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.
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.
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
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
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
Four days later, Routier was charged with
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.
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.
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
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
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.
Darlie Routier: Doting
By Joseph Geringer - Trutv.com
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
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
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.
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
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
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
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.
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
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
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
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
No, Jack thought to himself, things didn't add
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
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
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.
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
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.
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
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.
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."
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
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
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
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
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
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.
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,
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
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
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
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 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
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
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
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
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
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."
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
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
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
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
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,
Is she one of the most heartless criminals in
the state's history or a victim of an overly-aggressive
Court of Criminal Appeals of
Routier v. State
Darlie Lynn ROUTIER, Appellant,
The STATE of Texas.
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
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
to resolve any dispute raised in the appellant's motion and to
ensure that the reporter's record conformed to what occurred at
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
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
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
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
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
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
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
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.
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.
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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,
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
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
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
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.
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.
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
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
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
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
Appellant: Yes, sir.
Trial Court: We did that the first day here,
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.
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.
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.
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,
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
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
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
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
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
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.
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:
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
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
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
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
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
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
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.
this case, the State charged the appellant with the murder of
Damon, a child under the age of six.
was late in preparing the record.
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
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.
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.
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.
appellant's counsel had filed a motion to ask questions directly
of Simmons, which was denied.
testimony indicated that, as Halsey's scopist, she edited on the
original disks and recorded over the files created during the
is known as an ASCII format, which can be read by any word
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.
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.
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.
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.
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
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.
retiring, Judge Mark Tolle began sitting as a visiting judge.
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).
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.
13.2(e) requires that the official court reporter “ensure that no
one gains access to the original recording without the court's
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.
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).
the third requirement is dispositive, we decline to address the
other requirements of Rule 34.6(f).
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.
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.
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
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.
Shook is an assistant district attorney who represented the State
during the trial in this case.
Wallace is an assistant district attorney who represented the
State during the trial in this case.
Mosty is one of the attorneys who represented the appellant during
the trial in this case.
the time of the appellant's trial it was Texas Rule of Criminal
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.
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
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).
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