## NO. 12

- 14

- 00049

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WALTER FENT GARNER, JR., APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 8 TH

JUDICIAL DISTRICT COURT

RAINS COUNTY, TEXAS

MEMORANDUM OPINION Walter Fent Garner, Jr. appeals his convictions for three counts of indecency with a child. Appellant was sentenced to imprisonment for twenty years in the first count and ten years each in
the second and third counts. Appellant raises one issue challenging the trial court’s failure to order a mistrial after Appellant’s attorney questioned a witness regarding a polygraph
examination. We affirm.

B ACKGROUND Appellant was charged by indictment with three counts of indecency with a child. He pleaded “not guilty” to all three counts, and the matter proceeded to a jury trial. At trial, the trial court granted the State’s oral motion in limine to prevent any mention of

po lygraph examinations during the trial. During defense counsel’s cross

- examination of a law enforcement officer who had interviewed Appellant, defense counsel asked the officer whether he had asked Appellant if he would submit to a polygraph examination. Before any response by the officer, the prosecutor asked to approach the bench. At the bench, the trial court expressed its disapproval of defense counsel’s behavior and asked the prosecutor to suggest a remedy. The prosecutor indicated that he was willin g to go ahead with the trial even though defense counsel’s question might hurt his case. He noted that Appellant did not take a polygraph examination2

because he said he had medical problems. The trial court explained to the jury that the question was imp roper because polygraph examinations are untrustworthy and instructed the jury to disregard the question. Ultimately, the jury found Appellant “guilty” on all three counts, and the trial court assessed his punishment at imprisonment for twenty years in th e first count and ten years each in
the second and third counts. This appeal followed.

D ENIAL OF M OTION FOR M ISTRIAL In his sole issue, Appellant complains that the trial court should have ordered a mistrial because his attorney mentioned a polygraph ex amination, and because this error constituted
ineffective assistance of counsel. Standard of Review and Applicable Law A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard, and its ruling must be upheld if it was within th e zone of reasonable disagreement. Coble v. State , 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). The asking of an improper question alone will seldom
call for a mistrial. Hernandez v. State , 805 S.W.2d 409, 413 (Tex. Crim. App. 1990). In most

cases, any harm caused by such a question will be cured by an instruction to disregard the question. Id. at 413

- 14. A mistrial is required when the question was clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossi bility of withdrawing the impression it produced on their minds. Id. at 414. Whether a particular error calls for a mistrial depends on the peculiar facts and circumstances of the case. Id. Because of the inherent unreliability of polygraph examination s and their tendency to unduly persuade jurors, testimony regarding their existence or results is inadmissible for any purpose in a criminal proceeding on proper objection. Martines v. State , 371 S.W.3d 232, 250 (Tex. App.

— Houston [1st Dist.] 2011, no pet .). The mere mention of a polygraph examination, however, does not automatically constitute reversible error, even when the results are revealed. Id. Generally, when a polygraph examination is mentioned but results are not revealed, an instruction
to disr egard is sufficient to cure any error. Id. at 251. In determining whether a mistrial was necessary, we may also consider any bad faith exhibited in asking the question, and whether the state’s case was bolstered by the polygraph evidence. Id.3

Analysis Appellant acknowledges that the mere mention of a polygraph examination does not necessarily constitute reversible error. But he argues that the trial court in this case should have
ordered a mistrial because his own counsel rather than the State asked t he question regarding the polygraph, and because this error constituted ineffective assistance. Appellant cites no authority to support his contention that a mistrial is necessary when defense counsel mentions a polygraph examination, and the facts of thi s case do not support such a conclusion. In a case where the state mentions a polygraph examination, the jury is likely to infer that
the examination had results that were harmful to the defendant. Here, however, where defense counsel advanced the questi on, the jury was likely left with the impression that any results were favorable to Appellant. We conclude that in this case, where bad faith might be inferred on the part of defense counsel rather than the State, and the question likely bolstered Appella nt’s case and not the State’s, the facts and circumstances did not entitle Appellant to a mistrial. See
Martines , 371 S.W.3d at 251. Furthermore, because defense counsel’s question likely benefitted Appellant, Appellant’s complaint that his counsel was i neffective is without merit. See Strickland v. Washington , 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984); Hernandez v.
State , 726 S.W.2d 53, 56

- 57 (Tex. Crim. App. 1986) (holding that appellant must show deficient performance prejudice d his defense). The record does not support Appellant’s contention that the trial court abused its discretion by not ordering a mistrial. Accordingly, we overrule Appellant’s sole issue.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
G REG N EELEY Justice Opinion delivered March 18, 2015

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 18 , 2015

NO. 12

- 14

- 00049

- CR

WALTER FENT GARNER, JR.,

Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 8th District Court of Rains County, Texas (Tr.Ct.No. 5335) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same b eing considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below f or observance.

Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.