Rhonda Denise Gatewood v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-96-054-CR

RHONDA DENISE GATEWOOD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 30,519

O P I N I O N

A jury convicted the appellant, Rhonda Denise Gatewood, of injury to a child and assessed punishment at eighteen months' confinement in a state jail. Tex. Penal Code Ann. 22.04 (Vernon 1994 & Supp. 1997). In a single point of error, Gatewood contends that the trial court erred in not allowing her to introduce the results of a polygraph examination she took prior to trial, after the State had introduced inconsistent statements made by her during the polygraph examination while attempting to impeach her on cross-examination. We overrule Gatewood's contention and affirm the judgment.

Before trial, Gatewood took a polygraph examination administered by Richard Wood. During the examination, Wood asked Gatewood if she hit the victim on February 14, 1995. Gatewood answered that she did not. Wood determined that Gatewood's answer was deceptive. Gatewood paused, then stated that she did hit the child on the buttocks and the surrounding area. Woods then asked Gatewood if she hit the child above the waist, and she said she did not. This time Woods determined that the answer was not deceptive.

On February 29, 1996, Gatewood was tried for the offense of injury to a child. She took the stand and, when questioned by her attorney, testified that she never hit the child on February 14, 1995. On cross-examination, the State attempted to impeach Gatewood's testimony about whether she hit the child on February 14. The exchange went as follows:

[STATE]: Mrs. Gatewood, you also told Richard Wood that you whipped [the victim] on the 14th of February 1995; is that correct?

Gatewood: I'm sorry. He misunderstood what I was saying to him, because he had a lot of questions to ask me, but what I had told him was, Yes, I whipped [him], but on that particular day, no, I did not.

[STATE]: So your testimony is that--

Gatewood: I'm willing to take another lie detector test.

[STATE]: Your testimony is that you did not tell him that; is that correct?

Gatewood: I did not tell him what?

[STATE]: That you did not tell him that you whipped [the victim] on February 14, 1995?

Gatewood: What I was saying is--I'm sorry. He misunderstood what I said.

[STATE]: But--

Gatewood: He had a lot of questions that he was asking me.

[STATE]: That is not what I m asking you. I'm asking you did you tell him that?

Gatewood: What I told him was, Yes, I had whipped [the victim]. Maybe he took it that was the day that I had whipped him. He not been familiar with what's going on, maybe he took it that way. But, no, I did not tell him I whipped [the victim] on that day. I don't have no problem with taking another lie detector test at all.

After this exchange, the State passed the witness, and defense counsel attempted to question Gatewood on the results of the polygraph examination. At this point, in a hearing outside the presence of the jury, the State objected to the admission of the polygraph results.

The results of polygraph examinations are not admissible for any purpose. Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990); Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985); Robinson v. State, 550 S.W.2d 54, 59-61 (Tex. Crim. App. 1977). This is due to their inherent unreliability and tendency to be unduly persuasive. Banda v. State, 727 S.W.2d 679, 681 (Tex. App. Austin 1987, no pet.). In addition to the results of a polygraph examination not being admissible, any reference to a polygraph examination is improper even where the actual results are not disclosed. Reed v. State, 522 S.W.2d 466, 468-69 (Tex. Crim. App. 1975); Hanon v. State, 475 S.W.2d 800, 802-03 (Tex. Crim. App. 1972); Stewart v. State, 705 S.W.2d 232, 233 (Tex. App. Texarkana 1986, pet. ref'd) (State's witness asked about whether a polygraph examination was given). //

Gatewood contends that when one side questions a witness about a polygraph examination, it opens the door and the other side should be allowed to cross-examine the witness about the same subject. Lucus v. State, 479 S.W.2d 314, 315 (Tex. Crim. App. 1972) (defendant testified as to passing a polygraph examination, thus opening a door to allow State to question the results of the examination).

This case is very similar to that of Hoppes v. State, where the First Court of Appeals ruled that the State, by not referring to polygraph examination, did not open the door. 725 S.W.2d 532 (Tex. App. Houston [1st Dist.] 1987, no pet.). In Hoppes, the State asked Hoppes, the defendant, if he recalled telling Bill Fisher, the polygraph examiner who had given the defendant a polygraph examination, that the lights on the car pointed toward two trailers. Id. at 536. The State did so without mentioning the polygraph examination. Hoppes answered that the lights were pointed towards the buffalo pen. This exchange went on again, then Hoppes attorney asked to approach the bench. At the bench, Hoppes attorney informed the court that he intended to go into the polygraph examination since the State opened the door. The trial court ruled that the State could continue to use Hoppes' statements at the polygraph examination to impeach Hoppes, and that Hoppes could not introduce any evidence of the polygraph examination or any results from the examination. The State continued impeaching Hoppes and never referred to the polygraph examination or Bill Fisher s job. On appeal, the First Court of Appeals held that "[t]he use of specific statements from the polygraph examination for impeachment purposes was proper and did not open the door to disclose to the jury the results of the examination. Id.

Similarly in the present case, the State did not refer to the polygraph examination, or the fact that Wood was a polygraph examiner. The State can use statements made by a witness for the purposes of impeachment provided it offers no reference to the fact that the statement was made during the conducting of a polygraph examination. Here, the State did not elicit testimony about a polygraph examination, or what the results were. Thus, the State did not open the door. As this court stated in Wade v. State concerning a witness's inadmissible statement about polygraph results, "[T]he statement by the witness was interjected on her own accord after being instructed by the court to answer only the question asked of her. We cannot see how a non-responsive answer by a hostile witness can be error." 814 S.W.2d 763, 767 (Tex. App. Waco 1991, no pet.). Gatewood's point of error is overruled.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 15, 1997

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