Kenneth E. Tyler, Jr. v. The State of Texas--Appeal from 54th District Court of McLennan County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-06-00225-CR

Case Date: 11/15/2006

Plaintiff: Timothy Frye Patterson

Defendant: The State of Texas--Appeal from 42nd District Court of Taylor County

Preview:Timothy Frye Patterson v. The State of Texas--Appeal from 42nd District Court of Taylor County
11th Court of Appeals Eastland, Texas Opinion Timothy Frye Patterson Appellant Vs. No. 11-03-00374-CR -- Appeal from Taylor County State of Texas Appellee Timothy Frye Patterson entered a plea of guilty to the aggravated sexual assault of a nine-year-old girl. The trial court admonished appellant, accepted his plea, and ordered a presentence investigation report. After a hearing, the trial court convicted appellant and assessed his punishment at confinement for 15 years. We affirm. In his first issue on appeal, appellant contends that the trial court erred by excluding evidence pertaining to the results of his polygraph examination. Appellant sought to admit not only the report from his polygraph examination but also testimony from a licensed professional counselor concerning the results of his polygraph examination. The Court of Criminal Appeals has held that polygraph evidence is inadmissible for any purpose. Ross v. State, 133 S.W.3d 618, 625 (Tex.Cr.App.2004); Tennard v. State, 802 S.W.2d 678, 683 (Tex.Cr.App.1990), cert. den=d, 501 U.S. 1259 (1991). Therefore, the trial court did not err in excluding either the report or the testimony. The first issue is overruled. In his second issue on appeal, appellant contends that the trial court erred in denying his first amended motion for new trial. We disagree.

The trial court imposed the sentence in open court on August 22, 2003. On September 12, 2003, appellant filed a pro se motion for new trial on the grounds that the conviction was contrary to the law and the evidence.[1] On October 31, 2003, appellant=s appellate counsel tendered the first amended motion for new trial on the grounds of newly discovered evidence.[2] The first amended motion was not filed within 30 days from the date the sentence was imposed in open court and was not properly before the trial court. TEX.R.APP.P. 21.4(b). The trial court did not err in denying the first amended motion for new trial. Furthermore, error did not occur when the pro se motion for new trial was overruled by operation of law. The second issue is overruled. The judgment of the trial court is affirmed. W. G. ARNOT, III CHIEF JUSTICE June 16, 2005

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Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

[1]This pro se motion was filed within 30 days from the date the sentence was imposed in open court as required by TEX.R.APP.P. 21.4(a) and is considered timely for the purposes of extending the appellate timetable under TEX.R.APP.P. 26.2. Appellant has timely perfected this appeal. [2]We note that the gist of the newly discovered evidence contention in the first amended motion for new trial was whether it was the nine-year-old victim=s idea to sleep in the same bed with appellant and, thereby, whether the victim in some way consented to appellant=s digital penetration of her vagina. Under TEX. PEN. CODE ANN. ' 22.021(a)(1)(B)(I) & (A)(2)(B) (Vernon Supp. 2004 - 2005), consent is not an issue when the victim is younger than 14 years of age.

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