CHARLES DANIEL NULL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued September 27, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00418-CR
............................
CHARLES DANIEL NULL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F99-23609-VK
.............................................................
OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice FitzGerald
        In April 2000, appellant Charles Daniel Null waived a jury and pleaded nolo contendere to sexual assault of a child. The trial court deferred adjudication and placed Null on probation for eight years. That term was later extended, by agreement, to nine years. In January 2009, the State filed its Motion to Revoke Probation or Proceed to Adjudication of Guilt (the “Motion”). The trial court granted the Motion, adjudicated Null guilty, and sentenced him to two years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Null appeals; all four of his issues relate to the trial court's purported use of a polygraph exam in its decision to adjudicate. For the reasons discussed below, we affirm the trial court's judgment.
 
Background
        Null was charged originally with the sexual assault of a fourteen-year-old female child. Accordingly, among the conditions of his community supervision were the following:
 
(w)
 
Attend and participate in Sex Offender Treatment Program (to include Aftercare) with a Court and CSCD approved sex offender treatment provider until successful completion and/or further orders of the Court. The defendant must begin attending treatment within thirty (30) days of being placed on probation.
 
 
 
(x)
 
Participate in and comply with all treatments, guidelines and directions given by the sex offender therapist. The requirement to participate in one or more types of treatment may be modified at any time by the Court.
 
        Null did enter a treatment program as required but it is undisputed he did not complete it successfully. Indeed, when Null was discharged from the treatment program operated by Al Merchant, it was Null's third unsuccessful discharge from as many programs in less than two years.
        The State brought its Motion, alleging the following violations:
 
(w)
 
CHARLES DANIEL NULL violated condition (w) in that he failed to successfully complete Sex Offender Treatment Program as directed by the court to wit: on January 15, 2009, the defendant was unsuccessfully discharged from Sex Offender Treatment.
 
 
 
(x)
 
CHARLES DANIEL NULL violated condition (x) in that he failed t[o] participate and comply with all treatment, guidelines and directions by the Sex Offender therapist to wit: On January 15, 2009, the defendant was unsuccessfully discharged from treatment for failure to comply with treatment and make disclosures that would facilitate in his treatment progress and by showing inconclusive and or deceptiveness on polygraphs intended to measure compliance with treatment directives specifically in avoiding contact with individuals under the age of 17.
 
        At the revocation hearing, the State called Merchant, who testified that Null was discharged for lack of progress in his treatment. Specifically, Merchant testified Null engaged in vague and evasive communications when he needed to be direct. According to Merchant, Null minimized his offense. Null failed to talk openly about his offense, to accept responsibility for his offense, to talk openly about other matters in group therapy, and to participate at a satisfactory level. Merchant's Discharge Summary was admitted into evidence. In that summary, Merchant concluded Null was not invested in the sex offender treatment and stated: “In summary, Mr. Null was discharged from this treatment plan due to his overall lack of progress.”
        Null's polygraph history unquestionably played a part in his treatment. Merchant testified that because Null had failed and had deceptive polygraph examinations in the past, he would have to pass an examination in Merchant's program before he could complete treatment successfully. Merchant testified Null was counseled individually and by his group to address and deal with problematic issues-issues that could keep him from passing the polygraph-before he took the test. However, according to Merchant, Null did not address any such issues before the test in proper ways. His test yielded inconclusive results. Only after the test did Null reveal information concerning a sexual allegation involving a young girl other than the one who was the subject of his original conviction.
        Ultimately, Merchant discharged Null from the treatment program, and the State initiated proceedings to revoke his probation and proceed to adjudication. At the time of the hearing, Null was enrolled in a fourth treatment program. That program was operated by Ronald Patterson, who testified on Null's behalf. Patterson opined that Null was not a danger to the community. At the end of the proceeding, the trial court granted the State's Motion, adjudicated Null guilty, and sentenced him to two years' confinement. This appeal followed.
Use of Polygraph Results
        In Null's first two issues, he contends (1) his failure to pass a polygraph test is legally and factually insufficient to support the judgment because polygraph results cannot be used for any reason, and (2) the court erred in giving any weight to the polygraph results and ruling Null's discharge from sex offender treatment for not passing the polygraph was a valid ground for discharge. At the outset, we stress that our review of an order revoking probation is limited to abuse of the trial court's discretion, and we review the evidence in the light most favorable to the trial court's decision. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Traditional notions of sufficiency of the evidence have no role here. An order revoking probation must be supported by a preponderance of the evidence. Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). Proof of any single violation of a probation condition, by a preponderance of the evidence, is sufficient to support a revocation order. See O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981). In a revocation proceeding, the trial judge is the sole trier of the facts, the credibility of the witnesses, and the weight to be given the testimony. See Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.).
        Null's issues are rooted in his belief that he was discharged from the program for failure to pass the polygraph. The State's allegations concerning violation of condition (x) of his probation did make reference to Null's polygraph history. However the allegations of violation of condition (w) do not reference the polygraph, but only declare that Null “failed to successfully complete Sex Offender Treatment Program as directed by the court to wit: on January 15, 2009, the defendant was unsuccessfully discharged from Sex Offender Treatment.” Merchant testified Null was discharged for failing to make progress in his treatment. Merchant concluded Null had not taken responsibility for his conduct and would not invest himself in treatment so as to make further progress.
        Null points to Merchant's testimony that if Null had passed the polygraph, he would still be in the program. But Merchant testified that Null's failure to participate honestly in treatment led to his problem with the polygraph. Viewing Merchant's testimony in its entirety, and viewing it in the light most favorable to the court's decision, there is ample evidence that the polygraph was used only as a tool in Null's treatment. Courts have approved the use of polygraph tests as tools for treatment, particularly in the case of sex offenders. See generally Ex parte Renfro, 999 S.W.2d 557, 559-61 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd).
        Merchant testified Null failed to complete sex offender treatment successfully because of his own lack of commitment to the treatment process. The Discharge Summary supported Merchant's testimony. In the end, the trial judge was the sole trier of Merchant's credibility and of the weight to be given his testimony. See Lee, 952 S.W.2d at 897. We conclude the trial court's order was supported by a preponderance of the evidence; the trial court did not abuse its discretion. We overrule Null's first two issues.
Admissibility of Polygraph Results
        In his third issue, Null argues the trial court erroneously allowed evidence of the result of the polygraph over his attorney's objections. The general rule is that neither the results of a polygraph test nor the fact of failing a polygraph test are admissible in a Texas criminal proceeding. See Nesbit v. State, 227 S.W.3d 64, 66 (Tex. Crim. App. 2007) (citing Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985)).   See Footnote 1  However, it is possible for the defense to “open the door” for the State to introduce the complained of testimony. See Lucas v. State, 479 S.W.2d 314, 315 (Tex. Crim. App. 1972). In this case, Merchant was the first and only witness called by the State. During his direct examination, references were made to the polygraphs Null took and failed when under the care of other providers. This evidence was admitted without objection. There was also testimony concerning the fact that Null would have to take a polygraph while in Merchant's treatment program, and that he should prepare for it by identifying and discussing with the group any issues that could cause him problems with the polygraph. However, there was no testimony disclosing the results of the Merchant polygraph test until that testimony was elicited by Null's counsel in an exchange concerning when Null was discharged from the program:
 
Q
 
[by defense counsel] When he left [a group session] didn't you say for him to call his probation officer and tell him he was terminated?
 
 
 
A
 
[by Merchant] No, I did not.
 
 
 
Q
 
And that was before he even took a polygraph?
 
A.
 
That did not happen. I told Mr. Null that if he passed the polygraph on the 8th that he would remain in the program.
 
 
 
Q
 
So if he would have passed it he would have remained in treatment?
 
 
 
A
 
Correct.
 
 
 
Q
 
He didn't fail it, did he?
 
 
 
A
 
It was inconclusive.
 
 
 
Q
 
He didn't fail it, did he? That's a yes or no.
 
 
 
A
 
It was inconclusive.
 
(Emphasis added.) Here, the defense opened the door to evidence of the results of Null's polygraph. See Lucas, 479 S.W.2d at 315. Moreover, Null did not object to the admission of the polygraph results until long after Merchant had testified to them. See Tex. R. App. P. 33.1(a) (timely objection prerequisite to presenting complaint for appellate review). For both of these reasons, we conclude the trial court did not err in admitting the polygraph results.
        In his final issue, Null argues the trial court erred by interrupting the objection he did make to polygraph evidence later, during the cross-examination of Ronald Patterson:
 
Q
 
[by prosecutor] . . . . [A]re you aware, having reviewed [Null's polygraph], that he actually asked the polygrapher to, specifically, exclude a child named Sabra from the question about sexual contact with children while he has been on probation. You are aware that he asked for that, right?
A
 
[by Mr. Patterson] Yes.
 
 
 
Q
 
In that polygraph?
 
 
 
A
 
Yes.
 
 
 
Q
 
And he also said in the polygraph that he was having sexual feelings - sexual thoughts?
 
 
 
[Defense counsel]: For the record, Your Honor, I'm going to object to any admission of what's in the polygraph, not the fact that there was one, but pursuant to the cases I don't believe any results of any polygraph which include -
 
 
 
The Court: Why are you asking - what's your theory on asking these questions?
 
The prosecutor explained she was attempting to determine the factual basis of Patterson's opinion that Null was “a low risk and he should be among our community.” The judge overruled Null's objection.
        Null contends the trial court interrupted his trial counsel before the latter could make objections to hearsay and to violations of Null's constitutional right against self incrimination. Those objections are not found anywhere in the record. Null offers no explanation for his failure to make them at the soonest possible opportunity after the court's exchange with the prosecutor. Fundamental rules of procedure require litigants to place their objections on the record to preserve error for appeal. See Tex. R. App. P. 33.1. Null has preserved nothing for our review under this issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090418F.U05
 
Footnote 1 We note that remarks made by a defendant before, during, or after a polygraph are not protected as the results of the test are. See Wright v. State, 154 S.W.3d 235, 239 (Tex. App.-Texarkana 2005, pet. ref'd).