THE STATE OF TEXAS §

 §

§

§

§

 v. § Cause No. PD-1600-15

§

§

§

§

 STEPHEN DEMOND ODOM, §

 Appellee §

**************************************************************

IN THE 

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

REPLY IN OPPOSITION TO

STATE’S PETITION FOR

DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

JEFFERSON COUNTY

ORAL ARGUMENT REQUESTED

DAVID W. BARLOW

ATTORNEY AT LAW

EDISON PLAZA

350 PINE STREET, SUITE 315

BEAUMONT, TEXAS 77701

TELEPHONE: (409) 838-2168

FACSIMILE: (409) 838-3145

david.barlow@davidwbarlow.com

TEXAS BAR NO. 00793305

PD-1600-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/21/2015 11:24:21 AM

Accepted 12/21/2015 12:45:33 PM

ABEL ACOSTA

CLERK
IDENTIFICATION OF THE PARTIES

Pursuant to Tex. R. App. Proc 68.4(a), a complete list of the names of all

interested parties is provided below so the members of this Honorable Court may at

once determine whether they are disqualified to serve or should recuse themselves

from participating in the decision of the case.

Appellee: Stephen D. Odom, #1911586

French Robertson Unit

12071 FM 3522

Abilene, Texas 79601

Defense Attorneys on the Trial: Audwin Samuel and Sean Villery-Samuel

1965 Park Street

Beaumont, Texas 77701

Defense Attorney on the Appeal: David W. Barlow

Edison Plaza

350 Pine Street, Suite 315

Beaumont, Texas 77701

Prosecutor on the Trial: Lindsey Scott

Jefferson County Courthouse

1085 Pearl

Beaumont, Texas 77701

Criminal District Attorney: Robert J. “Bob” Wortham

Jefferson County Courthouse

1085 Pearl

Beaumont, Texas 77701

Trial Judge Presiding: John B. Stevens, Jr.

Jefferson County Courthouse

1085 Pearl

Beaumont, Texas 77701
 TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATE’S GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATE’S GROUNDFORREVIEWNO.ONE:The Court of Appeals

(sic) opinion erroneouslyprecludesthe State fromoffering impeachment

evidence under Tex. Rule Evid. (sic) 611(b) in all instances where the

evidence consists of the defendant’s failure to take a polygraph test.. 5

STATE’S GROUND FOR REVIEW NO. TWO: The Court of

Appeals (sic) opinion effectively erroneously renders any mention of a

polygraph (even in instances where there was no polygraph exam) as

error per se, even when the question is asked to correct a false

impression and perjurous (sic) statement made by a defendant during

trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

i
AUTHORITIES

CASES PAGE

Cade v. State, 2015 Tex. Crim. App. Unpub. LEXIS 156 2015)(not designated for

publication) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Castillo v. State, 739 S.W.2d 280 (Tex. Crim. App.1987). . . . . . . . . . . . . . . . . . . . 6

Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . 6

Nethery v. State, 692 S.W.2d 686 (Tex. Crim. App.1985). . . . . . . . . . . . . . . . . 6, 13

Nichols v. State, 378 S.W.2d 335 (Tex. Crim. App. 1964).. . . . . . . . . . . . . . . . . . 13

Peterson v. State, 157 Tex. Cr. R. 255, 247 S.W.2d 110 (1951). . . . . . . . . . . . . . . 7

Tennard v. State, 802 S.W.2d 678 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . 6

U.S. v. Allard, 464 F.3d 529 (5th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ii
STATEMENT REGARDING ORAL ARGUMENT

The grounds for review herein advanced by the State of Texas are well settled

in Texas jurisprudence. Oral argument will not be helpful to the Court. However, as

the State of Texas has requested oral argument in its Petition, Odom hereby requests

oral argument in response.

iii
THE STATE OF TEXAS §

 §

§

§

§

 v. § Cause No. PD-1600-15

§

§

§

§

 STEPHEN DEMOND ODOM, §

 Appellee §

**************************************************************

IN THE 

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

REPLY IN OPPOSITION TO

STATE’S PETITION FOR

DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

JEFFERSON COUNTY

**************************************************************

TO THE HONORABLE COURT OF APPEALS:

COMES NOWStephen Demond Odom, Defendant in cause number 13-16301

in the JeffersonCountyCriminal DistrictCourt, JohnB. Stevens, Jr., Judge Presiding,

and Appellant before the Ninth Court of Appeals, and respectfully submits this reply

to the Court of Criminal Appealsin response to the Petition for DiscretionaryReview

filed by the State of Texas herein.

1
STATEMENT OF THE CASE

Appellant was indicted by a Jefferson County grand jury in a multi-count

indictment for the offense of injury to a child. Appellant plead not guilty to both

counts, and trial was to a jury. Following the presentation of evidence, and after

arguments of counsel and deliberations, the jury found Appellant guilty of count one

of the indictment. After the presentation of punishment evidence, and after further

arguments of counsel and deliberations, the jury assessed punishment at incarceration

in the Texas Department of Criminal Justice for life.

2
STATEMENT OF PROCEDURAL HISTORY

After conviction in the trial court, Appellant perfected Notice of Appeal to the

NinthCourt of Appeals. The Courtfound error, reversed the conviction and sentence,

and remanded the cause to the trial court for re-trial. The State filed a motion for

rehearing, which was overruled by the Court of Appeals. The State then filed its

Petition for Discretionary Review with this Honorable Court.

3
STATE’S GROUNDS FOR REVIEW

GROUND FOR REVIEW NO. ONE: The Court of

Appeals(sic) opinion erroneously precludesthe State from

offering impeachment evidence under Tex.Rule Evid. (sic)

611(b) in all instances where the evidence consists of the

defendant’s failure to take a polygraph test.

GROUND FOR REVIEW NO. TWO: The Court of

Appeals (sic) opinion effectively erroneously renders any

mention of a polygraph (even in instances where there was

no polygraph exam) as error per se, even when the question

is asked to correct a false impression and perjurous (sic)

statement made by a defendant during trial.

4
ARGUMENT

STATE’S GROUND FOR REVIEW NO. ONE: The

Court of Appeals (sic) opinion erroneously precludes the

State fromoffering impeachment evidence under Tex. Rule

Evid. (sic) 611(b) in all instances where the evidence

consists of the defendant’s failure to take a polygraph test.

STATE’S GROUND FOR REVIEW NO. TWO: The

Court of Appeals (sic) opinion effectively erroneously

renders any mention of a polygraph (even in instances

where there was no polygraph exam) as error per se, even

when the question is asked to correct a false impression

and perjurous (sic) statement made by a defendant during

trial.

The gravamen of the State’s theory under which it asks this Honorable Court

to exercise its discretion herein is based upon an erroneous, conclusory premise: the

Odom lied during his trial. The trial below was to a jury. The jury was the fact

finder, not the State of Texas. The veracity of Odom, just as any other witness,

including those testifying for the State of Texas, was the purview of the jury. The

jury is who decided who lied (if anyone), who did not lie, and whom to believe. 

However, the State would have this Honorable Court believe that its conclusory

opinion that Odom lied was a fact, that the Ninth Court of Appeals should have

known that it was a fact, and that, therefore, the appellate court erroneously held that

the issue of whether Odom was “uncooperative” with law enforcement could not be

impeached with polygraph evidence. Glaringly absentfromthe State’s petition is any

5
support or authority for its argument.

The State contended before the Court of Appeals that the issue of a polygraph

was not being offered by the State to show that Odom did not submit to a polygraph,

but rather to impeach him by showing that he was uncooperative for not submitting

to a polygraph. The appellate court held that there was a plethora of evidence before

the jury already regarding the cooperation of Odomwith law enforcement. The Court

of Appeals held that the prejudicial effect of allowing polygraph testimony was

immensely outweighed by any probative value, even if it was offered asimpeachment

evidence. The State argues in its petition that, in effect, it should have been allowed

to impeach Odom with “truthful” information establishing Odom committed perjury. 

While the State is entitled to its own opinion, it is not entitled to its own facts. The

jury determines the facts herein, not the State of Texas. The fallacy of the State’s

argument is its reliance on its own arbitrary conclusion to support its premise. It is

simply bootstrapping its desired conclusion as the basis for its petition. 

It has long been settled that the existence and results of a polygraph

examination are inadmissible for all purposes in Texas, even if the State and the

appellant agree to its admissibility. Nesbit v. State, 227 S.W.3d 64 (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

6
(Tex. Crim. App.1985); Peterson v. State, 157 Tex. Cr. R. 255, 247 S.W.2d 110

(1951) (Emphasis added). The State simply ignoresthe fact that polygraph testimony

isinadmissible for all purposes. Impeachment is a purpose. The record below shows

the testimony regarding the polygraph. Appellant was testifying in his own behalf

and was being cross examined by the prosecutor as reflected beginning at R.R. V-79,

to-wit:

“THE STATE: Q. Once the police told you that this

was child abuse, that someone had hurt Jakyra and that’s

what killed her, were you interested in finding out who had

done that?

APPELLANT: A. Of course. Yes, ma’am.

Q. And you became aware that they suspected

you, right?

A. Yes, ma’am.

Q. They told you that, didn’t they?

A. Yes, ma’am.

Q. And were you interested in helping to

eliminate yourself as a suspect?

A. Was I interested?

7
Q. Yeah. Did you want to eliminate yourself as

a suspect?

A. Yes, ma’am.

Q. But you did at some point become

uncooperative with the police? Do you dispute that?

A. No, ma’am. I didn’t become uncooperative. 

I did everything they asked me to. I was not never

uncooperative.

Q. At some point, did you stop returning their

calls?

A. No, I never stopped returning their calls. I

talked to Lieutenant Curl and explained to him what my

lawyer told me to do and that my lawyer would get in touch

with me.

THE COURT: You-all come on up here.”

The trial court then held that the allegation that Appellant had refused to submit

to a polygraph examination “even before he hired an attorney” would be admissible

because, according to the trial court, Appellant “opened his own door there.” The

8
trial court attempted to justify its clearly erroneous ruling as reflected at R.R. V-81,

to-wit:

“THE COURT: It’s allowable at this stage. He

volunteered that statement (that Appellant did everything

they asked me to). I think he put himself into it. He’s

opened his own door there. I wasn’t going to let it in, but

I’mcertainly not going to let himvolunteer statements after

he answered the question that misleads the jury. I know

you worked on that before but he can’t volunteer an

additional statement; and that opened the door, in all

fairness, to everything. I don’t like this whole subject

matter, but he can’t make a statement if it’s not an accurate

one. He had given an answer, and then he went further.

. . . .

The jury can’t be mislead. The whole thing is the rules of

evidence are pursuing the truth; but when he makes that

statement and it’s proffered that that contradicts what he

just said, then in all fairness, the jury is entitled to know

what it is. I don’t like polygraphs but, nonetheless, when

9
he makes - - he answered the question. It still didn’t open

the door. It was his next statement.”

Appellant objected to its admission based upon Rule 403, Tex. R. Evid. The

trial court overruled Appellant’s objection stating that:

“Well, if they asked himto take a polygraph that I wouldn’t

have otherwise introduced or allowed the admission of,

when he makes that last statement, that is not a fair,

accurate, truthful, honest statement; and he volunteered

that. State has an opportunity to respond”

The trial court further attempted to justify its erroneous introduction of the

existence as reflected at R.R. V-83, to-wit:

“THE COURT: Now, let me add one other guiding

principle that this Court looks at and it’s found under

Article 101 of the Texas Rules of Evidence or under 102. 

For purpose and construction of the rules, the rules are

construed to secure fairness, elimination of unjustifiable

expense and delay, promotion of growth and development

of the law of evidence - - and here what I find to me the

most important - - to the end that the truth may be

10
ascertained. Well, that’s not what we’re doing if we don’t

finish that thought that’s been put out there from a

volunteered statement that after his - - again, he completed

his answer, and then he ventured into the uncharted water

on his own of that statement. I don’t like it.

. . . . 

We’re not going to end that because, truly, as we all agree,

it is apparently not factual and not a truthful statement

that’s before the jury. All right. And it wasn’t - - again,

because he volunteered the statement, I think the State, in

all fairness under the rules, is allowed to refute, if they can

directly refute that. So, your objection is overruled on that

regard.”

At trial, Odomwasthen forced to defend himself against the inaccurate, untrue

suggestion that he refused to submit to a polygraph asshown beginning at R.R. V-84,

to-wit:

“THE STATE Q. 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.

11
APPELLANT A. Yes, ma’am.

Q. Because they asked you to submit to a polygraph

examination, didn’t they?

A. Yes, ma’am.

Q. And you refused to do that, didn’t you?

A. I didn’t refuse.

Q. You didn’t?

A. I did not refuse.

Q. Well, did you submit to one?

A. 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.

Q. Really? You told themyou’d take a polygraph when

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

would you?

A. I did tell them that I would take one.

Q. Yeah, you told them that?

A. Yeah, but after I talked - -

12
Q. You didn’t show up to take it, did you?

A. They never told me a definite day to show up.

Q. Didn’t you make an appointment and you didn’t

show up and they kept trying to call you?

A. No, ma’am, I didn’t. 

. . . . 

Q. The point is you never did show up and take one, did

you?

A. It was never a point in time to take one.

Q. So, that is no, right?

A. No, ma’am.”

The Ninth Court of Appeals correct held that this Honorable Court has

consistently held that both polygraph results and questions regarding whether a

witness took a polygraph are inadmissible at trial, citing opinions of this Court from

1951 until 2007. The State incorrectly states in its petition that the Court of Appeals

relied on this Honorable Court’s opinion in Nethery v. State, 692 S.W.2d 686 (Tex.

Crim. App. 1985). While Nethery was one of the over 18 cases the Court of Appeals

cited in its opinion, it was not what the appellate court primarily relied upon in its

opinion. The court’s opinion relies heavily upon this Honorable Court’s opinion in

13
Nichols v. State, 378 S.W.2d 335 (Tex. Crim. App. 1964). This Honorable Court has

addressed issues similar to Nichols most recently as 2015. Cade v. State, 2015 Tex.

Crim. App. Unpub. LEXIS 156 2015)(not designated for publication). Nichols has

not been disavowed by this Honorable Court. The State’s petition presents no

argument nor reason as to why the Court should do so now.

In a desperate attempt to try to find some scintilla of support for its premise

herein, the State directs this Honorable Court’s attention to U.S. v. Allard, 464 F.3d

529 (5th Cir. 2006). The only things distinguishing the cause sub judice from Allard

are the facts and the law. The facts herein are not the facts in Allard, supra. The

reasons for the admissibility of a polygraph under federal law are based on facts

severely different from the facts in the case at bar. The law herein is not the law in

Allard, supra. The United States Court of Appealsfor the Fifth Circuit discusses and

applies the federal rules of evidence in Allard. The Texas rules of evidence are

applicable herein, not federal rules. 

It is overwhelmingly obvious that a polygraph examination was never

definitively scheduled, which is why Odom never submitted to one. Therefore, it is

clearly disputed whether Odom committed perjury as the State would have this

Honorable Court believe. The State’s argument as to why this Court should grant

review embarrassingly lacks any factual or legal reasons for this Honorable Court to

14
do so. Rule 66.3, Tex. R. App. Proc. It is beyond dispute the Ninth Court of Appeals

carefully and meticulously considered its opinion, as the Court took over one year

after submission to issue its opinion. For these reasons, the State’s Petition for

Discretionary Review clearly must be denied.

15
PRAYER

WHEREFORE,PREMISESCONSIDERED,Odomurges this HonorableCourt

to deny the State’s Petition for Discretionary Review from the Ninth Court of

Appeals. 

Respectfully submitted,

/s/ David W. Barlow 

DAVID W. BARLOW

ATTORNEY AT LAW

Edison Plaza

350 Pine Street, Suite 315

Beaumont, Texas 77701

Telephone: (409) 838-2168

Facsimile: (409) 838-3145

david.barlow@davidwbarlow.com

Texas State Bar No. 00793305

16
CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Reply in

Opposition to State’s Petition for Discretionary Review From the Ninth Court of

Appeals was served upon the Hon. Robert J. “Bob” Wortham, Jefferson County

Criminal District Attorney, Jefferson County Courthouse, 1085 Pearl, Suite 300,

Beaumont, Texas, 77701, thompson@co.jefferson.tx.us, attorney for the State of

Texas, Petitioner, and upon the Hon. Lisa C. McMinn, State Prosecuting Attorney,

P.O. Box 13046, Austin, Texas, 78711-3046, information@spa.texas.gov, by

electronic service via www.efile.txourts.gov, on this the 21

st

day of December, 2015.

/s/ David W. Barlow 

DAVID W. BARLOW

17
A P P E N D I X A

Selected Testimony from Cross Examination

of Stephen Demond Odom by

State of Texas
7 8

1 A . Y e s , m a ' a m .

Q . Yo u w e n t i n f o r y o u r s e c o n d i n t e r v i e w w i t h t h e

detective, and your attorney was asking you about this. At

s o m e p o i n t , I g u e s s y o u d e c i d e d y o u w a n t e d a n a t t o r n e y ; i s t h a t

right?

A . Y e s , m a ' a m .

Q . B u t y o u r e a l l y - - y o u b e c a m e u n c o o p e r a t i v e w i t h t h e

8 p o l i c e b e f o r e y o u h a d h i r e d a n a t t o r n e y i n t h i s c a s e , h a d n ' t

9 y o u ?

1 0 A . I s t h a t a q u e s t i o n ?

1 1 Q . Y e a h .

1 2 A . N o , m a ' a m .

1 3 Q . I m e a n , w e r e n ' t t h e r e t h i n g s t h e p o l i c e w a n t e d y o u

1 4 t o d o t h a t y o u w e r e n o t w i l l i n g t o d o , e v e n w h e n y o u d i d n o t

1 5 h a v e a n a t t o r n e y ?

1 6 A . N o , m a ' a m .

1 7 Q . T h a t ' s n o t t r u e ? A r e y o u s a y i n g y o u c o o p e r a t e d w i t h

1 8 t h e m a n d d i d e v e r y t h i n g t h a t t h e y a s k e d o f y o u ?

1 9 A . I d i d w h a t e v e r t h e y a s k e d m e t o d o .

2 0 M R . A . S A M U E L : Y o u r H o n o r , m a y w e a p p r o a c h ?

2 1 T H E C O U R T : C o m e o n u p .

2 2 ( B e n c h D i s c u s s i o n O u t s i d e H e a r i n g o f t h e J u r y )

2 3 M R . A . S A M U E L : S h e ' s t r y i n g t o l e a d h i m t o

2 4 t h e p o i n t a b o u t h i m n o t g i v i n g a p o l y g r a p h a n d w a s n o t

2 5 c o o p e r a t i v e . H e s t a t e d t h a t h e c o o p e r a t e d w i t h t h e p o l i c e , a n d

RENE MULHOLLAND, CSR, TCRR

409-835-8410
7 9

1 we object to anything alluding to the fact that he was not

2 c o o p e r a t i n g b e c a u s e h e r e f u s e d t o t a k e a p o l y g r a p h .

3 M R S . S C O T T : J u d g e , I j u s t b e l i e v e t h a t h e ' s

4 o p e n e d t h e d o o r f o r t h i s b e c a u s e h e l e a d h i m d o w n t h e l i n e o f

5 questioning saying that the only way he did not cooperate with

6 t h e p o l i c e , t h e o n l y w a y - -

8 g o i n g i n y e t .

T H E C O U R T: I t ' s n o t c o m i n g i n y e t . I t ' s n o t

MRS. SCOTT: Okay.

THE COURT: Go to something else.

(Bench Discussion Concluded)

1 2 B Y M R S . S C O T T:

1 3 Q . O n c e t h e p o l i c e t o l d y o u t h a t t h i s w a s c h i l d a b u s e ,

1 4 t h a t s o m e o n e h a d h u r t J a k y r a a n d t h a t ' s w h a t k i l l e d h e r, w e r e

1 5 y o u i n t e r e s t e d i n fi n d i n g o u t w h o h a d d o n e t h a t ?

1 6 A . O f c o u r s e . Y e s , m a ' a m .

1 7 Q . A n d y o u b e c a m e a w a r e t h a t t h e y s u s p e c t e d y o u , r i g h t ?

1 8 A . Y e s , m a ' a m .

1 9 Q . T h e y t o l d y o u t h a t , d i d n ' t t h e y ?

2 0 A . Y e s , m a ' a m .

2 1 Q . A n d w e r e y o u i n t e r e s t e d i n h e l p i n g t o e l i m i n a t e

2 2 y o u r s e l f a s a s u s p e c t ?

2 3 A . W a s I i n t e r e s t e d ?

2 4 Q . Y e a h . D i d y o u w a n t t o e l i m i n a t e y o u r s e l f a s a

2 5 s u s p e c t ?

RENE MULHOLLAND, CSR, TCRR

409-835-8410
2 5 a d d e d t h a t s t a t e m e n t .

RENE MULHOLLAND, CSR, TCRR

409-835-8410
8 1

1 t h a t c o n t r a d i c t s w h a t h e j u s t s a i d ?

M R S . S C O T T : Y e s .

T H E C O U R T : W h a t i s t h a t ?

M R S . S C O T T : H e r e f u s e d t o s u b m i t t o a

5 polygraph examination even before he hired an attorney.

6 T H E C O U R T : I t ' s a l l o w a b l e a t t h i s s t a g e . H e

7 v o l u n t e e r e d t h a t s t a t e m e n t . I t h i n k h e p u t h i m s e l f i n t o i t .

8 He's opened his own door there. I wasn't going to let it in,

9 but I'm certainly not going to let him volunteer statements

10 after he answered the question that misleads this jury. I know

11 you worked on that before but he can't volunteer an additional

1 2 s t a t e m e n t ; a n d t h a t o p e n s t h e d o o r, i n a l l f a i r n e s s , t o

1 3 e v e r y t h i n g . I d o n ' t l i k e t h i s w h o l e s u b j e c t m a t t e r, b u t h e

1 4 c a n ' t m a k e a s t a t e m e n t i f i t ' s n o t a n a c c u r a t e o n e . H e h a d

1 5 g i v e n a n a n s w e r, a n d t h e n h e w e n t f u r t h e r.

1 6 M R . S . S A M U E L : I u n d e r s t a n d t h a t .

1 7 M R S . S C O T T : S o , I c a n g e t i n t o i t n o w ?

1 8 T H E C O U R T : T h e j u r y c a n ' t b e m i s l e a d . T h e

19 whole thing is the rules of evidence are pursuing the truth;

2 0 b u t w h e n h e m a k e s t h a t s t a t e m e n t a n d i t ' s p r o f f e r e d t h a t t h a t

21 contradicts what he just said, then in all fairness, the jury

2 2 i s e n t i t l e d t o k n o w w h a t i t i s . I d o n ' t l i k e p o l y g r a p h s b u t ,

2 3 n o n e t h e l e s s , w h e n h e m a k e s - - h e a n s w e r e d t h e q u e s t i o n . I t

2 4 s t i l l d i d n ' t o p e n t h e d o o r . I t w a s h i s n e x t s t a t e m e n t .

2 5 M R . S . S A M U E L : S e c o n d a r y s t a t e m e n t . W i t h

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1 t h a t b e i n g s a i d , s t i l l f o r t h e r e c o r d , I w o u l d m a k e a 4 0 3

objection on the grounds that any probative value is

substantially outweighed by the prejudicial effect, as well as

. I mi sieadi ng.

T H E C O U R T: W e l l , R u l e 4 0 3 s t a t e s t h a t

6 relevant evidence may be excluded if it's prejudicial or is

7 substantially outweighed by the danger of unfair prejudice,

8 confusion of the issues or misleading the jury. Now, this

9 Court has considered polygraph issues -- that is, someone not

10 taking a polygraph or taking a polygraph or the results

11 thereof -- to be dangerous ground for presentation because this

12 Court's own experience with polygraphs is that it is not a

1 3 p e r f e c t s c i e n c e . T h a t ' s w h y i t ' s n o t a l l o w e d t o b e e n t e r e d

14 into or else we would do away with the jury. We would just do

15 polygraphs. This Court is not going to be the catalyst for

1 6 t h a t r o a d t o b e t a k e n .

1 7 H o w e v e r , a g a i n , a s I r e v i e w e d t h e r e c o r d , a n d

1 8 I s u s t a i n e d t h e o b j e c t i o n o f n o t a l l o w i n g i t i n t h e fi r s t p l a c e

19 but when a statement is made by -- again, I would note the

20 question, "But you did at some point become uncooperative with

21 the police. Do you dispute that?" That was a yes or no. And

22 he answered, "No, ma'am, I didn't become uncooperative." He

2 3 a n s w e r e d t h e q u e s t i o n ; a n d t h e n h e v o l u n t e e r e d o n h i s o w n n e x t

24 statement, "I did everything they asked me to do."

2 5 W e l l , i f t h e y a s k e d h i m t o t a k e a p o l y g r a p h

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1 t h a t I w o u l d n ' t h a v e o t h e r w i s e i n t r o d u c e d o r a l l o w e d t h e

2 a d m i s s i o n o f , w h e n h e m a k e s t h a t l a s t s t a t e m e n t , t h a t i s n o t a

3 f a i r , a c c u r a t e , t r u t h f u l , h o n e s t s t a t e m e n t ; a n d h e v o l u n t e e r e d

4 t h a t . S t a t e h a s a n o p p o r t u n i t y t o r e f u t e t h a t .

5 M R . 8 . S A M U E L : S o , y o u r r u l i n g i s o v e r r u l e d ,

6 Y o u r H o n o r ?

7 T H E C O U R T : Y o u ' r e m a k i n g a n o b j e c t i o n o f 4 0 3 ?

8 M R . S . S A M U E L : C o r r e c t .

9 T H E C O U R T : I a m fi n d i n g t h a t u n d e r t h e s e

10 circumstances, based upon the balancing test under 403, that

11 t h i s i n f o r m a t i o n u n d e r t h e s e p a r t i c u l a r c i r c u m s t a n c e s a r e n o t

1 2 i n f o r m a t i o n t h a t h e r e f u s e d t o t a k e t h e p o l y g r a p h , i s n o t

1 3 e x c l u d e d u n d e r t h e s e , a s i t s p r o b a t i v e v a l u e i s n o t

14 substantially outweighed by the danger of unfair prejudice.

1 5 N o w , l e t m e a d d o n e o t h e r g u i d i n g p r i n c i p l e

1 6 t h a t t h i s C o u r t l o o k s a t a n d i t ' s f o u n d u n d e r A r t i c l e 1 0 1 o f

1 7 t h e Te x a s R u l e s o f E v i d e n c e o r u n d e r 1 0 2 . F o r p u r p o s e a n d

1 8 c o n s t r u c t i o n o f t h e r u l e s , t h e r u l e s a r e c o n s t r u e d t o s e c u r e

1 9 f a i r n e s s , e l i m i n a t i o n o f u n j u s t i fi a b l e e x p e n s e a n d d e l a y,

20 promotion of growth and development of the law of evidence --

2 1 a n d h e r e w h a t I fi n d t o b e t h e m o s t i m p o r t a n t - - t o t h e e n d

22 that the truth may be ascertained. Well, that's not what we're

2 3 d o i n g i f w e d o n ' t fi n i s h t h a t t h o u g h t t h a t ' s b e e n p u t o u t t h e r e

2 4 f r o m a v o l u n t e e r e d s t a t e m e n t t h a t a f t e r h i s - - a g a i n , h e

25 completed his answer, and then he ventured into the unchartered

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1 w a t e r o n h i s o w n o f t h a t s t a t e m e n t . I d o n ' t l i k e i t .

M R S . S C O T T : I k n o w .

a g a i n

overruled?

T H E C O U R T : I d o n ' t l i k e a l l o f t h a t b u t

M R . S . S A M U E L : J u s t t o b e c l e a r , i t ' s

THE COURT: We're not going to end that

8 because, truly, as we all agree, it is apparently not factual

9 a n d n o t a t r u t h f u l s t a t e m e n t t h a t ' s b e f o r e t h e j u r y. A l l

1 0 r i g h t . A n d i t w a s n ' t - - a g a i n , b e c a u s e h e v o l u n t e e r e d t h e

1 1 s t a t e m e n t , I t h i n k t h e S t a t e , i n a l l f a i r n e s s u n d e r t h e r u l e s

1 2 i s a l l o w e d t o r e f u t e , i f t h e y c a n d i r e c t l y r e f u t e t h a t . S o ,

1 3 y o u r o b j e c t i o n i s o v e r r u l e d o n t h a t r e g a r d .

1 4 ( B e n c h D i s c u s s i o n C o n c l u d e d )

THE COURT: Hold on. You may move forward.

1 6 B Y M R S . S C O T T:

1 7 Q . M r . O d o m , y o u s a i d y o u d i d e v e r y t h i n g t h a t t h e

1 8 p o l i c e a s k e d y o u t o d o . T h a t ' s n o t t r u e , i s i t ? I t ' s a y e s o r

1 9 n o q u e s t i o n .

2 0 A . Y e s , m a ' a m .

2 1 Q . B e c a u s e t h e y a s k e d y o u t o s u b m i t t o a p o l y g r a p h

22 examination, didn't they?

2 3 A . Y e s , m a ' a m .

2 4 Q . A n d y o u r e f u s e d t o d o t h a t , d i d n ' t y o u ?

2 5 A . I d i d n ' t r e f u s e .

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1 Q . Y o u d i d n ' t ?

A . I d i d n o t r e f u s e .

Q . W e l l , d i d y o u s u b m i t t o o n e ?

A . I d i d n ' t s u b m i t t o o n e b e c a u s e t h e y s u p p o s e d l y h a d

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

a n a p p o i n t m e n t w i t h m y l a w y e r. I w a s d o i n g w h a t m y l a w y e r

asked you to do.

8 Q . R e a l l y ? Yo u t o l d t h e m y o u ' d t a k e a p o l y g r a p h w h e n

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

1 0 you?

11 A . I d i d t e l l t h e m t h a t I w o u l d t a k e o n e .

1 2 Q . Ye a h , y o u t o l d t h e m t h a t ?

1 3 A . Y e a h , b u t a f t e r I t a l k e d - -

1 4 Q . Yo u d i d n ' t s h o w u p t o t a k e i t , d i d y o u ?

1 5 A . T h e y n e v e r t o l d m e a d e fi n i t e d a y t o s h o w u p .

1 6 Q . Didn't you make an appointment and you didn't show

1 7 u p a n d t h e y k e p t t r y i n g t o c a l l y o u ?

1 8 A . N o , m a ' a m , I d i d n ' t .

1 9 T H E C O U R T : H o l d o n . O n e a t a t i m e . S h e ' s

20 really good, but she can't take both people speaking over each

21 other. She gets to ask the question and then you have a fair

22 opportunity to answer. Don't step anybody speaking. Restate

2 3 y o u r q u e s t i o n .

2 4 M R . A . S A M U E L : Y o u r H o n o r , I o b j e c t . T h e

2 5 q u e s t i o n w a s a s k e d , a n d i t w a s a n s w e r e d . I a l s o o b j e c t t h a t

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1 c o u n s e l i s b e i n g a r g u m e n t a t i v e .

T H E C O U R T: O v e r r u l e d . I ' l l a l l o w y o u , o f

course, to renew your objection. Let's move through this

p o i n t . G o f o r w a r d .

5 B Y M R S . S C O T T:

6 Q . T h e p o i n t i s y o u n e v e r d i d s h o w u p a n d t a k e o n e , d i d

7 y o u ?

8 A . I t w a s n e v e r a p o i n t i n t i m e t o t a k e o n e .

9 Q . S o , t h a t i s n o , r i g h t ?

1 0 A . N o , m a ' a m .

1 1 Q . M r . O d o m , d i d y o u e v e r , w h e n y o u w e r e t a k i n g c a r e

1 2 o f , J a k y r a a b u s e a n y d r u g s o r t a k e a n y d r u g s ?

1 3 A . Ye s , m a ' a m .

1 4 0 . What drugs would you take?

1 5 A . I smoked marijuana.

1 6 Q . Did you ever do anything else?

1 7 A . N o , m a ' a m .

1 8 Q . Did you ever, while you were taking care of Jakyra

1 9 a b u s e P C P ?

2 0 A . N o , m a ' a m .

2 1 Q . Benzodi azepi nes?

2 2 A . N o , m a ' a m .

2 3 Q . Or ecstasy?

2 4 A . N o , m a ' a m .

2 5 Q . A1cohol?

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Selected Testimony from Re-Direct Examination

of Stephen Demond Odom by

Odom's Trial Counsel
108

1 Q . D i d y o u e v e r s t r i k e J a k y r a ?

A . N o , s i r .

Q. Did you ever see any injuries that would lead you to

believe someone had struck Jakyra?

5 A . N o , s i r .

6 Q . W h e n y o u m e t w i t h D e t e c t i v e C u r l a n d h e b e g a n t o

7 question you, he asked you to take a polygraph?

8 A . H e a s k e d m e w o u l d I t a k e o n e .

9 Q . And your response was?

1 0 A . Y e s , I w o u l d .

11 Q . And to your knowledge, is a polygraph a perfect

1 2 i n s t r u m e n t ?

1 3 A . F r o m w h a t m y l a w y e r t o l d m e , n o .

1 4 Q . B u t y e t a n d s t i l l , y o u w e r e w i l l i n g t o t a k e i t ?

1 5 A . Y e a h .

1 6 Q . B u t t h e y n e v e r g a v e y o u a d a t e t o c o m e t a k e i t ?

1 7 A . N o , t h e y n e v e r g a v e m e a d a t e .

18 Q. Now, there was some questions about you smoking

19 marijuana. Did you ever smoke marijuana in the presence of

2 0 J a k y r a ?

2 1 A . N o t i n t h e p r e s e n c e , b u t I h a v e .

2 2 Q . B u t n o t i n h e r p r e s e n c e ?

2 3 A . N o , s i r .

2 4 Q . A t a n y t i m e , d i d y o u s m o k e m a r i j u a n a i n t h e s a m e

2 5 r o o m w i t h h e r ?

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