COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00360-CR

JOHNNIE THEDDEUS GARDNER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Johnnie Theddeus Gardner appeals the trial court‘s revocation of 

his community supervision and its decision to sentence him to eight years‘ 

confinement for aggravated sexual assault of a child. In a single point, he argues 

that the court erred by admitting and relying on evidence of his failed polygraph 

examinations. Because appellant forfeited his complaint about the admission of 

the polygraph results, we affirm.

 

1See Tex. R. App. P. 47.4.
2

Background Facts

A Tarrant County grand jury indicted appellant for multiple counts of 

aggravated sexual assault of a child. A jury convicted him of one count, 

assessed his punishment at ten years‘ confinement, and recommended that he 

be placed on community supervision. The trial court entered a judgment ordering 

community supervision and imposed several conditions, including some 

conditions particularly relating to sex offenders.

2

 Appellant appealed his 

conviction but later obtained dismissal of the appeal.3

Three years later, the State filed a petition to revoke appellant‘s community 

supervision, alleging that appellant violated the conditions by (1) failing to 

complete psychological counseling and treatment within three years of its 

initiation, (2) having contact with minors, (3) living within 1,000 feet of a ―child 

safety zone,‖ (4) going within 1,000 feet of a place where children under 

seventeen years old commonly gather, (5) failing to install software to block 

access to sexually explicit material on two computers in his residence, and 

(6) failing to notify his supervision officer within five days of changing 

employment. The trial court held a hearing on the State‘s petition, and appellant 

 

2One of the conditions required appellant‘s 180-day confinement in jail. 

Another condition required him to submit to a clinical polygraph test ―as directed 

by the supervision officer.‖

3See Gardner v. State, No. 02-06-00045-CR, 2006 WL 563217, at *1 (Tex. 

App.—Fort Worth Mar. 9, 2006, no pet.) (mem. op., not designated for 

publication).
3

pled true to the first two allegations listed above and not true to the four 

remaining allegations.

The State presented evidence to establish, among other facts, that

appellant had lived with his sister in a house that was approximately four doors 

down from a home daycare; that late one night, he went to Sundance Square in 

Fort Worth, which his community supervision officer considered a child safety 

zone; that he lacked progress in psychological treatment; and that he had 

unauthorized contact with his children.

4

 The trial court found that the first four 

allegations listed above were true, revoked appellant‘s community supervision, 

and assessed his punishment at eight years‘ confinement. Appellant filed this 

appeal.

Admission of Polygraph Results

In his sole point, appellant contends, ―The trial court abused its discretion 

in imposing a sentence in reliance on inadmissible evidence that Appellant had 

failed numerous polygraph exams during his probation period.‖ He argues, ―To a 

great extent the probation revocation hearing was trial by polygraph.‖ During the 

 

4Appellant offered evidence to contradict the State‘s evidence and explain 

some of the circumstances surrounding his acts while he was on community 

supervision. Appellant does not challenge evidentiary sufficiency, and his pleas 

of true justify the trial court‘s revocation decision; thus, we will not detail all of the 

evidence related to the State‘s allegations. See Cole v. State, 578 S.W.2d 127, 

128 (Tex. Crim. App. [Panel Op.] 1979); Battles v. State, 626 S.W.2d 149, 150 

(Tex. App.—Fort Worth 1981, no pet.). 
4

hearing on the State‘s petition to revoke, while the prosecutor was questioning a 

community supervision officer, the following exchange occurred:

Q. On any other day throughout the approximately three-year 

term of his probation, was he allowed contact with his children?

A. No, ma‘am.

Q. Why was that?

A. He was in constant violations of his conditions of bond, as 

in he was failing a polygraph or noncompliance issues --

[DEFENSE COUNSEL]: I‘m going to object to any mention of 

polygraph, Judge.

THE COURT: We don‘t have a jury, this is just before me, so 

that‘s overruled.

Later in the hearing, as the following excerpt shows, the State again asked 

the supervision officer about appellant‘s polygraph exams:

Q. Mr. Roberts, specifically regarding the contact the 

Defendant had with his children, are these -- these instances of 

contact, did he readily admit these to you?

A. No, this -- the final admission came after the sixth 

polygraph of him having admitted to the contact with his children. 

Previous ones before that have gone through various stories of 

whether he had contact or not. Pretty much continually denying it 

until the sixth one.

Q. So he had showed deception on five previous polygraphs 

and changed his story each time before he finally told the truth after 

the sixth polygraph?

A. Yes, ma‘am.
5

Upon his counsel‘s questioning, appellant also testified about taking the 

monthly polygraph exams and about admitting to improperly seeing his children 

only after taking five exams. Then, during cross-examination of appellant by the 

State, the following colloquy occurred:

Q. And, in fact, you were having contact with [appellant‘s son] 

while you were on probation, weren‘t you?

A. No, ma‘am.

Q. Well, you completed a series of polygraphs where you 

were asked about contact with him in which you failed repeatedly, 

didn‘t you?

A. Yes, ma‘am.

Q. So you could not pass a polygraph regarding having no 

contact with your son . . ., could you?

A. No, ma‘am.

Q. And you could not pass the polygraph until you finally --

[DEFENSE COUNSEL]: Judge, we object. The polygraph is 

still inadmissible in court. I know it‘s a probation revocation hearing, 

but we don‘t have -- we don‘t have anybody here on the polygraph 

and we don‘t know what questions were asked.

THE COURT: It‘s overruled.

Q. . . . You could not pass a polygraph regarding having 

contact with your other children until you finally admitted after the 

sixth polygraph about that contact; is that correct?

A. I think it was the fifth one.

. . . .
6

Q. Right. And, in fact, the last polygraph you failed regarding 

your contact with [appellant‘s son] was February 26th of 2009, 

wasn‘t it?

A. I‘m not sure about the dates, but . . .

Q. Does that sound about right?

A. I failed all the way up until I got incarcerated.

. . . .

Q. . . . You told the Judge in July you could have completed 

your sex offender treatment?

A. And I -- and I still -- and I would have.

Q. And yet you‘re still failing polygraphs?

A. Yes, ma‘am. I failed polygraphs, I -- I have a problem 

taking them, I -- I overanalyze the situation, I get nervous.

The State and appellant‘s counsel then continued to ask appellant more 

questions about his performance on the polygraph exams.5 Also, appellant used 

the polygraph results to explain his answers to some questions that did not 

directly concern the polygraph exams.

Polygraph results are generally inadmissible for all purposes. Nesbit v. 

State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007); Nethery v. State, 692 

S.W.2d 686, 700 (Tex. Crim. App. 1985) (―Even if the State and the defendant 

agree and stipulate to use the results of a polygraph at trial, we have held the 

 

5

In his brief, appellant argues that ―having been forced to respond,‖ he 

―asked some follow-up questions about the State‘s inquiries about the 

polygraphs.‖
7

testimony to be inadmissible.‖), cert. denied, 474 U.S. 1110 (1986); Russell v. 

State, 798 S.W.2d 632, 635 (Tex. App.—Fort Worth 1990, no pet.) (―The results 

of polygraph examinations are excluded due to their inherent unreliability and 

tendency to be unduly persuasive.‖); see Reed v. State, 48 S.W.3d 856, 864 

(Tex. App.—Texarkana 2001, pet. ref‘d) (―[P]olygraph evidence is inadmissible at 

a bench trial as well as at a jury trial.‖). However, a defendant must assert a 

proper, timely objection to the admission of polygraph results to preserve error. 

Jasso v. State, 112 S.W.3d 805, 813–14 (Tex. App.—Houston [14th Dist.] 2003, 

pet. ref‘d) (explaining that the ―standard set by our high court for the timely 

assertion of objections is both demanding and unforgiving‖); see Graham v. 

State, 3 S.W.3d 272, 285 (Tex. App.—Fort Worth 1999, pet. ref‘d).

To preserve a complaint for our review, a party must have presented to the 

trial court a timely request, objection, or motion that states the specific grounds 

for the desired ruling if they are not apparent from the context of the request, 

objection, or motion. Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1); Mosley 

v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh‘g), cert. 

denied, 526 U.S. 1070 (1999). Also, with some exceptions that do not apply to 

this case, to preserve error, a party must continue to object each time the 

objectionable evidence is offered or obtain a running objection to the evidence. 

Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. 

State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). Thus, a trial court‘s 
8

erroneous admission of evidence will not require reversal when other such 

evidence was received without objection, either before or after the complained-of 

ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). This rule 

applies whether the other evidence was introduced by the defendant or the State. 

Id.

Although appellant objected to the first portion of the community 

supervision officer‘s testimony that mentioned the results of appellant‘s polygraph 

tests and objected to a question in the middle of his own testimony, he did not 

object to every question or answer that disclosed the results, and he did not 

obtain a running objection to the polygraph evidence. His trial counsel also 

elicited some of the evidence. Nonetheless, appellant argues that his first

objection preserved error relating to all of the polygraph testimony because 

―[f]urther objections were useless as counsel could assume the trial court would 

make the same ruling in each instance.‖ But in Leday, the court of criminal 

appeals stated, 

In requiring an objection every time the objectionable evidence is 

offered, we are in a minority of courts which do not follow the general 

rule that the repetition of an objection is needless when the court’s 

ruling has indicated that an objection to such evidence will definitely 

be overruled. See Wigmore on Evidence § 18 (Peter Tillers rev.

1983). Our rule which requires objection to every offer is sometimes 

called ―the  ̳futility rule‘; that is, despite ruling of judge that evidence 

is admissible, party must keep making futile objections on pain of 

waiver.‖ 21 Charles Alan Wright & Kenneth W. Graham, Federal 

Practice & Procedure § 5039 n. 11.1 (Supp. 1998) (citing Texas 

cases). We have found that the general application of this rule has 

not proven to be burdensome for defense counsel in many cases. 
9

Id. at 717–18 (emphasis added and footnote omitted); see Lane v. State, 151 

S.W.3d 188, 193 (Tex. Crim. App. 2004) (relying on Leday to overrule an 

evidentiary issue); see also Long v. State, 10 S.W.3d 389, 399 (Tex. App.—

Texarkana 2000, pet. ref‘d) (explaining that the requirement of objecting each 

time inadmissible evidence is offered ―remains true with regard to testimony 

regarding polygraph examination results‖).

Appellant relies on a 1992 opinion from the Dallas Court of Appeals to 

support his argument that repeated objections to evidence are not necessary to 

preserve error when they would be useless or futile. See Davis v. State, 831 

S.W.2d 839, 845 n.2 (Tex. App.—Dallas 1992, pet. ref‘d); see also Graham v. 

State, 710 S.W.2d 588, 591–92 (Tex. Crim. App. 1986) (holding that error was 

preserved because a repeated objection would have been futile); Cardenas v. 

State, 787 S.W.2d 160, 162 (Tex. App.—Houston [1st Dist.] 1990, pet. ref‘d)

(relying on Graham to hold that error was preserved).

6

 But we have not found an 

opinion from the court of criminal appeals after Leday in which our highest court 

retreated from its adoption of the statement that the parties must ―keep making 

 

6Relying on Graham, other courts of appeals have reached similar 

conclusions.
10

futile objections on pain of waiver.‖7 Leday, 983 S.W.2d at 718 & n.5; see Lane,

151 S.W.3d at 193.

Based on Leday and the other cases cited above, we hold that appellant 

forfeited his right to complain on appeal about the admission of evidence of his 

polygraph results because he did not object each time the results were asked 

about or obtain a running objection to evidence of the results. See Tex. R. App. 

P. 33.1(a); Tex. R. Evid. 103(a), Leday, 983 S.W.2d at 718–19. We overrule his 

only point.

Conclusion

Having overruled appellant‘s sole point, we affirm the trial court‘s 

judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: November 4, 2010

 

7We have also not found any opinion that discusses the apparent conflict 

between Graham and Leday (which was more recently decided).