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Darlie Lynn ROUTIER

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Parricide
Number of victims: 2
Date of murders: June 6, 1996
Date of arrest: June 18, 1996
Date of birth: January 4, 1970
Victims profile: Two of her three children, Damon, 5, and Devon, 6
Method of murder: Stabbing with knife
Location: Rowlett, Texas, USA
Status: Sentenced to death on February 4, 1997
 
 

 
 

photo gallery 1

photo gallery 2

 

Darlie Routier's injuries

 
 

 

Office of the Medical Examiner
County of Dallas - Texas

 

Damon Routier autopsy (2.6 Mb)

Devon Routier autopsy (2.1 Mb)

 
 

 
 

 
 

 
 

Darlie Lynn Routier (born January 4, 1970) is an American woman from Rowlett, Texas, who was convicted of murdering her young son Damon, and is currently on death row awaiting execution by lethal injection. Two of her three children, Damon and Devon, were stabbed to death in the family's home on June 6, 1996. Routier was accused of killing both children but was only prosecuted for the murder of Damon, the younger of the two murdered boys.

Motive

The prosecution's contention was that Darlie Routier murdered her sons because of the family's financial difficulties. She was a full-time homemaker but her husband Darin, a small business owner, earned a relatively high income. This was later referred to as "living large" by her husband Darin Routier in an interview a few days after the deaths with Joe Munoz of KXAS Channel 5 in Dallas-Fort Worth. The family lived in a two-story home in a middle-class neighborhood, drove a mid-sized SUV, owned a used Jaguar automobile and a used boat.

Prosecutors described Routier as a pampered and materialistic woman with substantial debt, plummeting credit ratings, and little money in the bank who feared that her middle class lifestyle was about to end.

Murder

Darlie Routier testified that an intruder killed her children but police found inconsistencies between her report and the crime scene evidence.

During the 911 call, Routier can be heard saying that she'd found a knife on the floor. The 911 operator, thinking that Routier was speaking to her, told her not to touch anything, to which Routier responded that she had already touched it and picked it up and later said, "We could have gotten the prints, maybe."

Although Dr. Alejandro Santos and Dr. Patrick Dillawn referred to Routier's wounds as superficial, her neck wound came within two millimeters of her carotid artery. Blood spatter expert Tom Bevel testified that cast-off blood found on the back of Routier's nightshirt indicated that she had raised the knife over her head as she withdrew it from each boy to stab again.

Routier's bloody footprints were found underneath a vacuum cleaner and broken glass, indicating those items had been placed there after she went through the kitchen instead of before, as she'd claimed. In spite of broken glass being in the path of her bloody footprints, Routier had no corresponding injuries to her feet.

Newscasts appeared of Darlie Routier and other family members holding a birthday party at the children's grave to celebrate posthumously Devon's 7th birthday, just eight days after the murders. Routier, smiling and laughing, appeared jovial as she sprayed Silly String on the graves in celebration of Devon's birthday.

Four days later, Routier was charged with capital murder.

Sentencing

Routier was ultimately convicted of murdering the younger of her two sons, and was sentenced to death by lethal injection. Prosecutors did not try Routier for the death of her older son, holding his murder in reserve in the event she was acquitted in the first murder trial or her conviction was overturned on appeal, as there is no statute of limitations on any murder charge in Texas. Routier's defense attorney, Douglas Mulder, was the prosecutor responsible for the wrongful conviction and subsequent death penalty (both since overturned) of Randall Adams in 1977. The Adams case is profiled in the documentary The Thin Blue Line.

Divorce

In June 2011 Darin Routier filed for divorce, having remained married to Routier after the murder of their sons. Darin Routier stated that the decision to divorce was mutual and "very difficult," and that he still believes his wife is innocent. He went on to say that they decided on the divorce to move on from the "limbo" they've been in since her arrest and conviction.

Innocence claims

Routier's family maintains a website which proclaims her innocence and a new site has been created by Routier's supporters to present their views and claims of her innocence.

Defense attorneys allege that errors were made during her trial and the investigation of the murders, especially at the crime scene. They also claim that there is significant exculpatory evidence which was improperly excluded, while questionable prosecution evidence was improperly allowed into evidence. Despite these claims, Routier's appeals have continually failed.

Current status

Routier's appeals have been remanded to the state level for improved DNA testing. Once all state-level testing has been completed, the testing ordered by the federal courts will begin. Routier remains incarcerated on death row located in Gatesville, Texas at the Mountain View Unit of the Texas Department Of Criminal Justice. She is assigned Department of Criminal Justice Identification Number 00999220.

Wikipedia.org


Darlie Routier: Doting Mother/Deadly Mother

By Joseph Geringer - Trutv.com


Preface

In 1997, a court found Darlie Lynn Routier guilty of probably the worst of human crimes: killing two of her natural children in cold-blood. Motive is still a mystery, but the prosecution painted her as a shrewish, materialistic young woman who, sensing her lavish lifestyle crumbling, slew her two sons Damon and Devon in a mad attempt to resuscitate her and her husband's personal economy.

The following story relates the events of the murder and those leading up to her sensational trial, resulting in her conveyance to death row in Dallas, where she awaits death through lethal injection. The evidence against Darlie was damaging and, in retrospect, her defending counsel had little hope for her acquittal.

But, recent findings in her case have cast a doubt over her guilt at least over the legalities that brought her thumbs down to death row. Therefore, the final chapter in this report is dedicated to the most recent controversy that may result in a new trial for Darlie Lynn Routier.


June 6, 1996

Dawn had not yet arrived over the posh neighborhood of Dalrock Heights Addition, near Rowlett, Texas, and in a bird's eye view the usually safe-and-coddled environs of the upper-class community looked peaceful and tranquil before the new day. But, at 5801 Eagle Drive, discordance roared. Evil rampaged.

The first outsider to hear of the troubles raging within was Doris Trammell, night dispatcher for the Rowlett Police Department. She was surprised when the emergency phone rang at 2:31 a.m. troubles were few there, for it was the kind of community known as a safe haven from the rest of the world, a place to raise a family but her nonchalance was jolted. A hysterical female voice at the other end of the line was telling a terrible story.

The voice screamed, "Somebody broke in to our house...They just stabbed me and my children..." Trammell shocked upright in her chair, captured her senses, then tried to calm the woman, tried to get the details in as orderly manner as possible. But, the caller continued to scream panic-stricken into the mouthpiece from her home..."My little boys are dying! Oh my God, my babies are dying!"

Trammell's fingers scrambled for and punched the main police unit line; she side-mouthed into the microphone, "Stand by for medical emergency, woman and children stabbed!" then advised the woman at the other end to hold on while she summoned an ambulance. But the woman continued to sob and yelp, without hesitation, "My babies are dying! My babies are dying!"

"Ma'am, please calm down, tell me what's happened!" the dispatcher begged, but the woman was incoherent and Trammell grew more confounded. Drawing up her computer screen, she traced the call by its caller ID to a number belonging to a Darin and Darlie Routier (pronounced Roo-tear) at 5801 Eagle Drive. After several more pleas, Trammell convinced the party at the other end to subdue, to take a deep breath, to explain what was happening over there. The dispatcher still could not believe what she was hearing. Murder in peaceful Rowlett?


A Terrible Scene

Darlie Routier, the caller, spurted, sobbed, gasped and moaned a terrible tale unheard of in the up-until-then pleasant, placid suburb. "While I was sleeping...me and my little boys were sleeping downstairs...someone came in...stabbed my babies.... stabbed me...I woke up...I was fighting...he ran out through the garage...threw the knife down..."

"How old are your boys?" Trammell pursued, and learned that the injured children were six and five. Devon and Damon were their names. In the meantime, a squad had detected the emergency vehicle wired by Trammell and reported to the dispatcher it was on its way to the Routier address.

Twenty-eight-year-old Darin Routier had been awakened from sleep upstairs by his wife Darlie's screams and now rushed downstairs into the family's entertainment room. Before he had gone to bed hours earlier, the last he had seen of that den was a domestic scene: his children lying on the floor watching their big screen television and Darlie lying on the sofa near them, looking sexy in her Victoria's Secret nightshirt.

Now, his two boys, Devon and Damon, lay blood-soaked while Darlie, her nightshirt covered in blood, paced in a paroxysm of panic shouting at the police dispatcher into the portable phone. Says Barbara Davis in her book, Precious Angels, "He saw blood everywhere... Darin rushed to Devon's side (and) saw two huge gashes in his son's chest where the six-year-old had been stabbed repeatedly. Checking for a pulse and feeling none, he looked at Devon's face. Eyes wide open...stared vacantly back." He then turned towards the other boy, five-year-old Damon, lying near a wall, his back to the room. "A small amount of blood was oozing through the back of his shorts," writes Davis. "Damon's lungs rattled as he struggled to suck in air.

"Torn between two sons, the horrified father momentarily panicked, then made the decision to begin cardiopulmonary resuscitation on the son who was not breathing. Darin placed his hand over Devon's nose and breathed into his child's mouth. Blood sprayed back onto the father's face."

Policeman David Waddell was the first officer to arrive on the scene; he could not believe what he saw, had never seen anything like this as a lawman in that town. He sickened at the sight and the overwhelming smell of blood. Breathing deeply to contain his senses, the officer quickly surveyed the two children one appeared dead, the other with but a hint of a pulse and instructed Darlie to lay towels across Damon and apply pressure to his wounds. She ignored him which he thought strange, even in her frantic state but only continued to scream at the officer that the intruder might still be in the garage where he had fled.

Waddell was soon joined by another policeman, Sergeant Matthew Walling, and by a paramedic team of Jack Kolbye and Brian Koschak. Like Waddell, they paused at the threshold of the scene, momentarily disarmed by the top-heavy staleness of death. The paramedics immediately realized that they couldn't handle this carnage alone two children dead or dying and an adult woman soaked in blood, a bloody rag pressed to her throat and radioed for backup.


Futile Efforts

Aside, Waddell briefed his sergeant. Together, they followed a path of blood through the house, from the entertainment room to the attached garage, accessible through the kitchen and a small utility room out back. Throwing their beam into the darkness of the garage until they found the light switch, they moved forward, revolvers drawn. They encountered no stranger along the route. However, they noticed that the screen on a side window of the garage had been visibly slashed down its center.

Realizing the attacker might still be in the house, the policemen checked out every room upstairs and down, every nook, closet and cranny in the house. Pausing now to take in the state of the kitchen, through which the killer was said to flee, noted its disarray its tiled floor spattered by blood; a vacuum cleaner knocked over as if in tumult, and, most ominous, a bloodied butcher knife resting silent now atop the island countertop. Beside the blade curiously lay a woman's latched purse and a set of women's expensive-looking jewelry, strangely untouched.

Upstairs they came across a third child, an infant, whimpering in its crib. Gently lifting the baby boy, Sgt. Walling examined him for bruises, but found none. Darin Routier, who met them below the steps, explained the child was their youngest, Drake, six months old.

The pair of paramedics had, in the meantime, been joined by three others Larry Byford, Eric Zimmerman and Rick Coleman. It had already become terribly clear that Damon was still alive, albeit barely, but that his brother Devon had died; the latter's eyes stared lifeless to the ceiling. Coleman had hastily assembled an IV tube to hopefully sustain the dying until they reached the hospital.

Assessing both boys' wounds, the medics noted two particularly large gashes, identifiably knife thrusts, in each of their chests. The thrusts had penetrated the children's lungs. Devon had died gasping, a horrible death. Damon's lungs, too, strained for oxygen, undeniably suffering the same fate that had claimed his sibling. Kolbye scooped Damon in his arms and maneuvered to the stretcher. He thought he heard the boy's death rattle, sounding as though his lungs expelled what little air they contained.

With the assistance of Coleman, Kolbye performed chest compressions to keep the boy alive. Wheeling him to the curb side ambulance, he simultaneously sluiced air to the trachea that the boy might receive precious air. The medics continued offering life-saving maneuvers the entire way to Baylor Medical Center across town, but the child died before they reached it.


The intruder

In the meantime, the K-9 unit had arrived on Eagle Drive, its animals unmuzzled and sent sniffing. Officer Waddell briefed its commander on the case and joined the team for a search of the neighborhood roundabout. This, while Sgt. Walling managed to calm the frantic Mrs. Routier on the front porch. While they gauzed her bleeding, she told the sergeant what she had told Waddell earlier: that an intruder had entered her home and mounted her on the sofa while she slept; she had awakened to him, screamed, and, after struggling with him, warding off his blows, he absconded toward the garage. It was then she noticed that he had left behind her two butchered boys. Of his attack on them, she had heard nothing.

She halted and grimaced as paramedics Koschak and Byford applied an IV line into her arm, then paused again as they placed Steri-Strips across a shallow but ugly throat cut. Recuperating from the smarting applications, she continued to speak to the policeman. She described her attacker as a man of medium-to-tall height, dressed entirely in black: T-shirt, jeans and baseball cap.

Three o'clock a.m., and Welling had concluded his interview. He stepped aside as the paramedics escorted her to their ambulance. She required further medical aid at Baylor Center. Darin told her he would follow; much too shaken to drive, he called on neighbor Tom Neal to drive him. Neal's wife remained behind to baby-sit infant Drake.

The Routiers were on their way to the hospital, but the police remained at their premises. In fact, their ranks grew in number. Squads drew up as an army, their rolling flashers severing the darkness to rudely lighten the cul-de-sac where the Routiers lived. Neighbors, roused from their beds, emerged from their dark homes to their assorted yards to gape as troops of dark uniforms flanked in marching fashion around and through the Routier house, across its lawn, through its colonial-style front door. Under the glare of the torch, police threw up a cordon around the property. The staring citizens had never expected to see anything like this in Rowlett, here in the crime-free suburb of Dalrock Heights Addition. Especially on their own street.


Suspicions

Because of its severity, the crime scene drew Rowlett's law enforcement honchos. Among them were Lieutenant Grant Jack, commander of the Investigative Division. Summoned from his bed, he arrived shortly after 3 a.m. and viewed the battle-hardened appearance of Eagle Drive.

In the foyer of 5801, he met Detective Jimmy Patterson, a veteran of the Crimes Against Persons Division, who pointed out the Routier child, Devon, still lying under a blanket. He explained what he knew up to this time concerning the slayings that the mother claimed a stranger had committed the atrocities and a butcher knife (murder weapon) lay where the police found it, on the kitchenette counter, bloodied. The mother, said Patterson, had put it there after lifting it off the floor after the killer dropped it.

As the two professionals conferred, their forces uniformed and in plain clothes steam-rolled throughout the home's many rooms looking for suspicious objects and possible clues. Ascending the Routier's circular staircase to the second floor, a couple of them were accosted by a yapping white Pomeranian that rounded the upper landing to hold them at bay; the animal nipped Patrolman Mark Wyman's trouser leg. Karen Neal, on hand, rushed to the rescue.

"It's Karen, Domain, Karen! Now leave the policemen alone and get in your corner!" she scolded. Corralling Domain, she apologized to the police and explained that the dog was averse to strangers. The patrolmen, and probably Karen Neal too, wondered where this watchdog had been during the all-important time of break-in. He might have saved two lives.

Lieutenant Jack, a professional in the law enforcement field for more than 20 years, had never witnessed slaughter like this in such a peaceful, suburban community; it left him pondering the creature that caused this, that walked on two feet and called itself human. And when the morgue attendants zipped what was left of little Devon into the standard black plastic body bag, the officer, who considered himself a pretty tough person, turned his face away to bawl like a baby.

"For months, when I'd came home from work, I'd walk into my five-year-old's room to check on him," Jack later recalled. "When I looked at my son sleeping, I didn't see him, I saw Damon in the morgue and Devon on the floor...I just couldn't shake the vision."

But, it wasn't just the physicality that gnawed at Jack. It was something else. Something deep under that warned his psyche: Something doesn't add up here. Patterson felt it, too, and admitted it. A strong sense of the macabre crept into their bones.

Jack put Patterson and his partner, Chris Frosch, in charge of the investigation; he sent Frosch to the hospital, in fact, to interview Mrs. Routier at first chance. He needed to get as much detailed information as he could about what happened in this house to cause such blood-letting and havoc. So far, too many blanks existed. And too many suspicions, Maybe wayward, maybe premature.

Eagle Drive had become a rush. Media crews had assembled and cameras flashed in the darkness, catching police activity. The whiteness of their spotlights illumined the pre-dawn hours and mingled with the colors of the squads' rotating "cherry" beams to stroke a bizarre texture of light across the dark canvas somewhat, Jack thought, like the thread-thin line between nightmare and awakening. The lieutenant squinted into the light of the overheads and shook his head at the attention these tragedies always attract.

Away from the ears of the cameramen, Sgt. Walling drew his superior into his confidence; he looked stunned. "Lieutenant, you won't believe what Mr. Routier said to me right before he left to go to the hospital with his wife. He turned to me and I swear to God he said, 'Golly, I guess this is the biggest thing Rowlett's ever had.' The man had two of his children slaughtered tonight, and he's acting like the damn circus is in town!"

No, Jack thought to himself, things didn't add up.


2+2=3

The Routier home buzzed with stark-faced policemen taking stark notes, shooting stark crime photos, dusting for fingerprints that would tell a stark tale. In the kitchenette, something very telling had occurred. Sgt. Nabors thought it was strange that the sink was spotless and white while the floors and edges of the countertop around and above it were blood-smudged. And if someone had taken the effort to clean the sink of blood why? His job being to process blood traces at a crime scene, Nabors went to work.

"(He) conducted a test to detect the presence of human blood that cannot be seen with the naked eye," explains the book, Precious Angels. "The chemical compound Luminol is the tool that investigators use for this test. If the white crystalline compound in the Luminol detects the copper component found in human blood, the area sprayed becomes luminescent, casting a brilliant bluish light. The sergeant sprayed the sink and the surrounding counter. When the lights were switched off, the entire sink basin and the surrounding counter glowed in the dark."

Repeating this process on the leatherette sofa, the detective found a small child's handprint glowing iridescent blue near the edge where Damon had been stabbed. Like the blood in the kitchen, someone had wiped it away. Again why?

Simultaneously to Nabors' findings, crime scene consultant James Cron found other variables of the case out of sync. Like Sgt. Nabors, he realized what appeared to be wasn't. The moment he arrived at 5801 Eagle Drive, his years of experience told him, as he began taking mental notes, that Darlie Routier's testimony of what happened didn't.

Mrs. Routier had stated she believed the killer had gotten in and escaped through the garage. Indeed, Cron found, as the woman said, a slit screen on the side of the house, in the garage but he knew at first glance it was a no-go. The screen showed no signs of having been forcibly pushed in or out to allow a body through its netting, but even more telling was the fact that the screen's frame was easily removable. Any criminal with an idiot's IQ would have simply taken it off its setting. Additionally, the ground below the window, comprised of a dewy, wet mulch, was undisturbed. Perhaps, he figured, the woman in her panicked condition may have been wrong perhaps the intruder had found other ingress and egress so he rounded the entire home for other visible indications of breaking and entry. He found none.


Crime Scene Tells Story

Returning inside, he followed the bloody footprints. They indeed led from the room where the children were slain through to a utility room then onto the concrete floor of the garage, trailing off below its window. But, again, the screen seemed an unlikely escape port. Doubling that suspicion, the dust on the sill was undisturbed, there were no hand prints, bloody or otherwise, around the window; odd, since the killer in forcing his way through the window would have had to hang onto the walls for balance!

The investigator double-tracked to the yard, this time looking for drops of blood left behind by the slayer in flight. Surely, his savagery had produced vast amounts of blood and his clothing would have been dripping with it yet there were no apparent traces beyond the interior of the house. Not on the mulch below the window, not on the yard's manicured lawn, not along nor atop the six-foot high fence that surrounded the yard, not in the alley. The blood was contained within the house. Nowhere else.

In the entertainment room where Darlie described a struggle, Cron found little evidence of a melee having taken place. The lampshade was askew, and an expensive flower arrangement lay beside the coffee table. Nothing more out of place. He found, in fact, the fragile stems of the flowers unbroken as if the arrangement hadn't fallen, but been placed there.

In the kitchenette, only Darlie's bloodied footprints were visible. Pieces of a shattered wineglass, too, lay among the prints, and a vacuum cleaner had been deposited on its side. Blood underneath these items indicated, to him, that they were dropped after not before, nor during the violence.

Atop the kitchen counter sat Darlie's purse, which appeared in order and undisturbed, and several pieces of jewelry rings, a bracelet and a watch aligned in order, untouched.

Reports author Barbara Davis in Precious Angels: "Everything the professional saw at the crime scene disturbed him. The lack of a blood trail away from the home coupled with virtually no signs of a struggle bothered him most."

Late afternoon, after his thorough and all-day examination, he summarized his findings for Lt. Jack and Sgt. Walling. "We all know the crime scene tells the story. Problem is," he nodded, "that story's not the same one the mother's telling. Somebody inside this house did this thing. Gentlemen, there was no intruder."


The Trauma Room

Months later, in court, the prosecution would attempt to demonstrate Darlie Routier as a heartless, cold-blooded killer. Much of their testimony came from the staff of Baylor Medical Center, where the dead boys were delivered and where Darlie Routier was admitted for observation. Almost immediately, the hospital's personnel sensed something amiss with the mother, for while she outwardly seemed agitated by her tragedy, repeating over and over "Who could have done this to my boys?" her reaction struck them as insincere and artificial.

Trauma nurse Jody Fitts, an RN for eight years, recalls, "Darlie was wheeled by Trauma Room 1, where her dead child was. She glanced over there, and I was very concerned she would get more upset. His physical condition alone was disconcerting. He was nude and covered head to toe in blood. Tubes were still held in place with tape, and brown bags had been placed around his little-bitty hands to preserve any possible evidence. It was a very stressful and horrible sight...I'll never forget it. (Darlie) saw him. She had absolutely no response, just turned her head back and stared straight ahead cold as ice."

Checking the woman's condition, examining doctors Santos and Dillawn found the mother's wounds superficial. Under the scratches and blood, they uncovered some minor cuts, which they stitched, and a gash on the throat. While the later left a sickening sight, it was not dangerous, they asserted. The platysma, a sheath protecting the jugular vain, was uncut. Santos, nevertheless, made the decision to keep her in check for several days, considering the strain of the ordeal she suffered. She was berthed in the Intensive Care Unit (ICU) under supervision and hooked up to the procedural heart monitor, IV and oxygen tank.


Indifference

On Thursday, the day after the murders, Darlie was again interviewed by the police, this time by detectives Jimmy Patterson and Chris Frosch. She reiterated her story of the attack. Her description was slightly more detailed than before:

"I woke up hearing my son Damon saying 'Mommy Mommy,' as he tugged on my nightshirt. I opened my eyes and felt a man get off me. I got up to chase after him. As I flipped the light in the kitchen on, I saw him open his hand and let the knife drop to the floor. Then he ran out through the garage. I went over and picked up the knife. I shouldn't have picked it up. I probably covered up the fingerprints. I shouldn't have picked it up.

"I looked over and saw my two babies with blood all over them. I didn't realize my own throat had been cut until I saw myself in a mirror. I screamed out to my husband."

Male nurse Christopher Wielgosz was on hand during the interview. He noted how she continuously seemed to admonish herself even to other hospital personnel before and after the interview for picking up the murder weapon and erasing the intruder's fingerprints. It seemed as if she wanted the point driven home why her finger prints were on that knife.

Various other staff members who attended to Darlie throughout her short stay at Baylor complained that she seemed far removed from despair, even cold to the situation. Nurse Jody Cotner describes the scene she saw while Darlie's family visited after she was admitted to the ICU: "Her mother, Darlie Kee, and her little sister, God bless their hearts ...they were hysterical. I probably held her sister I don't know how long. They were all sobbing. All except Darlie."

Cotner, who has worked with trauma patients for more than a decade, adds, "The reaction of people who lose their children is a wide range of emotions, bur mothers are always inconsolable (but) in my entire nursing experience I have never seen a reaction like Darlie's."

Paige Campbell's remarks echo Cotner's. Says Nurse Campbell, "People react differently, but there is a commonality when someone...sees someone they love die. But I had never seen a reaction like Darlie's before. There were tissues by the bed, but she never took one."

Denise Faulk, a nurse who attended to Darlie during her first night in the ICU was so bothered by Darlie's nonchalance that she went home after her tour of duty and recorded her observations of the woman's behavior. Responsible for washing the blood off Darlie's feet, she had expected the woman to break down. But, she noted, the mother had displayed complete indifference.

Dr. Santos released his patient on Saturday morning so she could attend her sons' wake that evening at Rest Haven Funeral Home. Detectives Patterson and Frosch, however, first escorted Darlie and her husband Darin to the station house for statements. Procedurally given the Miranda Rights, Darlie wrote her official statement, which recalled the events of the preceding Wednesday morning. In this version she penned that she was awakened by Damon who was still standing on his feet when he uttered 'Mommy Mommy'.

In the anteroom, Patterson explained to Lt. Jack something he had caught in his last conversation with Mrs. Routier while she was still bedridden. When he had mentioned to her that her dog Domain had tried to bite a patrolman, she fleetingly remarked, "Oh, he always goes off like that when someone he doesn't know walks in the door." Jack gave him a I hope you made a note of that expression, in return.


I'm Sorry

Family, friends and neighbors turned out that Saturday evening at the funeral parlor. The boys were suited in tiny tuxedos in separate walnut caskets, enveloped by roses of red and white. Upon entering the chapel, Darlie knelt at their sides and whispered to them (Detective Frosch overheard), "I'm sorry." She then wailed, "Who could have done this to my children?"

After Darin calmed her down, mourners strode forward to express their condolences. One mourner, Helina Czaban, who sometimes performed general housekeeping duties for the Routiers, was thrown off balance by her employer's remarks.

When she told Darlie how sorry she was for the tragedy, adding, "...and now this expensive funeral to add to your problems," Darlie replied, "I'm not worried. I'll get five-thousand dollars each for both of the boys."

During the hour-long service the next day, "she didn't wipe her eyes," exclaimed a relative, "never cried... There is no mistaking grief."

According to Barbara Davis' Precious Angels, "As the families tried to comfort Darin, Darlie busied herself by looking at the names on the flower arrangements and comforting her relatives... The family would try to excuse Darlie's lack of emotion by blaming the pills (Xanax) the doctor had prescribed. As the family wept before the boys' coffins, Darlie made the comment that she had to be sure to send thank-you notes to all who sent flowers. After all, it was the proper thing to do."


Darlie

Blonde, hazel-eyed Darlie was born in Altoona, Pennsylvania, on January 4, 1970, the first-born child of Darlie and Larry Peck. Doted on as a child, her first encounter with the harshness of life occurred at seven years old, when her parents divorced and the domestic security she knew tilted. A year later, her mother remarried a man named Dennis Stahl and, as Darlie entered her teens, the family moved to the vastly different climate of Lubbock, Texas.

Little Darlie and her siblings two natural and two step sisters got on together well and helped each other through the difficult transition of hometowns and schools. The toughest part of their young lives was having to endure their parents' constant squabbling and sometimes violent fighting. Eventually, the Stahl's marriage faded and Darlie's mother was once again in search of a new spouse and her girls were without a father figure.

Darlie, despite her new surroundings, emerged from a shy cocoon into a blossoming, sometimes (according to classmates) over-showy teenager. Boys were attracted to her, including one named Darin Routier. As a teenager, he worked as a busboy in a Western Sizzler restaurant alongside Mama Darlie. The mother found him a bright, talkative good-looking boy with ambitious plans for his future; he would be, she figured, a good catch for her oldest daughter. Playing matchmaker, she introduced the two kids and by all reports it was love at first sight for both of them. The dark-haired tall boy with wavy hair flipped for the five-foot-three, heart-faced Lubbock belle with the big eyes. And she, in turn, for him.

They dated in high school and continued to correspond after Darin, two years older than she, went away to a technical college in Dallas. A preface of things to come occurred at Darin's going-away party. There, according to a friend named, Darlie showed a possessive and cunning nature that lay hidden under her surface sweetness. Darlie was annoyed that she wasn't getting enough attention, so she left the party. Then she came back frantic, claiming that someone had tried to rape her. That ruse gave her just the attention that she craved.

After graduating high school, Darlie joined her boyfriend in Dallas where he had been hired as a technician at a computer chip company. Landing a job with the same firm, the couple lived together while saving their money until, in August of 1988, they married. The couple honeymooned first-class in Jamaica.

Returning to Texas, the couple at first moved into an apartment in Garland, close to where Darin worked, learning the computer chip industry, a booming field. Within the year, they relocated to a small home in Rowlett. Here, Darin started a company, Testnec, that tested circuit boards for computers and operated it out of their home.


Trouble in Paradise

Returning to Texas, the couple at first moved into an apartment in Garland, close to where Darin worked, learning the computer chip industry, a booming field. Within the year, they relocated to a small home in Rowlett. Here, Darin started a company, Testnec, that tested circuit boards for computers and operated it out of their home.

Their first child was born on June 14, 1989 a healthy boy named Devon Rush to be followed by another son on February 19, 1991 Damon Christian. With two children and a home company that grew so fast that the owners found it necessary to buy space in an upscale office building, the Routiers' life seemed to be following the quality dream of the new American family.

By 1992, their company had earned them a small fortune. The up-and-coming couple yearned to practice the prestige due them and had a house built in Dalrock Heights Addition, an affluent suburb of Rowlett, adjacent to Lake Ray Hubbard. This community of upper-class businessmen and women bragged crime-free streets and happy families.

The $130,000 two-story home of Georgian design resembled a miniature mansion with classic porch, colonial shutters and a working fountain on the front lawn.

Complementing their new life, the family boasted a Jaguar, sitting waxed and gleaming in a circular driveway.

Darlie was happy. And she was a very good mother, doting on her two children, living to celebrate the good times with them. At Christmas, their house was the most illumined, at Halloween their windows displayed more goblins than any other, at Thanksgiving the Routier's turkey was the largest and most flavorful. On the children's birthdays, Darlie threw gorgeous parties inviting classmates for an afternoon of frolic in their spacious entertainment center.

But, there was another side of Darlie, claim some who knew her a side that loved to show off to cover a low self-esteem. She reveled in materialism and impression, often to the point of the bizarre. When she decided to get breast implants, she opted for size EE like the kind women had in Playboy and Penthouse. When she bought clothes, they were revealing outfits she wore out for a night's dancing just to grab the attention of onlookers. Her wardrobe bills skyrocketed.

Darlie's detractors say that her need to be the flashiest, gaudiest eventually overcame everything else in her life including her children. Neighbors complained that Damon and Devon, not far past the toddler stage, were left unsupervised. And when she did attend to them, she often seemed bothered at having to take the time to do so. Her patience with them decreased.

Roots of domestic problems surfaced. Celebrants at a Christmas party silently watched as Darlie and Darin argued violently when Darlie danced too many times with another man. There were rumors of extramarital dating by both partners. But, the couple continued to play the surface charade, buying buying, buying. They bought a 27-foot cabin cruiser and a space at the dock to board it at the exclusive Lake Ray Hubbard Marina.

Friends who were aware of their problems were happy when Darlie became pregnant early in 1995; they counted on the new baby as the common denominator to re-new the couple's love for each other. But, after Drake was born on October 18, 1995, the mother suffered postpartum depression. Mood swings drew sudden tempers and dark rages.

Not helping matters was the state of their finances, which, despite good business profits from Testnec, did not meet the exorbitant lifestyle Darlie and Darin preferred to live and had grown used to. Ends suddenly did not meet.

Asserts Barbara Davis in Precious Angels: "Testnec would gross more than a quarter of a million dollars (in 1995). Almost $12,000 worth of new equipment was purchased for the flourishing business. The Routiers' tax return for the year indicated a gross income of $264,000. With a profit range of 40 percent, the couple netted a little over $100,000."

Darlie was unable to shed the weight gain she had acquired since her last pregnancy and grew increasingly antagonistic. She dropped diet pills that didn't work. A fact that, when the couple battled, Darin would remind her of, knowing he'd hit her tender spot

Cost-cutting measures ignored, spending sprees accelerating, their financial troubles deepened. The toll on their serenity was excruciating. Testnec was losing money and Darin was unable to pay himself the salary he required, nor pay Darlie anything at all for doing the books, which she had let go in her depression. Creditors fell upon them, demanding late bills. On Saturday, June 1, their bank denied them a much-needed loan of $5,000.

Darlie sporadically kept a diary. There were times she would attend to it daily, followed by long absences. On May 3, 1996, contemplating suicide, she wrote, "Devon, Damon and Drake, I hope you will forgive me for what I am about to do. My life has been such a hard fight for a long time, and I just can't find the strength to keep fighting anymore. I love you three more than anything else in this world and I want all three of you to be healthy and happy and I don't want you to see a miserable person every time you look at me..."

Darin walked in on her while she was writing and noticed the tears swelling in her eyes. She broke down and confessed the terrible thoughts of suicide that had been running hot through her brain. He held her and they talked long into the afternoon. By the end of the conversation, she had calmed. For one afternoon, they loved each other again.

A month later something snapped. And flushed up hell.


Of Shadows and Silly String

Darlie Routier had not yet returned to her home on Eagle Drive since that horrible morning; she, Darin and baby Drake had been staying with Mama Darlie in Plano. Needing some articles of clothing, she telephoned her friend Mercedes Adams a few days after the funeral to ask if she would mind driving her there. Mercedes complied, but expected Darlie to buckle under upon walking into the place that took the lives of her two sons. The girlfriend was in for an awakening.

Death lingered in the foyer, but Darlie, Mercedes noted, charged onto the scene seemingly unaware and like a bull elephant, arms akimbo, shouted, "Look at this mess! It'll cost us a fortune to fix this shit!"

"Right there where her boys were killed, and that's the first thing she said to me. I put my hands on Darlie's shoulders and said, 'Darlie, look me in the eye and tell me you didn't kill the boys.' She looked me in the eye and said, 'I'm gonna get new carpet, new drapes, and fix this room all up.' I couldn't believe it."

Back at the Rowlett Police Station, questions loomed. Among them: 1) What was the motive for the murders? 2) If a robbery, why was Darlie's jewelry and purse left untouched? 3) Why would an intruder kill two children before dispatching the adult, who posed a more serious threat? 4) Why would the killer, who obviously had no scruples about murdering a pair of small boys, back off when Darlie awoke, leaving a witness alive to identify him? 5) Why would he drop the murder weapon on the floor, giving Darlie, his pursuer, a weapon in which to fight back? 6) Why would he have used the Routiers' butcher knife in the first place? (Assailants come to their intended victim's premises already armed.) 7) Why were there no visible signs of an intruder footprints, handprints, drops of blood beyond the house where he made his escape? And as questions mounted, it appeared that a bread knife owned by the Routiers might have been used to cut the garage screen, thus more questions: 8) Had the intruder used the Routier's bread knife to slash his way in? and 9) If so, how did he get the knife in the first place?

Detective Jimmy Patterson conferred with Dr. Townsend-Parchman, who had photographed Darlie's wounds allegedly received by the phantom intruder. While her boys were maliciously and forcefully attacked, her wounds were surface and bore trademarks of what doctors call "hesitation wounds" that is, the wounds indicated that the blade had slowly, deliberately, cut into her skin and, when pain was encountered, the person holding the blade reflexively withdrew it.

Rowlett police had turned to the FBI's Center for Analysis of Violent Crime in Quantico, Virginia, to evaluate and compare the wounds of the dead boys to those of Darlie. The FBI's Al Brantley, after studying the doctors' and coroner's reports as well as the crime findings in general attested that the wounds between sons and mother were indeed vastly different Darlie's superficial, Damon's and Devon's massive and mortal. The attack on the children was personal, said Brantley. "The killer focused on their chests," he emphasized, "almost as if going for their heart. That indicates extreme anger toward them."

Brantley reported other observations. "For a violent struggle to take place as the mother claimed, no real breakage occurred. After looking at the crime-scene photographs, it appeared to me that the intruder who committed this crime had a strong connection to the material items in the home. The living room was fairly small and compressed. Two adults fighting would have resulted in a lot more broken things. A lot of fragile items in the living room that should have taken the brunt of a struggle were not broken."

His conclusion: Damon's and Devon's slayer was someone who knew them and knew the premises. The entire scenario had been planned in advance and staged.


Gravesite Party

The most bizarre of post-murder episodes was yet to take place in what became the state's case against Darlie Lynn Routier. It was a birthday party eerily held graveside to celebrate Devon's seventh birthday posthumously!

Darlie and Darin Routier, infant Drake, Darlie's mother, 16-year-old-sister Dana who still lived at home with the elder Mama Darlie, and a few invited personal friends were the celebrants. Local television station KXAS-TV was on hand to record the strange event. Darlie told Joe Munoz, a reporter, that the family had planned a whopping birthday prior to her son's death and that she saw no reason now why he should have it deprived. To many of the NBC media crew on hand at Rest Haven Memorial Park that morning of June 14, it seemed like one of three things: either a bad PR attempt of Darlie's, a sincere but nave show of goodwill done in poor taste...or simple, plain, unmitigated lunacy.

Neither the Routiers nor the TV crew were aware that Jimmy Patterson's investigators were recording the party from a concealed camcorder, a microphone also having been planted nearby to catch any possible confessional remark.

A pastor opened the 45-minute ceremony over the grave, yet unmarked by a headstone. His sincere attempts to sanctify the moment, however, were overshadowed by what happened when he finished his eulogy. As horrified home viewers watched, Darlie began spraying a can of Silly String across the newly padded ground, laughing, chewing bubble gum and singing Happy Birthday. "I love you, Devon and Damon!" she cried.

To justify her actions, she afterward told Munoz, "If you knew (my sons), you'd know that they are up there in heaven having the biggest birthday party we could ever imagine. And though our hearts are breaking, they wouldn't want us to be unhappy. But they'll be a part of us always."

Responding to questions about her boys' mystery killer, she said, "The only thing that keeps me going is the hope that they will find that person. I have faith in God. I believe He will direct the police to that man."

Four days after the birthday party, on January 18, the Rowlett Police Department arrested Darlie Routier for the murder of her two children.


Preparing the Trial

Americans had been horrified at the destruction of two little boys' lives and now, with news that their mother might be their murderer, they were stunned. "Film crews and network anchors descended like locusts on the town," writes Barbara Davis in Precious Angels.

Darlie remained under custody at the Lew Starrett Justice Center, awaiting indictment. A Dallas County grand jury officially indicted her on June 28, on two counts of capital murder. That same day, Judge Mark Tolle, who would preside at her trial, issued a gag warrant that barred both the defense and prosecution from discussing the case with the media. This, of course, eliminated any of the direct players' participation on TV talk and radio shows.

Doug Parks, Darlie's court-appointed lawyer, presented a request to Judge Tolle on July 9, recommending that the trial be moved out of Dallas County where he claimed bad publicity would prejudice jury members. The motion went into consideration and before the trial would open on its scheduled date in January, 1997, it would indeed be moved to the town of Kerrville in neighboring Bexar County.

Parks' move was well orchestrated since, four days after, State Prosecutor Greg Davis announced in dramatic fashion that he would seek the death penalty. While such seemed unlikely the last woman to be executed in Texas was during the Civil War young but brilliant Davis had a knack for getting what he went after. Assisting him would be two rising prosecution attorneys, Sherri Wallace and Toby Shook.

Immediately after her incarceration, Darlie had demanded that she be given a polygraph� test, which the police agreed to administer. When she was informed that her husband Darin could not be present in the room during the test, she withdrew her request. However, she again changed her mind on advice from her defense team, but with a stipulation: that before she take the polygraph she exercise her right to take a private test first.

The results of that test were never formally released, but Darlie and her mother were seen immediately afterwards, sobbing relentlessly.

After the prosecution announced its death pursuit, the Routier in-laws hurriedly dropped the state-supplied lawyer assigned to Darlie and, knowing they needed big guns to fight back, mortgaged their homes to procure the services of headline defense attorney, Doug Mulder, late of the district attorney's office. To counteract the legal backup talent pressed against his client, he assembled a grade-A team, which included a retired FBI investigator.

Jury selection began October 16, 1996 in Kerrville. The process would take two days short of a month. Because of the media frenzy is Darlie guilty or isn't she? unfounded truths and rumors were flying amidst the tabloids and even major newspapers; lawyers from both sides wanted to ensure they had selected a jury worthy of the impartiality that a body of jurors was supposed to comprise. On November 14, they announced the voi dire complete: seven women and five men would be the final deciders of Darlie Routier's case after what promised to be a trial of high suspense.

Darin Routier, Mama Darlie and other family supporters took lodging in local hotels, where they would remain near the accused throughout the trial. Over his head in bills, Darin had by this time deserted the now-dreaded family home in Dalrock Heights Addition, transferring all personal possessions into storage. He let the mortgage payments lapse and, in mid-December, the mortgage company repossessed the property, six months in arrears.

It was claimed that at the time of foreclosure, the only reminder of the Routiers' lives there was a pair of little boys' gym shoes, left abandoned on the front porch.


The Trial Begins

Eyes and ears of the world were on Kerrville, Texas. Attests Barbara Davis' Precious Angels: "On Monday morning (January 6, 1997) crowds descended on the stately but tiny courthouse, buffeted by fierce winter winds...Visitors to the courthouse were subjected to rigorous security. Each had to pass through a metal-detector gate and hand over purses and briefcases to be searched...No newspapers, cameras or tape recorders were allowed."

The district attorney's office, being relentless, had decided to concentrate its initial armament against Darlie on the death of only one of her boys, Damon. Holding the capital murder indictment on Devon's death in limbo, they could use it as second-line support should the woman be acquitted or receive a life sentence.

When the indictment was recited first degree murder in the death of Damon Christian Routier Darlie stood facing the judge. Shouldered by her lawyer, Doug Mulder, she pleaded Not Guilty.

Curtain up on the long-awaited trial.

Chief Prosecutor Greg Davis' opening remarks thundered, "The evidence will show you, ladies and gentlemen, that Darlie Routier is a self-centered, materialistic woman cold enough to murder two precious children..." He vowed to prove how the facts of the case as found by experts did not match the mother's explanation of what happened in her home the night of the brutal killings.

Defense Attorney Mulder, in turn, painted Darlie as a caring mother who, like any other housewife, suffered personal problems and concerns. She was, he said, caught up in a maelstrom of fate. "And the State wants you to believe she became a psychotic killer in the blink of an eye?" he asked. "Well, folks, that's just absurd!"


The Prosecution

The trial would last nearly a month. Proceedings began with the introduction of the first witness for the State, Dr. Joanie McLaine from the medical examiner's office. Dr. McLaine explained the two defense wounds on Damon's body, indicating that he had struggled with his attacker before dying.

Coroner Janice Townsend-Parchman described the differences between the children's' savage wounds and Darlie's hesitation wounds, suggesting Darlie inflicted her wounds on herself.

Officer Waddell, the first policeman on the scene the morning of June 6, testified to the carnage that confronted him inside the Routier house when he entered. Jury members were shown crime scene photographs, which detailed the aftermath of the violence.

Following this dramatic play, paramedic Jack Kolbye related heart-tugging testimony of tending to little Damon and watching, despite any given life-saving measurements, the boy's final struggle for air through bloody, slashed lungs.

The first week's witness presentations ended on a very negative note for Darlie Lynn Routier. Following Kolbye's vivid story, fellow paramedic Larry Byford, who examined her in the ambulance on the way to the hospital, claimed that during the entire trip she didn't ask once about the condition of her children.

Over the next couple of weeks, verbal shrapnel continued to tear the accused apart, word by word, despite the defense's attempts for cover. Kicking off the second week of the prosecution's assault were two members of the Rowlett police force, Officer David Maynes, who discussed some of the evidence uncovered from the crime scene (including a section of white carpeting bearing Damon's bloodied handprint), and fingerprint expert Charles Hamilton, who, basically, told the jury that the only prints uncovered at the scene were Darlie's and her two children's'.

Investigator James Cron next detailed his search of a possible pursuer's flight through the Routier home, through the utility hall and garage, a very careful and scientifically based trek that failed to turn up clues of there ever having been an intruder. Summarizing, he said, "After my initial walk-through, I thought someone in the family had committed the murders and staged the scene. The further I got into my investigation, the more convinced I became."

Charles Linch, a trace-evidence expert, took the stand. Linch, an analyst for the Southwestern Institute of Forensic Sciences, supported Cron's claims. It was impossible, said he, for an intruder to have left the scene of the crime without leaving a trail of blood. Hammering this point home for the benefit of the court, the prosecution next delivered blood expert Tom Bevel, who professorially illustrated the velocity and direction of the blood found on Darlie's nightshirt. His finding was that her sons' blood found on the nightshirt had been literally sprayed onto it while she was in the act of various upswing motions in other words, stabbing/slicing gestures.

The state's final witness after weeks of hard-hitters was the hardest hitter of all, the FBI's special agent Al Brantley. He first listed the reasons why he disregarded an intruder among them, that the screen would not have been cut, but removed, and that the positioning of the Routier house, on a cul-de-sac and with a high fence, would have discouraged a burglar or rapist.

He addressed motive. Had a thief called, Darlie's jewelry, which was in the open and very visible, would have been taken. And as for attempted rape, as Darlie had suggested, sexual offenders assailing a woman would not have killed her children but used them as leverage to get her to submit.

And discussing the savagery expended on the young victims, he theorized that the attack was personal and done in extreme anger. Brantley concluded: "Someone who knew those children very well murdered them."


The Defense

By the time the defense opened its arguments, the case looked unsalvageable for its client. But, Doug Mulder and his team did the best with what they had to contradict and counteract the gallows material planted by Prosecutor Greg Davis.

Leading the defense's string of witnesses were friends, neighbors and relatives who had known Darlie for years and who vouched for her character. Reverend David Rogers, who officiated at the funeral, thought Darlie was "grieving appropriately." Friend Cara Byford spoke of Darlie's kindness and of how Darlie came to her after the murders for consolation since Cara had lost a four-month-old boy years previously. Next-door neighbor Karen Neal saw Darlie's grief as real and not at all artificial as the prosecution tried to paint.

Husband Darin Routier's presence in the witness box brought attention as he admitted to family problems due to financial woes, but attested that his wife was truly devastated by their boys' deaths. He choked back tears when he recalled the morning of the murder and his administration of CPR to Damon. "Darlie was running back and forth getting wet towels, going 'Oh my God! Oh, my God, he's dead!' I blew two or three times. She was over him trying to hold the gaps in his chest together. I knew he was dead in three minutes. I screamed at Officer Waddell, and Darlie tried to get him to go to the garage. All three of us were in shock."

A major impact in the prosecution's case had been the "hesitation" wounds on Darlie's throat. But Bexar County's medical examiner Dr. Vincent DiMaio, a professor of forensic pathology, tried to lay doubt that the woman's wounds were self-inflicted and "surface". Her throat slash, he claimed, had come within two millimeters of the carotid artery. As well, he diagnosed bruises on her arms as mass trauma coming from a blunt instrument and not self-given.

Since the prosecution had made much of Darlie's contradictory testimony before and after her arrest, attorney Mulder needed a reliable witness to express, in medical terms, how a suspect, having faced psychological trauma, often lapses in and out of memory. He found that witness in forensic psychologist Dr. Lisa Clayton. The expert had done much work on the homicidal mind.

Dr. Clayton had interviewed Darlie and believed her to be innocent, stating that she showed the typical blackout and distorted-memory symptoms of people who lived through a trauma and were forced to give a clear description of their encounter.

The final witness for the defense on January 29 was a surprise and, as it turned out for the defense itself a bad move: the accused, Darlie Lynn Routier. Mulder had tried to talk his client out of appearing, insisting that she would pit herself against cross-examination by a ruthless prosecution team that could make mincemeat out of anything she said. But, Darlie persisted.

The moment started off well as Mulder guided her through her life story, her dedicated motherhood to three children, her domestic ups and downs; he had her skillfully read excerpts from her diary that penetrated the shell of what the prosecution called a wicked woman to display a thoughtful, sometimes deep, person who recognized and cherished life's values. She explained that the Silly String used at the graveside during Devon's posthumous birthday party was brought by her younger sister, Dana, not her, as a symbol of the fun the little boys would have liked had they been alive. She remembered the night of the murder, emphasizing that if her story changed slightly it was because she simply could not remember things clearly. The shock had left them jumbled.

But, when the defense stepped aside, the prosecution wilted her in the face of her own statements; they badgered and barked and condemned her. They wouldn't accept amnesia, they wouldn't accept alibi, they wouldn't accept a word she told them and drove into her with an inquisition. They asked about why she told one policeman one thing and something else to another; they asked why her dog didn't bark when the intruder entered the house, they asked why the kitchen sink was cleansed of its blood; they asked why she lied, lied, lied and when they left her alone, she was a sobbing, wretched woman for the jury to see.

After hours of deliberation, the jury on February 1 found Darlie Lynn Routier guilty of the murder of her son Damon Christian.

Three days later, a somber Judge Tolle peered down from his bench to the white-faced Darlie before him, and read her the court's decided penalty. It was death.


But: Is Darlie Innocent?

In all fairness, Darlie Lynn Routier, despite some extremely damaging evidence,� may be innocent, say many. A special televised episode of 20/20, entitled "Her Flesh and Blood," which aired on February 3, 2000, examined and updated the Routier case materials and found, among other things, that the jury may not have been shown photographs of bruises on Darlie's arms (which strongly indicated she fought off an intruder) nor the complete transcript of the court proceedings from which to make a final verdict. Indeed, the transcript that they did review contained, upon latter examination, 33,000 errors and omissions. As well, the audio tapes they heard were incomplete.

One juror came forth to admit he was peer-pressured into a guilty vote. On the televised program, he claimed he never saw the above-mentioned photos nor was the jury shown the police surveillance version of Devon's graveside birthday party that showed Darlie and her family sincerely grieving over the children.

Barbara Davis, who wrote Precious Angels, and who once believed in Darlie's guilt, has changed her mind since reviewing these latest developments as well as the discovery that there was a latent, bloody fingerprint found on the Routier kitchen counter. According to two New York City police fingerprint experts, the print did not match Darlie nor Darin and, therefore, lends a new credence to the intruder theory.

On July 25, 2001, Holly Becka of the Dallas Morning News reported that Darlie's lawyers filed an appeal for her charging conflict of interest and 13 claims of trial errors: The appeal says that "she deserves a new trial because the judge didn't properly handle her lead defense counsel's conflict of interest in representing the only other suspect in the crime -- her husband." Her appeal doesn't implicate Darin Routier as the culprit but notes that inconsistencies in Darin's testimony could have prevented her counsel from correctly presenting information to the jury.

In early June of 2002, Dr. Richard Jantz, a fingerprint expert, indicated that the unidentified bloody fingerprint left at the crime scene is "consistent with an adult" rather than a child. This testimony supports Darlie Routier's claim that an intruder was present in the house at the time of the murders.

Later that month, Holly Becka of the Dallas Morning News reported that "Darin Routier asked his father-in-law (Robbie Gene Kee) whether he knew anyone who would burglarize his home as part of an insurance scam months before his sons were killed... Ms. Routier's family fears that Mr. Routier mentioned the plot to others, who broke in on their own. They say they think this is possibly why an intruder targeted the home." In fact, neighbors saw a black car watching the house before the Routier boys were killed.

In July, 2002, Darlie's lawyers argued that prosecutors should turn over evidence for new forensic tests. One item requested was the nightgown Darlie had on at the time of the murders. Her lawyers would like to conduct tests that they hope will indicate that her wounds were not self-inflicted. Defense lawyers also want to test the murder knife, the window screen and carpet samples.

Also, at this time, Darin Routier admitted that he had looked for someone to burglarize the family home to benefit from an insurance scam, but that he planned to have the burglary occur when the family was not at home.

The court may require up to 6 months to formulate its reply to Darlie Routier's request.

In the meantime, she sits on Texas' death row, waiting.

Is she one of the most heartless criminals in the state's history or a victim of an overly-aggressive prosecution?

TruTV.com


Court of Criminal Appeals of Texas

Routier v. State

Darlie Lynn ROUTIER, Appellant,
v.
The STATE of Texas.

No. 72795.

May 21, 2003

J. Stephen Cooper, Dallas, for Appellant.John R. Rolater, Jr., Asst. DA, Dallas, Matthew Paul, State's Attorney, Austin, for State.

The appellant was convicted of the capital murder of a child under six years of age.  Tex. Penal Code § 19.03(a)(8).   Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death.  Tex.Code Crim. Proc. art. 37.071, § 2(g).  Direct appeal to this Court is automatic.  Tex.Code Crim. Proc. art. 37.071, § 2(h).  The appellant raises fourteen points of error.   We shall affirm.

The evidence that supports the verdict shows that the appellant stabbed and killed her two sons, Damon and Devon,1 while her husband and infant son were asleep upstairs in the house.   The appellant does not challenge the legal or factual sufficiency of the evidence to support her conviction, and therefore, it is not necessary to set out the evidence in detail.

I. Claims Regarding the Record

In her brief, the appellant makes several claims regarding the preparation and certification of the reporter's record in addition to claims regarding her trial.   We will address claims dealing with the accuracy of the record before dealing with the appellant's claims regarding her trial.   Specifically, the appellant complains that she is entitled to a new trial because of problems with the reporter's record.   She argues that, at a minimum, she is entitled to a hearing before the record can be used to decide her appeal.   A review of the facts pertaining to these points of error is necessary.

The appellant's trial took place in January 1997.   The certified court reporter, Sandra Halsey, took stenographic notes during the trial.   Halsey simultaneously typed notes of the proceedings onto paper strips (“notes”) and onto computer edit disks (“disks”) that automatically translated the stenographic symbols into English.   In April 1998, under an order of contempt issued by this Court the month before,2 Halsey prepared, certified, and filed the original reporter's record in the case (“Halsey record”).

In a motion to correct and clarify Halsey's record, filed October 13, 1998, the appellant raised the first dispute about the accuracy of the record.   An excerpt of the record that had been read to the jury did not match the corresponding portion of the Halsey record.   Also, counsel noted discrepancies about who was present during the trial and when.   The next day this Court granted the appellant's motion and ordered Halsey to prepare, certify, and file a supplemental reporter's record containing any omitted items.   We also ordered the trial court 3 to resolve any dispute raised in the appellant's motion and to ensure that the reporter's record conformed to what occurred at trial.

The trial court conducted a hearing and decided that the entire record had to be reviewed to comply with this Court's October 14, 1998 order.   In a hearing held October 30, 1998, pursuant to our order, Halsey testified that she made audiotape recordings (“tapes”) in addition to the notes and disks during the trial.   Halsey claimed that the audiotape recorder worked during only the voir dire portion of the trial.   The trial court ordered Halsey to produce her notes, disks, and tapes from the trial.   The trial court also ordered her to conduct a review of the record and make note of any problems she found or corrections she made.

At a hearing held on November 4, 1998, the trial court appointed three certified court reporters, Tommy Mullins, Judy Miller, and Jerry Calloway (“the experts”), to perform a review and to compare the notes and disks to Halsey's record to determine whether Halsey's record could be certified.

Although Halsey had told the trial court and the experts that she possessed no tapes from the guilt and punishment phases of the trial, on November 12, 1998, she told prosecutor Lindsey Roberts and appellant's counsel Stephen Cooper that tapes from those phases of the trial did exist.   According to a stipulation read into the record, she went with Roberts to retrieve the tapes from a storage facility in Plano.   Halsey told Roberts that the tapes she produced were from the Routier trial.   These tapes were produced during the hearing in the trial court on November 13, 1998.   The appellant expressed concern about the authenticity of the tapes.   The trial court received the tapes with the understanding that the question of their authenticity would be subject to further review.

Also during the hearing on November 13, the experts testified that they performed their review by comparing a total of twelve random pages from four of the ten volumes of Halsey's record of the trial with the corresponding notes and disks.   On each of the four pages, the experts found several differences between what was in the notes and what was on the pages from the record.   They concluded that the only way to account for so many differences between the notes and Halsey's record is that someone listened to tapes from the trial and made changes based on the tapes.4

Halsey's daughter and transcription scopist,5 Suzy Crowley, testified that Halsey gave her tapes of the guilt and punishment phases of trial.   Crowley stated that she used the tapes to make permanent changes to the English translation of the original proceedings on the disks.   She testified that the tapes presented by Roberts looked similar to the ones she had used and that they had labels on them that identified them as being from the Routier trial.   Scopist Michelle Reynolds reviewed and edited the voir dire portion of the trial.

Halsey did not testify at the hearing on November 13, 1998.   The trial court appointed counsel for her.   At the conclusion of the hearing, the trial court rescinded its prior order of October 30, 1998, to have Halsey review her record and ordered her to cease any proceedings regarding the record.   The trial court said it would appoint a certified reporter, agreeable to both the State and the appellant, to review Halsey's record and determine whether it could be made to conform to what occurred at trial.

On November 19, 1998, the trial court appointed Susan Simmons, a certified court reporter for the United States District Court in Tyler, to perform a review of the guilt and punishment phases of the record, as well as the pretrial hearings.6  The parties and the experts all agreed that Simmons was qualified and competent to perform the review.   During the hearing, the appellant's counsel explained that he was not sure if it was legally permissible or even possible to certify the record.   He reserved the right to offer evidence on this point at a later time.   Halsey appeared with her attorney that day.   To comply with a subpoena duces tecum requesting all materials regarding the appellant's trial, her attorney turned over the notes and disks for the entire trial.   Halsey refused to testify, however, and asserted her Fifth Amendment privilege.

On December 9, 1998, Halsey's attorney produced twelve more tapes, which he claimed were additional tapes from the trial.   Halsey was then relieved of her duties as the official court reporter in this case.   The trial court ordered Halsey to continue to look for more tapes.

On April 1, 1999, the trial court conducted a hearing during which Simmons testified that she had revised the Halsey record of the guilt and punishment phases of the appellant's trial.   Simmons submitted the revised record (“Simmons record”) and her red-lined copy of the Halsey record that reflected all of the changes that she had made.   Counsel for the appellant and the State were not permitted to question Simmons directly.7  Before the hearing, the trial court provided to the parties the questions it would ask Simmons.   The parties were permitted to submit written questions to the trial court, and the trial court read the questions that it concluded were relevant and not repetitive.   The trial court instructed the parties not to object to questions during the testimony;  they were directed to submit those objections before the next hearing.   The trial court stated that it would also afford the parties an opportunity to submit a bill of exceptions.   The parties were given a break during the testimony to submit further questions based on the testimony that had already been heard.

Simmons testified about the standard procedures for preparing a record of proceedings.   First, during the proceedings, the certified court reporter writes on a machine notes of what occurs.   The notes include a list of the people who are present, the date of the proceedings, the name of the proceedings, the testimony taken, and the list of exhibits.   The machine simultaneously prints the symbols onto the notes and records the symbols onto a disk or hard drive.   The symbols on the notes cannot be read or deciphered by someone without some training as a court reporter or scopist.   The notes are labeled with the date and subject matter.   It is common for the court reporter to use an audiotape recorder as a backup.   Generally, the recorder is connected to the microphones on the witness stand, the attorneys' tables, and the judge's bench.

Simmons testified that after the proceedings are over, the court reporter takes the disk to a computer and uses software, to which the reporter's personal dictionary has been added.   The dictionary in the software produces an English translation of the symbols.   The computer produces a split screen on the monitor, which shows the symbols on one side and the English translation on the other side.   The English translation will show some “untranslates,” which are symbols that the software does not recognize.   After the reporter enters the correct word, the symbol for the word and its translation are added to the reporter's personal dictionary.

According to Simmons's testimony, if the reporter uses a scopist, and most do, the translation is put on a duplicate disk, which is given to a scopist along with the backup tapes.   The scopist performs the first edit.   Ordinarily, the scopist loads the disk and listens to the tapes going line-by-line checking for corrections and unrecognized words.   Then this edited version is saved on another disk to leave intact the original English translation that was produced at trial,8 and all the materials are returned to the reporter.

Simmons indicated that the reporter, after receiving the materials from the scopist, proofreads either the hard copy of the new translation or the on-screen copy while listening to the tapes.   Then the reporter proofreads the record one more time, checks for spelling errors, and prints and certifies the record.

Simmons testified about her work in the appellant's case.   She explained that she followed the instructions in the trial court's order.   The trial court had not ordered Simmons to certify the record;  she was ordered to review the record from the guilt and punishment phases of the trial and to certify it if possible.   She possessed the Halsey record, the disks, tapes, notes, and some handwritten notations by Halsey.   She followed the procedure that is ordinarily employed when a court reporter is unable to produce the record because of either death or disability.

Simmons testified that she first went through the notes and the tapes to be sure that she had them for each volume of the Halsey record she had been assigned.   She said that it appeared that she had been provided with a complete set of materials for the guilt and punishment phases of the trial.   She said it was possible to create a certifiable record based on the materials provided.   The notes prepared on the machine appeared to be complete with no gaps in the proceedings and within the range of competent reporting.   The disks were in useable form and appeared to be complete.   The tapes were audible and seemed to be complete with no discernible gaps or alterations.

Simmons testified that she started the review process by listening to the tapes while going through the Halsey record line-by-line.   She marked the corrections onto her copy of the Halsey record.   When she had questions, she flipped to the appropriate portion of the notes.   She did not perform a systematic review of the notes.   She was able to identify witnesses when they stated their names at the beginning of their testimony.   If a voice was not identified in this manner, she used the notes, which contained symbols identifying the speakers.

Simmons then took the marked version of the Halsey record and the disks to her scopist.   The scopist copied each disk onto her hard drive.   Then she made the changes marked in pen and saved the files on new disks so that there would be no alteration of the disks provided by Halsey.   The scopist printed a hard copy of the changes.   Simmons proofread the hard-copy by doing a page-by-page comparison of the changes.

This procedure was followed until all of the volumes for the guilt and punishment phases were completed.   Then Simmons prepared a master index, exhibit index, and witness index, which was compared to the scopist's list.   Three hard copies of the final edited version (“Simmons record”) were produced along with disks with a universal translation.9

Simmons testified that she believed that Halsey used more than one scopist to create the record.   It is standard practice for the reporter who actually heard the trial to review the changes a scopist makes using the tapes.   It is normal for the final record to be different in some respects from the unedited notes.   The purpose of editing the notes is to make them reflect, as nearly as possible, what happened at trial.   Simmons said that the Halsey record was inaccurate and poorly prepared.   She opined that the deficiencies in the Halsey record were based on a lack of proper editing.   Simmons did not attend any of the proceedings in Kerrville and had no personal knowledge of what happened at trial.   But Simmons testified that she believed, based on the materials provided and her expertise, she was able to render a complete and accurate record that conforms to what occurred at trial.   She said that, if the materials did not contain a complete and accurate account of the proceedings, then the Simmons record could suffer from the same flaws.   But she believed that the materials provided accurate information for preparing the record.   Simmons has reconstructed trial records in other cases, and she was able to certify records in those cases.   In her expert opinion, the record as prepared by her had been made to conform to what happened at trial to ninety-five percent accuracy.

On April 26, 1999, the Court of Criminal Appeals ordered the trial court to ensure that the entire record, including voir dire and pretrial proceedings, conformed to what happened at trial.   We ordered the trial court to independently review other parts of the record in the same manner as it had the guilt and punishment phases.   On May 4, 1999, the trial court appointed Simmons and her scopist to prepare the remaining portions of the record.

On October 14, 1999, a hearing was held to receive the remaining portions of the record that Simmons had completed.   She testified that the tapes were audible and seemed to have no gaps or alterations, the disks for the volumes-other than Volume 16-were useable, and the notes-although there were mistakes-could be used to the extent she needed them.   She testified that, once again, she was able to certify that the record conformed to what occurred at trial.   She testified that she used the same procedures used to complete the guilt and punishment phases of the record, with one exception.   For Volume 16, there was no disk.   Therefore, Simmons proofread the hard copy of the Halsey record with the tapes and had her scopist retype the entire volume.

Later, the parties and the trial court became aware that Volumes 10 and 11 had not been sent to Simmons for preparation.   The materials were then sent to Simmons, and she was ordered to review the materials in the same manner as she had reviewed the other portions of the trial.   The trial court ordered Simmons to revise and certify a record if possible.10

At a hearing on January 28, 2000, Simmons testified that she followed the same procedure for preparing and certifying the record, except for the first 54 pages of Volume 10.11  These pages contained the proceedings for October 21, 1996.   For those 54 pages, Simmons had the Halsey record, the notes, and the disk, but no tape.   Going line-by-line, she compared the Halsey record with the notes taken on the day the proceedings occurred.   She noted that there did not appear to be any gaps in the notes and that they were in good and useable form.   Simmons refused to certify these pages, however.   She explained that, based on the portions of the record she had prepared already and the state of the Halsey record, she was not comfortable certifying the first 54 pages without a tape to compare to the Halsey record.   She said that her record for the first 54 pages of Volume 10 is an accurate transcription of Halsey's notes.   Her decision not to certify was based on the following facts:  she was not present at trial;  she had no tape to use as a backup;  and her review of the rest of the record indicated that she needed a tape to correct the record because it had been edited so poorly.

Simmons testified that on the tape for the afternoon session of court on October 21, 1996, in a conversation between Halsey and someone from the Sheriff's Department, Halsey mentioned that she needed some batteries.12  Simmons believed that this might explain the absence of a tape for the morning session.   Simmons believed, however, that a tape existed for the morning session because there were words that appeared in the Halsey record that did not appear in the notes.   At the conclusion of the hearing, the trial court announced that it would give the parties 120 days in which to review the entire record and make objections.

On February 9, 2000, the trial court issued an order stating that Volumes 10 and 11 of the Simmons record should replace the same volumes of the Halsey record because the Halsey record did not conform to what occurred at trial.   The Court, by agreement of the parties, gave the parties until March 6, 2000, to file objections to the Simmons record.

On March 2, 2000, the appellant filed written objections to the Simmons record and a written request for a hearing to resolve factual disputes about the record.   The State's response to the appellant's written objections was filed April 28, 2000.   On September 1, 2000, the trial court scheduled a hearing on the appellant's objections to the record to take place on September 8, 2000.   The appellant's attorney subpoenaed several witnesses, including Judy Miller, Mary Docklar, Jerry Calloway, Doug Mulder, Jeff Crilley, Lindsey Roberts, Toby Shook, and Greg Davis.

On September 7, 2000, the trial court issued findings on the record and an order cancelling the hearing scheduled for the next day.   The findings say that the trial court reviewed the orders issued by the Court of Criminal Appeals, the record from all hearings held to comply with the orders issued by the Court of Criminal Appeals, the findings and orders of the trial court, the appellant's objections to the record, and the State's response.   The trial court found that the appellant's objections were clear and concise and would apprise the Court of Criminal Appeals of the appellant's concerns about the record.   It found that the appellant's motions to suppress evidence in the proceedings on the record were beyond the scope of the orders of the Court of Criminal Appeals.   It also found that an evidentiary hearing as requested by the appellant was not necessary to comply with the orders of the Court of Criminal Appeals, the orders had been complied with, and that it would not hold any other hearings unless the Court of Criminal Appeals so ordered.

In response to the trial court's order cancelling the hearing, the appellant filed her Formal Bill of Exception No. 1 and a Motion for a Hearing to Make an Offer of Proof on September 25, 2000.

The trial court responded with a finding that it no longer had jurisdiction of the case.   The court forwarded the appellant's pleadings to the Court of Criminal Appeals without taking action.

A. Third Point of Error: The Entire Record is Inaccurate and Unreliable

In her third point of error,13 the appellant claims that she is entitled to a new trial because the reporter's record does not conform to the requirements of Texas Rule of Appellate Procedure 34.6(a)(1) 14 and because the defect cannot be corrected.   Specifically she states that Rule 34.6(a)(1) requires that the reporter's record be a certified verbatim transcription of the stenographic notes of the court reporter who attended the trial.   Because the Simmons record is a transcription of unauthenticated tapes prepared by a court reporter who did not attend the trial, the appellant argues, the record does not comply with the Rule. Also, the appellant argues, Halsey's notes cannot be transcribed accurately because the trial court found that the notes do not conform to what occurred at trial.15  She also claims that settling disputes about the record with extrinsic evidence would be impossible because the trial judge who presided over the trial is retired 16 and the court reporter who created the notes has lost her certification.   In essence, the appellant claims the Simmons record is a new record that consists of a transcription of the tapes. Further, she argues that the transcription of the tapes was not done in accordance with Rule 34.6(a)(2),17 and to permit the Simmons record to be used would blur the distinction between the two methods of producing the reporter's record.

We disagree with the appellant's characterization of the Simmons record.   The revised record is not a new record created from the tapes.   The Simmons record is a corrected transcription of the notes taken at trial by Halsey.   Simmons testified that the defects with the Halsey record were a result of poor editing and that Halsey's notes were within the range of competent court reporting.   Simmons used the tapes to correct the Halsey record that was a poorly-edited transcription of the notes taken at trial.

The appellant asserts that Simmons should not have used the tapes to correct the record.   For this proposition, the appellant cites Valenzuela v. State, 940 S.W.2d 664, 666 (Tex.App.-El Paso 1996, no pet.), and Ex parte Occhipenti, 796 S.W.2d 805, 807 (Tex.App.-Houston [1st Dist.] 1990, no pet.).   These cases are distinguishable.

In Valenzuela, the defendant's attorney requested that the official court reporter provide him with certified tapes of the proceedings so that preparation of the record would be less expensive.   The El Paso Court of Appeals supported its decision to deny Valenzuela's request with many reasons.   Chief among them was the fact that the “Rules of Appellate Procedure provide for preparation of the record on appeal by the clerk of the trial court and the court reporter who transcribed the proceeding and do not contemplate preparation of the appellate record by a party or his counsel.”  Valenzuela, 940 S.W.2d at 666.   The Court of Appeals also noted that the reporter's record in a criminal case may consist of a transcription of the tapes only when authorized by the Court of Criminal Appeals.  Ibid. Because the use of tapes as the reporter's record was not authorized in Brewster County, the court reporter was not authorized to certify the tapes as the official reporter's record.  Ibid. Valenzuela is distinguishable from the appellant's case because the tapes in the appellant's case were used to edit the record that was created from Halsey's notes from trial.

In Ex parte Occhipenti, a civil case, tapes were made, but no notes were made of the trial court proceedings.   The Court of Appeals held that it could not consider the tapes because the Texas Supreme Court had not authorized Harris County district courts to use tape recordings as the certified record.   Occhipenti, 796 S.W.2d at 807.   Once again, the record in the appellant's case is a transcription of Halsey's notes that was edited with the assistance of the tapes.   The appellant's case is distinguishable from Occhipenti on that basis.

The appellant also asserts that Bond v. State, 694 S.W.2d 622, 623 (Tex App.-Beaumont 1985, pet. ref'd), supports her claim that the record in this case cannot be used to decide her appeal.   In Bond, the Court of Appeals reversed the conviction because the court reporter could not take notes during part of the State's closing argument because the prosecutor was speaking too quickly for the reporter's ability.   It was later found that the tape was faulty and did not record the argument.  Ibid. The question in the case was whether the defendant had failed to exercise due diligence in failing to object to the missing portion of the record when it was discovered.   The Court held that the defendant need be diligent only in requesting the transcription of the record and that when, through no fault of his own, the defendant is deprived of the record, an appellate court cannot affirm the conviction.  Ibid. The appellant's case is distinguishable because she has not shown that she has been deprived of the record.18

The appellant also directs us to State Farm Fire & Cas. Ins. Co. v. Vandiver, 941 S.W.2d 343 (Tex.App.-Waco 1997, no pet.).   In that case, the court reporter failed to take notes of portions of depositions that were read into the record.   The Court of Appeals held that the tapes could be used to establish the pages and lines of the depositions and that the record could be supplemented with the parts of the depositions.  Id. at 343.   The Court of Appeals specifically rejected its prior holding that the use of materials other than the notes taken at trial to supplement the reporter's record would constitute a new record.  Id. at 349 (overruling Home Ins. Co. v. Hambric, 906 S.W.2d 956 (Tex.App.-Waco 1995, no pet.)).   The appellant argues that her case is distinguishable from Vandiver because the procedure in that case was dependent on the existence of “a proper written transcription of the testimony made at the time the deposition was given.”  Ibid.

The State argues that Vandiver stands for the proposition that courts can use materials other than the official notes taken during proceedings to obtain an accurate reporter's record.   The Court of Appeals said that:

While it cannot be denied that a contemporaneous verbatim recording of the events at trial is a large part of ensuring that a complete and accurate record of the trial court proceedings is prepared, the conclusion does not follow that the record will necessarily be incomplete in every instance where there is some absence of a contemporaneous verbatim recording.

Ibid. In Vandiver, portions of several exhibits and depositions were read to the jury.   An audio recording of every instance where this occurred was made by the court reporter.   There was no contention that what was read at trial differed in any way from the actual wording of the relevant exhibits and depositions.   In addition, it was undisputed that the court reporter, by listening to the audio tapes to find where the portions of these exhibits and depositions began and ended, could reconstruct the very testimony that was missing from the original statement of facts.   Therefore, the Court concluded that the statement of facts could be properly supplemented with the exhibit and deposition testimony that was missing from the original statement of facts.   Ibid.

 We agree with the State's reading of Vandiver and we adopt the reasoning of Vandiver.   In this case, Simmons corrected the Halsey record with tapes that allowed her to reconstruct the testimony despite the inaccurate editing performed by Halsey and her scopists.

Simmons and Mullins testified that it is a common practice for court reporters to use tape back-ups in the preparation of any record to correct the notes taken at trial and to make the record as accurate as possible.   The situation in the appellant's case is similar to when a court reporter is unable to certify a record due to death or disability.   Halsey lost her certification and was unable to correct and certify the record herself.   The procedure Simmons used is the same as that used when a court reporter is disabled or dies before the record can be transcribed and certified.   Simmons testified that she had used the same procedure in the past.

The appellant claims that the procedure is flawed because Simmons did not transcribe the notes.   The machine used to record the notes translates the symbols to English.   Simmons testified that the problem with the Halsey record was that it had been edited improperly.   Transcribing Halsey's notes would not have changed the process of correcting the record with the use of the tapes.   Therefore, it was not necessary.

In Williams v. State, 427 S.W.2d 868 (Tex.Crim.App.1967), we approved of a similar procedure in a case when the court reporter died before preparing and certifying the record.  Id. at 870, 872.   We said:

We fail to see what more the able trial judge in the case at bar could have done under the circumstances.   An appellant is not entitled to reversal merely because of the death of the court reporter.   Here the trial judge availed the appellant and his counsel of three different opportunities to demonstrate why the statement of facts as finally prepared and approved were not a full, accurate and complete transcription of the court reporter's notes taken at the trial.   He certainly had his day in Court upon the settlement of the record.   In absence of a showing made that the record before us is not what occurred at the trial and that the appellant's rights were prejudiced, we overrule appellant's first ground of error.

Id. at 872.   The death or disability of a court reporter, without more, does not entitle the appellant to a new trial.   Likewise, that a court reporter has lost her certification, without more, does not entitle the appellant to a new trial.

The appellant admits that the use of another court reporter and backup tapes is a common practice when a court reporter is unable to complete and certify the record, but she says that Simmons used the tapes to make more than 30,000 substantive changes to the record without systematically reviewing the notes.   The appellant fails to point to any specific corrections made by Simmons that show that the Simmons record is incomplete or inaccurate.   The appellant argues that, if the court reporter can use tapes to make so many substantive changes to the record without a hearing, she should be required to follow the rules to protect the integrity of the tapes.   See Tex.R.App. P. 13.2(e).19

There is no threshold number of changes that triggers Rule 13.2(e).   And, no matter the number of corrections made, the appellant has not even attempted to show that the record is incomplete or inaccurate.   Simmons used all the materials provided her to revise the record.

The appellant also directs us to Soto v. State, 671 S.W.2d 43, 44-46 (Tex.Crim.App.1984).   In that case, we held that a record created from tapes of proceedings was unacceptable.   The defendant had requested that a court reporter record proceedings in his case.   The trial court denied the defendant's request because no court reporter was available.   The county clerk made tape recordings of the proceedings instead.   The deputy county clerk transcribed the tapes.   Parts of the tapes were inaudible, and therefore the record contained gaps.

We granted review to determine whether former Texas Code of Criminal Procedure Article 40.09 “mandated that a certified court reporter take down and transcribe the testimony at trial or whether the trial court may employ other comparable alternative methods of insuring an appellate record is prepared, after the appellant requested that a court reporter take down the proceedings.”  Id. at 44.   We held that deviating from the procedure set out in former Article 40.09 in this way was not permitted.   We have said that the reasoning of Soto is sound today although it was an application of Article 40.09 rather than Rule of Appellate Procedure 34.6(a)(1), 34.6(e)(2), and the Appendix, Order Directing Form of Appellate Record (b)(1)(q).  See Gomez v. State, 962 S.W.2d 572, 574 (Tex.Crim.App.1998).   The requirements of the former article were incorporated in the Rules of Appellate Procedure.  Ibid.

We conclude that the appellant's case is more like Williams than Soto. The tapes in this case were used to correct and edit the Halsey record;  Simmons did not create a new record.   In this case, Halsey made notes of the trial that Simmons testified were within the range of competent reporting.   Simmons testified that the editing process caused the inaccuracies in the Halsey record.   Simmons used the tapes and the notes from the trial to correct the Halsey record and make it conform to what occurred at trial.

(1) Tapes

The appellant also complains of the authenticity and accuracy of the tapes used by Simmons to correct the record.   The unauthenticated and possibly inaccurate tapes, she argues, should not have been used to correct and certify the record.

The testimony during hearings on the reporter's record supports a finding that the tapes were authentic.   Simmons testified that the tapes contained recordings of proceedings at trial that corresponded with the notes and Halsey's record.   An assistant district attorney testified that Halsey gave him the tapes.   She represented those tapes as being from the appellant's trial.   Although Halsey may have lied to cover up the existence of the tapes, other independent evidence indicates that the tapes were authentic.   Crowley testified that the tapes looked like the ones she used to edit the record.

The greater concern is whether the tapes are complete and accurate.   The testimony given during the post-trial proceedings indicates that the trial court could have concluded that the tapes were complete and accurate.   The trial judge who presided over the post-trial proceedings about the record listened to the tapes.   He implicitly found that the tapes were complete and accurate because he allowed Simmons to use them to review and certify the record.   Simmons testified that the tapes sounded complete, they flowed logically, and there were no audible alterations.   Simmons explained that she is not an expert regarding audio recordings and that she had not been present for the proceedings in the trial.   As a certified court reporter, however, she had prepared many transcripts using tapes to make corrections.   Simmons had extensive experience listening to tapes of court proceedings.   She testified that in the past she had prepared and certified records of other proceedings with the use of backup tapes where she had not been present for the proceedings.   The appellant has failed to present any evidence that the tapes were not complete and accurate.   She did not submit expert testimony about the ease with which a tape may be altered, and she did not request an expert to test the tapes for alteration.

The appellant claims that she was not given an opportunity to compare the Simmons record to Halsey's notes.   We do not address whether the trial court would have abused its discretion to deny such a request.   The appellant never requested an opportunity to compare the Simmons record to the notes.

The appellant concedes that the trial court's findings are entitled to deference, but she alleges that the trial judge who presided over the post-trial proceedings did not listen to the tapes and is erroneously relying on the opinion of Simmons who is not an expert and was not present for the proceedings and had no personal knowledge thereof.   Judge Robert Francis did not rely solely on the opinion of Simmons.   He stated on the record that he listened to the tapes himself.   Simmons was recommended by the three court reporters who reviewed the Halsey record initially.   She had years of experience preparing and certifying records.   And the appellant agreed to have Simmons review the record and certify it if possible.   If the appellant did not trust Simmons's opinion about the accuracy and completeness of the tapes, she could have requested an expert to examine the tapes.   Without more, we cannot say that the trial court erred in permitting Simmons to use the tapes to correct the record.

(2) Parentheticals

The appellant also complains about the accuracy of the parentheticals that Simmons adopted from the Halsey record, which the trial court declared did not conform to what occurred at trial.   As explained above, Simmons testified that Halsey's notes were within the range of competent reporting.   The parentheticals came from that record.   The trial court declared that the Halsey record did not conform to what occurred at trial and Simmons testified that the problem with the record was the editing that took place after the notes were taken.   The trial court could have found that the parentheticals taken down at trial were accurate because they would not have been changed during Halsey's editing process.   Simmons changed some of the parentheticals, but there is no indication and the appellant does not argue that any of these changes were material. For example, one change was to add “no response” to the parenthetical when initially it had been in the verbal text.   Simmons also added the parenthetical “shakes no” when the verbal answer was, “NUm-hum,” [sic ] and she added “nod affirmatively” when the verbal answer was “Uh-hum.”   In another instance, the verbal answer was “Uh-huh,” and Simmons changed the parenthetical from nod affirmatively to shake no.  “Uh-huh” was used in other places in the record to show a negative response.   Of approximately 500 parentheticals found in the voir dire portion record in a table provided by the appellant, only fifteen were changed by Simmons and none were material.   See Tex.R.App. P. 34.6(f).

(3) Correcting the Record

The appellant argues that the Simmons record cannot be a corrected record because the official record can be corrected only if a party alleged that a specific part of the record was inaccurate and the trial court held a hearing.   She claims that no hearing was held in accordance with the Rules.   The appellant is referring to Rule 34.6(e), which provides for correcting the record.20  The Halsey record was filed with this Court before the appellant discovered any inaccuracies.   When the appellant brought the specific inaccuracies to our attention, we submitted the dispute to the trial court and ordered it to ensure that the record conformed to what occurred at trial.   The trial court conducted hearings, found that the Halsey record did not conform to what occurred at trial, and appointed Simmons to correct the record, if possible.   Simmons was able to correct and certify that the record, with the exception of the first 54 pages of Volume 10, conformed to what occurred at trial.

The appellant cites Little v. State, 131 Tex.Crim. 164, 97 S.W.2d 479 (1936), for the proposition that when a court reporter died before transcription of the notes, disputes regarding the record could not be resolved in a death penalty case.   The Court failed to mention whether the proceedings were recorded, but it is unlikely that in 1936 tape recorders were widely available for the use of recording court proceedings.21  Today we have use of reliable recording devices to back up the court reporter's notes.   And we have since recognized their efficacy.   See Williams, 427 S.W.2d at 868.

The appellant is now complaining about the entire Simmons record.   But unlike her complaints about the Halsey record, she has provided no specific examples of inaccuracies in the Simmons record.   A global complaint that the entire record is inaccurate, in light of the procedures used in the profession and in the absence of any specific examples of inaccuracies, is not sufficient for us to conclude that the record is inaccurate.

To say that there were problems in obtaining the reporter's record in this case is a gross understatement.   Halsey's credibility has been seriously called into question:  she may have lied to the trial court about the existence of the tapes;  she spoke with reporters about the problems with the record while asserting her Fifth Amendment privilege to not incriminate herself in court;  she told a reporter that she hoped the appellant would not get a new trial because of the mistakes;  she also told a reporter that she would not rely on the tapes because they could be altered.   Other facts that tend to discount the accuracy of the record include the fact that Simmons used the same materials to create the corrected record that Halsey used to create the first record.   And Halsey's record was declared to not conform to what occurred at trial.   In addition, the trial judge who presided over the correction of the record had no personal knowledge of the proceedings at trial because he did not preside over the appellant's trial.

But according to Simmons, the main flaw with the Halsey record was the editing process.   Although she testified that Halsey's notes contained mistakes, she also testified that the notes were within the range of competent reporting.   It was the process of editing the notes, not the materials used to edit the notes, that caused there to be so many mistakes in the Halsey record.   Simmons was found to be an experienced certified court reporter.   Both parties agreed to have her appointed, and she was recommended by the three experts who initially reviewed the Halsey record.   She testified that she was able to certify the record with the use of the tapes.   And the appellant did not produce any evidence that Simmons's method was not accepted by other certified court reporters.   We overrule the appellant's third point of error.

B. Second Point of Error: A Significant Portion of the Record Has Been Lost or Destroyed

In her second point of error, the appellant claims that her conviction must be reversed because a significant portion of the record necessary to her appeal has been lost or destroyed through no fault of her own.   Here, the appellant is complaining about the first 54 pages of volume 10 of the Simmons record, which consisted of a transcription of the proceedings from the morning of October 21, 1996.   This is the portion of the record Simmons would not certify as a true and accurate transcription of what occurred in the proceedings.   Instead, she certified that it is a true and accurate transcription of Halsey's notes of the proceedings.   Because the record cannot be certified either as a verbatim transcription of the notes taken at trial or as a transcription of tapes in accordance with Rule 34.6(a)(2), and because the uncertified portion of the record is necessary to the resolution of her complaint about trial counsel's conflict, the appellant asserts she is entitled to a new trial under Rule 34.6(f).

Texas Rule of Appellate Procedure 34.6(f) provides that an appellant is entitled to a new trial if a significant and necessary part of the reporter's record is lost or destroyed through no fault of her own, the appellant timely requested the record, and the parties cannot agree to the record.

Rule 34.6(f) is a relatively new rule, but the principles that brought it into being are not.   It has a predecessor in the former Rules of Appellate Procedure and more than one predecessor within former versions of the Code of Criminal Procedure.   We have noted before that the cases under former versions, including Article 40.09 of the Code of Criminal Procedure, are still helpful and that the principles underlying these former versions apply to the newer rules. See Gomez v. State, 962 S.W.2d 572, 574 (Tex.Crim.App.1998);  Gibbs v. State, 819 S.W.2d 821, 828 (Tex.Crim.App.1991).

The Rule applies whether we are faced with the loss or destruction of the entire record or only a portion of the record.   See, e.g., Harris v. State, 790 S.W.2d 568, 574 (Tex.Crim.App.1989) (pretrial motion);  Austell v. State, 638 S.W.2d 888, 890 (Tex.Crim.App.1982) (voir dire examination);  Gamble v. State, 590 S.W.2d 507, 509 (Tex.Crim.App.1979) (final arguments);  Hartgraves v. State, 374 S.W.2d 888, 890 (Tex.Crim.App.1964) (hearing on motion for new trial).   We have said that “the circumstances in such cases should be viewed from the appellant's standpoint, and any reasonable doubt resolved in favor of the appellant.”  Gamble, 590 S.W.2d at 508 (citing Young v. State, 146 Tex.Crim. 220, 222, 172 S.W.2d 500, 501 (1943);  Lamkin v. State, 138 Tex.Crim. 311, 317, 136 S.W.2d 225, 228 (1940)).   Further, the unavailability of the record through no fault of the appellant is not immune from a harm analysis.   The provision in the rule that the appellant show that the missing portion of the record is necessary to her appeal is itself a harm analysis.  Issac v. State, 989 S.W.2d 754, 757 (Tex.Crim.App.1999).

So, the appellant must show (1) that a significant portion of the record was lost or destroyed, (2) through no fault of her own, (3) that the missing portion of the record is necessary to her appeal, and (4) the parties cannot agree on the record.   The third requirement is dispositive of this point of error.22

The appellant asserts that the part of the record at issue in this point of error is essential and necessary to her appeal on two bases.   First, she alleges that the first 54 pages of Volume 10 are essential to resolve her first point of error regarding a potential conflict of interest.   Second, the appellant alleges that the missing portion of the record is necessary to her appeal because prospective jurors received preliminary instructions that may have been erroneous.

The appellant includes no point of error regarding the instructions given to prospective jurors.   The suggestion that instructions may have been erroneous, without more, does not make that portion of the record necessary to her appeal.   Also, as the State notes, the instructions given to prospective jurors during the morning session were virtually identical to the instructions given during the afternoon session.   And Simmons testified that the afternoon session that she heard on tape was very similar to the notes from the morning session.   The appellant has not shown that the portion of the uncertified record dealing with prospective jurors is necessary to her appeal.

Next, we will address whether the missing pages dealing with the substitution of counsel and potential conflict are necessary to the appeal.   In her first point of error the appellant claims that her Sixth Amendment right to effective assistance of counsel was violated because her lead counsel, Doug Mulder, had an actual conflict of interest and the trial court failed to conduct a hearing on the State's motion to determine whether Mulder should be disqualified.

A close look at this point of error indicates that the appellant is not complaining about the trial court's actions on October 21, 1996.   The State filed its motion on November 12, 1996, and any potential error in the trial court's failure to hold a hearing on that motion can be reviewed without reference to the uncertified portion of the record.   Her complaint that the trial court did not hold a hearing on the State's motion regarding a potential conflict arises after the proceedings that are contained within the first 54 pages of Volume 10 were held.   The appellant concedes as much when she says in her brief:

Furthermore, a knowing and intelligent waiver of the conflict on October 21 would not have waived Appellant's right to object to [the conflict] on November 12, when the State disclosed new circumstantial evidence of Darin's involvement in the capital murder, unless she prospectively waived her right to raise the issue again if new evidence emerged.

Because her complaint on appeal is about the trial court's failure to hold a hearing after the State filed its motion about a potential conflict, the appellant fails to satisfy the requirement of Rule 34.6(f) because she has failed to show that the missing portion of the record is necessary to her appeal.   We overrule the appellant's second point of error.

C. Fourth and Fifth Points of Error: Failure to Hold a Hearing on Objections to the Simmons Record

In the appellant's fourth and fifth points of error, she complains that the proceedings the trial court conducted about the appellant's objections to the Simmons record did not comply with the requirements of federal due process or Texas Rule of Appellate Procedure 34.6(e)(2).   As a result, she claims, she is entitled to a hearing before the Simmons record can be used to decide her appeal.   The appellant cites Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957).   This case does not support the appellant's claim.

In Chessman, the court reporter who made notes during the trial died before he was able to transcribe them.   A second court reporter, who was related to the prosecutor by marriage, took the notes and produced a record from them in part by discussing the testimony with the prosecutor and the police officers who testified at trial.   Chessman was not represented in person or by counsel in the proceedings to approve the new record.   The United States Supreme Court held that this procedure did not comport with due process.

All we hold is that, consistently with procedural due process, California's affirmance of petitioner's conviction upon a seriously disputed record, whose accuracy petitioner has had no voice in determining, cannot be allowed to stand.

Id. at 164, 77 S.Ct. 1127.

The appellant also claims that Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), supports her claim.   In that case, Lankford and his older brother were convicted of murder.   Lankford was formally informed of a possible death sentence at his arraignment, but later discussions with the prosecutors, various pre-sentencing orders, and other factors led him to believe the death penalty would not be sought or imposed.   After the sentencing hearing, the trial judge imposed the death penalty with no prior warning that he was considering it.  Id. at 112-16, 111 S.Ct. 1723.

The Supreme Court held that Lankford received insufficient notice that the trial court might impose the death penalty, which violated due process.  Id. at 126, 111 S.Ct. 1723.   The Court explained that if Lankford had known of the possible sentence, he would have conducted his hearing differently and perhaps had a different sentenced imposed.  Ibid. Notice of the issues to be resolved are necessary to due process.  Ibid.

The appellant's case is distinguishable from Chessman and Lankford because the appellant and her counsel had notice of the proceedings, were present during the extensive proceedings on the certification of the Simmons record, and were given ample opportunity to make objections to the Simmons record.   The proceedings conducted by the trial court to make the record conform to what happened at trial complied with federal due process.   We overrule the appellant's fourth point of error.

The appellant also claims that she is entitled to a Rule 34.6(e)(2) hearing to settle disputes about the record before it can be used to decide her appeal.   The appellant asserts that the Rule requires the trial court to settle disputes about the record after notice and a hearing.   Further, the appellant says that, in hearings required by the Texas Code of Criminal Procedure, the defendant must be allowed to present live testimony and cross-examine the State's witnesses unless a hearing based on documents is allowed.   See Garcia v. State, 15 S.W.3d 533, 536 (Tex.Crim.App.2000).   She sees no reason this rule should not apply in a Rule 34.6(e)(2) hearing.

But Rule 34.6(e)(2) and its requirements apply when inaccuracies are discovered before a reporter's record is filed in the appellate court.   In this case, the inaccuracies were discovered after the record was filed in this Court.   The Halsey record was filed April 24, 1998.   The appellant filed a motion in this Court to correct or clarify the record on October 13, 1998.

Rule 34.6(e)(3) applies when inaccuracies are discovered after a record has been filed in the appellate court.   It states that:  “If the dispute arises after the reporter's record has been filed in the appellate court, that court may submit the dispute to the trial court for resolution.   The trial court must then ensure that the reporter's record is made to conform to what occurred in the trial court.”   There is no requirement that a hearing be held to correct the record after the record has been filed in the appellate court.   And, as we explained above, the Simmons record is not a new record;  it is the correctly-edited transcription of Halsey's notes.

Even if we were to assume that the Simmons record was a new record that had not been filed in this Court prior to discovery of the inaccuracies, the appellant had three opportunities to put on witnesses and ask questions about the Simmons record.   Although her counsel was not permitted to ask questions of Simmons directly, counsel for both the appellant and the State were permitted to submit questions to Judge Francis who read them to Simmons.   The appellant was given an opportunity to submit more questions after a break in the proceedings and again several days after the hearings.   Simmons prepared the record in stages.   First she prepared and submitted the record for the guilt and punishment phases.   These volumes were delivered to the trial court, the appellant, and the State on April 1, 1999.   And then, pursuant to this Court's order and by appointment of Judge Francis, Simmons prepared and submitted the record for voir dire and the pretrial hearings.   These volumes were delivered to the trial court, the appellant, and the State on October 14, 1999.   Later the parties discovered that Simmons had never received the materials to correct and certify volumes 10 and 11.   Simmons was provided these materials with which she prepared and submitted corrected volumes on January 28, 2000.   She followed the same procedure in preparing the entire record with the exception of the first 54 pages of volume 10, for which she had no tape, and volume 16, for which she had no edit disk but had the tape.

The appellant had over six months to review the first installment of the Simmons record and to have another expert review it for problems.   When the second installment was delivered, the appellant had another opportunity to submit questions to be answered by Simmons.   Then the appellant had another three months to review the portions of the record already received before the final installment of the record was received.

After all the corrected volumes had been received, the appellant submitted her written objections to the trial court, including a request for another hearing.   The State responded to the request by stating that there were no factual disputes needing to be resolved.   The trial court set a hearing date but later cancelled it, finding that further proceedings were outside the scope of this Court's orders.   The appellant still showed no factual disputes that required an additional hearing to be resolved.

We hold that the appellant was not entitled to a hearing under Rule 34.6(e)(2).   In the alternative, we hold that the appellant had ample notice and opportunity to present live witnesses regarding her objections to the Simmons record.   We overrule the appellant's fifth point of error.

D. Fourteenth Point of Error: Failure to Rule on Bill of Exception

In the appellant's fourteenth point of error, she complains that the trial court erred in refusing to rule on her formal bill of exception.   Within this point of error, she claims that Rule of Appellate Procedure 33.2 requires the trial court to conduct a hearing unless the parties agree to the bill of exception.

The appellant filed her formal bill of exception September 25, 2000.   It explains that on September 1, 2000, in the presence of the State and the appellant's counsel, the trial court announced that it would hold a hearing on the appellant's objections to the trial record.   On the same day, the appellant presented a written application to subpoena an out-of-state witness.   The trial court orally authorized another district judge to sign a certificate granting the request.   On September 6, 2000, one or more of the State's attorneys made an ex parte request to seal the appellant's motion to suppress the tapes and Halsey's statement regarding the tapes.   On September 7, 2000, the trial court filed a written order canceling the hearing scheduled for the next day without giving the appellant an opportunity to be heard on the matter.

The State makes several arguments in response.   It argues that the appellant's formal bill of exception failed to (1) identify issues that could not be resolved from the existing records or (2) include evidence that the appellant wished to produce at a hearing.   It also argues that pursuant to Lewis v. State, 711 S.W.2d 41, 43 (Tex.Crim.App.1986), and the cases cited therein, the trial court had authority to act only within the scope of the order abating the case.   Because the order abating the case gave the trial court authority to make the reporter's record conform to what occurred at trial, the State argues, the trial court did not have authority to rule on the appellant's formal bill of exception.   The State's final argument is that the trial court's failure to act on the appellant's bill of exception was harmless.   It states that the matters in the bill are generally reflected in the record and do not support her claims on appeal.

The appellant failed to identify in the formal bill of exception claims that she could not have presented on appeal.   On September 25, 2000, the appellant filed her formal bill of exception.   The trial court issued an order on October 3, 2002, stating that it had no jurisdiction to consider the appellant's pleadings because the case had already been returned to this Court.

We will assume without deciding that the appellant's request to make a formal bill of exception was within the scope of this Court's orders to the trial court to make the record conform to what occurred at trial.   Even so, much of the information included in the appellant's formal bill of exception was already in the record forwarded to this Court.   The remaining information does not relate to the appellant's claims on appeal.   And, as the State argues, the appellant has failed to point to any claims on appeal she could not make because of the trial court's failure to rule on her formal bill of exception.   Therefore, she has failed to show she was harmed.  Tex.R.App. P. 44.2(b).  We overrule the appellant's fourteenth point of error.

E. Eleventh, Twelfth, and Thirteenth Points of Error: Providing Jury with an Inaccurate Transcription of the Record

In her eleventh, twelfth, and thirteenth points of error, the appellant claims that the trial court violated Code of Criminal Procedure Articles 36.27 and 33.03 and Fourteenth Amendment Due Process by providing the jury with an inaccurate transcription of Darin Routier's testimony while the appellant was not present.   The State responds that the trial court did not err because (1) the appellant's attorney waived her presence at the in-chambers discussion of the jury note and the trial court's response and (2) the record reveals no harm because the inaccurate portions of the record were immaterial to the jury's questions.

During the jury's deliberations on the question of the appellant's guilt, the jury sent a note to the trial court stating, “Some of us remember hearing Darin say that he did not lock the door from the utility room to the garage before he went to bed, 6/5/96, the rest of us remember that Darin said he locked this door.   Which is right?”  RR 46:5358.   Before a meeting in chambers with three of the appellant's attorneys and one of the prosecutors, the trial court had the court reporter prepare an excerpt of the relevant testimony.   The trial court provided copies to the attorneys and asked if they had any objections.   The attorneys stated on the record that they had no objections to providing the jury with the excerpt.

Then the trial court noted that the appellant herself was not present for this meeting.   The trial court asked the appellant's attorneys, Mulder and Mosty, if they waived the appellant's presence at that meeting.   Mulder and Mosty each said that they waived the appellant's presence.   The excerpt was sent to the jury.

(1) Articles 33.03 and 36.27

The appellant argues that she had a right under Article 33.03 to be present when the court responded to the jury's request.23  She failed to object at the earliest opportunity that her rights under these Articles were violated.   Thus, she has failed to preserve error.  Tex.R.App. P. 33.1.   Nonetheless, in an abundance of caution, we will address the merits of the appellant's claim.

Article 33.03 provides criminal defendants with a statutory right to be present during their trials.   It also allows criminal defendants to be absent, if they choose, after pleading to the indictment in a bench trial or after jury selection in a jury trial.

The appellant cites Hill v. State, 54 Tex.Crim. 646, 114 S.W. 117 (1908), in support of her claim.   In that case, the Court found reversible error when a defendant voluntarily absented himself from his proceedings even though his attorney waived his right to be present.  Id. at 650, 114 S.W. at 119.   The Court applied no harm analysis because that decision predated the adoption of the Rules of Appellate Procedure.

The record does not reveal why the appellant was not present.   The record shows that the appellant's attorneys waived her presence. The appellant does not allege that the waiver was erroneous, and she does not allege that she was not aware of the proceedings.   She has not shown that the trial court erred in accepting her attorneys' waiver of her presence.

Article 36.27 24 provides a procedure in the event jurors have questions about the case.   Before answering a jury's question, the trial court should use reasonable diligence to secure the defendant's and her counsel's presence.   The appellant does not allege that the trial court failed to use reasonable diligence in obtaining her presence.   The appellant's only quarrel with the trial court's procedure is that she was not present for the proceedings when the trial court read the jury's question to the attorneys for her and the State and when the trial court read its proposed response.   The appellant has not explained the reason for her absence from this meeting.   She still does not allege that she was unaware of the proceedings.   The trial court did not err in accepting her attorneys' waiver of her presence.

(2) Federal Due Process

The appellant claims that the trial court also violated her constitutional right to be present at a critical stage in her trial.   She claims that she had a right to be present because the proceeding had a substantial relationship to her ability to defend herself.   The State argues that the appellant, through her counsel, waived her right to be present.

The appellant cites Adanandus v. State, 866 S.W.2d 210 (Tex.Crim.App.1993), in support of her claim.   In that case, the defendant was not present for a pretrial meeting in the judge's chambers regarding a television reporter's recording of potential jurors as they entered the courtroom.   In accord with the United States Supreme Court's holdings, we said that a defendant's right to be present is triggered when the proceedings bear a substantial relationship to the opportunity to defend.  Id. at 219 (citing Snyder v. Massachusetts, 291 U.S. 97, 105-08, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).

In this case, the appellant claims that because the testimony was not about trivial or insubstantial matters, her due process right to be present was triggered.   In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Supreme Court outlined the parameters of a defendant's due process right to be present at a proceeding.   The Court said “whenever [the defendant's] presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge” the defendant has a right to be present.   The “presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.”  Id. at 105-106, 108, 54 S.Ct. 330.

The appellant has failed to show that a fair and just hearing was thwarted by her absence, especially since her attorneys were present and waived her right to be present.   In the absence of a showing that the waiver was erroneous, we cannot say that the trial court violated the appellant's federal due process right to be present for the proceeding.

(3) Harm Analysis

Even if we were to assume that the trial court erred, the appellant could not prevail under either the constitutional or the nonconstitutional error standard.   See Tex.R.App. P. 44.2(a) & (b).25  An appellant is harmed by a constitutional error unless after reviewing the record, the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.  Tex.R.App. P. 44.2;  Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).   Any nonconstitutional violation is reviewed under the standard explained in Johnson v. State, 967 S.W.2d 410 (Tex.Crim.App.1998), in which we said “[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.”  Id. at 417.

The appellant asserts that she was harmed because the trial court gave incorrect information to the jury in her absence.   The record does not support the appellant's claim.

The jury had a dispute about Darin's testimony that he had locked the garage door and the front door, but not the utility room door on the night of the murders.   The State impeached Darin with testimony from the pretrial bond hearing at which he testified that he had locked all the doors in the house.   Darin explained the discrepancy by stating that he probably misunderstood the question asked at the bond hearing.

The portion of the testimony given to the jury follows.   The markings show the portions altered in the Simmons record.

State:  Okay. The garage door, you just testified a few minutes ago, that when you were out there with the inventory for the garage sale that the garage door was up, correct?

Darin:  Well it was up when I was out there I had pulled it down before I went to bed.

State:  All right.   So, before you ever went back inside that house, you closed it and you latched it, didn't you?

Darin:  I latched it from the inside.

State:  Mat[t]er of fact you locked the doors, you locked both the front and the back doors to the residence before you went to bed, didn't you?

Darin:  No, sir I didn't.   I locked the front door and only the garage door.   I never locked the door between the garage and the utility room.

State:  Sir, on September the 12th of 1996, do you remember me asking you the question, after we had talked about the garage door:  “And the other doors in the house were locked when you when to sleep also?”   Do you remember what your answer was back then, Mr. Routier?

Darin:  That they are all locked.

State:  Would you like for me to show you your answer?

Darin:  If you would, yes, sir.

State:  Okay. I'll be happy to.   All right.   My question began on page 168 of line 3, your answer was at line 5 do you see your answer?

Darin:  “And the other doors in the house, they were locked when you went to bed?”

State:  Yes, sir.   And your answer was:  “Yes, sir.”   Correct?

Darin:  Yes, sir.  “The garage door and the front door were locked.”

State:  You see, that is not the question that I asked back on September the 12th, was it?   I didn't say, “Did you lock the garage door and the front door, that is not the question that I asked, is it?”

Darin:  You said all doors.

State:  I said the other doors in the house, you understood what I meant back then, didn't you?

Darin:  Well, I'm not really sure if I did or not.

State:  Sir, that is your house, you don't have any other doors, you have a front door, a door to the garage and the garage door, don't you?

Darin:  And a sliding glass door and 48 windows.

State:  That's right.   As a matter of fact, the sliding glass was also locked, wasn't it?

Darin:  Yes, sir, it was.   All exterior doors were locked.26

Sic passim.   The allegation that the jury received incorrect substantive information is unfounded.   The changes Simmons made to the portion of Darin's testimony excerpted for the jury during its deliberations were immaterial and did not change the substance of the testimony.   The testimony as presented in the excerpt and as presented in the Simmons record supported the appellant's theory of the case.   In addition, the appellant has not raised any claim on appeal that inaccurate information was provided to the jury.   Her only complaint is that she was not present when the trial court held a meeting regarding the jury's note.

The appellant also argues that she was harmed by her absence because she probably could have recognized the mistakes in the transcript of her husband's testimony about locking the doors and windows because she knew the witness and the facts.   But the record fails to show, and the appellant fails to identify, any specific facts that she could have pointed out to the trial court that her attorneys could not have.

Even if we assumed that the trial court erred in allowing the appellant's attorneys to waive her right to be present, the record supports beyond a reasonable doubt the conclusion that any potential error did not contribute to the jury's verdict.   We overrule the appellant's eleventh, twelfth, and thirteenth points of error.

II. First Point of Error: Conflict of Interest in Attorney's Representation

In the appellant's first point of error, she claims that she was deprived of her Sixth Amendment right to effective assistance of trial counsel because her lead counsel, Doug Mulder, had a conflict of interest, of which the trial court was aware, and the trial court failed to have a hearing on the State's motion to determine whether Mulder should be disqualified.   Specifically, the appellant claims that Mulder's representation of the appellant's husband, Darin Routier, at a show-cause hearing on the alleged violation of a gag order prevented Mulder from pursuing a trial strategy to show that Darin could have committed the murder with which the appellant was charged.

A. Facts

On September 19, 1996, the State filed a motion to discharge the appellant's appointed attorneys because Mulder had informed the trial court on September 12, 1996, that he had been retained to represent the appellant.   The trial court held a hearing on September 20, 1996, on the allegations that Darlie Kee, the appellant's mother, and Darin Routier, the appellant's husband, had violated a gag order imposed by the court by talking about the case on the radio.   The gag order prohibited witnesses or prospective witnesses from talking about the expected testimony of the appellant or any witness, the character, reputation, or credibility of any witness, the contents of any statement given by the appellant, and the nature of evidence that might be presented.

At the beginning of the hearing, Mulder said, “I am retained by Ms. Kee to represent her and she has asked me to represent Darin as well, I didn't know that until this morning.”   Mulder did not introduce any evidence or call Darin as a witness.   The trial court asked questions of Darin without placing him under oath.   The trial court found that Darin had not violated the gag order because he did not discuss prohibited information.

At the end of that hearing, the trial court took up the State's motion to dismiss the appellant's court-appointed attorneys.   The trial court asked Darin whether he had retained Mulder to represent the appellant for the trial.   Darin replied that he had not and that he was unaware of any arrangements to have Mulder represent the appellant.   The trial court then asked Mulder if he had been retained to represent the appellant.   Mulder explained that he had been retained by Darlie Kee to assist the appellant's court-appointed attorneys.   The trial court explained that Mulder could consult with Darlie Kee and the appellant's attorneys if they wished and that he could be present in the courtroom during the proceedings.   But the trial court explained that Mulder was not counsel of record and could not question witnesses or make any objections or motions.   There was a short recess, after which the trial court explained to Mulder that, if he wanted to become counsel of record, he would be required to file a formal motion for substitution of counsel.

Mulder filed a motion to substitute himself and three other attorneys for the appellant's appointed counsel.   On October 21, 1996, the first day of jury selection, the trial court held a hearing on the motion.   The uncertified record for the proceedings indicates that Mulder and three other attorneys had been retained by the appellant's family to represent her at the trial.   Mulder was asked if he would be ready to start the trial right away, to which Mulder replied that he was ready to start without delay.   The trial court asked the appellant whom she wanted to be her attorney.   The appellant stated that she wanted Mulder to represent her at the trial.   The trial court asked the appellant if she waived any potential conflict regarding Mulder's representation of Darlie Kee. The appellant responded that there was no conflict.   The trial court granted the motion for substitution of counsel without mentioning Mulder's representation of Darin Routier.

On November 12, 1996, the State filed a motion to determine whether Mulder had a conflict of interest regarding his representation of Darin Routier.   The State's motion stated that Mulder knew, when he was substituted as counsel for the appellant, that the State disbelieved the appellant's claim that the murders were committed by an unknown intruder.   Mulder also knew that Darin Routier was the only other adult in the house that night, and that the State was continuing its investigation.   The State then explained that “[r]ecent analysis of physical evidence suggest[ed] that Darin Routier may have participated with the [appellant] in the crime or coverup of the crime.”   It requested that the trial court hold a hearing to determine whether (1) a conflict existed for Mulder, (2) the appellant would waive any potential conflict, and (3) Darin Routier would waive any potential conflict.   The recent analysis of which the State spoke in its motion included a white tube sock found in the alley behind the Routiers' home on which was found the blood of both children, a faint trace of the appellant's DNA, and fibers from Darin's sneakers.   Also, the knife that inflicted the children's and the appellant's wounds was found to have a head hair that matched a known sample of Darin Routier's head hair.

On the day the State filed its motion, the trial court discussed having a hearing on the motion.   The trial court stated on the record that it believed that the appellant and Darin Routier had already waived any potential conflict on the first day that proceedings were conducted in Kerrville, October 21, 1996.   The appellant agreed with the trial court that both she and Darin had waived any potential conflicts on that day.   The prosecutor presenting the State's motion explained that the State had discovered new evidence and that the State wanted “to make real sure.”   The trial court said that it would hold a hearing after jury selection was completed.

On November 18, 1996, the trial court addressed the conflict motion on the record again.   The trial court said, “On the 21st, as I recall, I put Ms. Kee under oath, Mr. Routier under oath, the [appellant], under oath for this purpose only.   And they both waived any conflicts that may exist.   Has anything happened since then?”   One of the appellant's attorneys, Richard Mosty, replied, “Our response, that [the appellant] signed last week further reconfirms that.”   The response to which Mosty refers cannot be found in the record.

B. Analysis

The appellant claims that Mulder's representation of Darin Routier while Darin was a suspect created a conflict of interest that foreclosed a strategy of shifting responsibility for the murders to Darin Routier.   The appellant argues that this actual conflict requires reversal because the trial judge failed to have a hearing on the conflict.

The State claims that no conflict arose from Mulder's limited representation of Darin Routier for purposes of the gag order.   Moreover, three other attorneys represented the appellant during the trial.   The record does not show an actual conflict of interest of which the trial court should have been aware.

Ineffective assistance of counsel may result from an attorney's conflict of interest.  Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Two different situations have been discussed by the United States Supreme Court regarding conflicts of interest.   The distinguishing factor is whether the defendant or his attorney objected during the trial.   Compare Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), with Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

When the appellant or his attorney has brought a potential conflict of interest to the attention of the trial court, the Supreme Court has said that the trial court has an obligation to investigate and determine “whether the risk of the conflict of interest is too remote to warrant separate counsel.”   Holloway, 435 U.S. at 484, 98 S.Ct. 1173.

If the appellant and his attorney fail to bring the potential conflict to the attention of the trial court and the appealing defendant relies on the argument that the trial court should have been aware of the conflict, the defendant cannot obtain a reversal on appeal unless he shows that his attorney was operating under an actual conflict of interest that adversely affected counsel's performance.  Sullivan, 446 U.S. at 348, 100 S.Ct. 1708.   No additional showing of harm or prejudice is required.  Id. at 349-50, 100 S.Ct. 1708.   We have said that an actual conflict of interest exists when “counsel is required to make a choice between advancing his client's interest in a fair trial or advancing other interests (perhaps his own) to the detriment of his client's interest.”  James v. State, 763 S.W.2d 776, 779 (Tex.Crim.App.1989).

The appellant claims a third category is suggested by Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), when the prosecutor raises the issue and the “facts demonstrate convincingly the duty of the [trial] court to recognize the possibility of a disqualifying conflict of interest.”  Id. at 272-73, 101 S.Ct. 1097.   In Wood, three defendants had been convicted of distributing obscene materials and placed on probation.   The defendants had all been represented by an attorney hired by their employer.   Their probation was later revoked.   The employer's attorney represented them in the revocation hearing.   The employer had promised the defendants that he would pay the fines imposed by the trial court when they were put on probation.   The motion to revoke probation was filed because neither the defendants nor their employer paid the fines.   The record indicated that the employer had an interest in creating equal protection jurisprudence favorable to him.   The attorney's strategy in representing the employer's interest rather than the defendants' interest in obtaining leniency indicated that the attorney was actively representing the employer's interests and not those of the defendants.   The defendants did not object to their attorney's conflict, but the State made the trial court aware of the conflict.  Id. at 265-67, 101 S.Ct. 1097.

The Supreme Court granted certiorari on an equal protection question but was unable to address it because the Court could not be sure that counsel was not influenced in his basic strategic decisions by the employer's interests.   Id. at 264-65, 101 S.Ct. 1097.   As a result, the Court remanded the case for the trial court to determine whether an actual conflict of interest existed.   Id. at 273-74, 101 S.Ct. 1097.   The Supreme Court has since made it clear that it did not create a third category in Wood.

In Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), the Supreme Court corrected the lingering confusion left by Wood. In Mickens, the petitioner argued that the remand instruction in Wood created a rule that required reversal when a trial court fails to inquire into a potential conflict, even in the absence of the defendant's showing that the representation was affected by the conflict of interest.   The petitioner found it significant that the remand order in Wood directed the trial court to grant a new probation revocation hearing if it found that an actual conflict of interest existed.

The Supreme Court explained that the reference to an actual conflict of interest in Wood meant a conflict that affected counsel's performance.  “It was shorthand for the statement in Sullivan that ‘a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.’ ” Mickens, 535 U.S. at 171, 122 S.Ct. 1237 (quoting Sullivan, 446 U.S. at 349-50, 100 S.Ct. 1708) (emphasis added in Mickens ).   The Supreme Court said explicitly that it did not create a new rule of law in Wood. Id. at 172, 122 S.Ct. 1237.

(1) Did the appellant object during trial?

The record indicates that neither the appellant nor her attorney objected to Mulder's representation on the basis that a conflict of interest existed.   The State filed a motion requesting a hearing for the trial court to determine whether a conflict existed.   In reference to the motion, the following colloquy occurred on November 12, 1996.

Trial Court:  All Right.   Let's put on the record.   I have in my possession notice of motion, notice of possible conflict of interest, by Gregory Davis, an Assistant District Attorney from Dallas asking me to ascertain whether or not Mr. Mulder has any conflict of interest in this case.   And I believe that the record will reflect that I have already asked these same questions of Mr. Mulder when we first started and that [the appellant] previously waived any conflict of interest.   Is that not so, [appellant]?

Appellant:  Yes, yes sir.

Trial Court:  And I believe that your husband Darin Routier also knowingly and intentionally waived any conflict of interest.

Appellant:  Yes, he did.

Trial Court:  I think that was all in the record.   Was it not?

Appellant:  It was asked to us at the beginning when we changed.

Trial Court:  That is my recollection of things.

Appellant:  Yes, sir.

Trial Court:  We did that the first day here, didn't we

Toby Shook: 27I  think so.

Appellant:  We did it that day, but you had asked me when I was changing attorneys.

Trial Court:  Yes, ma'am.   But I mean in Kerrville.   We did it right then and there.

Appellant:  Yes.

Trial Court:  As I recall it, it was the first day before the jury, change of venue and all that, before we got into jury selection.

Sherri Wallace: 28  Judge I think this is new evidence and Greg [Davis] just wanted to make real sure.   There is some new evidence.

Trial Court:  Well, I will tell you what will do.   We will have a hearing all over and I will ask [the appellant] and I will ask Mr. Routier again.   I'm sure we will see what the questions are.

Appellant:  I know you have to go through that procedure but the questions will be-.

Trial Court:  Well, I feel I will not be surprised at the same answers.   Thank you.   But we will do it after we get this jury picked.

Appellant:  Yes, sir.

Sic passim.

Again, on November 18, 1996, the trial court referenced the State's motion.

Trial Court:  Now I have several motions.   I have a motion filed last week considering any conflict of interest that Mr. Mulder might have.   The Routiers, I think, we have already waived that.   We have got him on the record when they came down here the first day.   Was it not Miss Halsey?

Court Reporter:  Yes, sir.

Trial Court:  On the 21st, as I recall, I put Ms. Kee under oath, Mr. Routier under oath, [the appellant] under oath for this purpose only.   And they both waived any conflicts that might exist.   Has anything new happened since then?

Richard Mosty: 29  Our response, that [the appellant] signed last week further reconfirms that.

Trial Court:  That's right.   She reconfirmed it last week.   Now we can have a brief hearing when we start this on the 6th if everybody wants to, but I'm quite sure the answers will be the same.

Sic passim.

The record shows that the appellant, Mulder, and her other three attorneys made no objection on the basis of any potential conflict of interest on the basis of Mulder's representation of Darin Routier. As a result, the Sullivan standard applies, and to obtain relief, the appellant must show that (1) an actual conflict of interest existed, (2) which affected Mulder's representation of the appellant.  Sullivan, 446 U.S. at 349-50, 100 S.Ct. 1708.

(2) Has the appellant shown that an actual conflict of interest existed?

The appellant argues that Mulder had an actual conflict of interest because there was a plausible alternative defensive strategy that he could not have pursued in the appellant's case without violating his duty of loyalty and confidentiality to Darin Routier, who was a suspect, a prosecution witness, and a former client in a substantially related case.

The State claims that Mulder represented Darin Routier for the gag order hearing only, which was not substantially related to the capital murder case.   The State also claims that Mulder was not actively representing conflicting interests during the trial.

We have said that an actual conflict of interest exists when “one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing.”  James v. State, 763 S.W.2d 776, 779 (Tex.Crim.App.1989).

We agree with the State that Mulder's representation of Darin Routier was related only tangentially to his representation of the appellant.   The only issue in the show-cause hearing was whether Darin had violated the order prohibiting potential witnesses in the case from discussing the expected testimony of the appellant or of any witness;  the character, reputation, or credibility of any witness;  the contents of any statement given by the appellant;  and the nature of evidence that might be presented.   The trial court found that Darin had not violated the gag order because he had not discussed any of the prohibited topics in his radio interview.   As a result the trial court did not hold him in contempt.   Mulder's minimal participation in Darin's defense at the gag order hearing cannot be said to be substantially related to Mulder's defense of the appellant in her capital murder trial.

Even if we were to accept the appellant's claim that the proceedings were substantially related, the appellant has not shown that any actual conflict of interest arose.  James v. State, is analogous to this case.   James and his co-defendant were tried in the same case and represented by the same attorney.   Both defendants relied on alibi defenses that were independent of one another and the testimony at trial was consistent with the strategy that both defendants were innocent.   On appeal James claimed that he could have shifted blame to his co-defendant if they had not had the same attorney.   After explaining that no evidence supported that James was interested in pursuing this strategy, we said:

What evidence we do have comes in the form of speculative argument from appellants' counsel on appeal, later adopted by the appeals court in analyzing the issue.   Again in his response to the State's petition for discretionary review, appellant underscores the point that the appeals court opinion was based upon the “likelihood that the defense attorney could have, would have and should have” advanced evidence and arguments advantageous to each defendant but did not do so because of the multiple representation problem.

Id. at 781.   We explained that a potential conflict may become an actual conflict, but we decline to speculate about a strategy an attorney might have pursued, but for the existence of a potential conflict of interest, in the absence of some showing that the potential conflict became an actual conflict.

We note that Mulder's representation of Darin did not amount to the joint representation at issue in James.   Even if it did, nothing in the record supports a conclusion that an actual conflict of interest arose.   Mulder did not know he was representing Darin until the morning of the gag order hearing.   Also, Mulder had no direct knowledge of Darin's actions regarding the gag order;  he put on no evidence in defense of Darin, who was never charged with any crime in connection with the murders.   Darin and the appellant were not codefendants.   The State never suggested during the trial that Darin was involved in the murders.   During closing arguments of the guilt phase of the trial, the State focused on identity;  prosecutors said that either an unknown intruder killed the two boys or the appellant did.   They argued that the evidence supported finding the appellant guilty.   The State also notes that Darin was a witness for the defense whose testimony was consistent with the appellant's theory of the case.   The appellant testified that an unknown intruder stabbed her and her children and that Darin was not involved.

The appellant attempts to distinguish James on the bases that prejudice must be presumed because the trial court did not hold a hearing and that there was substantial evidence to support a plausible alternative defensive theory.

As we explained above, prejudice is not presumed just because the trial court failed to hold a hearing after the State's motion was filed.   We presume prejudice from the failure to hold a hearing only when the defendant or her attorney objects on the basis of a potential conflict.   In the absence of an objection, the defendant is required to show that an actual conflict of interest existed that adversely affected the representation.

In James, we distinguished other cases in which we had held that an actual conflict developed during the trial.   Those cases were Ex parte McCormick, 645 S.W.2d 801 (Tex.Crim.App.1983), Ex parte Parham, 611 S.W.2d 103 (Tex.Crim.App.1981), and Gonzales v. State, 605 S.W.2d 278 (Tex.Crim.App.1980).   In each case, the record demonstrated that counsel had to forego an effective strategy or that a strategy backfired due to an actual conflict that arose during trial.   We said:

In each of these cases the potential for conflict inherent in multiple representation became an actual conflict due to the inculpatory or exculpatory nature of testimony or the strategy adopted by defense counsel in the particular case.   That is not reflected in the case before us today.   Each appellant had a distinct alibi supported, albeit sometimes weakly, by separate witnesses.   Each appellant testified, in effect bolstering both alibi defenses.   There is no conflict between the testimony of these appellants, the testimony in effect bolstering an individual appellant's own defense, a potential conflict does not rise to the level of an actual conflict of interest.   In line with this, we hold that the testimony between alibi witnesses for appellants in no way conflicted with either defense, and an actual conflict of interest has not been shown.

James, 763 S.W.2d at 781-82 (citation omitted).   The appellant's case is more analogous to James than to McCormick, Parham, and Gonzales.   The record does not support the conclusion that Mulder's representation of both the appellant and Darin Routier created a situation in which Mulder had to forego a strategy in the appellant's trial that he would have otherwise pursued if he had not represented Darin Routier.

We hold that no actual conflict of interest existed regarding Mulder's representation.   As a result, we overrule the appellant's first point of error.

III. Eighth, Ninth, and Tenth Points of Error: Dismissal of Sworn Juror

In the appellant's eighth, ninth, and tenth points of error, she claims that the trial judge violated her right to counsel, her right to be present, and Article 36.29 when he had an unrecorded ex parte communication with an unnamed person who provided the only basis for finding that a sworn juror was disabled.

At the beginning of the proceedings on January 16, 1997, just before the State was to present its case-in-chief, the trial court announced that one of the jurors was disabled and unable to continue. The trial court replaced the disabled juror with an alternate.   The appellant requested a continuance to determine whether, in fact, the juror was disabled as required by Article 36.29.   The juror had attended trial proceedings until that day.   The trial court responded that the juror had had the flu the day before, that she struggled to come to the proceedings, and that she had become bedridden.   The appellant objected on the basis that it violated Article 36.29(b).  The trial court overruled this objection.   The appellant made no other objections, and the trial court proceeded with the trial with the alternate juror.   The next day, the trial court admitted a photocopy of a note from the disabled juror's physician.

A. Violation of right to counsel and right to be present

The appellant claims that the trial court violated her Sixth Amendment right to counsel and her right to be present during a critical stage of her trial by engaging in an unrecorded ex parte communication about the discharged juror's disability when her lawyer was not present.   The appellant objected on the basis that the trial court's decision violated Article 36.29.   Because the objection at trial does not comport with her complaint on appeal, these complaints are not preserved for review.  Tex.R.App. P. 33.1(a).

The appellant claims that her failure to object on these bases were preserved without objection because the State must show a valid waiver of those constitutional rights.   The record contains no evidence of a waiver, and therefore she argues, the complaint was preserved.   The State argues that even constitutional claims can be forfeited by the failure to assert them.   See Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993).

Even if we assume that the appellant did not need to object to preserve these complaints;  the appellant still cannot prevail.   The appellant has not shown that her rights to due process and counsel were violated.

The appellant relies on U.S. v. Santiago, 977 F.2d 517 (10th Cir.1992), in support of her claim.   In that case, during defense counsel's closing argument, a juror became ill and had to be excused.   The defendant initially objected to using the only alternate juror because during voir dire Santiago said that she had heard another prospective juror comment that the entrapment defense was ridiculous.   The trial court conducted an ex parte examination of the alternate juror on the record.   Once satisfied that the juror could render an unbiased verdict, the trial court allowed the parties to view the transcript of the examination.   The defendant made no further objections.   As a result, the Tenth Circuit reviewed the case for plain error.  Id. at 521-22.   The Court conducted a detailed analysis addressing the appellant's right to be present and concluded that a defendant's due process right to be present did not extend to situations that did not involve the confrontation of witnesses or evidence related to her ability to defend against the charge.  Id. at 522.

The Tenth Circuit relied on United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985), in which the Supreme Court said that “[t]he defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication.”  Id. at 526, 105 S.Ct. 1482.   This is because the right to be present is largely derived from the defendant's right to confront witnesses against her.  Ibid. Although the Court was directly addressing whether the defendant had a due process or confrontation right to be present, the analysis applies with equal persuasion regarding the appellant's right to have her counsel present.

The Supreme Court explained that it has recognized that the right to be present does extend to some situations in which the defendant “is not actually confronting witnesses or evidence against him.”  Ibid. As we explained above, in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Supreme Court outlined the parameters of a defendant's due process right to be present during trial.   The Court said “whenever [the defendant's] presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge” the defendant has a right to be present.   The “presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.”  Id. at 105-106, 108, 54 S.Ct. 330.

The appellant claims that she had a right to be present and have her counsel present at all critical stages of her trial.   This is true, but the circumstances about which the appellant complains did not constitute a critical stage.   The trial court's learning that the juror was ill and could not continue was not a critical stage in the trial.   The appellant was present when the trial court dismissed the juror, and she was able to make objections at that time.   We cannot say that the absence of the appellant and her counsel when the trial court received information about the juror's illness thwarted the appellant's right to a fair and just determination of her guilt and punishment in this case.   We overrule the appellant's eighth and ninth points of error.

B. Violation of Article 36.29

In her tenth point of error, the appellant claims that the trial court violated Article 36.29 in replacing the disabled juror when there was no evidence in the record to show that the juror was disabled.   The State claims that the trial court did not abuse its discretion.

Article 36.29 provides:

If alternate jurors have been selected in a capital case in which the state seeks the death penalty and a juror dies or becomes disabled from sitting at any time before the charge of the court is read to the jury, the alternate juror whose name was called first under Article 35.26 of this code shall replace the dead or disabled juror.   Likewise, if another juror dies or becomes disabled from sitting before the charge of the court is read to the jury, the other alternate juror shall replace the second juror to die or become disabled.

The determination as to whether a juror is disabled is within the discretion of the trial court, and absent an abuse of that discretion, no reversible error will be found.  Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App.1999).   We have said that a disability for purposes of Article 36.29 includes “any condition that inhibits a juror from fully and fairly performing the functions of a juror.”  Reyes v. State, 30 S.W.3d 409, 411 (Tex.Crim.App.2000).

In this case, the trial court received information that the juror was bedridden with the flu.   The following day, a letter from the juror's doctor was admitted, without objection, indicating that the juror was ill.   Without more we cannot say that the trial court abused its discretion in replacing the disabled juror with an alternate.   We overrule the appellant's tenth point of error.

III. Sixth and Seventh Points of Error: Evidentiary Question

In the appellant's sixth and seventh points of error, she complains that the trial court abused its discretion under Texas Rule of Evidence 614 30 and violated the appellant's right to federal due process when it excluded testimony from the appellant's private investigator about a prior inconsistent statement made by the State's blood spatter expert.31  The appellant argues that the evidence was strong and absolutely crucial to her defense.   The State argues that the record shows that the trial court did not abuse its discretion because the appellant's attorneys knew the investigator was in the courtroom and knew his status as a potential impeachment witness.   In addition, the State argues that the impeachment testimony would have been of minimal value.

Before testimony began in the trial, the State requested that the trial court invoke Rule of Evidence 614 to keep witnesses out of the courtroom while not testifying.   The appellant's investigator was present in the courtroom throughout the appellant's trial, and he was not excused from the rule.   The State's blood spatter expert, Tom Bevel, testified that he found four cast-off or spatter bloodstains on the nightshirt the appellant had been wearing on the night of the murder.   All of the stains contained some of the appellant's blood and some of the blood of either Damon or Devon.

Bevel testified that the stains could be either (1) two separate stains with the appellant's blood overlaying the child's blood or (2) a mixture of both the appellant's blood and the child's blood.   Bevel said that if the stains were a mixture, it would show that the appellant had been cut before the stain was deposited, which is inconsistent the State's theory that the appellant stabbed the children first before inflicting her own wounds.   If the stains were overlaid, it would be consistent with the State's theory of the case. Bevel testified that at least one of the stains appeared to be mixed, not overlaid.   He testified that the other three could have been overlaid stains.

Defense counsel cross-examined Bevel about statements made to three of the appellant's attorneys and the appellant's investigator, Lloyd Harrell.   Specifically, defense counsel asked Bevel whether he had said that the four stains were mixed rather than overlaid.   Bevel responded:

Bevel:  I told you there was some mixed blood.   I don't know if we specifically addressed that stain.   I don't recall.

Defense:  Well, you told us that in your judgment, that that was mixed blood in one stain?

Bevel:  I don't recall specifically stating that it was one stain. Now, which one are we referring to here?

Defense:  I'm talking about these, I'm talking to all four of them on the front of the shirt, all four of them mixed?

Bevel:  The only one that I can say is really consistent without any hesitation, is the one that is up in this area here, which is going to be LS-1.

Defense:  You are talking about the highest one on the left shoulder?

Bevel:  That is correct.

Defense:  Okay. But you didn't tell us when we were up there that you thought all of those others were a stain that was mixed before it hit the shirt?

Bevel:  I don't believe so.

The trial court prohibited Harrell's testifying before the jury also.   The trial court said, “All right.   Same ruling.32  So let's get on with making your Bill, whatever you want to do.” 33

Outside the presence of the jury, Harrell testified that he and three of the appellant's attorneys traveled to Oklahoma City to interview Bevel.   In Harrell's opinion, the statements that Bevel made in Oklahoma City were “materially different” from his testimony at trial.   Harrell testified that, during the interview, Bevel had said that all four of the stains were mixtures.   Harrell said he was certain of this because he asked Bevel at least twice, “does this mean that each of those blood stains, the knife had to contain the blood of Darlie and the blood of one of her children?”   Bevel had responded, “yes,” according to Harrell.

On cross-examination, the State asked Harrell if he had recorded the approximately four-hour meeting with Bevel.   Harrell said that he had not and that he had not asked Bevel if he would allow the defense team to record the conversation.

(A) Rule of Evidence 614

Rule of Evidence 614 contains what has been commonly referred to as “the Rule.” When a party invokes the Rule, or it is invoked on the court's own motion, the trial court orders witnesses to remain outside the courtroom.34  There are exceptions to the Rule:  the parties, people who are shown to be essential to a party's case, and generally the victim of the offense.  Tex.R. Evid. 614.   The Rule is designed to prevent witnesses from altering their testimony, consciously or not, based on other witnesses' testimony.  Webb v. State, 766 S.W.2d 236, 239 (Tex.Crim.App.1989).

There are basically two situations that arise under Rule 614.   One is when a party complains of the admission of evidence in violation of the Rule. In those cases, we look at whether the complaining party objected and was harmed.  Id. at 240.   The other situation that can arise under Rule 614 is when a witness is excluded.  Ibid. In cases arising from the exclusion of a defense witness, the trial court must consider the competing interest of the defendant's right to defend himself.  Id. at 240. Rule 614 contains no provision for sanctions for a violation.   In Webb v. State, we explained that when a trial court decides whether to disqualify a witness under the Rule, the trial court must balance the interests of the State and the accused, consider alternative sanctions, and consider the benefit and detriment arising from a disqualification in light of the nature and weight of the testimony to be offered.  Id. at 244.

In Webb, we formally adopted a test to apply when a witness was prohibited by the trial court from testifying because the witness was present in the courtroom during the trial.   The appellate court determines:

(1) if the rule was violated and the witness disqualified, were there particular circumstances, other than the mere fact of the violation, which would tend to show the defendant or his counsel consented, procured or otherwise had knowledge of the witness's presence in the courtroom, together with knowledge of the content of that witness's testimony;  and (2) if no particular circumstances existed to justify disqualification, was the excluded testimony crucial to the defense.

Id. at 245.

The second part of the analysis is dispositive of the appellant's case.   The testimony Harrell provided cannot be said to be crucial to the appellant's defense.   In Webb we said that for a defendant to prevail, he must show that the evidence “was ‘extraordinary’ in the sense that it was crucial to his defense.”  Webb, 766 S.W.2d at 245.   In that case, we held that the excluded witness's testimony was crucial for several reasons.  Id. at 245-46.   We noted that the witness's testimony was probative of an accomplice witness's credibility and the defense's theory of the case.   She also provided evidence of other witnesses' motives for testifying as they did.   The excluded witness was the only witness who could corroborate the defendant's claim that another person had been involved in the offense.

In Davis v. State, 872 S.W.2d 743 (Tex.Crim.App.1994), we said that “simply because the excluded testimony is not the only evidence supporting a defensive theory does not mean that it is not crucial to such defensive theory.”  Id. at 746.   We held that the testimony of an excluded witness was crucial because it corroborated other evidence favorable to the defense that the jury would have been more inclined to believe had the excluded testimony been admitted.  Ibid.

This case is distinguishable from those cases.   First, Harrell's testimony would not have been admissible as substantive evidence that the stains Bevel testified about were mixed as opposed to overlaid.   Harrell's testimony was admissible for impeachment purposes only, unless the statement came within an exception to the general prohibition of hearsay.  Tex.R. Evid. 801 & 802;  see 1 Steven Goode, Olin Guy Wellborn III, M. Michael Sharlot, Texas Practice Guide to the Rules of Evidence § 613.2, at 796-97 (3d ed.2002).   We see no exception to the hearsay rule that would allow the jury to consider Harrell's testimony as substantive evidence of the appellant's innocence.   If he had been allowed to testify, the State would have been entitled to a limiting instruction on that basis.

It is possible that either Bevel misunderstood Harrell's questions or that Harrell misunderstood Bevel's answer.   As commentators have explained, “The fact of inconsistency does not by itself reveal whether the witness is lying or is simply mistaken.   Nor does it indicate which (if either) of the statements-the trial testimony or the previous inconsistency-is the correct one.”   1 Steven Goode, Olin Guy Wellborn III, M. Michael Sharlot, Texas Practice Guide to the Rules of Evidence § 613.2, at 796 (3d ed.2002).   The record does not reveal, and the appellant does not suggest, that Bevel had a motive to present different information at trial.

Next, Bevel's testimony was, at worst, neutral.   He said that, in his opinion, one of the stains was mixed.   This tended to support the appellant's theory of the case.   He said that he could not be certain about the other three stains.   This testimony was not highly probative of the question of the appellant's guilt.   We cannot say that the trial court abused its discretion under Rule 614 in excluding Harrell as a witness.

(B) Due Process

Next, we address whether the trial court violated the appellant's federal due process right to call witnesses for her defense.   The appellant's due process argument consists of stating that, “Few rights are more fundamental than that of an accused to present witnesses in his own defense.”  Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).   She goes on to say that a defendant's due process right to present her defense must be balanced against the State's interest in enforcing the rule.   The appellant cited Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893), Davis, 872 S.W.2d at 745, Webb, 766 S.W.2d at 244, and Braswell v. Wainwright, 463 F.2d 1148, 1152 (5th Cir.1972).   No other authority or argument for the appellant's claim is presented.

In Holder v. United States, the Supreme Court addressed a situation in which a witness, who had been in the courtroom, testified when no objection was made on the basis of the Rule until after he testified.   The Supreme Court said that trial courts may not prevent a witness from testifying solely on the basis that they violated the Rule. Holder, 150 U.S. at 92, 14 S.Ct. 10.   In this case, the trial court did not give a reason beyond the violation of the Rule for excluding the testimony.   But the trial court could have found, as we have concluded, that Harrell's testimony was not crucial to the defense.   The other cases cited by the appellant in support of her case are distinguishable on that basis.   We overrule the appellant's sixth and seventh points of error.

Having found no reversible error, we affirm the trial court's judgment and sentence.

FOOTNOTES

1.   In this case, the State charged the appellant with the murder of Damon, a child under the age of six.

2.   Halsey was late in preparing the record.

3.   The trial judge who presided over the hearings regarding the record, Judge Robert Francis, is not the judge who presided over the trial on the merits.   Judge Mark Tolle retired after the appellant's trial.

4.   Miller testified that she heard Halsey's reason that the tape recorder did not work during the appellant's trial:  the recorder required a battery in the external microphone.   Miller said that she had used the same type of equipment before and that the battery in the microphone improves the quality of the recording, but the recorder has an internal microphone that will pick up sound even if the external microphone does not have batteries.

5.   A transcription scopist assists a court reporter in preparing the trial record.   Testimony taken during the proceedings on the record indicated that the use of a scopist is a normal and necessary part of the process of producing a trial record.

6.   The materials for the guilt and punishment phases were given to Simmons on November 20, 1998.   Francine Eikner was appointed to assist Simmons as a scopist on December 10, 1998.

7.   The appellant's counsel had filed a motion to ask questions directly of Simmons, which was denied.

8.   Crowley's testimony indicated that, as Halsey's scopist, she edited on the original disks and recorded over the files created during the trial.

9.   This is known as an ASCII format, which can be read by any word processing software.

10.   The appellant objected on the basis that the tapes were not authenticated.   She did not agree that the trial court's action regarding the tapes was legally appropriate.   The trial court overruled the appellant's objection, but said that it might revisit the issue at another time.

11.   Halsey's record had been 53 pages.   Simmons transcribed the reading of the indictment, which was included only by reference in Halsey's record.   Simmons also included some colloquy found in the notes before and after the reading of the indictment.

12.   The tape for the afternoon proceedings was transcribed in the second part of Volume 10.   This conversation does not appear in the record because the court was not in session.

13.   In this point of error, the appellant addresses the record generally.   As noted above, there are additional issues with the first 54 pages of Volume 10 of the record.   The appellant's arguments regarding those pages will be addressed separately.

14.   Rule of Appellate Procedure 34.6(a)(1) states that “[i]f the proceedings were stenographically recorded, the reporter's record consists of the court reporter's transcription of so much of the proceedings, and any of the exhibits that the parties to the appeal designate.”

15.   This is incorrect.   The trial court found that the Halsey record did not conform to what happened at trial.   No specific findings were made about the notes, but Simmons testified that they appeared to be complete, useable, and within the range of competent reporting.

16.   After retiring, Judge Mark Tolle began sitting as a visiting judge.

17.   “If the proceedings were electronically recorded, the reporter's record consists of certified copies of all tapes or other audio-storage devices on which the proceedings were recorded, any of the exhibits that the parties to the appeal designate, and certified copies of the logs prepared by the court recorder under Rule 13.2.”  Tex.R.App. P. 34.6(a)(2).

18.   There was no tape for the proceedings from the morning session on October 21, 1996.   The record from that proceeding is found in the first 54 pages of Volume 10.   We address that portion of the record in the appellant's second point of error.

19.   Rule 13.2(e) requires that the official court reporter “ensure that no one gains access to the original recording without the court's written order.”

20.   The complete text of Rule 34.6(e) states:(1) Correction of Inaccuracies by Agreement.   The parties may agree to correct an inaccuracy in the reporter's record, including an exhibit, without the court reporter's recertification.(2) Correction of Inaccuracies by Trial Court.   If the parties cannot agree on whether or how to correct the reporter's record so that the text accurately discloses what occurred in the trial court and the exhibits are accurate, the trial court must-after notice and hearing-settle the dispute.After doing so, the court must order the court reporter to correct the reporter's record by conforming the text to what occurred in the trial court or by adding an accurate copy of the exhibit, and to certify and file in the appellate court a corrected reporter's record.(3) Correction After Filing in Appellate Court.   If the dispute arises after the reporter's record has been filed in the appellate court, that court may submit the dispute to the trial court for resolution.   The trial court must then ensure that the reporter's record is made to conform to what occurred in the trial court.

21.   Although successfully tested as early as 1935, tape recorders were not widely available in the United States until after World War II. See David Morton, The Tape Recorder, in Off the Record:  The Technology and Culture of Sound Recording in America (2000).

22.   Because the third requirement is dispositive, we decline to address the other requirements of Rule 34.6(f).

23.   Code of Criminal Procedure Article 33.03 reads, in full:In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail;  provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion.   When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial.   Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case.

24.   Code of Criminal Procedure Article 36.27 reads, in full:When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof.   Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff.   The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper.   The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.All such proceedings in felony cases shall be a part of the record and recorded by the court reporter.

25.   Rule 44.2 Reversible Error in Criminal Cases.(a) Constitutional error.If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.(b) Other errors.Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

26.   The text of the Simmons record with underlines marking differences in the text is as follows:State:  Okay. The garage door, you just testified a few minutes ago, that when you were out there with the inventory for the garage sale, that the window-that the garage door was up;  correct?Darin:  The garage door, it was up when I was out there, I had pulled it down before I went to bed.State:  All right.   So before you ever went back inside that house, you closed it, and you latched it, didn't you?Darin:  Latched it from the inside.State:  Matter of fact, you locked the doors, you locked both the front and the back doors of the residence before you went to bed, didn't you?Darin:  No, sir, I didn't.   I locked the front door and only the garage door.   I never locked the door in between the garage and the utility room.State:  Sir, on September the 12th of ′96 do you remember me asking you the question, after we had talked about the garage door:  “And the other doors in the house were locked when you went to sleep also?”   Do you remember what your answer was back then, Mr. Routier?Darin:  That they were all locked.State:  Would you like for me-Darin:  I would-State:  Would you like for me to show you your answer?Darin:  If you would, yes, sir.State:  I'll be happy to.   My question begins on page 168 at line 3. Your answer was at line 5. Do you see your answer?Darin:  “The other doors in the house they were locked when you went to bed?”State:  Yes, sir.   And your answer was:  “Yes, sir.”   Correct?Darin:  Yes, sir.State:  Okay.Darin:  The garage door and the front door were locked.State:  You see, that is not the question that I asked back on September the 12th though, was it?   I didn't say, “Did you lock the garage door, and the front door?”   That is not the question that I asked, did I?Darin:  You said all doors.State:  I said the other doors in the house.   You understood what I meant back then, didn't you?Darin:  Well, I'm not really sure if I did or not.State:  Sir, that is your house.   You know how many doors.   You have a front door, and a door to the garage and you have a garage door, don't you?Darin:  And a sliding glass door, and 48 windows.State:  That's right.   Matter of fact, the sliding glass was also locked, wasn't it?Darin:  Yes, sir, it was.State:  Okay.Darin:  All exterior doors were locked.

27.   Toby Shook is an assistant district attorney who represented the State during the trial in this case.

28.   Sherri Wallace is an assistant district attorney who represented the State during the trial in this case.

29.   Richard Mosty is one of the attorneys who represented the appellant during the trial in this case.

30.   At the time of the appellant's trial it was Texas Rule of Criminal Evidence 613.

31.   Within the appellant's analysis of points of error six and seven she argues that the excluded testimony should have been admitted under the rule of optional completeness.   The appellant did not object on this basis at trial, and thus, has failed to preserve error.  Tex.R.App. P. 33.1.

32.   This is a reference to the trial court's ruling on another proposed witness.   The trial court had said in reference to that witness, “Well, do a Bill then, because I'm not going to let-anybody who has been in the courtroom is not going to testify.   That is my discretion, and so I'm going to exercise my discretion and not let her testify.”

33.   As we discuss below, Rule 614 is not a per se exclusionary rule.   Trial courts should perform the balancing test set out in Webb v. State, 766 S.W.2d 236, 244 (Tex.Crim.App.1989).

34.   The text of Rule 614 reads:At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.   This rule does not authorize exclusion of:(1) a party who is a natural person or in civil cases the spouse of such natural person;(2) an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney;(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause;  or(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.

PRICE, J., delivered the unanimous opinion of the Court.

 

 

 
 
 
 
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