Holt v. State

Full title: CODY JOHN HOLT, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals Fifth District of Texas at Dallas

Date published: May 18, 2016

No. 05-14-00914-CR (Tex. App. May. 18, 2016)

Opinion

No. 05-14-00914-CR

05-18-2016

CODY JOHN HOLT, Appellant v. THE STATE OF TEXAS, Appellee

Opinion by Justice Lang

On Appeal from the 59th Judicial District Court Grayson County, Texas
Trial Court Cause No. 062011

MEMORANDUM OPINION

Before Justices Lang, Evans, and Whitehill
Opinion by Justice Lang

Cody John Holt¹ appeals the trial court's judgment convicting him of continuous sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2015). The jury found Holt guilty and the trial court assessed his punishment at twenty-five years of imprisonment. Holt raises six issues on appeal arguing: (1) the trial court erred when it (a) denied his motion to suppress and (b) overruled his objection based on Texas Rule of Evidence 403; (2) the trial court erred when it sustained the State's objections to his counsel's questions during voir dire; (3) the trial court erred when it (a) overruled his objection to the testimony of a witness because it resulted in a violation of his right to confrontation and (b) denied his motion to exclude the testimony of a witness because it was cumulative; (4) the trial court erred when it denied two of his motions for a mistrial; (5) the trial court erred when it overruled his objection to the introduction of extraneous offense evidence; and (6) the evidence is insufficient to support his conviction. We conclude the evidence is sufficient to support Holt's conviction and the trial court did not err, and affirm the trial court's judgment.

1 Holt is transgender—he was born male, but identifies himself as a female. However, during oral argument and in response to this Court's inquiry, Holt's appellate counsel confirmed that Holt has not obtained a legal declaration changing his gender to female. Accordingly, because this is a court of law, we will refer to Holt through the use of male pronouns in this opinion.

I. FACTUAL AND PROCEDURAL CONTEXT

The factual background in this opinion is based on the evidence adduced at trial, the evidence adduced during the hearing on Holt's motion to suppress, and the trial court's findings of fact relating to that hearing. To the extent possible, the evidence from the hearing on the motion to suppress and the trial is presented in chronological order.

Lisley Holt and Richard Romans had two sons, J.M.R. and B.O.R., and a daughter, A.N.R., together during their relationship. In 2006, Child Protective Services (CPS) temporarily placed the three children with their paternal grandmother, Sherry Benson, because Lisley Holt and Romans were using drugs. Jerry, a disabled man, also resided with Benson. In addition, at various times, Benson's younger brother and his girlfriend, and Benson's husband, Vernon Benson, resided with Benson.

In 2009, Benson obtained legal custody of the children after Lisley Holt was convicted and imprisoned for sexually assaulting Benson's younger brother. Also in 2009, Dustin Holt, Lisley Holt's and Holt's brother, was adjudicated guilty of indecency with a child and his punishment was assessed at ten years of imprisonment. Nevertheless, Benson voluntarily allowed the children to visit with their maternal grandmother, Sandra Dailey, who lived with her husband, Leroy Dailey, and her son, Holt. The children visited with Dailey approximately every other weekend, until approximately Christmas time in December 2011 when A.N.R. told Benson that Dailey "made her pee in a cup for work," which Benson interpreted to mean there was drug use at the home of the children's maternal grandmother. At that point, Benson just stopped taking the children to visit with their maternal grandmother.

On March 4, 2012, A.N.R. told Benson that her maternal grandfather "used to hurt her one way, [Holt] used to hurt her two ways" and indicated that they hurt her in her genital area. The next day, Benson and her husband spoke with each of the children separately and J.M.R. and B.O.R. each stated that Holt had "flicked" or "played with" his penis on more than one occasion. Benson had Romans come over to discuss the matter further. During that discussion, the children described additional instances and provided greater detail of the alleged sexual abuse by Holt. At that point, Benson called their CPS caseworker who referred them to an assistant district attorney. That assistant district attorney referred Benson to Detective Shane Kumler.

On March 6, 2012, Detective Kumler of the Sherman Police Department received a complaint from Benson alleging that Holt, J.M.R.'s maternal uncle, had touched J.M.R.'s penis. J.M.R. was ten years old at the time of the allegation. She also alleged that her other grandson, B.O.R., who was nine years old, had been touched in a similar manner.

On March 7, 2012, Detective Kumler scheduled forensic interviews with the Child Advocacy Center for J.M.R., B.O.R., and A.N.R. After observing the interviews, Detective Kumler scheduled sexual assault nurse examinations (SANE exams) for all three children.

On March 8, 2012, Detective Kumler went to Holt's residence where he spoke with Holt and Dailey. He told them that he was "investigating allegations of narcotic use in front of the children" and needed to speak with Holt. As a result, Detective Kumler interviewed Holt. During that interview, which was video recorded, Detective Kumler asked Holt "if the children spent the night in the same house that he did, if the children had ever slept in his bed, if he had ever helped bathe the children, and [] if he ever spent time alone with the children." Holt was adamant that he had never done any of those kinds of things with the children. Detective Kumler believed a second interview was necessary because everything Holt had told him was the opposite of what the children had said.

The second interview occurred on April 18, 2012. Detective Kumler decided it would be better to have Holt speak with a different person at his next interview and obtained the assistance of Special Agent Rod Woodward of the U.S. Secret Service to administer a polygraph examination. Before the interview, Detective Kumler gave Special Agent Woodward his report and briefed him on his actions and the evidence obtained. Holt arrived with his mother at the police station at approximately 10:30 a.m. Then, Special Agent Woodward administered a polygraph examination to Holt. Detective Kumler watched through a "live feed" on his computer.

After being told by Special Agent Woodward that he had failed the polygraph examination, Holt left the polygraph or interview room and went into the hallway. Then, Holt returned to the polygraph or interview room to explain to Special Agent Woodward the reason he had failed the polygraph examination. Detective Kumler continued to watch the interview on his computer.

During his interview with Special Agent Woodward, Holt stated he had seen the children naked, J.M.R. had slept with Holt in his bed on numerous occasions, he had helped J.M.R. dry off after he got out of the bath several times, and he recalled accidentally touching J.M.R.'s penis five or six times with his hand. Also, Holt stated that on one occasion he had just spoken with his boyfriend on the telephone and left his hand on J.M.R.'s penis for five or six seconds while daydreaming about his boyfriend. However, Holt claimed that he had used methamphetamine just before this incident occurred.

Immediately following the completion of Holt's interview with Special Agent Woodward, a third interview was conducted by Detective Kumler. This interview was video recorded. During this interview, Holt repeated to Detective Kumler the statements he had made to Special Agent Woodward. As soon as the interview was over, Holt got up and walked out of the room. Holt left the police station with Dailey at approximately 5:20 p.m.

Holt was later arrested and the amended indictment alleged the offenses of continuous sexual abuse of a young child and two counts of indecency with a child. Before trial, Holt filed a motion to suppress his statements to Special Agent Woodward and Detective Kumler because, at the time of his statement, he claimed that he was in custody and his statement was involuntary. Also in his motion to suppress, pursuant to Texas Rule of Evidence 403, Holt objected that that probative value of his statement was outweighed by its prejudicial effect. After a hearing, the trial court denied Holt's motion to suppress and overruled his rule 403 objection. After a trial, the jury found Holt guilty of continuous sexual assault of a young child. The trial court assessed Holt's punishment at twenty-five years of imprisonment.

II. SUFFICIENCY OF THE EVIDENCE

In issue six, Holt argues the evidence is insufficient to support his conviction. Holt contends the evidence is insufficient because: (1) the children's testimony was inconsistent and there was evidence suggesting they had been coached; (2) there was no medical evidence corroborating the children's claims of sexual abuse; (3) Benson, the outcry witness had been convicted of bank fraud, had a history of stealing money from disabled persons, including her grandchildren, and was motivated by financial gain to fabricate the allegations of sexual abuse; (4) the forensic interviewer stated that J.M.R. and B.O.R. exhibited signs of lying and the children's counselor stated Benson listed Leroy Dailey as the children's abuser on the forms; and (5) there was no evidence that during a period that is 30 or more days in duration, Holt committed two or more acts of sexual abuse. The State responds that the evidence is sufficient to show that J.M.R. was sexually abused by Holt on multiple occasions over an extended period of time.

A. Standard of Review

When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Merritt, 368 S.W.3d at 525; Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.

B. Applicable Law

To establish continuous sexual abuse of a child, the State must prove that: (1) during a period of thirty or more days in duration, the defendant committed two or more acts of sexual abuse; and (2) at the time of the commission of each of these acts of sexual abuse, the defendant was seventeen years of age or older and the victim was a child younger than fourteen years of age. See TEX. PENAL CODE ANN. § 21.02(b); Baez v. State, No. 04-14-00374-CR, 2015 WL 5964915, at *1 (Tex. App.—San Antonio Oct. 14, 2015, pet. ref'd). Acts that qualify as "sexual abuse" under the statute include indecency with a child, sexual assault, and aggravated sexual assault. See TEX. PENAL CODE ANN. § 21.02(c). The jury need not agree unanimously on which specific acts of sexual abuse occurred or the exact date of those acts. See TEX. PENAL CODE ANN. § 21.02(d); Baez, 2015 WL 5964915, at *2; Mitchell v. State, 381 S.W.3d 554, 561 (Tex. App.—Eastland 2012, no pet.). The testimony of a child victim, standing alone, is sufficient evidence to support a conviction for continuous sexual abuse of a young child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2015); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref'd) (discussing sexual assault).

C. Application of the Law to the Facts

The amended indictment alleged that Holt committed two or more acts of sexual abuse against J.M.R. "during a period that was thirty days in duration, to-wit: from on or about the 1st day of January, 2007, through the 6th day of March 2012." The trial court's jury charge states:

[I]f you believe from the evidence beyond a reasonable doubt that the defendant, CODY HOLT, on or about January 1, 2007, through March 6, 2012,[²] in Grayson County, Texas, during a period that was 30 days or more in duration, committed two or more acts of sexual abuse against J.M.R., said acts of sexual abuse having been violations of the following penal law, namely: indecency with a child, namely, by touching any part of the genitals of J.M.R. with intent to gratify the sexual desire of the defendant, and, at the time of the commission of each of the acts of sexual abuse, the defendant was 17 years of age or older and J.M.R. was a child younger than 14 years of age, then you will find the defendant guilty of the offense of Continuous Sexual Abuse of Young Child, as alleged in the indictment, and so say by your verdict.

2 The offense of continuous sexual abuse of a young child became effective on September 1, 2007, and the statute does not apply to acts of sexual abuse committed before that date. Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127, 1148 (codified at TEX. PENAL CODE ANN. § 21.02); see Gomez v. State, 459 S.W.3d 651, 660 (Tex. App.—Tyler 2015, pet. ref'd). Holt does not argue there was charge error or that he suffered egregious harm on appeal. Nevertheless, we apply the Jackson legal sufficiency standard of review to a hypothetically correct jury charge. See Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011).

The record shows that Benson obtained legal custody of the children in 2009. At that time, Benson began allowing the children to visit the home of their maternal grandmother, Dailey, every other weekend. Holt lived with Dailey. Benson stopped the weekend visits around Christmas time in 2011. After the children made their outcry, Benson reported the abuse to the police on March 6, 2012, when J.M.R. was ten years old.

J.M.R. testified that Holt sexually abused him more than two times on different days, it occurred five times, one of the times was in the shower, and another time he woke to find himself unclothed in Holt's bedroom with Holt "rubbing" his privates. B.O.R. and A.N.R. testified they remembered seeing Holt carry J.M.R. to Holt's bedroom.

Further, in his statements to Detective Kumler and Special Agent Woodward, Holt stated that when J.M.R. was six or seven, he helped to bathe J.M.R. Holt said that he dried J.M.R. off after bathing about a dozen times over the years. In addition, Holt admitted to "accidentally" touching J.M.R.'s penis on five or six occasions when drying J.M.R. while daydreaming about his boyfriend. Also, Holt stated that J.M.R. slept in his bed on occasion because J.M.R. was scared of the dark.

Holt's contentions about the sufficiency of the evidence address the weight and credibility of the testimony and evidence, which was resolved by the jury. Further, after considering all of the evidence in the light most favorable to the verdict and the reasonable inferences drawn from that evidence, we conclude that a rational jury could have found that two or more acts of sexual abuse occurred during a period that was thirty or more days in duration. Accordingly, we conclude the evidence was sufficient to support the jury's verdict.

Issue six is decided against Holt.

III. MOTION TO SUPPRESS

In the first part of issue one, Holt argues the trial court erred when it denied his motion to suppress because his statement to the police was involuntary. This issue contains multiple arguments. First, Holt argues there are facts that contradict the trial court's findings. We construe his contention to be that the trial court abused its discretion because the evidence does not support the trial court's findings. Second, Holt challenges the trial court's conclusions of law that: (1) he was not in custody at the time of his statement; and (2) his statement was voluntary.

A. Standard of Review —Motion to Suppress

An appellate court reviews a trial court's ruling on a motion to suppress evidence under a bifurcated standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013); State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013); Lloyd v. State, 453 S.W.3d 544, 546 (Tex. App.—Dallas 2014, pet. ref'd). An appellate court reviews a trial court's factual findings for an abuse of discretion and the trial court's application of the law to the facts de novo. Turrubiate, 399 S.W.3d at 150; see Lloyd, 453 S.W.3d at 546.

B. Trial Court's Findings of Fact

Holt argues facts contradict the trial court's findings. We construe this to be a claim that the trial court abused its discretion because the evidence does not support the findings.

1. Standard of Review—Findings of Fact on Motion to Suppress

The trial court is the sole and exclusive trier of fact and judge of credibility of the witnesses and the evidence presented at a hearing on a motion to suppress, particularly where the motion is based on the voluntariness of a confession. See Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007); Colvin v. State, 467 S.W.3d 647, 657 (Tex. App.—Texarkana 2015, pet. ref'd). When the trial court makes fact findings on a motion to suppress, an appellate court determines whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. See Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013); State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). Unless the trial court abused its discretion by making a finding not supported by the record, an appellate court will defer to the trial court's fact findings and not disturb the findings on appeal. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).

2. Application of the Law to the Facts

In support of his contention the evidence does not support the trial court's findings, Holt argues that, contrary to the trial court's findings, he was "required to attend the 'first interview,'" he "was berated and told by [Special Agent] Woodward that []he was a 'liar,'" he was threatened with imprisonment, the police "interrupt[ed] [his] attempt to leave by physical means," and he was not provided with proper warnings.

An evidentiary hearing was held on Holt's motion to suppress on November 20, 2013, and continued on January 6, 2014, and February 6, 2014. The "Polygraph Examination Warning of Rights and Consent to Speak" was admitted into evidence during the hearing on Holt's motion to suppress. It states:

Before I ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in a Court or other proceedings.

You have the right to talk to a lawyer for advice before I question you and to have him with you during questioning.

If you cannot afford a lawyer and want one, a lawyer will be appointed for you by the Court.

If you decided to answer question now without a lawyer present, you will still have the right to stop the questioning at any time.

Following these warnings, Holt separately initialed the following two statements: (1) "I have read this statement of my rights and it has been read to me, and I understand what my rights are"; and (2) "I voluntarily waive my rights and I am willing to answer questions at this time."

Also, during the hearing on Holt's motion to suppress, the trial court heard the testimony of Special Agent Woodward and Detective Kumler, which contradicted the testimony of Holt and his mother, Dailey. There was no video recording of the polygraph examination given by Special Agent Woodward or of Holt's first oral statement provided to Special Agent Woodward. However, the video recording of Holt's statement to Detective Kumler was admitted into evidence.

After the hearing, the trial court denied Holt's motion to suppress his statement and made written findings of fact and conclusions of law. The trial court's findings of fact included, in part, the following, which contradict the facts challenged by Holt on appeal:

(1) "[Holt] came to the Denison Police Department (DPD) of his own free will.";

(2) "[Holt] indicated he understood his Miranda rights and voluntarily waived them by initialing and signing the Polygraph Warning of Rights and Consent to Speak.";

(3) "[Holt] admitted that he has never felt coerced or threatened by [Detective] Kumler.";

(4) "[Holt] admitted he was not stopped from leaving the polygraph room during the [time he left the polygraph room and went out into the hallway]";

(5) "[Holt] admitted that by the time he had returned to the polygraph room, [he] had recovered from any initial panic or 'shut down' that resulted from finding out he had failed the polygraph.";

(6) "[Holt] showed no physical signs of being under duress or coercion by the end of the interview. In the last half hour of his interview, [Holt] laughed, joked, and appeared at ease.";

(7) "[Holt] knew he was free to leave without having to be told by [Detective] Kumler because he got up and walked out of the room as soon as the interview was over.";

(8) "There was no screaming by either law enforcement or [Holt] in the hallway [when Holt left the polygraph room and went out into the hallway]"; and

(9) "[Detective] Kumler and [Special] Agent Woodward did not prevent [Holt] from leaving [the] Denison Police Department at any time on April 18, 2012."

The trial court's findings of fact accept Special Agent Woodward's and Detective Kumler's version of events with respect to the events surrounding Holt's oral statement. Holt's challenge to the trial court's findings of fact argues that contradictory facts should have been found by the trial court. Holt's position challenges the trial court's credibility determination. The trial court is the exclusive trier of fact and judge of credibility of the witnesses. See Delao, 235 S.W.3d at 238; Colvin, 467 S.W.3d at 657. After reviewing the record, we conclude the evidence supports the trial court's findings of fact.

C. Trial Court's Conclusions of Law

Next, we address Holt's contention that the trial court erred when it concluded that: (1) he was not in custody at the time of his statement; and (2) his statement was voluntary. Specifically, Holt argues that his statement was involuntary because the police failed to comply with: (1) article 38.22, section 3 of the Texas Code of Criminal Procedure because he was (a) in custody at the time of his statement, (b) the police coerced or improperly influenced him to make the statement, and (c) he is psychologically vulnerable and susceptible to influence, direction, and suggestibility as a result of his transgenderism, gender dysphoria, and periodic dissociative episodes; (2) Miranda because he was (a) in custody at the time of his statement and (b) the police coerced or improperly influenced him to make the statement; (3) article 38.22, section 6 because (a) the police coerced or improperly influenced him to make the statement and (b) he is psychologically vulnerable and susceptible to influence, direction, and suggestibility as a result of his transgenderism, gender dysphoria, and periodic dissociative episodes; and (4) due process because the police coerced or improperly influenced him to make the statement.

1. Standard of Review—Conclusions of Law on Motion to Suppress

An appellate court reviews the trial court's legal ruling on a motion to suppress de novo, unless its specific fact findings that are supported by the record are also dispositive of the legal ruling. See Abney, 394 S.W.3d at 548; Kelly, 204 S.W.3d at 818-19. An appellate court must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case, even if the trial court gave the wrong reason for its ruling. See State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).

2. Applicable Law—When Defendant's Statement May be Used in Evidence

Article 38.21 of the Texas Code of Criminal Procedure provides that a defendant's statement may be used against him "if it appears that the same was freely and voluntarily made without compulsion or persuasion." See TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005); Delao, 235 S.W.3d at 239; Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). The determination of whether a statement is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. See Delao, 235 S.W.3d at 239; Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). This is an appropriate standard to apply, even when the confession is made by someone suffering from mental retardation or mental illness. See Delao, 235 S.W.3d at 241.

A statement may be deemed "involuntary" under three different theories: (1) failure to comply with article 38.22, section 6—general voluntariness; (2) failure to comply with the dictates of Miranda as codified and expanded in article 38.22, sections 2 and 3 (the Texas confession statute); or (3) failure to comply with due process because the statement was not freely given as a result of coercion, improper influences, or incompetency. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008); Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996). The statement may be involuntary under one, two, or all three of these theories. See Oursbourn, 259 S.W.3d at 169. A statement that is "involuntary" as a matter of constitutional law is also "involuntary" under article 38.22, but the converse need not be true. See Oursbourn, 259 S.W.3d at 169.

3. Trial Court's Conclusion that Holt was Not In Custody

Holt argues that his statement was involuntary because the police failed to comply with article 38.22, section 3 of the Texas Code of Criminal Procedure and Miranda because he was in custody at the time of his statement. The State responds that:

[Holt] had the capacity to understand he could end or leave the voluntary interview at any time and demonstrated this knowledge by ending the interview when he no longer wanted to address the allegations. [Holt] came to the police station for the polygraph exam of his own free will. [Holt] understood his Miranda rights as explained to him and voluntarily waived them by initialing and signing a Polygraph Examination Warning of Rights and Consent to Speak. [Holt], after returning to the polygraph room[,] was not under any panic or "shutdown" that resulted from finding out he had failed the polygraph. [Holt] was not physically restrained from leaving the polygraph room, nor was there any screaming or shouting by either officer in the hallway during the post-polygraph interviews.

a. Standard of Review—Custody

An appellate court reviews de novo mixed questions of law and fact that do not turn on credibility and demeanor. See State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013); State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). The question of whether a reasonable person would feel that he was not free to terminate the questioning and leave such that he was in custody when he was interrogated is a mixed question of law and fact that does not turn on credibility or demeanor. See Thompson v. Keohane, 516 U.S. 99, 113-14 (1995); Saenz, 411 S.W.3d at 494-95; Colvin, 467 S.W.3d at 657. The ultimate legal determination of whether an individual was in custody requires an appellate court to take the facts, as assessed by the trial court, and then to make a legal determination as to whether those facts amount to custody under the law. See Saenz, 411 S.W.3d at 494; Ortiz, 382 S.W.3d at 372.

b. Applicable Law—Constraints on Custodial Interrogations

In the context of article 38.22, section 3, the question of voluntariness applies only to statements made in response to custodial interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 5 ("Nothing in this article precludes the admission . . . of a statement that does not stem from custodial interrogation."); see Wolfe, 917 S.W.2d at 282; Colvin, 467 S.W.3d at 656-57. Similarly, "[a]n officer's obligation to administer Miranda warnings attaches . . . 'only where there has been such a restriction on a person's freedom as to render him 'in custody.''" Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)); see Colvin, 467 S.W.3d at 656-57. Under both the federal constitutional standard and the Texas confession statute, evidence obtained as a result of custodial interrogation is inadmissible unless the State proves the officer gave the proper warning and shows an affirmative waiver of rights by the accused. See Colvin, 467 S.W.3d at 654.

"Custodial interrogation" is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966); see Koch v. State, No. 01-14-00248-CR, 2016 WL 143771, at *4 (Tex. App.—Houston [1st Dist.] Jan. 12, 2016, no pet.). A person is in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. See Stansbury, 511 U.S. at 322; Saenz, 411 S.W.3d at 494-95; Koch, 2016 WL 143771, at *4.

The determination of whether a suspect is in custody turns on: (1) a factual determination of the circumstances surrounding the interrogation; and (2) a legal determination of whether, under the factual circumstances, a reasonable person would feel that he was not free to terminate the questioning and leave. See Thompson, 516 U.S. at 112-13; Colvin, 467 S.W.3d at 657. It is not determined based on the subjective views harbored by either the interrogating officer or the person being questioned. See Stansbury, 511 U.S. at 323; Colvin, 467 S.W.3d at 658. The ultimate inquiry is whether there was: (1) a formal arrest; or (2) a restraint on the suspect's freedom of movement of the degree associated with a formal arrest. See Stansbury, 511 U.S. at 322; Colvin, 467 S.W.3d at 657. There are four general situations which may constitute custody because there was a restraint on the suspect's freedom of movement: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. See Saenz, 411 S.W.3d at 496; Colvin, 467 S.W.3d at 657.

The first three situations indicate that the restriction upon the freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. See Saenz, 411 S.W.3d at 496; Colvin, 467 S.W.3d at 658. The mere fact that an interrogation begins as noncustodial does not prevent custody from arising later because police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation. See Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); Colvin, 467 S.W.3d at 657.

The fourth situation dictates that the officers' knowledge of probable cause be manifested to the suspect and that the manifestation of probable cause combined with other circumstances would lead a reasonable person to believe he was under restraint to the degree associated with an arrest. See Saenz, 411 S.W.3d at 496; Colvin, 467 S.W.3d at 658. However, by itself, the existence of a manifestation of probable cause will not automatically establish custody. See Saenz, 411 S.W.3d at 496; Colvin, 467 S.W.3d at 659. It must be combined with other circumstances that would lead a reasonable person to believe he is under restraint to the degree associated with an arrest. See Saenz, 411 S.W.3d at 496; Colvin, 467 S.W.3d at 659. An officer's silence alone does not constitute a manifestation of probable cause. See Saenz, 411 S.W.3d at 497. Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue. See Saenz, 411 S.W.3d at 497.

c. Application of the Law to the Facts

Although on appeal he does not identify a particular point when he claims his interview became custodial, in his motion to suppress, Holt claimed that "[a]ll statements made after Holt was prevented from leaving the police department were custodial in nature." After a hearing on his motion to suppress, the trial court concluded "[Holt] was never in custody during his time at the Denison Police Department on April 18, 2012" and "[The State] complied with [s]ection 38.22 of the Texas Code of Criminal Procedure because his statement was voluntary and [Holt] was not in custody." Many of Holt's factual contentions contradict the trial court's written findings of fact, which we have already determined are supported by the evidence. Accordingly, we will review Holt's contention by taking the facts, as assessed by the trial court, to make the legal determination of whether a reasonable person would feel that his freedom of movement had been restrained to the degree associated with an arrest. See Saenz, 411 S.W.3d at 949; Ortiz, 382 S.W.3d at 372.

Holt contends his freedom of movement was restricted to a degree associated with an arrest because, at the time of his statement: (1) he was required to attend the interview and take the polygraph examination; (2) he was in a nonpublic part of the police station that required a police officer to permit entrance and exit; and (3) the police interrupted his attempt to leave the interview "by physical means." Conversely, in its written findings, the trial court found, in part, that "[Holt] came to the Denison Police Department (DPD) of his own free will." Nevertheless, "[s]tationhouse questioning does not, in and of itself, constitute custody." Dowthitt, 931 S.W.2d at 255; see also Colvin, 467 S.W.3d at 657. However, the mere fact that an interrogation begins as noncustodial does not prevent custody from arising later because police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation. See Dowthitt, 931 S.W.2d at 255; Colvin, 467 S.W.3d at 657.

With respect to the issue of custody, the trial court found that: (1)"[Holt] admitted that there was only one time where [Holt] considered ending the interview by leaving and that this was the time he left the polygraph room and went out into the hallway"; (2) Holt admitted he was not stopped from leaving the polygraph room; (3) Holt knew he was free to leave without having to be told by Detective Kumler because he got up and walked out of the room as soon as the interview was over; (4) there was no screaming or shouting by either law enforcement or Holt in the hallway during the time Holt left the polygraph room; and (5) Detective Kumler and Special Agent Woodward did not prevent Holt from leaving the Denison Police Department at any time on April 18, 2012. The trial court's findings in this case do not specify how long Holt was interviewed before he made the statements to Special Agent Woodward and Detective Kumler. See generally, Dowthitt, 931 S.W.2d at 256 (noting "[t]he long time period involved, while not itself dispositive, is an important fact in determining whether custody occurred before the formal arrest."). We note that Dailey testified she dropped Holt off at the police station at approximately 10:30 a.m. and picked him up at approximately 5:20 p.m.

Also, Holt maintains the police had probable cause to arrest him and did not tell him that he was free to leave even though he was the only suspect. Further, Special Agent Woodward told him that he would be arrested and sent to prison for the rest of his life because he failed the polygraph examination. In its written findings, the trial court found, in part, the following: (1) "[Holt] was made aware that the allegations against him were about indecency with a child at [his] prior interview"; (2) "[Holt] knew he was free to leave without having to be told by [Detective] Kumler because he got up and walked out of the room as soon as the interview was over"; and (3) "[Holt] left DPD and went home with his mother in her car." See Saenz, 411 S.W.3d at 497 (statement that person under interrogation is prime suspect is not, in itself, dispositive of custody issue). Further, we note that the recorded interview shows that when Detective Kumler started his interview of Holt, which occurred after Holt had provided his oral statement to Special Agent Woodward, Detective Kumler told Holt that he was "not going to jail," "not under arrest," and "still free to leave." See Colvin, 467 S.W.3d at 659 (insufficient to establish custody where law enforcement officer assured defendant that officer would not arrest him and would release his property to him). In addition, the video recording shows that Holt was not handcuffed and had freedom of movement, Detective Kumler was the only law enforcement officer present during the questioning, and Detective Kumler conducted the interview in a non-confrontational tone. See Colvin, 467 S.W.3d 658-59.

Based upon the facts found by the trial court, we conclude that, considering the totality of the circumstances, a reasonable person would feel that he was free to terminate the questioning and leave such that he was not in custody when he was interrogated. Accordingly, we conclude that the trial court did not err when it concluded that Holt was not in custody during the interview on April 18, 2012. Nevertheless, we must still address Holt's arguments that his statement was involuntary based on article 38.22, section 6 of the Texas Code of Criminal Procedure and due process, which also apply to noncustodial interrogations.

4. Trial Court's Conclusion that Holt's Statement was Voluntary

Holt argues that his statement was involuntary because the police failed to comply with: (1) article 38.22, sections 3 and 6 of the Texas Code of Criminal Procedure, Miranda, and due process because the police coerced or improperly influenced him to make the statement; and (2) article 38.22, sections 3 and 6 because he is psychologically vulnerable as a result of his transgenderism, gender dysphoria, and periodic dissociative episodes. The State responds that the trial court's determination that Holt's statement was voluntary turned on the credibility of the other witnesses. We have already concluded that Holt was not in custody at the time of his statement so we need not address the part of his argument made pursuant to article 38.22, section 3 and Miranda, which apply only to custodial interrogations. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 5; Stansbury, 511 U.S. at 322; Wolfe, 917 S.W.2d at 282; Colvin, 467 S.W.3d at 654.

a. Standard of Review—Voluntariness of Confession

An appellate court defers to the trial court's determinations of mixed questions of law and fact that turn on credibility and demeanor. See Saenz, 411 S.W.3d at 494; Ortiz, 382 S.W.3d at 372. As previously noted, the trial court is the sole and exclusive trier of fact and judge of credibility of the witnesses and the evidence presented at a hearing on a motion to suppress, particularly where the motion is based on the voluntariness of a confession. See Delao, 235 S.W.3d at 238; Colvin, 467 S.W.3d at 657.

b. Applicable Law—Constraints on Noncustodial Interrogations

In contrast to article 38.22, section 3 of the Texas Code of Criminal Procedure and Miranda, the constraints on the use of an accused's statement under article 38.22, section 6 and the Due Process Clause may be violated even when the accused is not in custody. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6 (West Supp. 2015); Oursbourn, 259 S.W.3d at 171; Wolfe, 917 S.W.2d at 282.

i. Due Process

Even in the absence of custody, due process may be violated by admitting confessions that are not voluntarily given. See Wolfe, 917 S.W.2d at 282; see also State v. Howard, 378 S.W.3d 535, 541 (Tex. App.—Fort Worth 2012, pet. ref'd); Meadoux v. State, 307 S.W.3d 401, 412 (Tex. App.—San Antonio 2009), aff'd on other grounds, 325 S.W.3d 189 (Tex. Crim. App. 2010); May v. State, 139 S.W.3d 93, 100 (Tex. App.—Texarkana 2004, pet. ref'd). However, "in the absence of custody, due process is violated only by confessions that are not in fact freely given rather than by mere noncompliance with prophylactic rules." Wolfe, 917 S.W.2d at 282.

A confession may be involuntary under the Due Process Clause only when there is police overreaching. See Oursbourn, 259 S.W.3d at 169. Both due process and Miranda claims of involuntariness involve an objective assessment of police behavior and generally do not require inquiry into the confessing defendant's state of mind. See Oursbourn, 259 S.W.3d at 171. If the record shows that there was official, coercive conduct of such a nature that a statement from the defendant was unlikely to have been the product of an essentially free and unconstrained choice by its maker, the defendant's will was overborne and the confession is involuntary. See Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Colvin, 467 S.W.3d at 650 n.8.

The Due Process Clause is aimed at protecting suspects from police overreaching, not at protecting people from themselves or other private actors. See Oursbourn, 259 S.W.3d at 170. As a result, even if a confession is not the product of a meaningful choice, e.g., when it is made in response to hallucinations or to a private person's threat, it is "voluntary" within the meaning of the Due Process Clause absent some coercive police activity. See Oursbourn, 259 S.W.3d at 169-70.

ii. Article 38.22, Section 6 - General Involuntariness

Article 38.22, section 6 applies to both an accused's custodial and noncustodial statements because it provides that only "voluntary" statements may be admitted. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6; Oursbourn, 259 S.W.3d at 171 (citing State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999)). Article 38.22 is aimed at protecting suspects from police overreaching, but section 6 may also be construed as protecting people from themselves because the focus is on whether the defendant voluntarily made the statement. See Oursbourn, 259 S.W.3d at 172.

Claims of involuntariness under article 38.22 of the Texas Code of Criminal Procedure can be predicated on police overreaching and involve sweeping inquiries into the state of mind of a defendant who has confessed that are not relevant to due process claims. See Oursbourn, 259 S.W.3d at 172. A confession given under the duress of hallucinations, illness, medications, or even a private threat could be involuntary under article 38.22. See Oursbourn, 259 S.W.3d at 173. Other factors that may render a statement inadmissible include youth, intoxication, mental retardation, and other disabilities. See Oursbourn, 259 S.W.3d at 172-73. In sum, the potential "involuntary" scenarios encompassed by article 38.22 are broader in scope than those covered by due process or Miranda. See Oursbourn, 259 S.W.3d at 173. However, these factors are usually not enough by themselves to render a statement inadmissible when evaluating the voluntariness of a confession. See Oursbourn, 259 S.W.3d at 172-73; Delao, 235 S.W.3d at 239-40.

c. Application of the Law to the Facts

First, Holt contends that his statement was involuntary under due process and article 38.22, section 6 of the Texas Code of Criminal Procedure because the police coerced or improperly influenced him to make the statement. Holt argues his statements were involuntary because: (1) he was subjected to extended hours of interrogation; (2) he was threatened with imprisonment for "horrific crimes against a child"; (3) Special Agent Woodward and Detective Kumler used a two-step interrogation process; (4) the police physically interrupted his attempt to leave; (5) he was not given proper warnings; (6) Special Agent Woodward and Detective Kumler used the Reid Interrogation Technique (RTI) and a failed polygraph to extract his statement; (7) the polygraph examination was misused as a psychologically coercive tool for extracting a confession from Holt; and (8) Special Agent Woodward told him that he would spend the rest of his life in prison, unless he could provide a reason for his failing the polygraph.

In its written conclusions of law, the trial court concluded, in part, that "[Holt's] oral confessions were voluntarily made and are admissible into evidence." With respect to the issue of voluntariness under due process and article 38.22, section 6 of the Texas Code of Criminal Procedure based on Holt's allegations that the police coerced or improperly influenced him to make the statement, the trial court found: (1) Holt admitted that he never felt coerced or threatened by Detective Kumler; (2) Holt admitted that the only time he considered ending the interview was when he left the polygraph room and went into the hallway; (3) Holt admitted he was not stopped from leaving the polygraph room when he went out into the hallway; (4) Holt showed no physical signs of being under duress or coercion by the end of the interview and in the last half hour, Holt laughed, joked, and appeared at ease; (5) when Holt left the polygraph room and went out into the hallway, no one touched him or was physically violent; (6) there was no screaming or shouting by either law enforcement or Holt in the hallway; (7) when Dailey picked Holt up at the police department after the polygraph and interviews, Holt never complained about misconduct on the part of Special Agent Woodward or being denied anything; and (8) Detective Kumler and Special Agent Woodward did not prevent Holt from leaving the police department at any time on April 18, 2012.

Second, Holt argues that his statement was involuntary under article 38.22, section 6 because he is psychologically vulnerable and susceptible to influence, direction, and suggestibility as a result of his transgenderism, gender dysphoria, and periodic dissociative episodes. Also, he claims his "unique physical abnormalities" made him more vulnerable to the tactics of Special Agent Woodward and Detective Kumler. Further, Holt argues his "secret concerning [his] gender identity" supports his argument that his statement was involuntary.

In its written conclusions of the law, the trial court concluded, in part, that: (1) "Even if [Holt] has a dis[sociative] disorder, or anxiety due to gender shame or confusion, [Holt] was not so affected by this that he was susceptible to influence and, thus, incapable of making the choice to make a voluntary statement"; and (2) "[Holt] was not so affected by any disorder or anxiety that he was rendered incapable of making a voluntary confession or of understanding the nature of such confession." With respect to the issue of voluntariness under article 38.22, section 6 of the Texas Code of Criminal Procedure based on Holt's allegation that he is psychologically vulnerable and susceptible to influence, direction, and suggestibility as a result of his transgenderism, gender dysphoria, and periodic dissociative episodes, the trial court found: (1) Holt represented that he was in good mental health and condition on the date of his confession when he signed the Polygraph Examination Statement of Consent; (2) Holt admitted that he never felt coerced or threatened by Detective Kumler; (3) Holt admitted that when he returned to the polygraph room, he had recovered from any initial panic or shut down that resulted from finding out he had failed the polygraph; (4) in his third interview with Detective Kumler, Holt described feeling irate with Special Agent Woodward, not scared, anxious, or threatened; (5) Holt showed no physical signs of being under duress or coercion by the end of the interview; and (6) in the last half hour of his interview, Holt laughed, joked, and appeared at ease.

Once again, Holt contends evidence supporting his position should have been the basis for the trial court's conclusion. However, those contentions constitute argument that address the weight and credibility of witnesses. We defer to the trial court's findings of fact, which we have already determined turn on the credibility of the witnesses, we conclude the trial court did not err when it concluded that Holt's oral statement was voluntary.

D. Conclusions as to the Voluntariness of Holt's Oral Statement

We conclude the evidence supports the trial court's findings of fact. Also, we conclude the trial court did not err when it concluded Holt was not in custody at the time of his oral statement and his oral statement was voluntary. Accordingly, we conclude the trial court did not err when it denied Holt's motion to suppress. The first part of issue one is decided against Holt.

IV. LIMITATION OF VOIR DIRE

In issue two, Holt argues the trial court erred when it sustained the State's objections to his counsel's questions during voir dire. Holt contends the trial court's ruling unreasonably limited voir dire and denied his right to an impartial jury under the Sixth Amendment to the Constitution of the United States of America (United States Constitution). He concedes that his counsel's questions were commitment questions, but argues the questions were proper commitment questions because "the State's argument at trial in support of the position that homosexuals are not a 'protected class' must fail as there is no case law or statute in [] Texas or at the federal level which supports the State's argument."³ Also, Holt maintains that the error was constitutional error and he was harmed because he was unable to "intelligently exercise peremptory challenges and assert specific challenges for cause" and at least four of the venire members that indicated they believed homosexuality is a sin sat on the jury.

3 A question is proper if it seeks to discover a juror's views on an issue applicable to the case. See Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003). A commitment question is a question that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact. See Davis v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 2011); Wingo v. State, 189 S.W.3d 270, 271 (Tex. Crim. App. 2006). Commitment questions are impermissible unless the law requires a commitment. See Davis, 349 S.W.3d at 518; see also Ewing v. State, 157 S.W.3d 863, 865-66 (Tex. App.—Fort Worth 2005, no pet.) (concluding, in sexual assault case, commitment questions inquiring whether prospective jurors would be more inclined to believe a homosexual guilty of an offense were improper commitment questions because not calculated to elicit commitment regarding following law and would not have revealed any useful information in formulating challenge for cause).

The State responds that the trial court's restrictions on improper commitment questions did not constitute an abuse of discretion. Also, the State argues Holt was not harmed because the information sought by the improper commitment questions was "adequately covered by other questions asked by [Holt's counsel]."

We need not address the direct merits of Holt's complaint. Rather, assuming, without deciding, the trial court erred when it sustained the State's objections to Holt's allegedly proper commitment questions, we will review the record to determine whether that alleged error was harmful. See Werner v. State, 412 S.W.3d 542, 547 (Tex. Crim. App. 2013) (neither defendant nor State bears burden of demonstrating harm); Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001) (neither the State nor appellant must demonstrate harm when an error has occurred; it is appellate court's duty to assess harm); Taylor v. State, 93 S.W.3d 487, 503 (Tex. App.—Texarkana 2002, pet. ref'd) (noting parties may suggest how such harm is shown or not shown).

A. Applicable Law

Generally, when a trial court errs by improperly limiting a defendant's voir dire, it is considered non-constitutional error and a harm analysis is conducted in accordance with Texas Rule of Appellate Procedure 44.2(b).⁴ See Easley v. State, 424 S.W.3d 535, 542 (Tex. Crim. App. 2014). Pursuant to rule 44.2(b), "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). A substantial right is affected if the error had a substantial and injurious effect or influence in determining the jury's verdict. See Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). If the error did not influence the jury or had but a slight effect, the error is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). An appellate court should examine the record as a whole when conducting a harm analysis. See Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002). In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire, if material to the appellant's claim. See Motilla, 78 S.W.3d at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Also, an appellate court should consider overwhelming evidence of guilt, but it is only one factor in the harm analysis. See Motilla, 78 S.W.3d 357.

4 The Texas Court of Criminal Appeals has acknowledged "[t]here may be instances when a judge's limitation on voir dire is so substantial as to warrant labeling the error as constitutional error." See Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014). However, as in Easley, this case does not present an error of constitutional magnitude. See Easely, 424 S.W.3d at 541-42 (where defendant not foreclosed from explaining concept of beyond a reasonable doubt, error was non-constitutional); Woods v. State, 152 S.W.3d 105, 109 (Tex. Crim. App. 2004) (denial of proper question in voir dire assessed as non-constitutional error).

C. Application of the Law to the Facts

During voir dire, Holt's counsel asked the venire members "Do you think homosexuality is a sin?" When asked for a show of hands from the venire members that believed it is a sin, forty venire members raised their hand. Then, the State objected to the following questions by defense counsel on the basis of "form" or that they were a "commitment question":

(1) Of all of those individuals that believe it's a sin, I must ask you, if it's—if there's evidence that the defendant is a homosexual person, is that going to cause you to lean more in the direction of the State than not knowing that?

(2) Of the individuals that held their hands up, is—because you believe that homosexuality is a sin, are your feelings about that so strong that it would cause you to lean one direction or another based upon evidence of that?

(3) Okay. Based upon that, would you be more likely to believe that someone homosexual would engage in [the] sexual abuse of a child?

(4) Is there anyone here that believes that homosexual men are more likely to engage in improper behavior with children than heterosexual men?

(5) Is there anyone here that is—that answered the question that they believe homosexuality is a sin that believes that that type of evidence is going to impact how they decide a case if they're on the jury? Will that have an impact that would cause you to lean one direction or another?

(6) And would you be more likely to believe [children should be protected from homosexuality] based on the information that the person [alleged to have had inappropriate sexual contact with a child] is homosexual?

(7) Do you think a homosexual is more likely to engage in inappropriate sexual contact with a child?

(8) [D]o you think you can be fair and impartial? And when I'm saying fair and impartial, I'm meaning in the sense of having a strong feeling or personal experience that would cause you to lean one direction or another before any evidence is heard at all. And I'm asking you if you think you

could be fair and impartial under that definition if a homosexual is involved.

The trial court sustained all of the State's objections to the questions above.

After sustaining the State's objections, the trial court did not place any limitation on Holt's ability to investigate whether the prospective jurors were biased or prejudiced against a defendant who is a homosexual. In fact, at one point, the trial court commented, "It's the way the question was asked that I agree with the State." Also, the record shows that eventually, defense counsel asked the venire members the following question, without objection: "Is there anyone here that, if they knew that the defendant was homosexual, would have a problem sitting and hearing the evidence and reaching a conclusion, based solely on that evidence, and not the homosexuality?" In response, several venire members acknowledged they could not be fair and impartial.

In making our determination as to harm, we consider the record as a whole. The State presented evidence supporting the verdict. Special Agent Woodward and Detective Kumler testified as to Holt's oral statement admitting the offense. J.M.R. testified that Holt touched his "privates," "rubbed his [privates]" and "tried to rape [him]." Also, B.O.R. and A.N.R. testified that Holt had touched them inappropriately and they saw Holt carry J.M.R. to Holt's bedroom. In addition, Benson, the children's paternal grandmother testified as the outcry witness. Further, the jury watched the redacted video recording of Holt making his oral statement to Detective Kumler and the video recordings of the children's forensic interviews. The defense's main theory at trial was that J.M.R's paternal grandmother, Benson, coached the children to falsely accuse Holt in order to retain custody of the children and continue to collect their checks from the government. Further, punishment was assessed by the trial court.

Having reviewed and considered the entire record, we conclude that assuming, without deciding, the trial court erred when it sustained the State's objections to defense counsel's commitment questions, that alleged error did not have a substantial and injurious effect or influence in determining the jury's verdict. See Barshaw, 342 S.W.3d at 93-94. Issue two is decided against Holt.

VI. TESTIMONY OF SPECIAL AGENT WOODWARD

In issue three, Holt argues the trial court erred when it (1) overruled his objection to the testimony of Special Agent Woodward, which Holt contends resulted in the violation of his right to confrontation; and (2) denied his motion to exclude the testimony of Special Agent Woodward because it was cumulative.

A. Violation of Right to Confrontation

In the first part of issue three, Holt contends that he "was completely prohibited from exploring the basis of [Special Agent Woodward's] [allegedly] false testimony that was presented to the jury because this could not be done without introducing the polygraph examination before the jury." Holt claims he was harmed by this error because "allow[ing] [Special Agent] Woodward to testify without mentioning the polygraph or putting his testimony in the context of his having administered a polygraph examination to [Holt] would create a false impression to the jury." The State responds that the trial court did not preclude Holt from cross-examining Special Agent Woodward and although he could not cross-examine Special Agent Woodward in the manner that he wanted, it does not mean Holt was denied the right to confront him.

1. Applicable Law

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to confront the witness against him. See U.S. CONST. amend. VI. The Confrontation Clause provides a criminal defendant with the right to physically face those who testify against him and the right to conduct cross-examination. See Delware v. Fensterer, 474 U.S. 15, 18-19 (1985). The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. See Fensterer, 474 U.S. at 20.

Preservation requirements apply to Confrontation Clause complaints. See Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (overruling the appellant's constitutional Confrontation Clause points because he did not preserve error related to the Confrontation Clause at trial); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (hearsay objection did not preserve error on Confrontation Clause ground); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet. ref'd) (right of confrontation is a forfeitable right and must be preserved). To preserve error on Confrontation Clause grounds, an objection must be made at trial as soon as the basis for such objection becomes apparent. See Wright, 28 S.W.3d at 536. In addition, to preserve for review the issue of whether a defendant's cross-examination of a witness was unduly limited, a defendant must show by a bill of exceptions or an offer of proof what questions he wished to raise and the responses he expected. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) ("Error in the exclusion of evidence may not be urged unless the proponent perfected an offer of proof or a bill of exceptions."); Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App. 1986) (when defendant contends right of cross-examination unduly limited, nothing preserved for review unless record shows by bill of exceptions or otherwise what questions he wanted to propound and answers expected therefrom).

2. Application of the Law to the Facts

The State called Special Agent Woodward to testify during the hearing on Holt's motion to suppress. During Special Agent Woodward's testimony, Holt objected stating, "I [am] going to move at this time to strike this gentleman's testimony because I'm being prevented from a full use of the right to confrontation and the results of—and his denial of information that is being requested of him." The trial court denied the motion.

Special Agent Woodward again testified during trial as a witness called by the State. Holt objected to the testimony of Special Agent Woodward, arguing, in part:

I'd like to object that allowing him to testify deprives me of an opportunity to give effective cross-examination and I lose my right to effective confrontation of this witness because he is indicating that he did not [record a] video [of] this because of a federal regulation. There is no federal regulation that prohibits a federal agent from video [recording] an interrogation. And I can't question him appropriately about this, in light of that.

The trial court overruled the objection.

It appears that the basis of Holt's Confrontation Clause argument is that Holt wished to cross-examine Special Agent Woodward about the context in which Holt made his oral statement, i.e., the polygraph examination. However, as Holt concedes, such an inquiry is prohibited because the existence and results of a polygraph examination are inadmissible for all purposes. See Dansby v. State, 448 S.W.3d 441, 453 (Tex. Crim. App. 2014); Leonard v. State, 385 S.W.3d 570, 573 n.2 (Tex. Crim. App. 2012).

To the extent that Holt claims that the Confrontation Clause permits such an inquiry, we note that Holt did not argue to the trial court that the Confrontation Clause demanded that he be allowed to cross-examine Special Agent Woodward about the context in which he made his oral statement to Special Agent Woodward. Further, Holt made no attempt to cross-examine Special Agent Woodward about the context in which Holt made his statement and the trial court did not limit or otherwise prohibit Holt from cross-examining Special Agent Woodward. In addition, Holt did not make a bill of exceptions or offer of proof regarding what testimony he sought to elicit from Special Agent Woodward. Accordingly, we conclude that Holt failed to preserve for appellate review his Confrontation Clause objection. See Guidry, 9 S.W.3d at 153 ("Error in the exclusion of evidence may not be urged unless the proponent perfected an offer of proof or a bill of exceptions."); Easterling, 710 S.W.2d at 578 (when defendant contends right of cross-examination unduly limited, nothing preserved for review unless record shows by bill of exceptions or otherwise what questions he wanted to propound and answers expected therefrom).

The first part of issue three is decided against Holt.

B. Motion to Exclude Testimony

In the second part of issue three, Holt argues the trial court erred when it denied his motion to exclude the testimony of Special Agent Woodward. However, Holt concedes that "[Special Agent] Woodward's entire trial testimony was nothing more than . . . cumulative evidence because [Holt] had repeated [his] statements to [Detective] Kumler."

1. Applicable Law

The admission of evidence is harmless when the same evidence was offered and admitted elsewhere without objection. See Lane v. State, 151 S.W.3d 188, 192-93 (Tex. Crim. App. 2004); see also McGruder v. State, No. PD-1263-14, 2016 WL 736181, at *1 n.1 (Tex. Crim. App. Feb. 24, 2016) (noting that, on remand, court of appeals may wish to address whether doctrine of curative admissibility might apply) (citing George E. Dix & John M. Schmolesky, 43A Texas Practice: Criminal Practice and Procedure § 53:82, at 1058 (3rd ed. 2011) ("The admission of improper evidence does not constitute reversible error if the same facts were proved by evidence which was not objected to.")). When the same testimony is admitted without objection elsewhere during trial, a defendant waives any complaint he may have had regarding the admissibility of the testimony. Lane, 151 S.W.3d at 192-93.

2. Application of the Law to the Facts

When the State called Special Agent Woodward as a witness during the trial, Holt objected to his testimony, arguing, in part:

And also, Your Honor, as Detective Kumler has testified, he got [] Holt to repeat everything when he interviewed him, so it's strictly cumulative as well. And it's

likely to confuse the jury and not be able to effectively cross-examine him on the reasons why we don't have a videotape of that interrogation. And so, I object to [Special Agent Woodward] testifying at all.

. . . .

There is no video recording or an audio recording of the interview that was conducted [by Special Agent Woodward], and there's no federal regulation that prevents it.

The State responded that it was the practice of Special Agent Woodward's agency not to video record these interrogations and his testimony should not be excluded for that reason. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 8(2) (statement obtained by federal agent in compliance with laws of United States may be admitted without complying with recording requirements of art. 38.22). Also, the State argued the interview was not custodial and there is no legal requirement to record a noncustodial statement. The trial court denied Holt's motion to exclude the testimony of Special Agent Woodward and permitted him to testify.

Even if the trial court erred when it admitted the testimony of Special Agent Woodward, the record shows that Detective Kumler had already testified, without objection, about Holt's statement. In fact, Holt conceded this at trial and now on appeal. At trial, Holt stated, "Detective Kumler has testified, he got [Holt] to repeat everything when he interviewed him, so [Special Agent Woodward's testimony is] strictly cumulative as well." Similarly, on appeal, Holt concedes "[Special Agent] Woodward's entire trial testimony was nothing more than . . . cumulative evidence because [Holt] had repeated [his] statements to [Detective] Kumler." Because the same evidence was admitted without objection at another point in the trial, any error in the admission of Special Agent Woodward's testimony was harmless. See Lane, 151 S.W.3d at 193.

The second part of issue three is decided against Holt.

VII. MOTION FOR MISTRIAL

In issue four, Holt argues the trial court erred when it denied two of his motions for a mistrial. He claims the trial court should have granted his motions for mistrial made: (1) after Dailey testified that she took Holt to the police station for his polygraph; and (2) after the jury saw a portion of the video recording of Holt's statement because the polygraph machine could be seen in the background. The State responds that there is no evidence suggesting the jury considered the improper evidence or that it ignored the trial court's instruction to disregard Dailey's reference to the polygraph.

A. Standard of Review

An appellate court reviews a trial court's decision to deny a motion for mistrial under an abuse of discretion standard. See, e.g., Coble, 330 S.W.3d at 292; Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). An appellate court must uphold the trial court's ruling if it is within the zone of reasonable disagreement. See, e.g., Coble, 330 S.W.3d at 292; Ocon, 284 S.W.3d at 884; Webb, 232 S.W.3d at 112; Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). An appellate court does not substitute its judgment for that of the trial court, but decides whether the trial court's decision was arbitrary or unreasonable. See Webb, 232 S.W.3d at 112. When reviewing the denial of a motion for mistrial, an appellate court views the evidence in the light most favorable to the trial court's ruling, considering only those arguments before the trial court at the time of the ruling. See Ocon, 284 S.W.3d at 884; Webb, 232 S.W.3d at 112; Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). Though requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant does not first request a lesser remedy, an appellate court will not reverse the trial court's judgment if the problem could have been cured by a less drastic alternative. See Ocon, 284 S.W.3d at 885; Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004).

B. Applicable Law

Although not expressly provided for in the Texas Code of Criminal Procedure, a mistrial is an appropriate remedy in "extreme circumstances" for a narrow class of highly prejudicial and incurable errors. See Ocon, 284 S.W.3d at 884 & n.3; Archie, 221 S.W.3d at 699; Young, 137 S.W.3d at 71; Hawkins, 135 S.W.3d at 77. A mistrial halts trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. See Ocon, 284 S.W.3d at 884; Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Whether an error requires a mistrial must be determined by the particular facts of the case. See Ocon, 284 S.W.3d at 884. Because it is a drastic remedy, a mistrial should be granted "only when residual prejudice remains" after less drastic alternatives have been explored. See Ocon, 284 S.W.3d at 884-85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).

When a polygraph examination is mentioned at trial and defense counsel requests a mistrial, an appellate court must first determine whether the examination results were revealed to the jury. See Tennard v. State, 802 S.W.3d 678, 683 (Tex. Crim. App. 1990) (per curiam); see also Martines v. State, 371 S.W.3d 232, 250-51 (Tex. App.—Houston [1st Dist.] 2011, no pet.); In re D.L., 160 S.W.3d 155, 163 (Tex. App.—Tyler 2005, no pet.); Wright v. State, 154 S.W.3d 235, 239 (Tex. App.—Texarkana 2005, pet. ref'd); Jasso v. State, 112 S.W.3d 805, 814 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd); Buckley v. State, 46 S.W.3d 333, 336 (Tex. App.—Austin 2001, pet. dism'd). Generally, when a polygraph examination is mentioned, but the results are not revealed, an instruction to disregard is sufficient to cure any error and the trial court does not err in denying defense counsel's motion for a mistrial. See In re D.L., 160 S.W.3d at 163; Jasso, 112 S.W.3d at 814; Buckley, 46 S.W.3d at 336; see also Richardson v. State, 624 S.W.2d 912, 914-15 (Tex. Crim. App. [Panel Op.] 1981); Marini v. State, 593 S.W.2d 709, 715-16 (Tex. Crim. App. [Panel Op.] 1980). Nevertheless, even when the results are not revealed, there still may be error warranting reversal. See Buckley, 46 S.W.3d at 337. In determining whether the trial court erred when it denied the defendant's motion for mistrial, an appellate court may consider, among other factors: (1) whether the questioning party exhibited bad faith by asking a question designed to elicit polygraph evidence; and (2) whether the polygraph evidence impeached the defendant's testimony or defensive theory, or bolstered the State's case. Martines, 371 S.W.3d at 251; In re D.L., 160 S.W.3d at 163-64; Wright, 154 S.W.3d 238; Jasso, 112 S.W.3d at 814; Buckley, 46 S.W.3d at 337.

On the other hand, when the results of a polygraph examination are revealed to the jury, the trial court's failure to grant a mistrial is generally error. See Shavers v. State, 881 S.W.2d 67, 79 (Tex. App.—Dallas 1994, no pet.); Buckley, 46 S.W.3d at 337. However, the mere mention of a polygraph examination does not automatically constitute reversible error even if the results of the exam are revealed. See Tennard, 802 S.W.2d at 684; In re D.L., 160 S.W.3d at 163; Jasso, 112 S.W.3d at 813. When the results of the polygraph examination are revealed to the jury, implied by the nature of the prosecutor's question, or inferred by the testimony, an instruction to disregard is insufficient and an appellate court must conduct a harm analysis to determine whether the error merits reversal of the trial court's judgment. See Leonard, 385 S.W.3d at 579-80 & n.29; Tennard, 802 S.W.2d at 684; Shavers, 881 S.W.2d at 79. When determining harm, appellate courts should consider whether the witness whose polygraph results were made apparent to the jury was the sole witness or a crucial witness. See Leonard, 385 S.W.3d at 579 n.29 (distinguishing Nichols v. State, 378 S.W.2d 335 (Tex. Crim. App. 1964), where State's whole case depended entirely on testimony of one witness and result of mentioning polygraph examination was to bolster her credibility); Tennard, 802 S.W.2d at 684 (noting case is unlike Nichols or Robinson v. State, 550 S.W.2d 54, 60-61 (Tex. Crim. App. 1977), because witness whose polygraph results became apparent was neither sole witness nor crucial witness).

C. Application of the Law to the Facts

First, we address Holt's argument that the trial court erred when it denied his motion for a mistrial after Dailey testified that she took Holt to the police station for his polygraph. Holt argues the State elicited Dailey's testimony about his polygraph examination in an attempt to impeach her. Further, Holt claims that, although Dailey was a defense witness, he did not open the door to the polygraph evidence.

The record shows the following occurred during the trial:

State: [Y]ou talked to your son's defense lawyer before that hearing [on Holt's motion to suppress]. Right?

Dailey: Like once.

State: Okay. So, that's a yes.

Dailey: Yes.

State: And [defense counsel] subpoenaed you to that hearing. Correct?

Dailey: Yes.

State: Okay. And do you recall what the purpose of you being there was?

Dailey: Yeah, the times and stuff I took [Holt] up for his polygraph.

. . . .

Defense Counsel: I object and—

Trial Court: Sustained.

. . . .

Defense Counsel: I need to ask for a mistrial. That should not have been said.

Trial Court: Well, I can instruct the jury to disregard the statement if you want, or leave it as it is. But it is your witness and I assumed that you instructed all [of] your witnesses not to

mention that and she did anyway. So, if you want me to instruct the jury to disregard it, I will do that. Sometimes that brings more attention to it than—

Defense Counsel: Instruct them to disregard it. Instruct them to disregard it. It is not evidence.

The trial court instructed the jury to "disregard any statement regarding a polygraph."

The record shows that no evidence was offered as to the results of the polygraph examination. Further, there is no evidence that Holt refused to take a polygraph examination. Instead, Dailey's testimony suggests that Holt was willing to take a polygraph examination. Further, based on the record, we cannot conclude the State exhibited bad faith by asking a question designed to elicit polygraph evidence. The State's question inquired as to the purpose of Dailey being at a hearing, not the nature or content of her testimony. Nor can we conclude the polygraph evidence impeached Holt's defensive theory or bolstered the State's case. The jury had already heard the testimony of Special Agent Woodward and Detective Kumler relating to Holt's statement and published to the jury the video recording of Holt's statement to Detective Kumler. Accordingly, we conclude the trial court's instruction to disregard cured any error that resulted from Dailey's mention of a polygraph.

Second, we address Holt's argument that the trial court erred when it denied his motion for mistrial after the jury saw a portion of the video recording of Holt's statement. Holt maintains that the polygraph machine could be seen in the background of the video recording. Also, he argues that a juror was familiar with polygraph equipment.

The record shows that, during the trial, when the State offered into evidence the video recordings of Holt's statement with all references to the polygraph examination redacted, Holt objected, in part, on the basis that the polygraph machine could be seen in the video. The trial court overruled Holt's objection, stating, "what you call, a polygraph machine, it's my understanding that it shows a computer—what looks like a computer, maybe it is a polygraph machine, but I don't think a jury will understand—or, I don't think it's evident that it is a polygraph machine." After the video recording of Holt's statement was published to the jury, Holt moved for a mistrial arguing, in part: (1) the polygraph machine is visible in the video recording of his statement and "[i]t is clearly separate from a computer"; and (2) one the jurors "worked on probation with a caseload of sex offenders [so] [h]e would be very familiar with what a polygraph machine looks like." The trial court denied Holt's motion for a mistrial on this basis.

The presence of a polygraph machine in the video recording of Holt's statement does not reveal the results of Holt's polygraph examination. Nor does it suggest that Holt refused to take a polygraph examination. Further, based on the record, we cannot conclude the State exhibited bad faith. Holt admitted at trial that the State had redacted all verbal references to the polygraph examination in the video recording. Also, we cannot conclude the presence of a polygraph machine in the background of the video recording impeached Holt's defensive theory or bolstered the State's case. In addition, Holt did not request an instruction for the jury to disregard the presence of the polygraph machine or technical equipment in the background of the video recording. Accordingly, we conclude the trial court did not err when it denied Holt's motion for mistrial after the jury saw a portion of the video recording of Holt's statement.

Even if the results could have been implied or inferred by the alleged errors, we cannot conclude Holt was harmed by the alleged errors. The State produced the testimony of Special Agent Woodward and Detective Kumler, who testified as to Holt's statement, J.M.R, B.O.R. and A.N.R. who all testified that Holt had touched them inappropriately, and Benson, the children's paternal grandmother, who testified as to the children's outcry. Also, the jury watched the video recordings of Holt's statement and the children's forensic interviews.

We conclude the trial court did not err when it denied Holt's motions for mistrial made: (1) after Dailey testified that she took Holt to the police station for his polygraph; and (2) after the jury saw a portion of the video recording of Holt's statement because the polygraph machine could be seen in the background. Issue four is decided against Holt.

VIII. ADMISSIBILITY OF EVIDENCE

In the second part of issue one and issue five, Holt argues the trial court erred when it denied his objections to the admissibility of evidence and motion to exclude evidence. Specifically, Holt argues the trial court erred when it: (1) overruled his objection to the testimony of Special Agent Woodward and Detective Kumler based on Texas Rule of Evidence 403; and (2) overruled his objection to the introduction of extraneous offense evidence.

A. Standard of Review

An appellate court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion. See Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). An appellate court will reverse only when the trial court's decision lies outside the zone of reasonable disagreement. See Hernandez, 390 S.W.3d at 323. In addition, an appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Further, an appellate court will not disturb an evidentiary ruling if it is correct on any legal theory applicable to that ruling. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

B. Danger of Unfair Prejudice Does not Outweigh Probative Value of Special Agent

Woodard's and Detective Kumler's Testimony

In the second part of issue one, Holt argues the trial court erred when it overruled his objection to the testimony of Special Agent Woodward and Detective Kumler based on Texas Rule of Evidence 403. Holt argues his oral statement was "not highly probative" because it is nothing more than the adoption by Holt of Special Agent Woodward's proffered explanation for why Holt failed the polygraph examination—it was not a confession. As a result, he claims the portion of the trial court's order requiring redaction of any portions of Holt's interview specifically mentioning anything about polygraphs, polygraph testing, or the results of the polygraph allowed the State to use his oral statement out of context and permitted the jury to consider it as a confession. Further, Holt argues the trial court's ruling deprived him of the ability to present the issue of the voluntariness of his statement to the jury. The State does not respond to this portion of issue one.

1. Applicable Law

Texas Rule of Evidence 403 provides that a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. This rule carries a presumption that relevant evidence will be more probative than prejudicial. See Hernandez, 390 S.W.3d at 323. All evidence is prejudicial to one party or the other. See Hernandez, 390 S.W.3d at 323. It is only when there is a clear disparity between the degree of prejudice and the probative value that rule 403 is applicable. See Hernandez, 390 S.W.3d at 324. A rule 403 analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. See Hernandez, 390 S.W.3d at 324.

Polygraph examinations are commonly used as investigative tools. See Ex parte Renfro, 999 S.W.2d 557, 561 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd). Even though polygraph testing may be a helpful investigative tool, the existence and results of a polygraph examination are inadmissible for all purposes. See Dansby, 448 S.W.3d at 453; Leonard, 385 S.W.3d at 573 n.2; Tennard, 802 S.W.2d at 683; see also Wright, 154 S.W.3d at 238. However, statements made during a polygraph pretest interview, during the polygraph examination itself, or during an interview after the examination, may be admissible evidence, but the proper procedure for introducing such evidence before the jury is to redact from such evidence all references to the polygraph examination. See Wright, 154 S.W.3d at 239.

2. Application of the Law to the Facts

The record shows that, in his written motion to suppress, Holt objected pursuant to Texas Rule of Evidence 403, arguing that his statement was not an "admission of guilt, but [] a false explanation for why he failed an inadmissible polygraph examination, [so] the statement cannot be introduced without reference to the context in which it was provided. . . . [, which] would require the introduction of the polygraph examination before the jury." During the hearing on his motion to suppress, Holt maintained the probative value of his statement was outweighed by its prejudicial effect "in the sense that, in order to explain it, [h]e would have to bring in the fact that there was a polygraph examination and that's inadmissible." The trial court overruled Holt's rule 403 objection, stating, in part, that Holt's "oral confessions were . . . admissible into evidence. . . . subject to redaction of any portions specifically mentioning anything about polygraphs, polygraph testing, [or the] results of [the] polygraph."

Although Holt cites the general rule 403 factors, he does not analyze them or apply them to the facts in this case. Rather, he generally argues that his oral statement was an explanation, not a confession, and the failure to place his statement in the polygraph context allowed the jury to consider it a confession. However, Holt's statements made during the polygraph pretest interview, during the polygraph examination itself, and during the interview after the examination, were admissible and the trial court properly ordered that Holt's "oral confessions were . . . admissible into evidence. . . . subject to redaction of any portions specifically mentioning anything about polygraphs, polygraph testing, [or the] results of [the] polygraph." See Wright, 154 S.W.3d at 239. Accordingly, we conclude the trial court did not err when it overruled Holt's rule 403 objection to the testimony of Special Agent Woodward and Detective Kumler.

The second part of issue one is decided against Holt.

C. Extraneous Offense Evidence

In issue five, Holt argues the trial court erred when it overruled his objection to the introduction of extraneous offense evidence. Specifically, Holt claims the introduction of the extraneous offense evidence showing his brother, Dustin Holt, a non-witness who was convicted of indecency with a child, was improper propensity evidence and so highly prejudicial that it deprived him of effective and fair due process. The State responds that the evidence properly rebutted the defense's theory that Benson coached the children to falsely accuse Holt in order to retain custody of her grandchildren and continue to collect their checks from the government.

1. Preservation of Error

An appellate court may not address the merits of an issue that has not been preserved for appeal. See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009); Benson v. State, 240 S.W.3d 478, 483 (Tex. App.—Eastland 2007, pet. ref'd) (holding relevance and unfair prejudice complaints not preserved for appellate review when no objection made at trial). To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. See TEX. R. APP. P. 33.1. An objection stating one legal theory may not be used to support a different legal theory on appeal. See Dixon v. State, 2 SW.3d 263, 273 (Tex. Crim. App. 1998) (op. on reh'g); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).

Rule 401 provides that "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." TEX. R. EVID. 401. Rule 403 provides that "[t]he [trial] court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403. Rule 404(b) states that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." TEX. R. EVID. 404(b).

A general relevancy objection, even though timely, does not preserve an extraneous offense claim under rule 404(b). See Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999); Russo v. State, 228 S.W.3d 779, 798 (Tex. App.—Austin 2007, pet. ref'd). Likewise, a specific 403 objection must be raised to preserve error because a rule 403 objection is not implicitly contained in relevancy or 404(b) objections. See Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). A general relevancy objection does not put the trial court on notice that the defendant wants the trial court to balance the probative value against the prejudicial effect under rule 403. See Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993).

2. Application of the Law to the Facts

The record shows that the State offered into evidence a certified copy of Dustin Holt's criminal record for the offense of indecency with a child, which included an indictment, order of deferred adjudication, the State's motion to proceed with an adjudication of guilt, and judgment adjudicating guilt. Holt's trial counsel objected, stating, "I object as to relevance." The trial court overruled Holt's objection and admitted the certified copy of Dustin Holt's criminal record into evidence.

While at trial, Holt objected to the admission of his brother's conviction on the basis that it was irrelevant and on appeal, Holt argues that "this evidence was offered over [trial] counsel's objection, solely to show some propensity on the part of [Holt] to commit the same crimes as his brother, who had already been convicted and was serving prison time." Also, Holt claims that:

This evidence was not only irrelevant to a determination of [Holt's] guilt or innocence under Tex[as] R[ule] [of] Evid[ence] 404(b), it was highly inflammatory and prejudicial to [Holt] and alone constituted errors so grave, that reversal of the conviction is the only way to right this terrible wrong committed by the State in this case.

These arguments are based on Texas Rules of Evidence 403 and 404(b). Holt did not object on the basis of either of these rules at trial.

Because Holt did not object to the extraneous-offense evidence under rules 403 and 404(b), we conclude his complaint on appeal does not comport with his trial objection. See TEX. R. APP. P. 33.1(a); Medina, 7 S.W.3d at, 643; Camacho, 864 S.W.2d at 533. Accordingly, Holt has failed to preserve issue five for appellate review.

IX. CONCLUSION

For the reasons stated above, all of Holt's issues are decided against him. The trial court's judgment is affirmed.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE Do Not Publish
TEX. R. APP. P. 47 140914F.U05

JUDGMENT

On Appeal from the 59th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 062011.
Opinion delivered by Justice Lang. Justices Evans and Whitehill participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 18th day of May, 2016.