. at 337; see also Russell, 

798 S.W.2d at 635 (“Clearly, any reference to polygraph or lie detector tests is 

improper even when the test result is not disclosed.”). In Odom’s case, the jury was 

given no guidance about the limited purpose for which the evidence was offered, 

and there was no evidence before the jury discussing the reliability (or 

unreliability) of polygraphs.
17

In final argument in Odom’s case, the prosecutor suggested that Odom 

refused the polygraph because the test result would have revealed that he was 

guilty. In other words, like Nichols, the record shows that the true purpose of the 

State’s offer was not limited to impeaching Odom’s statement. Instead, the 

manifest purpose for the polygraph evidence was to imply the result, that Odom 

would have failed the test had it been taken. The danger of unfair prejudice 

regarding evidence about polygraphs is particularly acute when the evidence 

before the jury contains no testimony about the accuracy (or inaccuracy) of 

polygraphs. While the State did not spend a significant amount of time at trial 

developing the evidence, the potential the evidence has to impress juries in an 

irrational and indelible manner in Odom’s case was very high given the fact that he 

chose to testify during the guilt phase of his trial. In Odom’s case, the danger of 

admitting the evidence includes the risk that the jury would rely largely if not 

entirely on Odom’s refusal to take the test when evaluating the credibility of his 

testimony. 

The trial court was also required to weigh the degree to which the State 

needed the evidence to contradict Odom’s testimony that he had been fully 

cooperative with the police. On this record, testimony indicating that Odom had 

not been fully cooperative with the investigation by the police was cumulative of 
18

other testimony about that fact that was already before the jury when Odom 

testified. Before Odom testified, Keneste and Detective Hogge had testified that 

Odom became uncooperative as the investigation into Jakyra’s death developed.

The record does not show that the State had a significant need of the evidence

about the polygraph to establish that Odom had not fully cooperated with the 

investigation conducted by the police into Jakyra’s death. Although the State did 

not spend a great deal of time developing the evidence about the polygraph, we 

agree with Odom that the testimony was significantly more prejudicial than it was 

probative. We conclude the trial court abused its discretion by allowing the 

prosecutor to question Odom about the request by police that he take a polygraph.

Cf. Martinez v. State, 728 S.W.2d 360, 362 (Tex. Crim. App. 1987) (allowing 

impeachment when a defendant leaves a false impression as to his criminal record 

where he “voluntarily testifies as to his prior criminal record without any 

prompting or maneuvering on the part of the State[]”); Nethery, 692 S.W.2d at 700 

(holding that the results of a polygraph test are not admissible at trial for any 

purpose, whether offered on behalf of the State or the defendant); Bates v. State, 

587 S.W.2d 121, 133 (Tex. Crim. App. 1979) (explaining that when a witness is 

cross-examined on a collateral matter, a matter on which the cross-examining party 

would not be allowed to prove if the testimony were to be offered as a part of its 
19

case in chief, “the cross-examining party cannot then contradict the witness”); 

Mauldin v. State, 308 S.W.2d 36, 38 (Tex. Crim. App. 1957) (explaining that 

impeachment not allowed where the cross-examination concerns an immaterial 

matter). 

Given our conclusion that the testimony about the polygraph should not have 

been admitted, we must determine whether the error was harmless. Tex. R. App. P. 

44.2(b) (requiring the court, on appeal, to disregard errors, defects, irregularities, or 

variances that do not affect substantial rights). An error in admitting evidence is 

generally reviewed as non-constitutional error, so the error must be disregarded 

(and the case affirmed) unless the error “‘has a substantial and injurious effect or 

influence in determining the jury’s verdict.’” Russell v. State, 155 S.W.3d 176, 179 

(Tex. Crim. App. 2005) (quoting Simpson v. State, 119 S.W.3d 262, 266 (Tex. 

Crim. App. 2003)). We will not overturn a verdict in a case of non-constitutional 

error where the record as a whole shows that “the error did not influence the jury, 

or influenced the jury only slightly.” Schutz v. State, 63 S.W.3d 442, 444 (Tex. 

Crim. App. 2001) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 

2000)). “In considering the potential to harm, the focus is not on whether the 

outcome of the trial was proper despite the error, but whether the error had a 

substantial or injurious effect or influence on the jury’s verdict.” Barshaw v. State, 
20

342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011). An appellate court must, however, 

reverse a trial court’s decision to admit evidence if the evidence should not have 

been admitted and if, after reviewing the record as a whole, the court has “grave 

doubt that the result of the trial was free from the substantial effect of the error.” 

Id. at 94. 

With the exception of the testimony of J.W., the State’s evidence against 

Odom was largely circumstantial. Some of the circumstantial evidence the jury 

likely utilized to reach its conclusion that Odom was guilty, beyond reasonable 

doubt, included: 

• The evidence showing that Odom was one of Jakyra’s primary 

caregivers and that he was the only caregiver who was uncooperative 

with the investigation by the police;

• The medical evidence showing that Jakyra died around 4:30 a.m., 

over an hour before Odom took Jakyra to the nursing home with 

Keneste;

• The medical evidence showing that Jakyra’s new injury probably 

occurred within forty-eight hours of her death, and that Jakyra was in 

Odom’s care during portions of that period;
21

• The evidence that J.W. told his grandmother and Khristella that he 

saw Odom strike his sister before Jakyra’s funeral;

• The evidence showing that Odom appeared surprised when he woke 

up at the nursing home around 7:00 a.m., claiming he discovered at 

that time that Jakyra was not breathing, given medical evidence 

showing that Jakyra probably died around 4:30 a.m.;

• Medical evidence showing that Jakyra was exhibiting signs of rigor 

mortis when initially treated by the paramedic at the nursing home.

Much of the conflicting evidence the jury could have chosen to believe was 

dependent on the jury’s assessment of Odom’s credibility. For instance, Odom was 

not the only adult around Jakyra in the forty-eight hour period before she died, so 

he is not the only adult who could have caused the injuries. Odom’s testimony 

about when he discovered Jakyra’s death also depended on the jury evaluation of 

his credibility. The medical evidence that Jakyra died at approximately 4:30 a.m. 

was based on a statement made by the doctor who pronounced Jakyra’s death, but 

that doctor did not testify during Odom’s trial, and the record contains nothing to 

explain how approximate that doctor’s estimate was regarding the hour of Jakyra’s 

death. While Dr. Brown testified that he agreed with the hospital doctor’s estimate

regarding Jakyra’s time of death, he acknowledged that Jakyra might have still 
22

been alive around 6:20 a.m.7 Moreover, the record is not clear about when Odom 

first arrived at the nursing home, but Keneste testified that her normal shift started 

at 6:00 a.m. In other words, without the evidence about the polygraph, we harbor 

doubts about whether the jury would have viewed the evidence placing the death at 

4:30 as likely, given other evidence in the record from those at the nursing home, 

including J.W., indicating that Jakyra was still alive when she was there. Odom’s

refusal to take a polygraph, in our view, significantly influenced the manner the 

jury went about its job of evaluating Odom’s credibility. 

Given J.W.’s inconsistent account about Odom’s role in causing Jakyra’s 

injury, we harbor grave doubt about whether the testimony regarding the polygraph 

had no influence or but slight influence in making the jury more likely to accept 

J.W.’s trial testimony that he saw Odom strike Jakyra in the stomach. In our view, 

given the evidence that Odom refused the polygraph, the jury was much more 

likely to accept J.W.’s testimony without seriously questioning why he failed to 

give this information during his first interview about the circumstances of Jakyra’s 

death. In summary, given the quality of the direct and circumstantial evidence as a 

 7 When asked how long Jakyra had been dead before being pronounced dead 

at 7:20 a.m. in the emergency room, Dr. Brown testified “I can’t be exact about 

it[,]” and he indicated that he would put the actual death at “about that time.” Dr. 

Noble, the State’s expert, did not express an opinion regarding the hour that he felt 

Jakyra likely died.
23

whole, we have grave doubts about whether that testimony about the polygraph 

had no significant influence on the jury’s view of the evidence admitted at trial 

relevant to Odom’s guilt. Under the circumstances, we conclude that the evidence 

about the polygraph diminished the jury’s role in assessing the credibility of the 

direct and circumstantial evidence relevant to Odom’s guilt. See United States v. 

Scheffer, 523 U.S. 303, 313 (1998) (“By its very nature, polygraph evidence may 

diminish the jury’s role in making credibility determinations.”). 

Considering the evidence as a whole, we conclude the evidence about the 

request by police for a polygraph played a substantial and injurious role that 

influenced the jury’s verdict. See Russell, 155 S.W.3d at 179. The harmful impact 

of the inadmissible testimony was driven home by the prosecutor, when in closing

she argued that Odom refused to take a polygraph because he was guilty. See 

Scheffer, 523 U.S. at 312-13 (noting that polygraph evidence threatens “the [jury’s]

core function of making credibility determinations in criminal trials”). Given the 

indelible impression the evidence made on this jury after considering the record as 

a whole, the lack of consensus on the reliability of polygraphs generally, the 

manner the State used the evidence in final argument, and the jurisprudence from 

the Court of Criminal Appeals indicating that such tests are not admissible for any 

purpose, we hold that the trial court’s error in admitting the testimony about the 
24

request for the polygraph was harmful. See Ross v. State, 133 S.W.3d 618, 626 

(Tex. Crim. App. 2004) (noting the lack of consensus on the reliability of 

polygraph tests); Tennard, 802 S.W.2d at 683 (noting that “[t]he existence and 

results of a polygraph examination are inadmissible for all purposes”). Because the 

admission of the testimony was harmful, we sustain issue two and hold that Odom 

is entitled to a new trial. See Barshaw, 342 S.W.3d at 94.

Conclusion

Because issue two is dispositive, we need not address issue three. See Tex. 

R. App. P. 47.1. Accordingly, we reverse the trial court’s judgment, we grant 

Odom’s request for a new trial, and we remand the cause to the trial court for 

further proceedings consistent with this opinion.

REVERSED AND REMANDED.

___________________________

 HOLLIS HORTON

 Justice

Submitted on November 4, 2014

Opinion Delivered November 18, 2015

Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.