Marc Edwin Brooks v. the State of Texas

NUMBER 13-24-00252-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MARC EDWIN BROOKS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE CRIMINAL DISTRICT COURT NO. 1
OF TARRANT COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Cron
Memorandum Opinion by Justice Silva

Appellant Marc Edwin Brooks appeals his conviction of aggravated sexual assault

of a child, a first-degree felony. 1 See TEX. PENAL CODE ANN. § 22.021. Brooks was

1 This case is before the Court on transfer from the Second Court of Appeals pursuant to a docket-

equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a)
sentenced to thirty-two years in the Texas Department of Criminal Justice Institutions

Division. By two issues, Brooks argues the trial court abused its discretion by

(1) “overruling [his] motion to quash the indictment for failing to provide sufficient notice”

and (2) “den[ying] [his] motion for mistrial based on the [S]tate[’s] witness injecting

polygraph evidence.” We affirm.

I. BACKGROUND

A. Procedural History

Brooks was indicted for aggravated sexual assault of a child on May 18, 2022. See

id. The indictment alleged that on or about August 20, 1992, Brooks “intentionally or

knowingly, by any means, cause[d] the penetration of the female sexual organ of [Jane 2],

and [Jane] was younger than 14 years of age and she was not the spouse of the

defendant at the time of the offense.” On March 27, 2024, Brooks filed a motion to quash

the indictment, arguing (1) that the indictment “fail[ed] to allege specifically by which

manner and means the offense was committed” and (2) that “the statutory element of ‘by

any means’ is constitutionally overly vague and does not put the defendant on notice as

to what body part and/or item was used to penetrate or how penetration was perpetrated.”

On April 2, 2024, the day of trial, a pretrial hearing was held and Brooks requested that

the indictment be quashed. The trial court denied the motion to quash, and a jury was

subsequently impaneled.

(delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer
cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are
bound by the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP.
P. 41.3.
2 To protect the identity of the complainant, who was a child at the time the crimes occurred, we

refer to her by a pseudonym. See TEX. R. APP. P. 9.8 cmt.
2
B. Jury Trial

Tarrant County Sherrif’s Office (TCSO) Corporal Homero Canero testified that he

has been a qualified peace officer with TCSO for over ten years and is currently “assigned

to error resolution.” Corporal Canero testified that “in error resolution, we maintain

accuracy of the crime records, which includes any record consolidations via fingerprint

analysis, . . . arrest information, [and] errors.” Corporal Canero further stated that he is

qualified to analyze fingerprint records. Corporal Canero verified Brooks’s previous felony

case based on information about his fingerprints and unique identifying information such

as the defendant’s name, the victim’s name, fingerprints, and his county identification

number. The records in Brooks’s previous case indicated that he was indicted and

pleaded guilty to aggravated sexual assault of Jane on April 30, 1991.

Jane testified that she has seven siblings and that she moved to Fort Worth, Texas

when she was approximately three years old. Jane’s mother married Brooks on August

30, 1985, which was around the time he entered Jane’s life. Jane recalled that Brooks

started sexually abusing her around that time and that the sexual abuse occurred “on a

weekly basis” and that “he would force me to look at his penis, stroke it, put my mouth

around it.” Jane further stated that Brooks “would put his penis in [her] vagina and [her]

anus. He would tell me to urinate on him.” Jane recalled feeling “physical pain” and that

Brooks’s sexual abuse would “hurt so much.” Jane said that she first made an outcry of

sexual abuse when she was six years old. Jane’s mother called the Texas Department of

Family and Protective Services (CPS), and CPS conducted an investigation. Jane spoke

with CPS caseworker Melanie Cleveland. During the investigation, Jane’s mother and

Brooks, along with the children, including Jane, fled to Missouri. Thereafter, CPS removed

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Jane and her seven siblings from their home in Missouri. Following these events, Brooks

was placed on unadjudicated community supervision for aggravated sexual assault of a

child on April 30, 1991. Subsequently, Jane, her mother, and her siblings moved back to

Fort Worth, Texas, and during Brooks’s community supervision, he gradually moved back

to the family home with them.

Jane testified that there was a period of time when Brooks did not sexually abuse

her. However, she claimed that changed in the summer of 1992 when she “woke up to

[Brooks] fondling [her] genitals under [her] underwear.” According to Jane, “[Brooks]

penetrated [her] with his fingers.” She was ten years old at the time. Jane never reported

the subsequent sexual abuse because “[she] didn’t want to be taken away again,” “didn’t

want to separate the family, [or] cause more pain for [her] siblings.” 3 When Jane was in

high school, “[Brooks] would touch [her] breasts and buttocks.” Jane testified that, in

August of 2019, she was attending a wedding when she observed one of her nephews

handing out wedding brochures with Brooks. Jane was “shocked and . . . very concerned

and disturbed.” She explained that her shock was due to her siblings permitting Brooks

to be around their children. Because of this, Jane ultimately decided to report that she

was sexually abused by Brooks in the summer of 1992.

Fort Worth Police Department (FWPD) Detective Walter Scott Byington testified

that he was employed with FWPD for forty-two years. During his career, Detective

3 Samantha Torrance testified that she is a “forensic interviewer supervisor at Alliance [f]or

Children,” which is “the Children’s Advocacy Center of Tarrant County.” Torrance further testified that she
supervises “five forensic interviewers.” Torrance explained that child coaching and child grooming involves
placing a child in fear of being separated from their family if the child speaks about their abuse. She further
explained that the disclosure of sexual abuse is a process and “not a one-time event.” Torrance additionally
testified that “being removed from the home . . . is one of the big reasons why kids will recant . . . and that
the “fear of [the] removal process . . . can also be one of the barriers to talking about abuse within a home.”
4
Byington was briefly assigned to the Sexual Assault Unit (SAU). Detective Byington

testified that he was assigned to Brooks’s case around July of 1989. He also testified that

Cleveland initiated the sexual assault report with FWPD. By the time Detective Byington

was assigned to Brooks’s case, Cleveland had already conducted a video interview with

Jane. Detective Byington viewed the interview and based on his findings, “[he] felt [he]

had enough probable cause . . . [and] got a warrant then.” Detective Byington further

testified that the warrant was signed on July 11, 1989. On July 25, 1989, Brooks gave a

voluntary confession to Detective Byington:

I admit to the allegations of sexual assault to my daughter,
[Jane]. The incidents began as far back as I can remember last
October 1988 and continued on until July 1989. I admit to having
touched [Jane]’s vagina and butt with my hands and oral sex with
her. I had put my penis in her mouth and my mouth on her vagina. I
never attempted sexual intercourse or anal intercourse with her. The
last occurrence I can recall was the last week of June 1989. That’s
when I had performed oral sex with [Jane]. The next day I was
confronted by my wife, [Jane’s mother], about the incidents with
[Jane]. [Jane’s mother] told me she had contacted [CPS] and spoke
with the counselor, Melanie Cleveland.

Detective Byington further testified that “it was real obvious to me that [Brooks] was

leaving out important stuff” in his confession.

Cleveland testified that she worked for CPS for three years as a caseworker and

she eventually “became a special investigator for the [SAU] in Tarrant County.” Cleveland

explained that the SAU investigated, among other areas, “infants all the way to

[seventeen] years old that had been alleged to have been sexually molested.” Cleveland

recalled the details of Brooks’s case and stated that it was unusual that Jane’s mother

“was the one that initiated the investigation of her child.” During Cleveland’s investigation,

she discovered that Brooks was still living in the family home with Jane. In 1989,

5
Cleveland conducted an interview with Jane and subsequently interviewed Brooks the

following day. Cleveland recalled Brooks telling her that “he tried to see . . . how long he

could go without touching [Jane] . . . but that he couldn’t help it.” Additionally, Brooks told

Cleveland that “he was not [remorseful] but that he knew that it had gotten out of hand.”

Cleveland explained that a family plan of service was initiated to “help [the] family

stay together” and Jane was eventually returned to her mother. However, Brooks and

Jane’s mother did not follow the CPS agreement, and the couple fled to Missouri with

Jane and her siblings. Eventually, the children were removed from their home in Missouri

and placed in foster care. Cleveland testified that the next time she interacted with Jane’s

family was in the summer of 1994. Cleveland received a phone call from Brooks’s sex

offender therapist, which ultimately led to the second removal of Jane and her siblings by

CPS.

Debra Ann McSherry testified that she “used to be a therapist with Mike Strain

[and] Associates and worked with [Brooks].” McSherry started working for Strain in July

of 1991. McSherry testified that she was a therapist who worked with sex offender groups

“on all the different goals [of] their treatment plan.” She further testified that each sex

offender has an individualized treatment plan and the treatment plan “is based on results

of testing they did with written testing, plethysmograph, and for some people, polygraph.”

McSherry further stated that she has worked with hundreds of sex offenders and that the

majority of her clients are on probation or parole. The following colloquy occurred during

McSherry’s testimony:

[State]: Okay. Did you sometimes have to do intake?

[McSherry]: Yes, I did do some intakes. [Strain] did a lot of

6
the intakes, but I did do some intakes there.

[State]: Okay. Each person that goes through [Strain]’s
office, are they given an individualized treatment
plan?

[McSherry]: Yes. And it is based on results of testing they did
with written testing, plethysmograph, and for
some people, polygraph, so–and–and the
nature of their offense and whether they denied
their offense.

....

[State]: I want to talk about this process of counseling
and what a new client would walk through,
essentially. And when you get a new client, I
guess walk us through what they have to do in
terms of testing.

[McSherry]: So they would do an intake interview, many
times with [Strain], sometimes with me,
sometimes other people, but primarily him, sets
them up for written testing, sets them up for a
penile plethysmograph. And for some offenders,
depending on their level of denial, not everyone,
because we’re expecting that when they first
come into treatment, that they deny elements
or–they may have to take a polygraph.

[Brooks’s counsel]: Objection. This is a violation of the motion in
limine.

[State]: This is not–there is no–may we approach?

THE COURT: Yes.

(Discussion on the record at the bench outside the [presence] of the jury.)

[Brooks’s counsel]: The State’s own motion in limine is—that’s
limined out to mention polygraphs or the penile
plethysmographs.

[State]: This is not the results of one taken. This is just–

7
[Brooks’s counsel]: But now the jury knows he’s taken a polygraph.

THE COURT: All right. I’m not going to let her talk about
polygraphs.

[Brooks’s counsel]: All right.

THE COURT: So just don’t say polygraph.

[State]: Okay.

[Brooks’s counsel]: Judge, we move now to declare a mistrial.

THE COURT: That’s denied.

[Brooks’s counsel]: Judge, I also ask you to strike the testimony and
ask the jury to disregard.
(Open court.)

THE COURT: Strike the last answer. And the Jury is instructed
to disregard the last answer.

McSherry further explained that over the course of treating Brooks, he was not compliant

with various sex offender treatment modules, and he missed twenty-six “group sessions

through the years that he was there.”

The jury found Brooks guilty of aggravated sexual assault of a child and sentenced

him to thirty-two years’ confinement. This appeal followed.

II. MOTION TO QUASH

By his first issue, Brooks complains that the trial court abused its discretion in

denying his motion to quash the indictment because Brooks did not receive sufficient

notice. In his argument, Brooks advances two main points: (1) the “statutory element of

‘by any means’ was constitutionally overly vague”; and (2) that the “vagueness of [the]

8
charge exposed him to a [d]ouble [j]eopardy violation.”4

A. Standard of Review and Applicable Law

A criminal defendant has the constitutional right to fair notice of the specified

offense against him. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CONST.

art. V, § 12b; State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008) (“The

Texas and United States Constitutions grant a criminal defendant the right to fair notice

of the specific charged offense.”); Kellar v. State, 108 S.W.3d 311, 313 (Tex. 2003) (“[A]

defendant does have a constitutional right to sufficient notice so as to enable him to

prepare a defense.”). Consequently, charging instruments “must be specific enough to

inform the accused of the nature of the accusation against him so that he may prepare a

defense.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); see also TEX. CODE

CRIM. PROC. ANN. arts. 21.02–.04, .11 (setting forth the statutory requirements for

indictments).

Notice must come from the face of the indictment, see Riney v. State, 28 S.W.3d

561, 565 (Tex. Crim. App. 2000), and generally, an indictment that tracks the statutory

text of an offense is sufficient to provide a defendant with adequate notice. See State v.

Zuniga, 512 S.W.3d 902, 907 (Tex. Crim. App. 2017). If the charging language of an

indictment specifies “all the manner and means upon which the State is permitted to rely,

there is no notice problem.” Williams v. State, 685 S.W.3d 110, 115 (Tex. Crim. App.

2024). But in some cases, an indictment that tracks the statutory language may be

4 Brooks also asserts that the phrase “by any means” did not provide notice as to “who caused the

penetration.” Regarding this contention, the State argues that Brooks failed to preserve this issue. We
conclude that Brooks’s argument is waived because it does not comport with the complaints made in his
written motion to quash. See TEX. R. APP. P. 33.1; Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App.
2005).
9
insufficient to provide a defendant with adequate notice. Id.; Borders v. State, 654 S.W.3d

202, 205 (Tex. App.—Austin 2022, no pet.) (“Similarly, an indictment tracking the statutory

language may be insufficient when a defendant needs additional information to be able

to ‘investigate the allegations against him and establish a defense.’” (citations omitted)).

A challenge to the sufficiency of a charging instrument raises a question of law.

Smith v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). Accordingly, appellate courts

review a trial court’s ruling on a motion to quash an indictment de novo. Id. at 13–14;

State v. Zuniga, 583 S.W.3d 209, 214 (Tex. App.—Corpus Christi–Edinburg 2018, pet.

ref’d). “The trial court’s ruling should be upheld if it is correct under any theory of law

applicable to the case.” Zuniga, 512 S.W.3d at 906.

Sufficient notice “may be satisfied by means other than the language in the

charging instrument”. Kellar, 108 S.W.3d at 313. “In analyzing whether a charging

instrument provides adequate notice, our notice jurisprudence makes clear that courts

must engage in a two-step analysis.” Barbernell, 257 S.W.3d at 255. We (1) identify the

elements of the offense, and (2) determine “whether the statutory language is sufficiently

descriptive of the charged offense.” Zuniga, 512 S.W.3d at 907. Finally, “[w]hen a motion

to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive

notice of the State’s theory against which he would have to defend.” Kellar, 108 S.W.3d

at 313.

B. Analysis

Brooks argues that the phrase “by any means” is unconstitutionally vague and

does not provide him with sufficient notice to defend the allegations against him.

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1. Statutory Language and Sufficient Notice

When considering the constitutionality of a statute, “we begin with the presumption

that the legislature has not acted unconstitutionally.” Lawrence v. State, 240 S.W.3d 912,

915 (Tex. Crim. App. 2007). As further noted by the Texas Court of Criminal Appeals:

A statute is void for vagueness if it fails to define the criminal offense ‘with
sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not permit arbitrary and discriminatory
enforcement. If . . . a statute does not substantially implicate constitutionally
protected conduct or speech, it is valid unless it is impermissibly vague in
all applications or as applied to the defendant.

Id. (internal quotation marks and footnotes omitted) (quoting State v. Holcombe, 187

S.W.3d 496, 499 (Tex. Crim. App. 2006)). Under the Texas Penal Code that was in effect

in 1992, a person commits the offense of aggravated sexual assault of a child if the person

“intentionally or knowingly causes the penetration of the anus or female sexual organ of

a child by any means.” See TEX. PENAL CODE ANN. § 22.021.

The indictment in the present case alleged that on or about August 20, 1992,

Brooks “intentionally or knowingly, by any means, cause[d] the penetration of the female

sexual organ of [Jane], and [Jane] was younger than 14 years of age and she was not

the spouse of the defendant at the time of the offense.” Brooks’s indictment in this case

directly tracks the statutory language of the Texas Penal Code that was in effect in 1992.

We must then consider whether the allegations are such that “ordinary people can

understand what conduct is prohibited and in a manner that does not permit arbitrary and

discriminatory enforcement.” Lawrence, 240 S.W.3d at 915. Specifically, the plain

language of the statute in the present case prohibits any means of penetrating a child’s

sexual organ. We conclude that no ordinary person reading the statute would have any

11
doubt as to what type of conduct is prohibited by law. Based on the foregoing, we find

that the statute is not impermissibly and overly vague.

Further, Texas Court of Criminal Appeals notes that if the charging language of an

indictment specifies “all the manner and means upon which the State is permitted to rely,

there is no notice problem.” Williams, 685 S.W.3d at 115. Here, the charging instrument

did not specify one particular manner or means of conduct, but rather “by any means.”

Based on Williams, we find that a notice problem does not exist in the current case

because the State alleged “by any means.” See id. Therefore, having found that the

statutory language as noted above is not unconstitutionally vague, we consequently find

that the indictment provided sufficient notice to Brooks such that he could prepare a

defense. See Moff, 154 S.W.3d at 601.

Even assuming that Brooks’s indictment did not provide adequate notice, he was

provided sufficient notice by means other than the charging instrument. See Kellar, 108

S.W.3d at 313. During Brooks’s motion to quash hearing, the State noted that “the specific

manner of how the victim’s female sexual organ was penetrated has been provided to the

defense in discovery.” Thereafter, the State admitted into evidence, for record purposes,

Jane’s interview with FWPD and a copy of the FWPD offense report. We conclude that,

even if the charging instrument provided inadequate notice, Brooks did not suffer harm

because he received actual and sufficient notice of the State’s theory through the

previously mentioned evidence admitted by the State. See id. The record shows that

Brooks had actual notice of the specific means of the conduct upon which the State based

its allegations.

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2. Double Jeopardy

The United States Constitution provides that no person may be “subject for the

same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. “The Fifth

Amendment offers three different constitutional protections. First, protection against a

second prosecution for the same offense after acquittal. Second, protection against a

second prosecution for the same offense after conviction. Third, protection against

multiple punishments for the same offense.” Bigon v. State, 252 S.W.3d 360, 369–70

(Tex. Crim. App. 2008).

Brooks argues that the vagueness of the indictment “exposed him to a [d]ouble

[j]eopardy violation.” We disagree. This case involves the third protection category

recognized by the Fifth Amendment. See id. The proper avenue for a double jeopardy

claim is after Brooks has been charged or indicted for an unnamed future offense. See

Burks v. State, 876 S.W.2d 877, 889 (Tex. Crim. App. 1994) (en banc) (holding that for

“any potential claim of jeopardy which appellant might have to assert in a future

prosecution, the proper time to argue this issue is after he has been charged or indicted

for that unnamed future offense”). Here, there is no indication from the record that the

State initiated a subsequent prosecution under the same circumstances as the present

case. See id.

Based on the foregoing, we conclude that the trial court did not err in denying his

motion to quash. Brooks’s first issue is overruled.

III. DENIAL OF MISTRIAL

By his second issue, Brooks challenges the trial court’s denial of his request for a

mistrial urged after the State’s witness testified that a polygraph and penile

13
plethysmograph are components of sex offender treatment.

A. Standard of Review and Applicable Law

A trial court’s denial of a mistrial is reviewed for an abuse of discretion, and we

must uphold a trial court’s ruling if it is within the zone of reasonable disagreement. Coble

v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Stahmann v. State, 548 S.W.3d

46, 68 (Tex. App.—Corpus Christi–Edinburg 2018), aff’d, 602 S.W.3d 573 (Tex. Crim.

App. 2020). “A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial

that expenditure of further time and expense would be wasteful and futile.’” Hawkins v.

State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting 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. Ladd, 3 S.W.3d at 567. The question of whether a mistrial

should have been granted involves a similar analysis as a harm analysis. Hawkins, 135

S.W.3d at 77. In determining whether a trial court abused its discretion, we review: (1) the

severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the

certainty of conviction absent the misconduct. Id.; see Cook v. State, No. 13-19-00610-

CR, 2021 WL 317645, *3 (Tex. App.—Corpus Christi–Edinburg January 28, 2021, no

pet.) (mem op., not designated for publication).

“Due to their inherent unreliability and tendency to be unduly persuasive, the

existence and results of polygraph examinations are inadmissible for any purpose in a

criminal proceeding on proper objection.” Martines v. State, 371 S.W.3d 232, 250 (Tex.

App.—Houston [1st Dist.] 2011, no pet.) (citing Tennard v. State, 802 S.W.2d 678, 683

(Tex. Crim. App. 1990)). “The mere mention of a polygraph examination does not,

however, automatically constitute reversible error, even if the results of the exam are

14
revealed.” Martines, 371 S.W.3d at 250. (first citing Tennard, 802 S.W.2d at 683–84; then

citing Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.—Houston [14th] 2003, pet. ref’d)).

“When a polygraph is mentioned at trial and defense counsel requests a mistrial, we must

first determine whether the results were revealed to the jury.” Id. at 250–51 (first citing

Tennard, 802 S.W.2d at 683; then citing Jasso, 112 S.W.3d at 814). “Generally, when

polygraph results are mentioned but not revealed to the jury, an instruction to disregard

is sufficient to cure any error. Id. at 251 (citing Jasso, 112 S.W.3d at 814). “In determining

whether the trial court erroneously refused to grant a mistrial, we may also consider

(1) whether the questioning party exhibited bad faith by asking a question designed to

elicit polygraph evidence; and (2) whether polygraph evidence bolstered the State’s

case.” Id. (first citing Jasso, 112 S.W.3d at 814, then citing Buckley v. State, 46 S.W.3d

333, 337 (Tex. App.—Texarkana 2001, pet. dism’d)).

B. Analysis

Before turning to the merits of Brooks’s second issue, we first address whether he

preserved error. “Because preservation of error is a systemic requirement on appeal, a

court of appeals should review preservation of error regardless of whether the issue was

raised by the parties.” Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014).

To preserve error, an objection must be timely made with sufficient specificity to apprise

the trial court of the complaint and basis for the objection, and the party making the

objection must obtain a ruling on that objection. See TEX. R. APP. P. 33.1(a)(1)(A); Null v.

State, 690 S.W.3d 305, 318 (Tex. Crim. App. 2024). “The purpose for requiring a timely,

specific objection is twofold: (1) it informs the judge of the basis of the objection and

affords him an opportunity to rule on it[;] and (2) it affords opposing counsel an opportunity

15
to respond to the complaint.” Null, 690 S.W.3d at 318 (quoting Williams v. State, 662

S.W.3d 452, 460 (Tex. Crim. App. 2021). In a jury trial, the timing of an objection and a

ruling is important because if the objection is not made early enough and a ruling is not

obtained, the jury might hear evidence that it might never have heard at all. Garza v.

State, 126 S.W.3d 79, 83–84 (Tex. Crim. App. 2004). “In most instances, an objection will

prevent the occurrence of the prejudicial event, and the failure to make a timely, specific

objection prevents appellate review.” Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App.

2004).

In the present case, the State asked McSherry about the initial intake interview

process for clients participating in sex offender treatment. McSherry testified, among

other things, that each of her clients had an individualized treatment plan “based on

results of testing they did with written testing, plethysmograph, and for some people,

polygraph.” Brooks’s trial counsel did not object to McSherry’s first mention of the words

polygraph or plethysmograph. Thereafter, McSherry testified again about the possibility

of a polygraph being a part of sex offender treatment. McSherry’s second mention of the

polygraph involved the same subject matter as her previous statement. McSherry testified

that “for some offenders, depending on their level of denial, . . . they may have to take a

polygraph.”

Brooks objected to McSherry’s second mention of the polygraph test, which was

granted by the trial court. At this point, however, the jury had already heard this exact

testimony. Stated differently, the jury was already informed that polygraph testing may be

a component of sex offender treatment by the time Brooks’s counsel lodged an objection.

Therefore, we find that his objection was untimely and not made at the earliest possible

16
opportunity to inform the trial court of the basis for the objection. See TEX. R. APP. P.

33.1(a)(1)(A); see also Null, 690 S.W.3d at 318. Brooks’s failure to make a timely, specific

objection to the polygraph testimony prevents our appellate review on his second issue.

See Young, 137 S.W.3d at 70; see also Green v. State, 713 S.W.3d 865, 885 (Tex. Crim.

App. 2025) (reasoning that objecting to testimony or moving for mistrial “is untimely if it is

raised after the question has been asked and answered”).

Even assuming Brooks preserved his complaint for our review, we disagree that

the trial court abused its discretion in denying his motion for mistrial. We first assess the

severity of the misconduct. Hawkins, 135 S.W.3d at 77. In Hawkins, the Texas Court of

Criminal Appeals noted that “we continue[] to equate ‘severity of the misconduct’ with its

prejudicial effect. . . . [P]articularly offensive or outrageous conduct generally gives rise

to a natural inference of prejudice and can be considered as such, even when prejudice

is not otherwise apparent from the record.” Id. at 77–78. Under Texas law, when a witness

gives a nonresponsive answer that mentions a polygraph test, we initially inquire into

whether the results of the test were revealed. Martines, 371 S.W.3d at 250–51. Here,

McSherry did not disclose the contents of a specific polygraph test administered to Brooks

nor mention if he was given a polygraph test.

Further, even when polygraph test results are not disclosed, we look to

“(1) whether the question exhibited bad faith by being designed to elicit that a polygraph

was taken or what the results of that polygraph were; and (2) whether the effect of the

evidence is to impeach the defendant’s defensive theory or to bolster the State’s case.”

Id. at 250. Here, the State told McSherry to “walk us through what [a sex offender] ha[s]

to do in terms of testing.” This statement was simply directing McSherry to explain the

17
intake process of sex offender treatment to the jury. Therefore, the record does not reflect

that the State made any attempt to specifically elicit a response from McSherry about a

polygraph test nor were any polygraph testing results revealed to the jury as a result of

the questioning. See id. Additionally, the record does not reflect that the State was

attempting to bolster its case. See id. Because of the foregoing reasoning, we do not

consider this conduct severe. We conclude that McSherry’s comments were not highly

prejudicial because the record reflects that there was no mention that polygraph results

were disclosed nor was there mention that Brooks took a polygraph test.

Next, we investigate any measures the trial court adopted to cure the misconduct.

See Hawkins, 135 S.W.3d at 77. Brooks’s trial counsel lodged an objection upon

McSherry’s second mention of a polygraph. In turn, the trial court sustained the objection,

struck the testimony from the record, and instructed the jury to disregard the testimony.

In viewing the record, we conclude that the trial court’s instruction to the jury to disregard

McSherry’s statements was sufficient to cure any error arising from a polygraph

reference. See Martines, 371 S.W.3d. at 252 (holding that “the trial court’s instruction to

the jury to disregard [an investigator’s] question to appellant sufficiently cured any error

arising from the reference to a polygraph examination”).

Finally, we review the certainty of the conviction absent the misconduct. See

Hawkins, 135 S.W.3d at 77. Texas Code of Criminal Procedure provides that the

uncorroborated testimony of a sexual assault victim who is seventeen years of age or

younger is sufficient to uphold a conviction. See TEX. CODE CRIM. PROC. ANN. art.

38.07(a)(b)(1). In a jury trial, “[t]he jury acts as the sole judge of the credibility of the

witnesses and may choose to believe all, some, or none of the testimony presented.”

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Garcia v. State, 667 S.W.3d 756, 762 (Tex. Crim. App. 2023). We find that there is

substantial and compelling evidence to support Brooks’s conviction. Here, Jane testified

that she turned ten years old on August 20, 1992. Jane further testified that in the summer

of 1992, Brooks touched her vagina and “penetrated [her] with his fingers.” Multiple

witnesses testified and made it apparent that Brooks was previously placed on community

supervision for sexually assaulting Jane. As expressly provided by the Texas Code of

Criminal Procedure, Jane’s uncorroborated testimony is sufficient for a jury to convict

Brooks of the offense of aggravated sexual assault of a child. See TEX. CODE CRIM. PROC.

ANN. art. 38.07(a)(b)(1). After our review of the entire record, we conclude that a jury

would have convicted Brooks regardless of McSherry’s general comments regarding the

fact that polygraph testing is a component of sex offender treatment.

Accordingly, we conclude that the trial court did not abuse its discretion in denying

Brooks’s motion for a mistrial. See Coble, 330 S.W.3d at 292; see also Garcia v. State,

907 S.W.2d 635, 639 (Tex. App.—Corpus Christi–Edinburg 1995), aff’d, 981 S.W.2d 683

(Tex. Crim. App. 1998) (finding no error when “there was no testimony that appellant

actually took a polygraph test” and no “results of the test were revealed to the jury.”).

Brooks’s second issue is overruled.

IV. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed on the
11th day of December, 2025.

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