### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00173- CR

Brian Tayl or, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 33RD J UDICIAL DI STRICT

NO. 386 60, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

O P I N I O N

Br ian Tay lor was char g ed with two counts of indece ncy with a child by contac t. See Tex. Penal Code § 21.11(a) (1) (s et t i n g out elements of offe nse). The victim in this case , G.S ., was the daug hter of Tay lor’s g irlfriend, and she was twelve y ear s old at th e t i m e o f t h e offe nses. Prior to his arr est, Tay lor went to the police station to discuss the case . During his interview with the police, Tay lor admitted that he had sexual intercour se with G.S. i n another county and later admitted that he als o touched G.S. in a sexual manner on differ ent occa sions. A video re cording of his inter view with the police wa s admitted into evidence during the trial. At the end of the g uilt or innocence phase, the jury found Tay

lor g uilty of both counts. During the punishment phase, Taylor enter ed pleas of not true t o en h ance ment alleg ations asserting that he had been previously convicted of prior felony offe nses, and the State introduced pen packe ts re gar d i n g those prior offe nses. See Davis v. State , 268 S.W .3d 683, 715(Tex. App.—Fo rt W o rt h 2008, pet. ref ’d) (explaining that State may establish prior conviction alleg ed for enhanc ement p u rposes by introducing pen packe ts, which are cer tified copies of judgme nts and sentenc es). After considering the evidenc e prese nted during the punishment phase, the jury found bey ond a rea sonable doubt that Taylor had been previously convicted in I llinois of the felony offe nse of ag g rava ted criminal sexual abuse. I n light of the jury ’s deter minations, the district

court imposed a sentenc e of life imprisonment for ea ch co u n t. See Tex. Penal Code §§ 21.11(d) (explaining that indece n c y w it h c h il d b y c o n ta c t is second- deg ree felony ), 12.42(c) (2)( B) (manda ting that defe ndant be sentenc ed to life imprisonment if h e i s convicted of indece ncy with child by

contac t and has pre viously been c onvicted of of

fense listed in statute).
I n seven issues on appea l, Taylor contends that the district court e rre d by failing to conduct a hear ing outside the pre sence of the jury reg arding the admissibilit y of outcry statements made by G.S. to a counselor working for the Hill Country Children’s Advoca cy Center, by admitting outcry statements made by G.S. to the counselor reg arding an extraneous act committed by Tay lor, by failing to g ive the jury an instruction addre ssing the voluntariness of the statements that he made

to the pol ice during his interview, by admitting evide nce r eg arding the statements that he ma de to the police, by failing to g rant a mistrial afte r evidenc e ref ere ncing his poly g raph exam was prese nted to the jury , by

allowing into evidence pen pac kets that containe d information showing how par ole law and g ood-time cre dit had been applied to him previously , and by admitting evidenc e reg arding the extraneous offe nse alleg edly committed by him ag ainst G.S. We will aff irm the district court’s judgme nts of conviction. I n rea chin g o u r d ec i s ion, we will addre ss Taylor’s seventh issue afte r considering his fi rs t t wo i s sues for ease of rea ding but will addre ss his rema ining issues in the order briefe d.
2STANDARD OF REVIEW Although not a ll of the issues urg ed by Taylor require the same standa rd of r eview,

most of the issues prese nted by Tay lor are revie wed under an abuse- of-discr etion standard. Under that standard, a trial court’s ruling will only be dee m ed an ab u s e o f discretion if it is so clea rly
wrong as to li e o u t s i d e t h e zone of rea sonable disag ree ment, Lopez v. State , 86 S.W .3d 228, 230 (T ex. Crim. App. 2002), or is arbitra ry or unrea sonable, State v. Mec hler , 153 S.W .3d 4 3 5 , 4 3 9 (Tex. Crim. App. 2005). Moreove r, the ruling will be upheld provided that the trial court’s decision “is rea sonably supported by the rec ord and is corr ect under any theory of law applicable to the case .”
Carrasco v. State , 154 S.W .3d 127, 129 (Tex. Crim. App. 2005).

DISCUSSIO N
Hearing Regar din g Outcry State m ents

I n his first issue on appea l, Tay lor contends that the district court err ed by failing to hold “a hear ing outside the prese nce of the jury to deter mine the admissibili ty of outcry statements”

m ad e b y G.S. to Amy Calloway , who worke d for the Hill County Children’s Advoca cy Cent er . Those statements wer e admitted into evidenc e throug h the testimony of Calloway

. When prese nting this issue on appea l, Tay lor notes that article 38.072 of the Code of Criminal Proc edure authorizes the admission of outcry statements made by children under the ag e of fourtee n who are the victims of sex ual offe nses, but Tay lor asser ts that before those statements m ay be admitt ed, the trial court is obliga ted to convene a hear ing outside the prese nce of the jury and deter mine whether the

statements are reliable

. See Tex. Code Crim. Proc. art. 38.072. Specifica lly , the statute provides that

3an outcry statement “is not inadmissible beca use of the hear say rule if,” among other t h i ng s, the following conditions are satisfied: “the trial court finds, in a hear ing conducte d outside the prese nce

o f t h e j u ry , that the statement is reliable based on the time, content, and circ umstances of t h e statement.” Id. art. 38.072, § 2(b). On appea l, Taylor asser ts that the district court did not make the requisite reliability finding or consider the fac tors provided by the leg islature for that deter mination;

on the contra

ry , Tay lor contends that the district court improperly based its ruling on an ag ree ment betwee n the State and his trial attorney that the outcry testimony was reliable

. Taylor insists that the
ag ree ment by the parties does not sa tisfy the require ments of article 38.072 and that the admission of t he outcry statement t hroug h Calloway ’s t estimony was im proper , violated t he requirements of article 38.072, and depr ived him of a fa ir trial. 1

I n his first, second, and seventh issues on appea l, Taylor asser ts that the alleg ed err ors are 1 consti t u t i o n al i n nature and, acc ording ly , require that less harm be shown befor e a reve rsal is war rante d. See Tex. R. App. P

. 4 4

. 2

. As support for the asser tion, Tay lor primarily ref

ers to Sanchez v. State , 354 S.W .3d 476 (Tex. Crim. App. 2011)

. Although we do not r eac h the issue of harm in any of those issues and, acc ording ly , need not consider whether those issu es are of a constitutional dim ension, we note that Taylor’s reliance on Sanchez seems misplace d. Unlike the prese nt case , in Sanchez , the “outcr y witness suffe red a loss of mental fac ulties and was unavailable to testify at trial,” and “the trial court allowed the outcry witness’s testimony fr o m a p re -t ri al hear ing to be rea d to the jury ” over Sanchez’s objection. Id. at 478. The court of criminal appea ls deter mined that a hear ing held under article 38.072 “is intended only to deter mine the reliability of the complainant’s out-of-c ourt sta te me n t, ” th a

t the “def endant’ s opportunity for cross-e x amining the outcry witness at such a h ea ri n g is inadequa te to allow the admission of the hear ing testimony at trial,” and that “admitting t es timony from an Article 38.072 hear ing at a trial when the witness is unavaila b l e v i olates t he S ix th Amendment.” Id. at 478, 489. I n this case , the out cry witness was available to testify

at trial and was subject to c ross-examination by Taylor during trial. Moreove r, Tay lor’s seventh issue conce rns evidenc e of extraneous offe nses under article 38.37 of the Code of Criminal Procedur e, which is not an issue that the court in Sanchez addre ssed. See Tex. Code Crim. Proc. ar t. 38.37. 4Although Tay lor arg ues on appea l t h at t h e district court did not make a reliability

deter mination or consider the rele vant fac tors, the rec ord befor e this Court reve als that he made no objection reg arding the admis sion of t he outcry statements either during the pre-trial hearing held outside the prese nce of the jury or during Calloway ’s testimony at trial. On the contra ry , during the
pre- trial hea

ring , Tay lor ag ree d with the State that the outcry statement was reliable

. Specifica lly , the re cord shows tha t the following exchang e occ urre d:

[S tate]: And then the last issue we can handle rea lly quickly is the outcry witness, the hear ing on the outcry

witness. I think [Tay lor] is willing to stipulate it was done a t the Hill Country CAC, Children’s Advoca cy Center. The same protocols to ensure the reliability of the statement wer e assure d, that the alleg ed v i ct i m i n this case understood what the truth was, understood what a lie was, was able to communicate to the interviewe r. The interview was done prior to indictment and prior to complaint for the a rre st of the def

endant a nd all of those protocols wer e followed to . . . show the re liability

of the stateme nt. [Tay lor]: And we did -- they did g ive us ac cess to the HCAC tape s with her and so we could -- I mean, y ou can clea rly see wher e the outcry comes, so I don’t have any problems with this outcry witness. [C ourt]: Okay

. So that’s just stipulated that whoeve r y ou’ve desig nated as y our outcry witness is y our outcry

witness. [S tate]: Amy

Calloway

.

. . . [S tate]: The only thing that we’ ve g ot, J udg e, we want to make sure that on the outcry witness -- that y ou ruled that the out cry witness is -- the re l i abil ity of t he tape, that we’ ve g one throug h the protocol and used the same protocol from the CAC, the Children’s Advoca cy Center, the Hill Country Children’s Advoca cy Center. I ’ve discussed that with opposing counsel and that that – the normal protocol of assuring that the child knows the differ ence betwee n the truth and a lie and the way she wa s able to ar ticulate produc es re liability of the tape and the outcr

y witness.

5[C ourt]: And y ’all made that repr esenta tion to the Court this morning , but, [Tay lor], y ou ag ree that that’s all fine? [Tay lor]: I do, Your Honor

. [C ourt]: All rig ht. So if I need to make a finding , I will make that finding based upon y our ag ree ment.

I n light of the prec eding , we must conclude that Taylor has waived any alleg ed

err or re g arding the admission of evidenc e conc erning the outcry statements. See Thomas v . State , No. 03-11-00254- CR, 2013 Tex. App. L EXI S 10661, at *4-5 (Tex. App.—Austin Aug . 23, 2013,

no pet.) (mem. op., not desig nated for publication) (conc luding that defe ndant d i d n ot prese rve complaint that trial court did not convene article 38.072 hear ing or make require d finding s beca use he did not object to t rial cour t’s alleg ed fa ilure to continue he aring or objec t to testimony at t rial); Bradshaw v. State , No. 03-10-00415- CR, 2012 Tex. App. L EXI S 6193, at *13 (Tex. App.—Austin
J uly 26, 2012, pet. ref

’d) (mem. op., not desig nated for publication) (dete rmining th at defe ndant waived complaints that outcry was unreliable and that no hear ing was hel d beca use he failed to make these objections during testimony discussing outcry ); Garcia v. State , 228 S.W .3d 703, 707 (Tex. App.—Houston [14t h Dist.] 2 0 0 5 , p et. ref ’d) (explaining that defe ndant waived complaint
reg arding lack of article 38.072 hear ing by failing to reque st hear ing) ; Cates v. State , 72 S.W .3d 681,
698 (Tex. App.—Ty ler 2001, no pet.) (dec iding that beca use defe ndant did not object to trial court’s alleg ed failure to hold 38.072 hear ing and beca use defen d an t d i d not reque st 38.072 hear ing, defe ndant waived issue on appea l); see also Tex. R. Evid. 802 (explaining that “[i] nadmissible hear say admitted without objection may not be d e n ie d p robative value mere ly beca use it is hear say ”); Poindexte r v. Stat e , 153 S.W .3d 402, 406 (Tex. Crim. App. 2005) (providing t h at t rier- of-f act “is

6entitled to g ive probative value to” hear say evidenc e admitted without objection), overruled in part

on other grounds by Robinson v. State , No. PD-0421-14, 2015 Tex. Crim. App. L EXI S 763, at *14 n.32 (Tex. Crim. App. J uly 1, 2015).
Moreove r, althoug h we need not discuss the issue further , we do note that d u ri ng the pre -trial hea

ring held out side the presence of t he jury , the State mentioned that protoc ols were used t o en s u re the reliability of the statement and to ensure that G.S. understood the differ ence betwee n the truth and a lie, and Tay lor ag ree d that the proper protocols wer e used. I n addition, based

on that ag ree ment, the district court stated that it was making any finding nece ssary for the admission

o f ev i d en ce re g arding the out cry . See Tex. Code Crim. Proc. art. 38.072. Finally , Taylor has not ref err ed us to and we have been unable to find any authority standing for the proposition that parties cannot stipulate that the r eleva nt reliability

requisites we re sa tisfied.
For all of these r easons, we overr ule Tay lor’s first issue on appe al.

Adm ission of O utcry Stat em ents Regar din g Extraneous Of fense
I n a rela ted set of arg uments i n h i s s econd issue, Tay lor contends that during Calloway ’s testimony , she was improperly allowed to discuss statements made by G.S. reg arding an
extraneous offe nse that was not the subject of the trial and “that occur red on a differ ent date and in

a differ ent county .” Specifica lly , Calloway rel at ed t h at G.S. informed her that Taylor penetr ated

or attempted to penetr ate her vag ina with his penis when they wer e in his truck afte r stopping on the
way to pick up Tay lor’s nephew. During the t rial, Tay lor arg ued that the testimony should not be admitted beca

use it was hear say , beca

use the testimony addre ssed “a differ ent offe nse,” and beca use “that outcry is

. . . differ ent from the outcry ” concerning the offe nses at issue in this case . I n

7response , the State asser ted that Calloway was the outcry witness for the extraneous offe nse as well and that the evidenc e was ad m i s s ible under article s 38.072 and 38.37 of the Code of Criminal
P ro ce d u re . See Tex. Code Crim. Proc. arts. 38.072 (allowing outcry witness to testify reg ardi n g
statements made by child victim of sexual offe nse provided that cer tain criter ia are satisfied),
38.37 (addr essing admissibili ty of evidence of other crimes committed by defe ndant ag ainst child who is victim of alleg ed offe nse). When making its ruling , the district court explained “[o] n that
repr esenta tion . . . I overr ule those objec tions and it’s -- I ’ll admit it.”
On appea l, Tay lor contends that the district court err ed b y allowing Calloway to testify as an outc ry

witness reg arding that extraneous offense without conve ning a n article 38.072 hear ing and without making a reliability deter mination reg arding those outcry statements. Howeve r,

as su m m ar i z ed above, Tay lor did not object to the t estimony on the grounds presented on appea l.
Acc ording ly , we must conclude that Tay lor has failed to prese rve this issue for appea l. See Thomas , 2013 Tex. App. L EXI S 10661, at *4-5; Bradshaw , 2 0 1 2 T ex . App. L EXI S 6193, at *13; see also
Garcia , 228 S.W .3d at 707 (explaining that g ener al objection on hear say g rounds does not prese rve complaint that outcry testimony was not admissible beca use no hear ing was convene d outside
prese nce of

jury and bec ause no r eliability deter mination was made)

. For these re asons, we ove rrule T ay lor’s sec ond issue on appea l.

Evid ence of Extraneous Of fense
I n his seventh issue on appea l, Taylor asser ts that the dist ri ct co u rt abused its discretion “by admitting evidenc e o f [ the] extraneous offe nse” descr ibed above in which Taylor alleg edly attempted to insert or did insert his penis into G.S.’s vag ina on a trip to pick up his nephew

.
8See Davis v. State , 329 S.W .3d 798, 803 (Tex. Crim. App. 2010) (explaining that evidentiar y ruling s

are revie wed for abuse of discretion). That offe nse was alleg ed to have occur red in another county

wee ks befor e the alleg ed offe nses at issue in this case . During a pretria l hear ing, Taylor arg ued that evidenc e reg arding the extraneous offe nse should not be admi t t ed under Rule of Evidence 403 beca use “a ny probative va lue i s outweig hed by the prejudice i n this case and [ beca use] the events

are remote enoug h and differ ent en o u gh t h at 403 applies.” See Tex. R. Evid. 403 (allowing trial

court to exclude otherwise rele vant evidence if probative value is substantially outweig hed by dang er of unfair pr ejudice) . I n response , the State arg ued that the probative value of the evidence is not outweig hed by t h e d an g er of unfair prejudice under Rule 403 and that the evidenc e was admissible unde r article 38.37 of the Code of Criminal Proc edure

. See Tex. Code Crim. P roc. a rt. 38.37 (dee ming evidenc e of extraneous acts betwee n defe ndant and child victim admissible in trial for sex ual offense). After the S tate res p o n d ed , the di strict court overruled Tay lor’s obj ection and deter mined that the evidenc e wa s admissible under ar ticle 38.37.
On ap p ea l, Tay lor urg es that the district court abused its discretion by admitting evidenc e reg arding the extraneous offe nse without comply i n g wi th the require ments of article
38.37. See id. Specifica lly , Tay lor urg es that the district court err ed by failing to m ak e a finding “that the evidenc e would be adequa te t o support a finding by the j ury that [Tay lor] committed the extraneous offense bey ond a re as o n ab l e doubt” as require d by sections 2 and 2-a of article 38.37. Id. art. 38.37, §§ 2, 2-a. Section 2 of t he provision authorizes the admission of evidence showing that the defe ndant has committed a separ at e s ex u al offe nse “for any bear ing the evidenc e has on rele vant matters, including the char acte r of the defe ndant and acts perf ormed in confor

mity with the

9char acte r of the defe ndant,” id. art. 38.37, § 2(b); howeve r, befor e evidenc e may be admitted under

that section, the trial court is obliga ted to “conduc t a hear ing outside the prese nce of the jury for” the
purpose of deter

m i n i n g whether “the evidenc e likely to be admitted at trial will be adequate to support a finding by the jury that the defe ndant committed the separ ate offe nse bey ond a rea sonable doubt,” id. art. 38.37, § 2-a

.

As a preliminary matter, we note t hat Tay lor did not object to the admis sion of t he evidenc e during the t ri al under article 38.37 and instead asser ted that the evidenc e should not be admitted under Rule of Ev i d ence 403. Acc ording ly , it does not appea r that Taylor prese rved this issue for appea l. See Tex. R. App. P. 33.1(a) (1) (re quiring party to make timely objection to prese rve complaint for appea l); W

ilson v. State , 71 S.W .3d 346, 349 (Tex. Crim. App. 2002) (providing that appellate issue must comport with specific objec tion made at trial).

Even assuming that Tay lor had prese rved this complaint, we would still be unable to conclude that the district court abused its discretion by admitting evidenc e of the extraneous offe nse. Tay lo r i s co rrect that section 2-a of article 38.37 require s a trial court to make a deter mination
reg arding the suffic iency of the e vidence of an e x trane ous offe nse bef ore the evidenc e is admitted under se ction 2. Tex. Code Crim. Proc. art. 38.37, § 2-a. Sec tion 2 is a broadly written provision that allows the evidenc e to be admitted “for any bear ing the evidenc e has on rele vant matter s , ” including proof of char acte r confor mity , and authorizes the admission of evidenc e that the defe ndant has committed sexual offe nses ag ainst individuals other than the victim at issue. Id. art. 38.37, § 2.
Howeve r, article 38.37 also authorizes the admission of evidenc e that the defe ndant has committed

extraneous sexual offe nses ag ainst the victim to be admi tted for more limit ed purposes without

10requiring a trial court to make a deter mination reg arding the sufficie ncy of the evidenc e befor ehand. Specifica lly , section 1 authorizes the admiss i o n of evidenc e of other crimes committed “by the defe ndant ag ainst the child who is the victim of the alleg ed offe nse” that is the subject of a trial for its bear ing on “the state of mind of the defe nd an t and the child” as well as “the previous and subsequent re lationship between the defe ndant and the c hild.” Id. art. 38.37, § 1(b)

.

Given that the extraneous offe nse at issue was committed by T ay l o r against G.S. and g iven that the crime alleg ed in this issue was indece ncy with a child by contac t, we believe that the district court could rea sonably have deter mined that evidenc e indicating that Taylor penetr ated

or attempted to penetr ate G.S.’s vag ina with his penis was rele vant to Tay lor’s state of mind for the offe nses at issue as well as the nat u re of the prior rela tionship betwee n Taylor and G.S. and deter mined that the evidenc e wa s admissible under sec tion 1 of article 38.37. Id.

As set out above, Tay lor did object to the admission of the evidenc e under Rule 403.
See Tex. R. Evid. 403. On appeal, Tay lor contends that the di strict court abused i t s d i s cr et i o n by

overr uling his objection without conducting “a balanc ing test to d et ermine if the dang er of unfair prejudice substantially outweig hed the probative value o f t h e evidenc e as it was require d to do.”
See Mozon v. Stat e , 991 S.W .2d 841, 846 n.6 (Tex. Crim. App. 1999) (stating t hat once Rule 403 objection is made, “the trial court has no discretion as to w hether or not to eng ag e in the balanc ing
proce ss”). But see Sanders v. State , 255 S.W .3d 754, 760 (Tex. App.—For t Worth 2008, pet. ref

’d) (explaining that Rule 403 does not require that balanc ing analy sis be on rec o rd an d that when

o bjection is overr

uled, there is presumption that trial court “applied a rule 403 balanc ing t es t an d deter mined the evidenc e wa s admissible”).

11The evidenc e reg arding the extraneous offe nse was admitted throug h the testimony

of Offic er L ow, G.S., and Calloway

. I n addition, evidenc e of t h e offe nse was also introduced throug h a video rec ording of an inter view of Taylor by Offic er L ow and throug h the admis sion of

a tra nscript of that intervie w.

I n h is te s ti mo ny , O f

fice r L ow explained that during his first conver sation with Taylor, Tay lor denied eng ag ing in any improper sexual activity with G.S.; howeve r, Offic er L ow rela ted that during his se cond interview, Tay lor “admitted to ha ving intercour se with [G.S.] in a parking lot of the Marr iott Hotel in Horseshoe Ba y .” Simi larly , G.S. testified that on one occa sion when she went with Tay lor to pick up Tay lor’s nephew , Taylor attempted to have sex with her by try ing to put his peni s i n to her vag ina. Reg arding her interview with G.S., Calloway rec alled that G.S. stated that Tay lor touched her when they wer e “by the lake by a building with barbe d wire and that she was usually half aslee p when it happen[ed]” and that Taylor “ra ped me.” Fur

ther, Calloway testified that
G.S. stated that Tay lor touched her ever y wher e, including her chest and g roin are a, with his hand and that Tay lor used his penis to touch her vag ina and a ttempted to penetra te her vag ina.
On the video, Tay lor admitted that he had sex with G.S. “rig ht there at the Marr iott” by the lake. More specific ally , he stated that while they wer e in his truck, she started “play ing with me,” that “she g ot on top

. . . and started taking her clothes down,” that he raised the steering whee l
up, that “they say I went inside but I didn’t know I did—far as I knew it was just betwee n her leg s,” that they moved to the other side of the truck when “we wer e doing it,” and that he place d his penis
in her vag ina. I n addition, Tay lor stated that eve ry t h i n g t h at G.S. had descr ibed about that event
was true . Fur

ther, he clar ified that he only had sex with G.S. on that one occasion but “y ou know her g rabbin’ a

nd play in’ and shit like that. I t’s been se vera l times.”
12Although Tay lor objected to the admission o f evidenc e reg arding the extraneous

offe nse in a hear ing befor e the trial, Tay lor did not object to the evidenc e eac h time it was admitted during the trial. See Mitchell v. State , 68 S.W .3d 640, 643 (Tex. Crim. App. 2002) (explaining that if previously

objected to e vidence is introduced from another source without objection, def endant
may not challeng e admission on appea l). I n particula r, Taylor made no objection when the transcr ipt of the video was admitted into evidenc e or during any of G.S.’s extensive testimony discussing the extraneous offense. More over, a lthough Tay lor stated “I ’m just g oing to rene w m y objection t hat
I had ear lier to any other o ff en s es ” during the portion of Offic er L ow’s testimony discussing information that h e l ea rn ed from Calloway , Taylor made no subsequent objection during Offic er L ow’s testimony

when he later te stified reg arding admissions that Tay lor made dur ing the interview, including that Tay lor had sexual intercour se with G.S. in a hotel parking lot. Fur thermore , althoug h Tay lor objected to Calloway ’s tes t imony on the g rounds that her testimony conce rning

statements G.S. made was hear say , perta ined to a differ ent offe nse that is not the subject of the trial, and was not proper outcry testimony , Tay lor did not object to Calloway ’s testimony on Rule 403
g rounds. Acc ording ly , beca use the evidenc e reg arding the extraneous offe nses was admitted into 2
evidenc e throug h m ultiple source s without objection, any err or potentially stemming from the admission over Tay

lor’s initial objection was cure d. See Luu v. State , 440 S.W .3d 123, 127 (Tex. App.—Houston [14t h Dist.] 2013, no pet.) (providing that party must object ever y time inadmissible

Tay lor did object on Rule 403 g rounds t o the admis sion of a short video s howing part o f 2 the interview of G.S. by Calloway

. No statements conce rning the extraneous offe nse or the offe nses at issue wer e made on the video, and the propriety of the admission of that video is not an issue in this appeal. 13evidenc e is offe red o r re q u es t runni ng objection and that any err or in admission of evidenc e is

cure d when e vidence comes in without objection).

For all of these r easons, we overr ule Tay lor’s seve nth issue on appea l.
Jury Instruction on Volu ntariness

I n his third issue on appea l, T ay lor asser ts tha t the district “ court err ed by failing to gi v e t h e jury an instruction reg arding the voluntariness of [hi s] statement to police” in which h e admitted to committing the offe nses at issue as well as the extraneous offe nse discussed above. Specifica lly , Tay lor reque sted an instruction stating that the jury could not consider as evidenc e any
statement that he made “unless the evidenc e conv i n ces y ou bey ond a rea sonable doubt that the

statement wa s made voluntarily ,” but the district cour t denied that re quest. When revie wing an alleg ed jury -cha rg e err or, appellate courts first determ i n e whether an err or exis ts. Kirsch v. State , 357 S.W .3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005). I f the court deter mines that there was an err or, it then decide s whether the err or resulted in harm sufficie nt to war rant a reve rsal. Kirsch , 357 S.W .3d

at 649; Ngo , 175 S.W .3d at 743. On appea l, Taylor asser ts that the i n s truction should have been
g iven under article 38.22 of the Code of Criminal Procedur e. See Tex. Code Crim. Proc. art. 38.22, §§ 6, 7; see also Oursbourn v. State , 259 S.W .3d 159, 176 (Tex. Crim. App. 2008) (explaining that section 6 of article 3 8

. 22 applies “to both an accuse d’s custodi al and non-custodial st atements” ). 3

On appea l, Tay lor does not prese nt a due-pr ocess claim asser ting that his statement was the 3 result of police overr eac h. See Oursbourn v. State , 259 S.W .3d 159, 169-70 (Tex. Crim. App. 2008) (discussing various ty

pes of a rg uments conce rning whether statement wa s made voluntarily ). 14That provision provides that “[i] n all case s wh er e a q u est ion is raised as to the voluntariness of a

s ta te me n t o f a n a c c u s e d , th e c o u

r t m u s t ma k e a n in d e p e n d e n

t f in d in g in th e a

b s e n c e o f th e ju

r y a s to whether the statement was made under voluntary conditions” and that if the court finds “as a matter of law and fac t that the statement was voluntarily made, evidenc e perta ining to such matter may be submitt ed to the jury and it shall be instructed that unless the jury believes bey ond a rea sonable doubt that the statement was voluntarily made, the jury shall not consider such statement for any purpose
nor any evidenc e obtained a s a re sult thereof.” Tex. Code Crim. P roc. a rt. 38.22, § 6.
“I f a rea sonable jury could find that the fac ts, disputed or undisputed, re n d er ed [a defe ndant] unable to make a voluntary statement, he is entitled to a g ener al voluntariness instruction when he has raised a question of th e voluntariness of his statement.” Oursbourn , 259 S.W .3d

at 176. The defe ndant has the burden of producing “evide nce at trial from which a rea sonable jury could conc lude that the stateme nt was not voluntary ,” and “there is no err or i n ref using to include

a jury instruction wher e there is n o evidenc e befor e the jury to raise the issue.” Vasquez v. State , 225 S

. W

. 3 d 5 4 1, 545 (Tex. Crim. App. 2007). When discussing the ty pe of evidenc e that would

war rant an in struction reg arding the voluntariness of a statement made to police, the court of criminal
appea ls has listed the following ty pes of evidenc e as “fa ct scena rios that can raise a state-law claim of involuntariness” under article 38.22: evidenc e that the suspect “wa s ill and on medication and that fac t may have rende red his con fe s s i o n i nvoluntary ”; “wa s mentally reta rded and may not have” voluntarily , intelligently , and knowing ly waived his rig hts; lacke d the capacity to compre hend his rig hts; was intox icated, did not know what he was signing , and mistakenly believed that document signe d was something other than a confe ssion; “wa s confr onted by the brother- in-law of his murder

15victim and beate n”; and “wa s returne d to the store he broke into” so that he could be questioned by

individuals who wer e arme d with pistols. Oursbourn , 259 S.W .3d at 172-73 (interna l citations omitted). Fur

ther, the court of criminal appea ls has deter mined that evide n ce t h at a suspect was bipolar and was in a m an i c o r depre ssed state at the time that the statement was made suffice d to raise a g ener al voluntariness question under article 38.22 “bec ause a rea sonable jury could conclude , based on this evidenc e, that the statement was not voluntary .” Id. at 181; see also id. at 173 (explaining that althoug h “y outh, intox ication, mental reta rdation, and other disabiliti es are usually

not enoug h, by themselves, to rende r a statement inadmissible under Article 38.22, they are fac tors th a t a ju r y , a r me d w it h a p r o p e r in s tr

u c ti o n , is e n ti tl e d to c o n s id e r ” ) ; V a s q u e z v
. S ta te , 1 7 9 S. W. 3 d 6 4 6 , 658 (Tex. App.—Austin 2005) (explaining that fac ts that weig h ag ainst voluntariness deter mination inclu d e “l en g thy interrog ation, threa ts of violence, and detention incommunicado without advice of counsel or friends” as well as acc used’s ag e, “low intelligenc e,” and “lac k of education”) , aff’d , 225 S.W .3d 541.

When arg uing that he should have been g iven an instruction , T ay lor notes that the
i n t er view lasted for sever al hours, that he was not g iven Miranda war nings, and that he was no t expressly told that he was fre e to leave and asser ts that those fac tors wer e prese nt in a prior opinion by this Court in which we d et er m i n ed that a trial court err ed by failing to g ive an instruction on voluntariness. See V

asquez , 179 S.W .3d 646. Prior to the district court deny ing Tay lor’s reque st for the jury i n s t ru ction during trial, Tay lor m o v ed t o s u p p ress the video on the g round that the statements that he made on the video wer e not voluntarily made. During a hear ing outside the prese nce of the jury reg arding

16the voluntariness of Tay lor’s statements, Offic er L ow was called to the stand. I n his t est imony ,

Offic er L ow stated that he had two conver sations with Tay lor and that the second conver sation was the one that was rec orded. Fur ther, when descr ibing this second conver sation, Offic er L ow rec alled that Tay lor had asked for the second interview and reque sted that arr ang ements be made so that he could take a poly g raph test during the second interview, that Taylor drove himself to t he police station, tha t T ay lor was never place d under arr est during the interview , that Tay lor was ne ver rea d his Miranda rig hts, that Tay lor was int ervie wed by three differ ent pol ice officer s over a p er i od of approximately three to four hours, and that Taylor never ask ed t o t alk t o a lawy er. Reg arding the leng th of the interview, Offic er L ow estimated that the poly g raph lasted approximately one and a half hours of the total interview, that he interviewe d Taylor afte r he finished the poly g raph, and that his intervi ew with Tay lor lasted approximately 30 minutes. I n addition, Offic er L ow explained that

none of the office rs told Tay lor that he was obliga ted to stay in the interview room; on the contra ry , Offic er L ow testified that all three office rs told Ta y lor that no matter what he said that day , he was
not g oing to be arr ested. Fur thermore , Offic er L ow explained that Taylor had previous experience with the criminal j ustice sy stem and had been imprisoned for the sexual assault of a minor.
Moreove r, althoug h Offic er L ow admitted that h e n ever expressly told Tay lor that he was fre e to leave at any time, Office r L ow testified that Ta y lor kept his key s to his car and “could have left at
any time.” I n fac t, Offic er L ow t estified that Taylor lef t af t er t h e interview was over and was not

arr ested until sever al day s later.

17At the end of the suppression hear ing, the district court made the following finding s 4

when de ny ing the motion to s uppress:

Ba sed upon the totality of the circ umstances, the fac t that the defe ndant voluntarily prese nted himself, the defe ndant was t h er e at his reque st to appar ently take a poly g raph -- the office r’s testimony I find cre dible that the defe ndant maintained his key s. He was fre e to leave at any p o i n t i n time. The fac t that he wasn’t arr ested until sever al day s s u b s eq u en t. The arr est war rant was not obtained until the next day is what the evidenc e is. Ba sed on that totality of the circ umstances, I don’t even find four hours to be a long interview with three differ en t office rs. And, I mean, appar ently he was told repe atedly

. Also, he’s an experience d person in the criminal justice sy stem, having been in prison befor e. That g ives him even more opportunity to know what his rig hts are than if this was his first encounte r. For all those rea sons, I will deny

y our re quest.

When called to the stand dur ing the trial, Off icer L ow testified that Ta

y lor kept hi s key s and cell phone during the interview, that the interview wa s “a noncustodial interview,” and that Tay lor left the police station afte r the interview. A video of the interview by Offic er L ow was 5

“When the voluntariness of a statement is challeng ed, a trial court is require d to make 4 finding s with reg ard to its deter mination,” but that require ment is deemed co m p l i ed with “if the court dictates its finding s and conclusions to the court repor ter and those finding s are made part of the appellate rec ord.” Vasquez v. S t ate , 179 S.W .3d 646, 654 (Tex. App.—Austin 2005), aff’d 225 S.W .3d 541 (Tex. Crim. App. 2007). On appea l, Tay lor co n t ends that there is evidenc e that he might have been coer ced into 5 making th e s t atements at issue. When making this asser tion, Taylor seems to be ref err ing to a portion of Offic er L ow’s testimony in w hich Offic er L ow rela ted that he told Ta y lor at some point that if he kept ly ing, “I ’m g oing to hammer y our ass and y ou’re g oing to end up g oing to prison for life. ” T h at statement is not prese nt on the video admitted as an exhibi t, but our examination of the video reve als that Offic er L ow did n o t s ee m t o b ecome irritated by some of the perc eived inconsistencies in Tay

lor’s statement until wel l af ter Taylor fre ely admitted to having committed the extraneous offe nse at issue as we l l as having touched G.S. in an inappropria te sexual manner on other oc casions. See Rian v. State , No. 03-07-00599- CR, 2009 Tex . App. L EXI S 6378, at *11 (Tex. App.—Austin Aug

. 11, 2009, pet. ref ’d) (mem. op., not desig nated for publication) (noting t h at p o lice conduct during interview “may esca late an initially voluntary inquiry into custodial interrog ation”). 18admit t ed as an exhibi t during the trial. For admission purposes, the video was edited to remove

portions occur

ring befor e and afte r the interview by Offic er L ow that wer e not rele vant to the issues during trial, and Tay lor did not objec t t o t h e admission of the shortened video. The video is approximately 30 minutes in leng th and is g ener ally consistent with Offic er L ow’s testimony during the trial and d u ri n g the suppression hear ing. I n particula r, the video shows that Offic er L ow told Tay lor that he would not be arr ested that day no matter what he said to the police, that Taylor never
reque sted to stop the interview, a nd that no attempts were made to pre vent Taylor from leaving or to pressure him to st ay . 6

As summarized above, during the suppression hear ing and during the trial, no evidenc e was prese nted establishing that Taylor was either phy sically or mentally ill when he made the statements, that he was on any medication or other drug s when he made the statements, that he lacke d the mental capa city to understand the statements that he was making or the conseque nces from making those statements, or that those statements wer e not voluntarily made. On the contra ry ,

even though Tay lor was not expressly told that he could leave at any time during the interview, the

On the video, Tay lor does state that an “attorne y just told me that, uh, by her ag e limit I g o 6 to prison for life,” but Tay lor never reque sted to talk to an attorney or stated that he was repr esente d by counsel. Moreove r, as set out above, Tay lor wen t t o t he poli ce station voluntarily afte r asking the office rs to arr ang e a poly g raph exam, was told that h e wo u l d n o t b e arr ested that day , and reta ined his car key s and cell phone. Cf. id. at *11-12 (explaining that when defe ndant acc epted invitati o n t o v o l untarily answe r questions at police station, defe ndant’s ref ere nce to attorney did not transf o rm interview into custodial interrog ation and stating that office rs had no obliga tion under Fifth Amendment to honor reque st for attorney if defe ndant was not in custody ); see also State v. S ch effield , No. 03-12-00669- CR, 2014 Tex. App. L EXI S 13831, at *17 (Tex. App.—Austin Dec

. 30, 2014, no pet.) (mem. op., not desig nated for publication) (conc luding t h at s tatement indicating that defe ndant did not know if he wanted to continue no n -c u s t o d i al interview without talking to law y er f

irst did not obli g ate police office rs to stop interview). 19evidenc e indicated that the sec ond interview was schedule d at Tay lor’s reque st, that he drove himself

to the i nterview , that he had his key s and cell phone during the interview, that h e was tol d that he would not be arr ested, that no attempts wer e made to keep him f rom leaving , and that he had prior experience with law-e nforc ement interac ti o n s from a previous arr est and conviction for a simil ar

o ff en s e. Cf. Estrada v. State , 313 S.W .3d 274, 298 (Tex. Crim. App. 2010) (dete rmining t h at

rec ording did not raise state-law claim of i nvoluntariness because, in part, d ef en d ant “under stood that he was fre e to leave at any time during the police interrog ation”). More over, evidenc e was introduced establishing that T ay l or left the police station at the end of the interview and was not

arr ested until a fe w day s later.

Reg arding Tay lor’s contention that he made the statements without be ing g iven his Miranda war

nings, we note that an acc used is not entitled to Miranda war nings unless he is in police custody at the time that the statements are made, State v. Scheffield , No. 03-12-00669- CR, 2014 Tex. App. L EXI S 13831, at *13 (Tex. App.—Austin Dec. 30, 2014, no pe t.) (mem. op., not desig nated for publication), and nothing in the rec ord in this case suppor ts a deter mination that Tay lor was in custody at the time that he made the statements at issue, see Dowthitt v. State , 931 S.W .2d 244, 255 (Tex. Crim. App. 1996) (explaining that suspec t i s i n custody when he is phy sically deprive d of fre edom, when he is told that he cannot leave by law-e nforc ement personne l, when law-e nforc ement
personne l cre ate situation in which rea sonable person would believe that his fre edom of movement has been restric ted, and when law-e nforc ement officia ls “manife st[ ] t o the suspect” that probable

cause to a rre st e x ists but do not tell suspect that he is f ree to le ave under circ umstances that would lead r easona

ble per son to believe that he is under re straint in manner similar to ar rest).

20Moreove r, we believe that Taylor’s relianc e o n o u r prior opinion in Vasquez is

misplaced. I n Vasquez , Vasque z denied having committed the crime for seven hours in an interview with the police befor e admitting to having killed the victim, 179 S.W .3d at 650-54, but in the prese nt

case , Tay lor admitted to committing the extraneous offe nse and to touching G.S. in an inappropria te sexual manner rela tively ear ly on in his interview with Offic er L ow. Fur thermore , althoug h Tay lor

notes that his interac tion with the police lasted for sever al hours, the leng th of the interview was in part due to t he fac t that Tay lor had reque sted to take a poly g raph exam during the presc heduled interview, and Offic er L ow explained that he interviewe d Tay lor afte r Taylor finished the poly g raph.
I n addition, althoug h Tay

lor notes that Vasque z also fre ely drove to the police station, unlike the curr ent case , the police in Vasquez took custody of Vasque z’s car key s and did not return the key s for sever al hours, and the police asked Vasque z to remove his boots when he attempted to leave and did not return the boots. Id. at 652-54. Fur thermore , unlike Taylor, Vasque z re peate dly asked to g o home, to s ee h i s wi fe , an d to call his wife, but the office rs “ig nored his reque sts and chang ed the subject or g ave an off- putting excuse to delay Vasque z,” including stating that he could

not g o inside his home beca use the police wer e sear ching it. Id. at 651-52. Moreove r, althoug h the police informed Vasque z that the door was unlocked and that he could leave at any time, the police, unlike the police questioning Tay lor, “ef fec tively block[ed] the door” and moved their chair s close

to Vasque z, “cr owding him in the far corne r of the interview room.” Id. at 650, 652. Perhaps most importantly , unlike the curr ent case , when the police office rs questioned Vasque z, he communicated his “proble ms with depre ssion,” mentioned the medication that he was curr ently t aking, and discussed t hat he had attempted to commit suicide several times, and the police told Vasquez that

21they would g et him the medication that he neede d if he told them what happene d. Id. at 653; see also

Oursbourn , 259 S.W .3d at 181 (re ly ing on evidenc e that suspect was suffe ring from mental-he alth
sy mptoms when he made statement as support for aff irming ap p ell ate court’s deter mination that defe ndant should have be en g iven instruction reg arding voluntariness).

I n light of the prec eding , we must conclu d e t h at a rea sonable jury could not have deter mined that the facts above rende red Tay lor unable to make voluntary statements and that the

e v id e n c e r e li e d o n b y T a

y lo r , w it h o u t mo r e , w a s in s u f

f ic ie n t to w a

r r a n t a n in s tr u c ti o n o n v o lu

n ta r in e s s . For all of these rea sons, w e conclude that the district c ourt did not e rr by deny ing T ay lor’s re quest for a n instruction on voluntariness, and we overr ule Tay lor’s third issue on appe al.

Adm ission of Vid eo Re cording of Taylor’s Statem ent to P olice
I n his fourth issue on appea l, T ay lor contends that the district c ourt err ed by failing

to g rant his motion to suppress the video recording discussed above. When prese nting t h i s i s s ue, Tay lor repe ats his asser

tions from the previous issue and arg ues that the v i d eo s h o uld have been suppressed under article 3 8

. 2 2 o f t h e Code of Criminal Procedur e beca use his statement was not voluntary

. See Tex. Code Crim. Proc. art. 38.22. As proof of this asser tion, Taylor ag ain arg ues that he was subjected to a leng thy interview by the police, that he was never told that he could leave , and that the police ne ver g ave him his Miranda war nings. 7

Unlike t he last issue, in this issue, Tay lor expli citly ref ers to the fact that on the vi deo he 7 told Offic er L ow t hat a lawy er h ad t o l d him that he could g o to prison for life for this offe nse. I n light of this statement, Tay lor urg es that he “discussed his lawy er with his interrog ators” but that the police never offe red to end the interview or to allow him to call his lawy er. Howeve r, the video was not play ed for the district court p ri o r t o the court making its ruling on the motion to suppress. Moreove r, althoug h Tay lor’s trial attorney mentioned during her arg ument in the pretria l hear ing th a t 22“Appe llate courts revie w a trial co u rt ’s ruling on a motion to suppress by using a

b i fu rc ated standard, g iving almost total defe renc e to the historical fac ts found by the trial cour t and analy zing de novo the t rial court’s application of t h e l aw . ” S t a t e v. L e , 463 S.W .3d 872, 876 (Tex. Crim. App. 2015). Under tha t standard, the r ecor d is “viewe d in the l ight most favor able to the trial court’s deter

mination, and the judgme nt will be reve rsed only if it is arbitra ry , unrea sonable,

or ‘outside the zone of rea sonable disag ree ment.’” State v. Story , 445 S.W .3d 729, 732 (Tex. Crim. App. 2014) (quoting State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2 0 06)); see also id. (explaining that trial court’s ruling on motion to suppress will be upheld if it is corr ect on theory of law applica

ble to case reg ardle ss of whether trial court based i ts ruling on that theory ). More over, the trial court i s t h e ex cl u sive and sole judge of the cre dibilit y of the evidenc e and witnesses
prese nted during the s u ppression hear ing, “par ticularly wher e the motion is based on the voluntariness of a confe ssion,” and “g rea t defe renc e is acc orded t o t h e trial court’s decision to ad m i t o r exclude such evidenc e.” Delao v. State , 235 S.W .3d 235, 238 (Tex. Crim. App. 2007).

“ther e was mention of a lawy er,” the only evidenc e befor e the court at the time of its ruling reg arding any discussion of a lawy er w as Off icer L ow’s testimony

that Taylor did not a sk to ta lk to a lawy er or mention a law y er. See B lack v . State , 362 S.W .3d 626, 635 (Tex. Crim. App. 2012) (providing that “appe llate revie w of [a trial court’s] ruling on the motion to suppress is ordinarily limit ed to that evidenc e prese nted at the pretria l hear ing—the evidenc e that was befor e the court at the time of its decision”)

. I n addition, Tay lor asser ts that the police induced h i m i n t o m ak ing the statements by telling him that he would not be arr ested that day no matter what he said. Howeve r, no evidenc e or arg ument reg arding this conce rn was prese nted to the district court during the pretria l hear ing. Moreove r, to the extent that the district court could h av e b een conce rned that those ty pes of statements by police office rs might serve as an improper inducement, that potential conce rn would likely have been alleviated by the testimony establishing Taylor’s prior involvement with the criminal justice sy stem. 23Acc ording ly , the trial court’s ruling will only “be overturne d on appea l wh er e a fl ag rant abuse of

discretion is shown.” Id.

As set o ut ear lier, when the district court denied Taylor’s reque st to suppress the video afte r convening a hear ing on the voluntariness of the statements, the district court found that Offic er L ow’s testimony was cre dible and that Tay lor voluntarily attended the interview to perf orm

a poly g raph, reta ined possession of his key s, was fre e to leave , did leave , wa s n o t ar re s ted until day s later, and had previous experience with law-e nforc ement personne l t h at gave him a better understanding of what his rig hts wer e. Moreove r, the district court deter mined that the leng th of the interview was not pr oblematic under the circ umstances. Acc ording ly , the district c ourt conclude d that the statements we re voluntar ily made. During the suppression hear ing, as discussed ear lier, Offic er L o w te s ti f ie d tha t Taylor asked the office rs to schedule the interview so that he could tak e a p o l y g raph, that Tay lor drove himself to the interview, that none of the office rs place d Taylor under arr est, that Taylor never asked for a lawy er, that Tay lor reta ined custody of his car key s during the interview and could have left at
any time, that all of the off

icer s told Tay lor that he was not g oing to be arr ested that da y no matter what he said, that the office rs did not rea d Taylor his Miranda rig hts beca use he was not in custody , and that Tay lor was allowed to leave at the end of the interview. Moreove r, Offic er L ow explained that Tay lor had previous experience with la w enfor ceme nt from his prior arr est and conviction for

a simil ar offe nse and that althoug h he did not specific ally state that Taylor was fre e to g o, T ay l or knew that he was fre e to leave beca use he drove himself there and had his key s and beca use he was told that he would not be ar rested.

24I n addition, no evidenc e was introduced that any of the office rs attempted to preve nt

Tay lor from leaving in any way or t hat Tay lor was not compe tent or wa s incapa citated at the t ime of the interview. Fur

thermore , althoug h Offic er L ow testified that the interview lasted between three and four h o urs, he estimated that one and a half hours of that time was taken up by the poly g raph that Tay lor reque sted and that his portion of the interview lasted around 30 minutes a nd took place rig ht afte r Tay lor took the poly g raph. Finally , althoug h Taylor complains that he was not
g iven his Miranda war

nings, nothing in the rec ord befor e the district court during the pretria l hear ing indicated that the interview was a custodial interrog ation. See Dowthitt , 931 S.W .2d at 255; see also Scheffield , 2014 Tex. App. L EXI S 13831, at *11-13 (dete rmining that interview was not c ustodial interrog ation wher e defe ndant voluntarily drove to police station, was told that he could leave at any time, was neve r phy sically restra ined, and wa s allowed to lea ve at e nd of interview ).
I n light of t h e re co rd befor e the district court when it ruled on the motion to suppress and in lig ht of the district court’ s role in m aking that ruling , we cannot conclude t hat the district court abused its discretion by deter mining that the statements wer e voluntarily made and by deny ing Tay

lor’s motion to suppress. See W yatt v. State , 23 S.W .3d 18, 23 (Tex. Crim. App. 2000) (explaining that deter

mination reg ardin g wh ether statement i s voluntary is made based on totality of circ umstances) . Acc ording ly , we ove rrule T ay lor’s four th issue on appea l.

Evid ence C oncerning P olygraph

I n his fifth issue on appea l, Tay lor arg ues that the district court abused its discretion by failing to g rant his reque st for a mistrial afte r testimony reg ardi n g t h e fac t that he took the poly g raph was prese nted to the jury

. See Coble v. State , 330 S.W .3d 253, 292 (T ex . C ri m . Ap p.
252010) (providing that appellate courts revie w trial court’s denial of motion for mistrial under

abuse- of-discr etion standard of revie w); see also Robinson v. State , 550 S.W .2d 54, 58-61 (Tex. Crim. App. 1977) (re versing conviction wher e State elicited testimony that only witness ty ing defe ndant to murder had taken and passed lie detec tor test); Martines v. State , 371 S.W .3d 232, 250 (T ex. App.—Houston [1st Dist.] 2011, no pet.) (explaining that testimony reg arding poly g ra p h examination’s exis tence or results is inadmissible for any purpose beca use poly g raphs are inhere ntly unreliable and have tendenc y to unduly persua de jurors). Be fore the trial started, Taylor filed a motion in limine asking the district court to order the State not to mention, among other t h i n gs , “[a]ny participa tion [by Tay lor] in a poly g raph test or its results.” The State ag ree d, and the district

court g rante d the reque st. During the trial, Offic er L ow was called to the stand to discuss Taylor’s 8
in te r v ie w w it h th e p o li c e . A f

te r th e St a te a s k e d O f

f ic e r L o w if h e “ r e s c h e d

u le [d ] f o r a n o th e r in te r v ie w
at a later time,” Offic er L ow responde d that Taylor “aske d for a poly g raph. He said, ‘I want to take

a poly g raph.’ ” I mmediately afte r Offic er L ow made the statement, Taylor objected, and the district court sustained the objection and instructed the jury to “disreg ard a ny mention or consider ation of [a] poly g raph.” Tay lor also moved for a mistrial, but the district court denie d that reque st.

I n his motion, Tay lor arg ued without citation to authority that evidenc e of “par ticipation in 8 a poly g raph [ is] highly prejudicia l in that it influence s the j u ry to convict the Def endant for being a criminal g ener ally , rathe r than for being g uilty of the offe nse on trial.” On appea l, Taylor sug g ests that beca use the district court g rante d his mo t i o n i n l i m i ne, his asser tion that mentioning the poly g raph would be prejudicia l to the case beca me “the law of the case .” Acc ording ly , Taylor insists t h at t h e fac t that his desire to submit to a poly g raph was mentioned automatically deprive d h i m of a fair trial. Howeve r, Tay lor does not cite any authority for this proposition. Moreove r, even assuming that a trial court could order that any violation of a motion in limine woul d re s u l t in an automatic mistrial, we are not persua ded by the record before us that the di strict court in this case evidenc ed that intention when it g rante d the motion in li mine. 26As summarized above, Of fi cer L ow made the statement reg arding the poly g raph afte r being asked whether he attempted to resc hedule the interview, and nothing in the rema inder of the rec ord indicates that the State anticipated that Offic er L ow would mention Taylor’s desire to take

a poly g raph test in his response . Shortly afte r Offic er L ow mentioned Taylor asking for a poly g raph test, a bench confe renc e was called to discuss Taylor’s object i o n . Du ri ng the hear ing, the State indicated that it had instructed Offic er L ow not to mention the poly g raph and asked for permission to “instruct my

witness ag ain.” More over, O ffice r L ow apolog ized for making the statement.
Rece ntly , in Cade v. State , the court of criminal appea ls analog ized an “unanticipa ted

answe r” mentioning a poly g raph exam to “ca ses in which a by stander or witness made a spontaneous outburst that interfe red with the normal proce eding s of a trial.” No. AP -76,8 8 3 , 2015 Tex. Crim. App. Unpub. L EXI S 156, at *50 (Tex. Crim. App. Fe b. 25, 2015) (not desig nated for publication);

see also id. at *53 (ex p l ai n ing that rec ord did not support finding that prosec utor’s question was desig ned to elicit answe r reg arding poly g raph or that prosec utor could have anticipated answe r). I n light of this analog y , the court stated that a trial court’s instruction to disreg ard will g ener ally be sufficie nt to cure any harm beca use courts “presume that the jury will follow those instructions,” id. at *51, and later deter

mined that the defe ndant had failed to overc ome the presumption that the trial court’s instruction to disreg ard was sufficie nt to cure any harm wher e the evidenc e supporting the jury ’s deter

mination wa s s u b s t antial; wher e the ref ere nce to the poly g raph result was “brie f, unsolicited, and conce rned an extraneous matter” ; and wher e “the State did not attempt to capitalize

on the referen ce . ” Id

. at *54; see also Martines , 371 S.W .3d at 250 (noting that mere mention of poly g raph e x amination does not automatica lly constitute reve rsible er

ror)

.

27Although the statement in Cade was made during the punishment phase rathe r than

the g uilt or innocence phase a s in this case , 2015 Tex. Crim. App. Unpub. L EXI S 156, at *53, we believe that the analy sis from Cade still has applicability to the fac ts here

. The evidenc e supporting Tay lor’s g uilt was substantial beca use he ad m i t t ed to committing the crimes during his interview with the police and beca

use the video of that admission was p l ay ed fo r t h e j ury . See Rey nolds v. State , No. 13-13-00072- CR , 2013 Tex. App. L EXI S 15216, at *12 (Tex. App.— C orpus Christi
Dec

. 19, 2013, pet. ref

’d) (mem. op., not desig nated for publication) (conc luding that instruction to disreg ard was sufficie nt to cu re an y alleg ed err or wher e, among other things, there was other evidenc e incriminating defe ndant, including videotape of interview of defe ndant by police).
Moreove r, Offic er L o w’ s re fe rence to the poly g raph was brief, and perha ps most importantly , Offic er L ow did not d i s cl o s e t h e results of the poly g raph and simply rela ted that Taylor communicated tha t he wante d to take a poly g raph te st. See Martines , 371 S.W .3d at 251 (re lating that instruction to disreg ard will gene rally be sufficient to cure any err or resulting from testimony mentioning poly g raph when results are not reve aled) ; Buck ley v. State , 46 S.W .3d 333, 336 (Tex. Ap p . — T exarkana 2001, pet. ref ’d, untimely filed) (explaining that if “a witness g ives a

non re s p o n s ive answe r that mentions a poly g raph test,” courts consider whether the results wer e

reve aled and that there is g ener ally no err or in ref using to g rant mistrial if results are not reve aled)

. I n addition, nothing in the re cord indica tes that the State wa s attempting to e licit any mention of a poly g raph e x amination or its results when it was questioning Offic er L ow, and the State made no 9

On appea l, Tay lor notes that at the time of the trial, Offic er L ow had 21 y ear s of law- 9 enfor ceme nt experience and urg es that “it is logic al to infer” that an office r with that many y ear s of service will have exper i en ce “testify ing in criminal case s and following the evidentiar y ruling s 28mention of the poly g raph throug hout the rema inder of the trial. Cf. Buck ley , 46 S.W .3d at 337 (noting that there may be err or in ref using to g rant mistrial e ven when results wer e not disclosed if questions asked by State wer e desig ned t o el i ci t response reg arding poly g raph and if eff ect of evidenc e wa s to impeach de fensive the ory or bolster State’s c ase)

. I n light of the prec eding , we cannot conclude that the district court ab u s ed i t s d i s cre tion by failing to g rant Tay lor’s request for a mistrial. Cf. Hinojosa v. Stat e , 4 S.W .3d 240 , 253 (Tex. C ri m . App. 1999) (explaining that in g ener al “a mistrial is only require d when the improper e vidence is ‘ clea rly calc ulated to inf

lame the minds of the jury and is of such a char acte r

as t o s ug g est the impossibi lity of withdrawing the impression produce d on the minds of the jury ’” (quoting Hernande z v. State , 805 S.W .2d 409, 414 (Tex. Crim. App. 1990)))

. Acc ording ly ,

we ove rrule T ay

lor’s fifth issue on a

ppeal.

P en P ackets
I n his six th issue on appea l, Tay lor asser ts that the district court abused its discretion “by allowing into evidenc e pen-pa cks which contain information reg arding how parole law and
g ood-time cre dit have been specific ally applied to” him in the past. See Davis , 329 S.W .3d at 803 (providi n g that appellate courts revie w ruling reg arding admission of evidenc e for abuse of discretion). As mentioned previously , Taylor pleade d not true to the enhanc ement alleg ations, and

of the c ourt while testify ing.” Fr om these propositi ons, Taylor seems to imply that Offic er L ow’s testimony reg arding the reque st for a poly g raph could not have been inadver tent. Howeve r, Offic er L ow did not testify reg arding any prior experience as a witness, and as discussed previously , nothing i n t h e re co rd b efor e this Court supports the idea that the State was acting in bad faith when it questioned Off

icer L ow. 29the State introduced the pen packe ts as an exhibi t as proof of those alleg ations. The exhibi t contains

information re g arding Tay lor’s prior convictions in I llinois , shows when Ta y lor was inca

rce rate d, lists t he imposed sentenc es, and c hronicles whe n Taylor was a ctually rele ased f

rom incar cer ation.
On appea l, Tay lor arg ues that althoug h juries are permitted to consider the exis tence of parole law whe n assessing punishment, see Tex. Code Crim. Proc

. art. 37.07, § 4, juries are not permitted to consider how parole law will be applied to a particula r defe ndant, see Hawkins v. State , 135 S.W .3d 72, 84 (T ex . C ri m . App. 2004); Harwood v. State , 961 S.W .2d 531, 544 (Tex.
A p p . — Sa n A n to n io 1 9 9 7 , n o p e t. )

. M o r e o v e r , T a y lo r c o n te n d s th a

t a d mi tt in g th e p e n p a c k e ts w it h o u t reda cting the portions showing how parole had previously been applied to Taylor essentially invited the jury to improperly

consider pa

role in its punishment calculation. After the exhibi t was admit t ed, neither party ref err ed to the portions of the exhibi t indicating that Tay lor had pre viously been r elea sed on par ole, and no a rg ument was made that the parole information in the exhibi t should be used for deter mining the punishment at issue in this case . Cf. Helleson v. State , 5 S.W .3d 393, 398 (Tex. App.—For t Worth 1999, pet. ref

’d) (consider ing whether there was err or when during its closing State told jury to consider parole law and instructed jury to “do the math” for parole in that case ). Moreove r, the rec ord reve als that the State’s purpose in presenting the pen packe ts along with the t estimony authentica ting the packe ts was to establish the enhanc ement alleg ations that Tay lor had previously been convicted. Cf. Mata v. State , No. 13-
0 2 -0 0 2 1 8-CR, 2008 Tex. App. L EXI S 3907, at *7-8 (Tex. App.—Corpus Christi May 22, 2008, pet. dism’d) (not desig nated for publication) (over ruling issue ass e r

ti n g that defe ndant’s trial counsel did not provide eff

ective assistance of counsel when counsel failed to object to State’s ref ere nce to
pen packe t dur ing punishment pha se beca use court deter

mined that pen packe t w as not introduc ed
30as evidenc e on opera tion of parole and instead was introduced as evidenc e of enhanc ement

alleg ations of prior crimes)

. For these rea sons, we cannot conclude that the district court abused its discretion by admitting the portions of the pen packe ts chronic ling when Tay lor was rele ased from custody for his prior c onvictions.
Fur thermore , althoug h we need not addre ss the matter further , we do not believe that Tay lor would be able to establish that the alleg ed err or resulted i n t h e requisite deg ree of harm need ed to reve rse the conviction and rema nd for a new punishment hear ing. See Tex. R. App. P. 44.2(b) (explaining that for non-constitutional err ors in criminal case s, err or must be disreg arde d unless it aff

ecte d defe ndant’s substantial rig hts); Garcia v. State , 126 S.W .3d 921, 927 (Tex. Crim App. 2004) (stating that err oneous admission of evidenc e is non-constitutional err or). During the punishment phase, neither side ref err ed to the information in the pen packe ts sug g esting that Tay lor
h a d p r e v io u s ly b e e n r e le a s e d o n p a r o le

. M o r e o v e r , a lt

h o u g h th e d is tr

ic t c o u r t im p o s e d a li f e s e n te n c e

on Tay lor, that sentenc e was mandated afte r the jury deter m i n ed t h at Taylor had previously been convicted of ag g rava ted criminal sexual abuse in I llinois b ec au s e that offe nse was substantially simil ar to a conviction under Texas law for the offe nse of sexual assault of a child, see Tex. Penal Code § 12.42(c) (2)( B) , and T ay l o r d i d not contest the evidenc e prese nted by the State establishing that he committed the offe nses listed in the pen packe t or that his prior conviction was substantially simil ar to the offe nse of sexual assault of a child, see id. § 22.011 (prosc ribing offe nse of sexual assault). 1 0

I n particula

r, an inve stiga tor for the State, Michelle B lindert, testified that she compar ed 1 0 the fing erpr ints from Tay lor, Tay lor’s social secur ity number, and Taylor’s tattoos with those from the individual that was the subject of the pen packe ts and deter mined that Taylor was the individual discussed in the pen pa ckets. F urther, the pen pac kets containe d photos of the individual that was 31For all of these r easons, we overr ule Tay lor’s six th issue on appea l.

CONCLUSION Having overr

uled all of Taylor’s issues on appea l, we af fi rm the district court’s judgme nts of conviction.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and B ourland
Affir med Filed: Oc tober 14, 2015 Publis h

previously incar cer ated in I llinois , and Blinder t explained that she compar ed Taylor’s booking photo for the offe nse in que stion with the photos f rom the pen pa ckets a

nd that the photos w ere a match. I n addition, Blindert e x plained that whe n Taylor was previously convicted of ag g rava ted criminal sexual abuse, the state of I llinois proved that he “plac ed his penis in the vag ina of” a victim who was betwee n the ag es of thirteen and sevente en y ear s old and that Taylor was at least five y ear s older than the victim. After Blinder t finished her testimony , the State called Randy Orteg a, who testified that he works for the Depart m ent of Public Safety and makes deter minations reg arding whether a defe ndant’s conviction in another jurisdiction for an offe nse is substantially simil ar to a sex offe nse in Texas for the State’s sex-offende r-r eg istration prog ram. I n his testimony , Orteg a explained that the cr ime of ag g rava ted cr iminal sex ual abuse as prosc ribed by the state of I llinois is substantially simil ar to the Texas offe nse of sexual assault of a child. See Tex. Penal Code § 22.011 (setting out elements of of

fense of sexual assault). 32