Appendix — Routier v. Texas

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APPENDIX A — OPINION OF THE COURT OF

CRIMINAL APPEALS OF TEXAS

DATED MAY 21, 2003

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

No. 72,795

DARLIE LYNN ROUTIER,

Appellant,

V.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM DALLAS COUNTY

ON CHANGE OF VENUE TO KERR COUNTY

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

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

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Appendix A

Devon,' 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 F

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 ag

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 H

because of problems with the reporter’s record. She argues 5

that, at a minimum, she is entitled to a hearing before the y

record can be used to decide her appeal. A review of the facts 4

pertaining to these points of error is necessary. H

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,’ j

Halsey prepared, certified, and filed the original reporter’s

record in the case (“Halsey record”’).

1. In this case, the State charged the appellant with the murder

of Damon, a child under the age of six.

2. Halsey was late in preparing the record.

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Appendix A

In a motion to correct and clarify Halsey’s record, filed

October 13, 1998, the appellant raised the first dispute about

the accuracy of the record. An excerpt of the record that had

been read to the jury did not match the corresponding portion

of the Halsey record. Also, counsel noted discrepancies about

who was present during the trial and when. The next day this

Court granted the appellant’s motion and ordered Halsey to

prepare, certify, and file a supplemental reporter’s record

containing any omitted items. We also ordered the trial court?

to resolve any dispute raised in the appellant’s motion and

to ensure that the reporter’s record conformed to what

occurred at trial.

The trial court conducted a hearing and decided that the

entire record had to be reviewed to comply with this Court’s

October 14, 1998 order. Ina 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

3. The trial judge who presided over the hearings regarding the

record, Judge Robert Francis, is not the judge who presided over the

trial on the merits. Judge Mark Tolle retired after the appellant’s trial.

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Appendix A

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. Miller testified that she heard Halsey’s reason that the tape

recorder did not work during the appellant’s trial: the recorder

required a battery in the external microphone. Miller said that she

(Cont’d)

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Appendix A

Halsey’s daughter and transcription scopist,° 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

(Cont’d)

had used the same type of equipment before and that the battery in

the microphone improves the quality of the recording, but the recorder

has an internal microphone that will pick up sound even if the external

microphone does not have batteries.

5. A transcription scopist assists a court reporter in preparing

the trial record. Testimony taken during the proceedings on the record

indicated that the use of a scopist is a normal and necessary part of

the process of producing a trial record.

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Appendix A

District Court in Tyler, to perforin a review of the guilt and

punishment phases of the record, as well as the pretrial

hearings.° 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 froin

the trial. Halsey was then relieved of her duties as the official

court reporter in this case. The trial court ordered Halsey to

continue to look for more tapes.

On April 1, 1999, the trial court conducted a hearing

during which Simmons testified that she had revised the

Halsey record of the guilt and punishment phases of the

appellant’s trial. Simmons submitted the revised record

(“Simmons record’’) and her red-lined copy of the Halsey

record that reflected all of the changes that she had made.

Counsel for the appellant and the State were not permitted

to question Simmons directly.’ Before the hearing, the trial

6. The materials for the guilt and punishment phases were given

to Simmons on November 20, 1998. Francine Eikner was appointed

to assist Simmons as a scopist on December 10, 1998.

7. The appellant’s counsel had filed a motion to ask questions

directly of Simmons, which was denied.

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Appendix A

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 proceed-

ings, 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

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Appendix A

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 scepist

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,*

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

8. Crowley’s testimony indicated that, as Halsey’s scopist,

she edited on the original disks and recorded over the files created

during the trial.

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Appendix A

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.

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Appendix A

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.’

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

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Appendix A

materials provided and her expertise, she was able to render

a complete and accurate record that conforms to what

occurred at trial. She said that, if the materials did not contain

a complete and accurate account of the proceedings,

then the Simmons record could suffer from the same flaws.

But she believed that the materials provided accurate

information for preparing the record. Simmons has

reconstructed trial records in other cases, and she was able

to certify records in those cases. In her expert opinion,

the record as prepared by her had been made to conform to

what happened at trial to ninety-five percent accuracy.

On Apmil 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

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Appendix A

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.'°

At a hearing on January 28, 2000, Simmons testified

that she followed the same procedure for preparing and certify-

ing the record, except for the first 54 pages of Volume 10."

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,

10. The appellant objected on the basis that the tapes were

not authenticated. She did not agree that the trial court’s action

regarding the tapes was legally appropriate. The trial court overruled

the appellant’s objection, but said that it might revisit the issue at

another time.

11. Halsey’s record had been 53 pages. Simmons transcribed

the reading of the indictment, which was included only by reference

in Halsey’s record. Simmons also included some colloquy found in

the notes before and after the reading of the indictment.

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Appendix A

-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.'2 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.

12. The tape for the afternoon proceedings was transcribed in

the second part of Volume 10. This conversation does not appear in

the record because the court was not in session.

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Appendix A

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

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Appendix A

No. 1 and a Motion for a Hearing to Make an Offer of Proof

on September 25, 2000.

The trial court responded with a finding that it no longer

had jurisdiction of the case. The court forwarded the

appellant’s pleadings to the Court of Criminal Appeals

without taking action.

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

and Unreliable

In her third point of error,'? 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)'* 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

13. In this point of error, the appellant addresses the record

generally. As noted above, there are additional issues with the first

54 pages of Volume 10 of the record. The appellant’s arguments

regarding those pages will be addressed separately.

14. Rule of Appellate Procedure 34.6(a)(1) states that “[i]f the

proceedings were stenographically recorded, the reporter’s record

consists of the court reporter’s transcription of so much of the

proceedings, and any of the exhibits that the parties to the appeal

designate.”

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Appendix A

notes cannot be transcribed accurately because the trial court

found that the notes do not conform to what occurred at trial.'°

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'® 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),'’ and to permit the Simmons

record to be used would blur the distinction between the two

methods of producing the reporter’s record.

We disagree with the appellant’s characterization of the

Simmons record. The revised record is not a new record

created from the tapes. The Simmons record is a corrected

transcription of the notes taken at trial by Halsey. Simmons

testified that the defects with the Halsey record were a result

of poor editing and that Halsey’s notes were within the range

15. This is incorrect. The trial court found that the Halsey record

did not conform to what happened at trial. No specific findings were

made about the notes, but Simmons testified that they appeared to

be complete, useable, and within the range of competent reporting.

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

judge.

17. “If the proceedings were electronically recorded, the

reporter’s record consists of certified copies of all tapes or other

audio- storage devices on which the proceedings were recorded, any

of the exhibits that the parties to the appeal designate, and certified

copies of the logs prepared by the court recorder under Rule 13.2.”

Tex. R. App. P. 34.6(a)(2).

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Appendix A

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 [Ist Dist.] 1999, 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. /bid. Because the use of tapes

as the reporter’s record was not authorized in Brewster

County, the court reporter was not authorized to certify the

tapes as the official reporter’s record. Ibid. Valenzuela is

distinguishable from the appellant’s case because the tapes

in the appellant’s case were used to edit the record that was

created from Halsey’s notes from trial.

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Appendix A

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’), 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. /bid. 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. There was no tape for the proceedings from the morning

session on October 21, 1996. The record from that proceeding is

found in the first 54 pages of Volume 10. We address that portion of

the record in the appellant’s second point of error.

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Appendix A

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. /d.

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. /d. 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.” Jbid.

The State argues that Vandiver stands for the proposition

that courts can use materials other than the official notes taken

during proceedings to obtain an accurate reporter’s record.

The Court of Appeals said that:

While it cannot be denied that a contemporaneous

verbatim recording of the events at trial is a large

part of ensuring that a complete and accurate

record of the trial court proceedings is prepared,

the conclusion does not follow that the record will

necessarily be incomplete in every instance where

there is some absence of a contemporaneous

verbatim recording.

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Appendix A

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 withthe exhibit and deposition testimony that

was missing from the original statement of facts. [bid.

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.

21a

Appendix A

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 §.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. /d. at 870, 872. We said:

We fail to see what more the able trial judge

in the case at bar could have done under the

circumstances. An appellant is not entitled to

reversal merely because of the death of the court

reporter. Here the trial judge availed the appellant

and his counsel of three different opportunities to

demonstrate why the statement of facts as finally

prepared and approved were not a full, accurate

and complete transcription of the court reporter’s

notes taken at the trial. He certainly had his day

in Court upon the settlement of the record.

In absence of a showing made that the record

before us is not what occurred at the trial and that

the appellant’s rights were prejudiced, we overrule

appellant’s first ground of error.

Id. at 872. The death or disability of a court reporter, without

more, does not entitle the appellant to a new trial. Likewise,

that a court reporter has lost her certification, without more,

does not entitle the appellant to a new trial.

22a

Appendix 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. P. 13.2(e).'”

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.

19. Rule 13.2(e) requires that the official court reporter “ensure

that no one gains access to the original recording without the court’s

written order.”

23a

Appendix A

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.” Jd. 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(€)(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. Jbid.

We conclude that the appellant’s case is more like

Williams than Soto. The tapes in this case were used to correct

and edit the Halsey record; Simmons did not create a new

record. In this case, Halsey made notes of the trial that

Simmons testified were within the range of competent

reporting. Simmons testified that the editing process caused

the inaccuracies in the Halsey record. Simmons used the tapes

and the notes from the trial to correct the Halsey record and

make it conform to what occurred at trial.

(1) Tapes

The appellant also complains of the authenticity and

accuracy of the tapes used by Simmons to correct the record.

The unauthenticated and possibly inaccurate tapes, she argues,

should not have been used to correct and certify the record.

24a

Appendix A

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

25a

Appendix A

which a tape may be altered, and she did not request an expert

to test the tapes for alteration.

The appellant claims that she was not given an

opportunity to compare the Simmons record to Halsey’s

notes. We do not address whether the trial court would have

abused its discretion to deny such a request. The appellant

never requested an opportunity to compare the Simmons

record to the notes.

The appellant concedes that the trial court’s findings are

entitled to deference, but she alleges that the trial judge who

presided over the post-trial proceedings did not listen to the

tapes and is erroneously relying on the opinion of Simmons

who is not an expert and was not present for the proceedings

and had no personal knowledge thereof. Judge Robert Francis

did not rely solely on the opinion of Simmons. He stated on

the record that he listened to the tapes himself. Simmons

was recommended by the three court reporters who reviewed

the Halsey record initially. She had years of experience

preparing and certifying records. And the appellant agreed

to have Simmons review the record and certify it if possible.

If the appeliant did not trust Simmons’s opinion about the

accuracy and completeness of the tapes, she could have

requested an expert to examine the tapes. Without more,

we cannot say that the trial court erred in permitting Simmons

to use the tapes to correct the record.

(2) Parentheticals

The appellant also complains about the accuracy of the

parentheticals that Simmons adopted from the Halsey record,

26a

Appendix A

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

27a

Appendix A

no hearing was held in accordance with the Rules. The

appellant is referring to Rule 34.6(e), which provides for

correcting the record.”° 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

20. The complete text of Rule 34.6(e) states:

(1) Correction of Inaccuracies by Agreement. The

parties may agree to correct an inaccuracy in the

reporter’s record, including an exhibit, without the court

reporter’s recertification.

(2) Correction of Inaccuracies by Trial Court. If the

parties cannot agree on whether or how to correct the

reporter’s record so that the text accurately discloses

what occurred in the trial court and the exhibits are

accurate, the trial court must—after notice and hearing—

settle the dispute.

After doing so, the court must order the court reporter

to correct the reporter’s record by conforming the text

to what occurred in the trial court or by adding an

accurate copy of the exhibit, and to certify and file in

the appellate court a corrected reporter’s record.

(3) Correction After Filing in Appellate Court. If the

dispute arises after the reporter’s record has been filed

in the appellate court, that court may submit the dispute

to the trial court for resolution. The trial court must then

ensure that the reporter’s record is made to conform to

what occurred in the trial court.

28a

Appendix A

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 proceed-

ings.?! Today we have use of reliable recording devices to

back up the court reporter’s notes. And we have since

recognized their efficacy. See Williams, 427 S.W.2d at 868.

The appellant is now complaining about the entire

Simmons record. But unlike her complaints about the Halsey

record, she has provided no specific examples of inaccuracies

in the Simmons record. A global complaint that the entire

record is inaccurate, in light of the procedures used in the

profession and in the absence of any specific examples of

inaccuracies, is not sufficient for us to conclude that the

record is inaccurate.

To say that there were problems in obtaining the

reporter’s record in this case is a gross understatement.

21. Although successfully tested as early as 1935, tape recorders

were not widely available in the United States until after World War

II. See David Morton, The Tape Recorder, in OrF THE RECORD:

THE TECHNOLOGY AND CULTURE OF SOUND RECORDING IN AMERICA (2000).

29a

Appendix A

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 aprellant 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.

30a

Appendix A

B. Second Point of Error: A Significant Portion of the

Record Has Been Lost or Destroyed

In her second point of error, the appellant cliims that

her conviction must be reversed because a significant portion

of the record necessary to her appeal has been lost or

destroyed through no fault of her own. Here, the appellant is

complaining about the first 54 pages of volume 10 of the

Simmons record, which consisted of a transcription of the

proceedings from the morning of October 21, 1996. This is

the portion of the record Simmons would not certify as a

true and accurate transcription of what occurred in the

proceedings. Instead, she certified that it is a true and accurate

transcription of Halsey’s notes of the proceedings. Because

the record cannot be certified either as a verbatim transcription

of the notes taken at trial or as a transcription of tapes in

accordance with Rule 34.6(a)(2), and because the uncertified

portion of the record is necessary to the resolution of her

complaint about trial counsel’s conflict, the appellant asserts

she is entitled to a new trial under Rule 34.6(f).

Texas Rule of Appellate Procedure 34.6(f) provides that

an appellant is entitled to a new trial if a significant and

necessary part of the reporter’s record is lost or destroyed

through no fault of her own, the appellant timely requested

the record, and the parties cannot agree to the record.

Rule 34.6(f) is a relatively new rule, but the principles

that brought it into being are not. It has a predecessor in the

former Rules of Appellate Procedure and more than one

predecessor within former versions of the Code of Criminal

31la

Appendix A

Procedure. We have noted before that the cases under former

versions, including Article 40.09 of the Code of Criminal

Procedure, are still helpful and that the principles underlying

these former versions apply to the newer rules. See Gomez v.

State, 962 S.W.2d 572, 574 (Tex. Crim. App. 1998); Gibbs

v. State, 819 S.W.2d 821, 828 (Tex. Crim. App. 1991).

The Rule applies whether we are faced with the loss or

destruction of the entire record or only a portion of the record.

See, e.g., Harris v. State, 790 S.W.2d 568, 574 (Tex. Crim.

App. 1989) (pretrial motion); Austell v. State, 638 S.W.2d

888, 890 (Tex. Crim. App. 1982) (voir dire examination);

Gamble v. State, 590 S.W.2d 507, 509 (Tex. Crim. App. 1979)

(final arguments); Hartgraves v. State, 374 S.W.2d 888, 890

(Tex. Crim. App. 1964) (hearing on motion for new trial).

We have said that “the circumstances in such cases should

be viewed from the appellant’s standpoint, and any reasonable

doubt resolved in favor of the appellant.” Gamble, 590

S.W.2d at 508 (citing Young v. State, 146 Tex.Crim. 220,

222, 172 S.W.2d 500, 501 (1943); Lamkin v. State, 138

Tex.Crim. 311, 317, 136 S.W.2d 225, 228 (1940)). Further,

the unavailability of the record through no fault of the

appellant is not immune from a harm analysis. The provision

in the rule that the appellant show that the missing portion

of the record is necessary to her appeal is itself a harm

analysis. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim.

App. 1999).

So, the appellant must show (1) that a significant portion

of the record was lost or destroyed, (2) through no fault of

her own, (3) that the missing portion of the record is necessary

ciel aaa

32a

Appendix A

to her appeal, and (4) the parties cannot agree on the record.

The third requirement is dispositive of this point of error.”

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

22. Because the third requirement is dispositive, we decline to

address the other requirements of Rule 34.6(f).

33a

Appendix A

of counsel was violated because her lead counsel, Doug

Mulder, had an actual conflict of interest and the trial court

failed to conduct a hearing on the State’s motion to determine

whether Mulder should be disqualified.

A close look at this point of error indicates that the

appellant is not complaining about the trial court’s actions

on October 21, 1996. The State filed its motion on November

12, 1996, and any potential error in the trial court’s failure

to hold a hearing on that motion can be reviewed without

reference to the uncertified portion of the record. Her

complaint that the trial court did not hold a hearing on the

State’s motion regarding a potential conflict arises after the

proceedings that are contained within the first 54 pages of

Volume 10 were held. The appellant concedes as much when

she says in her brief:

Furthermore, a knowing and intelligent waiver

of the conflict on October 21 would not have

waived Appellant’s right to object to [the conflict]

on November 12, when the State disclosed new

circumstantial evidence of Darin’s involvement

in the capital murder, unless she prospectively

waived her right to raise the issue again if new

evidence emerged.

Because her complaint on appeal is about the trial court’s

failure to hold a hearing after the State filed its motion about

a potential conflict, the appellant fails to satisfy the

requirement of Rule 34.6(f) because she has failed to show

that the missing portion of the record is necessary to her

appeal. We overrule the appellant’s second point of error.

cieieaitaiaatiaaiaaaiaiiiiiaailaiiia iain in iia

34a

Appendix A

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 1s entitled to a hearing before the Simmons record

can be used to decide her appeal. The appellant cites

Chessman vy. Teets, 354 U.S. 156 (1957). This case does not

support the appellant’s claim.

In Chessman, the court reporter who made notes during

the trial died before he was able to transcribe them. A second

court reporter, who was related to the prosecutor by marriage,

took the notes and produced a record from them in part by

discussing the testimony with the prosecutor and the police

officers who testified at trial. Chessman was not represented

in person or by counsel in the proceedings to approve the

new record. The United States Supreme Court held that this

procedure did not comport with due process.

All we hold is that, consistently with procedural

due process, California’s affirmance of

petitioner’s conviction upon a seriously disputed

record, whose accuracy petitioner has had no voice

in determining, cannot be allowed to stand.

Id. at 164.

35a

Appendix A

The appellant also claims that Lankford v. Idaho,

500 U.S. 110 (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. Jd.

at 112-16.

The Supreme Court held that Lankford received

insufficient notice that the trial court might impose the death

penalty, which violated due process. /d. at 126. 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. Jbid. 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

36a

Appendix A

before it can be used to decide her appeal. The appellant

asserts that the Rule requires the trial court to settle disputes

about the record after notice and a hearing. Further, the

appellant says that, in hearings required by the Texas Code

of Criminal Procedure, the defendant must be allowed to

present live testimony and cross-examine the State’s-

witnesses unless a hearing based on documents is allowed.

See Garcia v. State, 15 S.W.3d 533, 536 (Tex. Crim. App.

2000). She sees no reason this rule should not apply in a

Rule 34.6(e)(2) hearing.

But Rule 34.6(e)(2) and its requirements apply when

inaccuracies are discovered before a reporter’s record is filed

in the appellate court. In this case, the inaccuracies were

discovered after the record was filed in this Court. The Halsey

record was filed April 24, 1998. The appellant filed a motion

in this Court to correct or clarify the record on October 13,

1998.

Rule 34.6(e)(3) applies when inaccuracies are discovered

after a record has been filed in the appellate court. It states

that: “If the dispute arises after the reporter’s record has been

filed in the appellate court, that court may submit the dispute

to the trial court for resolution. The trial court must then

ensure that the reporter’s record is made to conform to what

occurred in the trial court.” There is no requirement that a

hearing be held to correct the record after the record has been

filed in the appellate court. And, as we explained above, the

Simmons record is not a new record; it is the correctly-edited

transcription of Halsey’s notes.

37a

Appendix A

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

38a

Appendix A

already received before the final installment of the record

was received.

After all the corrected volumes had been received,

the appellant submitted her written objections to the trial

court, including a request for another hearing. The State

responded to the request by stating that there were no factual

disputes needing to be resolved. The trial court set a hearing

date but later cancelled it, finding that further proceedings

were outside the scope of this Court’s orders. The appellant

still showed no factual disputes that required an additional

hearing to be resolved.

We hold that the appellant was not entitled to a hearing

under Rule 34.6(e)(2). In the alternative, we hold that the

appellant had ample notice and opportunity to present live

witnesses regarding her objections to the Simmons record.

We overrule the appellant’s fifth point of error.

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

Exception

In the appellant’s fourteenth point of error, she complains

that the trial court erred in refusing to rule on her formal bill

of exception. Within this point of error, she claims that Rule

of Appellate Procedure 33.2 requires the trial court to conduct

a hearing unless the parties agree to the bill of exception.

The appellant filed her formal bill of exception

September 25, 2000. It explains that on September 1, 2000,

in the presence of the State and the appellant’s counsel,

the trial court announced that it would hold a hearing on the

appellant’s objections to the trial record. On the same day,

39a

Appendix A

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

40a

Appendix A

appellant’s pleadings because the case had already been

returned to this Court.

We will assume without deciding that the appellant’s

request to make a formal bill of exception was within the

scope of this Court’s orders to the trial court to make the

record conform to what occurred at trial. Even so, much of

the information included in the appellant’s formal bill of

exception was already in the record forwarded to this Court.

The remaining information does not relate to the appellant’s

claims on appeal. And, as the State argues, the appellant has

failed to point to any claims on appeal she could not make

because of the trial court’s failure to rule on her formal bill

of exception. Therefore, she has failed to show she was

harmed. Tex.R.App. P. 44.2(b). We overrule the appellant’s

fourteenth point of error.

E. Eleventh, Twelfth, and Thirteenth Points of

Error: Providing Jury with an Inaccurate

Transcription of the Record

In her eleventh, twelfth, and thirteenth points of error,

the appellant claims that the trial court violated Code of

Criminal Procedure Articles 36.27 and 33.03 and Fourteenth

Amendment Due Process by providing the jury with an

inaccurate transcription of Darin Routier’s testimony while

the appellant was not present. The State responds that the

trial court did not err because (1) the appellant’s attorney

waived her presence at the in-chambers discussion of the

jury note and the trial court’s response and (2) the record

reveals no harm because the inaccurate portions of the record

were immaterial to the jury’s questions.

4la

Appendix A

During the jury’s deliberations on the question of the

appellant’s guilt, the jury sent a note to the trial court stating,

“Some of us remember hearing Darin say that he did not

lock the door from the utility room to the garage before he

went to bed, 6/5/96, the rest of us remember that Darin said

he locked this door. Which is right?” RR 46:5358. Before a

meeting in chambers with three of the appellant’s attorneys

and one of the prosecutors, the trial court had the court

reporter prepare an excerpt of the relevant testimony. The

trial court provided copies to the attorneys and asked if they

had any objections. The attorneys stated on the record that

they had no objections to providing the jury with the excerpt.

Then the trial court noted that the appellant herself was

not present for this meeting. The trial court asked the

appellant’s attorneys, Mulder and Mosty, if they waived the

appellant’s presence at that meeting. Mulder and Mosty each

said that they waived the appellant’s presence. The excerpt

was sent to the jury.

(1) Articles 33.03 and 36.27

The appellant argues that she had a right under Article

33.03 to be present when the court responded to the jury’s

request.”’ She failed to object at the earliest opportunity that

23. Code of Criminal Procedure Article 33.03 reads, in full:

In all prosecutions for felonies, the defendant must be

personally present at the trial, and he must likewise be

present in all cases of misdemeanor when the punishment

or any part thereof is imprisonment in jail; provided,

(Cont’d)

42a

Appendix A

her rights under these Articles were violated. Thus, she has

failed to preserve error. Tex.R.App. P. 33.1. Nonetheless,

in an abundance of caution, we will address the merits of the

appellant’s claim.

Article 33.03 provides criminal defendants with a

statutory right to be present during their trials. It also

allows criminal defendants to be absent, if they choose, after

pleading to the indictment in a bench trial or after jury

selection in a jury trial.

The appellant cites Hill v. State, 54 Tex.Crim. 646, 114

S.W. 117 (1908), in support of her claim. In that case, the

Court found reversible error when a defendant voluntarily

absented himself from his proceedings even though his

attorney waived his right to be present. Jd. 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.

(Cont’d)

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.

43a

Appendix A

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

walver 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” provides a procedure in the event jurors

have questions about the case. Before answering a jury’s

24. Code of Criminal Procedure Article 36.27 reads, in full:

When the jury wishes to communicate with the court, it

shall so notify the sheriff, who shall inform the court

thereof. Any communication relative to the cause must

be written, prepared by the foreman and shall be

submitted to the court through the bailiff. The court shall

answer any such communication in writing, and before

giving such answer to the jury shall use reasonable

diligence to secure the presence of the defendant and

his counsel, and shall first submit the question and also

submit his answer to the same to the defendant or his

counsel or objections and exceptions, in the same manner

as any other written instructions are submitted to such

counsel, before the court gives such answer to the jury,

but if he is unable to secure the presence of the defendant

and his counsel, then he shall proceed to answer the same

as he deems proper. The written instruction or answer to

the communication shall be read in open court unless

expressly waived by the defendant.

All such proceedings in felony cases shall be a part of the record

and recorded by the court reporter.

5 SURE

44a

Appendix A

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. /d. at 219 (citing Snyder v. Massachusetts,

291 U.S. 97, 105-08 (1934)).

45a

Appendix A

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 (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.” Jd. at 105-106, 108.

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).* An appellant is harmed by a constitutional

25. Rule 44.2 Reversible Error in Criminal Cases.

(a) Constitutional error.

If the appellate record in a criminal case reveals

constitutional error that is subject to harmless error

(Cont'd)

;

;

. :

46a

Appendix A

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 vy. California, 386 U.S. 18, 24 (1967).

Any nonconstitutional violation is reviewed under the

standard explained in Johnson y. 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.” Jd. at 417.

The appellant asserts that she was harmed because the

trial court gave incorrect information to the jury in her

absence. The record does not support the appellant’s claim.

The jury had a dispute about Darin’s testimony that he

had locked the garage door and the front door, but not the

utility room door on the night of the murders. The State

impeached Darin with testimony from the pretrial bond

hearing at which he testified that he had locked all the doors

in the house. Darin explained the discrepancy by stating that

(Cont’d)

review, the court of appeals must reverse a judgment of

conviction or punishment unless the court determines

beyond a reasonable doubt that the error did not contribute

to the conviction or punishment.

(b) Other errors.

Any other error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.

47a

Appendix A

he probably misunderstood the question asked at the bond

hearing.

The portion of the testimony given to the jury follows.

The markings show the portions altered in the Simmons

record.

State:

Darin:

Okay. The garage door, you just testified a few

minutes ago, that when you were out there with

the inventory for the garage sale that the garage

door was up, correct?

Well it was up when ! was out there I had pulled

it down before I went to bed.

State: All right. So, before you ever went back inside

Darin:

State:

Darin:

State:

that house, you closed it and you 'atched it. tidn’t

you?

I latched it from the inside.

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?

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.

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

Darin:

State:

Darin:

State:

Darin:

State:

Darin:

State:

Darin:

State:

48a

Appendix A

doors in the house were locked when you when

to sleep also?” Do you remember what your

answer was back then, Mr. Routier?

That they are all locked.

Would you like for me to show you your answer?

If you would, yes, sir.

Okay. Vl 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?

“And the other doors in the house, they were

locked when you went to bed?”

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

Yes, sir. “The garage door and the front door were

locked.”

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?”

You said all doors.

I said the other doors in the house, you understood

what I meant back then, didn’t you?

Darin:

State:

Darin:

State:

Darin:

49a

Appendix A

Well, I’m not really sure if I did or not.

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?

And a sliding glass door and 48 windows.

That’s right. As a matter of fact, the sliding glass

was also locked, wasn’t it?

Yes, sir, it was. All exterior doors were locked.”°

26. The text of the Simmons record with underlines marking

differences in the text is as follows:

State:

Darin:

State:

Darin:

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?

The garage door, it was up when I was out there, I had

pulled it down before I went to bed.

All right. So before you ever went back inside that house,

you closed it, and you latched it, didn’t you?

Latched it from the inside.

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?

(Cont’d)

50a

Appendix A

(Cont'd)

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: J] 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.

(Cont’d)

Sla

Appendix A

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

(Cont'd)

Darin:

State:

Darin:

State:

Darin:

State:

Darin:

State:

Darin:

State:

Darin:

The garage door and the front door were locked.

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 / asked, did I?

You said all doors.

I said the other doors in the house. You understood what

I meant back then, didn’t you?

Well, I’m not really sure if I did or not.

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?

And a sliding glass door, and 48 windows.

That’s right. Matter of fact, the sliding glass was also

locked, wasn’t it?

Yes, sir, it was.

Okay.

All exterior doors were locked.

.

52a

Appendix A

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,

53a

Appendix A

at a show-cause hearing on the alleged violation of a gag

order prevented Mulder from pursuing a trial strategy to show

that Darin could have committed the murder with which the

appellant was charged.

A. Facts

On September 19, 1996, the State filed a motion to

discharge the appellant’s appointed attorneys because Mulder

had informed the trial court on September 12, 1996, that he

had been retained to represent the appellant. The trial court

held a hearing on September 20, 1996, on the allegations

that Darlie Kee, the appellant’s mother, and Darin Routier,

the appellant’s husband, had violated a gag order imposed

by the court by talking about the case on the radio. The gag

order prohibited witnesses or prospective witnesses from

talking about the expected testimony of the appellant or any

witness, the character, reputation, or credibility of any

witness, the contents of any statement given by the appellant,

and the nature of evidence that might be presented.

At the beginning of the hearing, Mulder said, “I am

retained by Ms. Kee to represent her and she has asked me to

represent Darin as well, I didn’t know that until this

morning.” Mulder did not introduce any evidence or call

Darin as a witness. The trial court asked questions of Darin

without placing him under oath. The trial court found that

Darin had not violated the gag order because he did not

discuss prohibited information.

At the end of that hearing, the trial court took up the

State’s motion to dismiss the appellant’s court-appointed

SE Oe Ae

54a

Appendix A

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

55a

Appendix A

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 “[rJecent 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

56a

Appendix A

that both she and Darin had waived any potential conflicts

on that day. The prosecutor presenting the State’s motion

explained that the State had discovered new evidence and

that the State wanted “to make real sure.” The trial court

said that it would hold a hearing after jury selection was

completed.

On November 18, 1996, the trial court addressed the

conflict motion on the record again. The trial court said,

“On the 21st, as I recall, I put Ms. Kee under oath, Mr. Routier

under oath, the [appellant], under oath for this purpose only.

And they both waived any conflicts that may exist.

Has anything happened since then?” One of the appellant’s

attorneys, Richard Mosty, replied, “Our response, that [the

appellant] signed last week further reconfirms that.” The

response to which Mosty refers cannot be found in the record.

B. Analysis

The appellant claims that Mulder’s representation of

Darin Routier while Darin was a suspect created a conflict

of interest that foreclosed a strategy of shifting responsibility

for the murders to Darin Routier. The appellant argues that

this actual conflict requires reversal because the trial judge

failed to have a hearing on the conflict.

The State claims that no conflict arose from Mulder’s

limited representation of Darin Routier for purposes of the

gag order. Moreover, three other attorneys represented the

appellant during the trial. The record does not show an actual

conflict of interest of which the trial court should have been

aware.

ny ev Sot AAT LAE

57a

Appendix A

Ineffective assistance of counsel may result from an

attorney’s conflict of interest. Strickland vy. Washington,

466 U.S. 668, 692 (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 (1978), with Cuyler

v. Sullivan, 446 U.S. 335, 349-50 (1980).

When the appellant or his attorney has brought a potential

conflict of interest to the attention of the trial court, the

Supreme Court has said that the trial court has an obligation

to investigate and determine “whether the risk of the conflict

of interest is too remote to warrant separate counsel.”

Holloway, 435 U.S. at 484.

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.

No additional showing of harm or prejudice is required. /d.

at 349-50. 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).

_' a

58a

Appendix A

The appellant claims a third category is suggested by

Wood v. Georgia, 450 U.S. 261 (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.” Jd. at 272-73. 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. Jd. at 265-67.

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. Jd.

at 264-65. As a result, the Court remanded the case for the

trial court to determine whether an actual conflict of interest

existed. Jd. at 273-74. The Supreme Court has since made it

clear that it did not create a third category in Wood.

59a

Appendix A

In Mickens v. Taylor, 535 U.S. 162 (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 17] (quoting Sullivan,

446 U.S. at 349-50) (emphasis added in Mickens ).

The Supreme Court said explicitly that it did not create a

new rule of law in Wood. Id. at 172.

(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:

Appellant:

Trial Court:

Appellant:

Trial Court:

Appellant:

Trial Court:

Appellant:

Trial Court:

60a

Appendix A

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]?

Yes, yes sir.

And I believe that your husband Darin -

Routier also knowingly and intentionally

waived any conflict of interest.

Yes, he did.

I think that was all in the record. Was it

not?

It was asked to us at the beginning when

we changed.

That is my recollection of things.

Yes, sir.

We did that the first day here, didn’t we

6la

Appendix A

Toby Shook:?’ I think so.

Appellant: We did it that day, but you had asked me

when I was changing attorneys.

Trial Court: Yes, ma’am. But I mean in Kerrville.

We did it right then and there.

Appellant: Yes.

Trial Court: As I recall it, it was the first day before the

jury, change of venue and all that, before

we got into jury selection.

Sherri Wallace:** 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.

‘’m sure we will see what the questions are.

Appellant: I know you have to go through that

procedure but the questions will be—.

27. Toby Shook is an assistant district attorney who represented

the State during the trial in this case.

28. Sherri Wallace is an assistant district attorney who

represented the State during the trial in this case.

62a

Appendix A

Trial Court: Well, I feel I will not be surprised at the

same answers. Thank you. But we will do

it after we get this jury picked.

Appellant: Yes, sir.

Sic passim.

Again, on November 18, 1996, the trial court referenced

the State’s motion.

Trial Court: Now I have several motions. I have a motion

filed last week considering any conflict of

interest that Mr. Mulder might have.

The Routiers, I think, we have already

waived that. We have got him on the record

when they came down here the first day.

Was it not Miss Halsey?

Court Reporter: Yes, sir.

Trial Court: On the 21st, as I recall, I put Ms. Kee under

oath, Mr. Routier under oath, [the appellant]

under oath for this purpose only. And they

both waived any conflicts that might exist.

Has anything new happened since then?

Richard Mosty:*? Our response, that [the appellant]

signed last week further reconfirms that.

29. Richard Mosty is one of the attorneys who represented the

appellant during the trial in this case.

63a

Appendix A

Trial Court: That’s right. She reconfirmed it last week.

Now we can have a brief hearing when

we start this on the 6th if everybody wants

to, but I’m quite sure the answers will be

the same.

Sic passim.

The record shows that the appellant, Mulder, and her

other three attorneys made no objection on the basis of any

potential conflict of interest on the basis of Mulder’s

representation of Darin Routier. As a result, the Sullivan

standard applies, and to obtain relief, the appellant must show

that (1) an actual conflict of interest existed, (2) which

affected Mulder’s representation of the appellant. Sullivan,

446 U.S. at 349-50.

(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.

64a

Appendix A

We have said that an actual conflict of interest exists

when “one defendant stands to gain significantly by counsel

adducing probative evidence or advancing plausible

arguments that are damaging to the cause of a co-defendant

whom counsel is also representing.” James v. State, 763

S.W.2d 776, 779 (Tex. Crim. App. 1989).

We agree with the State that Mulder’s representation

of Darin Routier was related only tangentially to his

representation of the appellant. The only issue in the show-

cause hearing was whether Darin had violated the order

prohibiting potential witnesses in the case from discussing

the expected testimony of the appellant or of any witness;

the character, reputation, or credibility of any witness; the

contents of any statement given by the appellant; and the

nature of evidence that might be presented. The trial court

found that Darin had not violated the gag order because he

had not discussed any of the prohibited topics in his radio

interview. As a result the trial court did not hold him in

contempt. Mulder’s minimal participation in Darin’s defense

at the gag order hearing cannot be said to be substantially

related to Mulder’s defense of the appellant in her capital

murder trial.

Even if we were to accept the appellant’s claim that the

proceedings were substantially related, the appellant has not

shown that any actual conflict of interest arose. James v. State,

is analogous to this case. James and his co-defendant were

tried in the same case and represented by the same attorney.

Both defendants relied on alibi defenses that were

independent of one another and the testimony at trial was

consistent with the strategy that both defendants were

65a

Appendix A

innocent. On appeal James claimed that he could have shifted

blame to his co-defendant if they had not had the same

attorney. After explaining that no evidence supported that

James was interested in pursuing this strategy, we said:

What evidence we do have comes in the form of

speculative argument from appellants’ counsel

on appeal, later adopted by the appeals court in

analyzing the issue. Again in his response to the

State’s petition for discretionary review, appellant

underscores the point that the appeals court

opinion was based upon the “likelihood that the

defense attorney could have, would have and

Should have” advanced evidence and arguments

advantageous to each defendant but did not do so

because of the multiple representation problem.

Id. at 781. We explained that a potential conflict may become

an actual conflict, but we decline to speculate about a strategy

an attorney might have pursued, but for the existence of a

potential conflict of interest, in the absence of some showing

that the potential conflict became an actual conflict.

We note that Mulder’s representation of Darin did not

amount to the joint representation at issue in James. Even if

it did, nothing in the record Supports a conclusion that an

actual conflict of interest arose. Mulder did not know he was

representing Darin until the morning of the gag order hearing.

Also, Mulder had no direct knowledge of Darin’s actions

regarding the gag order; he put on no evidence in defense of

Darin, who was never charged with any crime in connection

with the murders. Darin and the appellant were not

ee

66a

Appendix A

codefendants. The State never suggested during the trial that

Darin was involved in the murders. During closing arguments

of the guilt phase of the trial, the State focused on identity;

prosecutors said that either an unknown intruder killed the

two boys or the appellant did. They argued that the evidence

supported finding the appellant guilty. The State also notes

that Darin was a witness for the defense whose testimony

was consistent with the appellant’s theory of the case. The

appellant testified that an unknown intruder stabbed her and

her children and that Darin was not involved.

The appellant attempts to distinguish James on the bases

that prejudice must be presumed because the trial court did

not hold a hearing and that there was substantial evidence to

support a plausible alternative defensive theory.

As we explained above, prejudice is not presumed just

because the trial court failed to hold a hearing after the State’s

motion was filed. We presume prejudice from the failure to

hold a hearing only when the defendant or her attorney objects

on the basis of a potential conflict. In the absence of an

objection, the defendant is required to show that an actual

conflict of interest existed that adversely affected the

representation.

In James, we distinguished other cases in which we had

held that an actual conflict developed during the trial. Those

cases were Ex parte McCormick, 645 S.W.2d 801 (Tex. Crim.

App. 1983), Ex parte Parham, 611 S.W.2d 103 (Tex. Crim.

App. 1981), and Gonzales v. State, 605 S.W.2d 278

(Tex. Crim. App. 1980). In each case, the record demonstrated

that counsel haéte—forego an effective strategy or that a

67a

Appendix A

strategy backfired due to an actual conflict that arose during

trial. We said:

In each of these cases the potential for conflict

inherent in multiple representation became an

actual conflict due to the inculpatory or

exculpatory nature of testimony or the strategy

adopted by defense counsel in the particular case.

That is not reflected in the case before us today.

Each appellant had a distinct alibi supported,

albeit sometimes weakly, by separate witnesses.

Each appellant testified, in effect bolstering both

alibi defenses. There is no conflict between the

testimony of these appellants, the testimony in

effect bolstering an individual appellant’s own

defense, a potential conflict does not rise to the

level of an actual conflict of interest. In line with

this, we hold that the testimony between alibi

witnesses for appellants in no way conflicted with

either defense, and an actual conflict of interest

has not been shown.

James, 763 S.W.2d at 781-82 (citation omitted). The

appellant’s case is more analogous to James than to

McCormick, Parham, and Gonzales. The record does not

support the conclusion that Mulder’s representation of both

the appellant and Darin Routier created a situation in which

Mulder had to forego a strategy in the appellant’s trial that

he would have otherwise pursued if he had not represented

Darin Routier.

68a

Appendix A

We hold that no actual conflict of interest existed

regarding Mulder’s representation. As a result, we overrule

the appellant’s first point of error.

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

of Sworn Juror

In the appellant’s eighth, ninth, and tenth points of error,

she claims that the trial judge violated her right to counsel,

her right to be present, and Article 36.29 when he had an

unrecorded ex parte communication with an unnamed person

who provided the only basis for finding that a sworn juror

was disabled.

At the beginning of the proceedings on January 16, 1997,

just before the State was to present its case-in-chief, the trial

court announced that one of the jurors was disabled and

unable to continue. The trial court replaced the disabled juror

with an alternate. The appellant requested a continuance to

determine whether, in fact, the juror was disabled as required

by Article 36.29. The juror had attended trial proceedings

until that day. The trial court responded that the juror had

had the flu the day before, that she struggled to come to

the proceedings, and that she had become bedridden.

The appellant objected on the basis that it violated Article

36.29(b). The trial court overruled this objection. The

appellant made no other objections, and the trial court

proceeded with the trial with the alternate juror. The next

day, the trial court admitted a photocopy of a note from the

disabled juror’s physician.

69a

Appendix A

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 vy. State, 851 S.W.2d 275, 279

(Tex. Crim. App. 1993).

Even if we assume that the appellant did not need to

object to preserve these complaints; the appellant still cannot

prevail. The appellant has not shown that her rights to due

process and counsel were violated.

The appellant relies on Santiago v. United States, 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

70a

Appendix A

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. Jd. 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. Jd. at 522.

The Tenth Circuit relied on United States v. Gagnon,

470 U.S. 522, 526 (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.” Jd. at 526. This is because the right

to be present is largely derived from the defendant’s right to

confront witnesses against her. /bid. 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 night 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.” Jbid. As we explained above,

in Snyder v. Massachusetts, 291 U.S. 97 (1934), the Supreme

Court outlined the parameters of a defendant’s due process

Tla

Appendix A

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.” Jd. at 105-106, 108.

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.

72a

Appendix A

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.

ue

73a

Appendix A

IV. Sixth and Seventh Points of Errer: Evidentiary

Question

In the appellant’s sixth and seventh points of error,

She complains that the trial court abused its discretion under

Texas Rule of Evidence 614° and violated the appellant’s

right to federal due process when it excluded testimony from

the appellant’s private investi gator about a prior inconsistent

statement made by the State’s blood Spatter expert.?!

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

30. At the time of the appellant’s trial it was Texas Rule of

Criminal Evidence 613.

31. Within the appellant’s analysis of points of error six and

seven she argues that the excluded testimony should have been

admitted under the rule of optional completeness. The appellant did

not object on this basis at trial, and thus, has failed to preserve error.

Tex. R. App. P. 33.1.

74a

Appendix A

nightshirt the appellant had been wearing on the night of the

murder. All of the stains contained some of the appellant’s

blood and some of the blood of either Damon or Devon.

Bevel testified that the stains could be either (1) two

separate stains with the appellant’s blood overlaying the

child’s blood or (2) a mixture of both the appellant’s

blood and the child’s blood. Bevel said that if the stains were

a mixture, it would show that the appellant had been cut

before the stain was deposited, which is inconsistent the

State’s theory that the appellant stabbed the children first

before inflicting her own wounds. If the stains were overlaid,

it would be consistent with the State’s theory of the case.

Bevel testified that at least one of the stains appeared to be

mixed, not overlaid. He testified that the other three could

have been overlaid stains.

Defense counsel cross-examined Bevel about statements

made to three of the appellant’s attorneys and the appellant’s

investigator, Lloyd Harrell. Specifically, defense counsel

asked Bevel whether he had said that the four stains were

mixed rather than overlaid. Bevel responded:

Bevel: _I told you there was some mixed blood. I don’t

know if we specifically addressed that stain.

I don’t recall.

Defense: Well, you told us that in your judgment,

that that was mixed blood in one stain?

Bevel: I don’t recall specifically stating that it was one

stain. Now, which one are we referring to here?

75a

Appendix A

Defense: I’m talking about these, I’m talking to all

four of them on the front of the shirt, all four

of them mixed?

Bevel: The only one that I can say is really consistent

without any hesitation, is the one that is up in

this area here, which is going to be LS-1.

Defense: You are talking about the highest one on the

left shoulder?

Bevel: That is correct.

Defense: Okay. But you didn’t tell us when we were up

there that you thought all of those others were

a stain that was mixed before it hit the shirt?

Bevel: I don’t believe so.

The trial court prohibited Harrell’s testifying vefore

the jury also. The trial court said, “Ail right. Same ruling.”

So let’s get on with making your Bill, whatever you want

to do.”

32. This is a reference to the trial court’s ruling on another

proposed witness. The trial court had said in reference to that witness,

“Well, do a Bill then, because I’m not going to let-—anybody who

has been in the courtroom is not going to testify. That is my discretion,

and so I’m going to exercise my discretion and not let her testify.”

33. As we discuss below, Rule 614 is not a per se exclusionary

rule. Trial courts should perform the balancing test set out in Webb v.

State, 766 S.W.2d 236, 244 (Tex. Crim. App. 1989).

76a

Appendix A

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.** There

34. The text of Rule 614 reads:

At the request of a party the court shall order witnesses

excluded so that they cannot hear the testimony of other

witnesses, and it may make the order of its own motion.

This rule does not authorize exclusion of:

(1) a party who is a natural person or in civil cases

the spouse of such natural person;

(Cont’d)

77a

Appendix A

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. Jd.

at 240. The other situation that can arise under Rule 614 is

when a witness is excluded. /bid. 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. /d. 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

(Cont’d)

(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.

78a

Appendix A

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. Jd. 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. Fhe 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. Jd. at 245-46. We noted that the witness’s testimony

79a

Appendix A -

was probative of an accomplice witness’s credibility and

the defense’s theory of the case. She also provided evidence

of other witnesses’ motives for testifying as they did.

The excluded witness was the only witness who could

corroborate the defendant’s claim that another person

had been involved in the offense.

In Davis v. State, 872 S.W.2d 743 (Tex. Crim. App.

1994), we said that “simply because the excluded testimony

is not the only evidence supporting a defensive theory does

not mean that it is not crucial to such defensive theory.” Jd.

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. /bid.

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.

80a

Appendix A

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

—1is 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 (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

8la

Appendix A

States, 150 U.S. 91, 92 (1893), Davis, 872 S.W.2d at 745,

Webb, 766 S.W.2d at 244, and Braswell vy. Wainwright,

463 F.2d 1148, 1152 (5th Cir.1972). No other authority or

argument for the appellant’s claim is presented.

In Holder v. United States, the Supreme Court addressed

a situation in which a witness, who had been in the courtroom,

testified when no objection was made on the basis of the

Rule until after he testified. The Supreme Court said that

trial courts may not prevent a witness from testifying solely

on the basis that they violated the Rule. Holder, 150 U.S.

at 92. In this case, the trial court did not give areason 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.

82a

APPENDIX B — ORDER OF THE TEXAS COURT

OF CRIMINAL APPEALS, AUSTIN, TEXAS

DATED SEPTEMBER 10, 2003

TEXAS COURT OF CRIMINAL APPEALS

Austin, Texas

THE STATE OF TEXAS,

TO THE CRIMINAL DISTRICT COURT NUMBER

THREE OF DALLAS COUNTY — GREETINGS:

Before our COURT OF CRIMINAL APPEALS, on the

21° day of MAY, A.D. 2003, the cause upon appeals to revise

or reverse your Judgment between:

DARLIE LYNN ROUTIER

VS.

THE STATE OF TEXAS

CCRA NO. 72,795

TRIAL COURT NO. F-9639973-J.

was determined; and therein our said COURT OF

CRIMINAL APPEALS made its order in these words:

“This cause came on to be heard on the record of the

Court below, and the same being considered, because it is

the Opinion of this Court that there was no error in the

judgment, itis ORDERED, ADJUDGED AND DECREED

by the Court that the judgment be AFFIRMED, in accordance

83a

Appendix B

with the Opinion of this Court, and that this Decision be certified

below for observance.”

Appellant’s Motion for Rehearing is DENIED.

WHEREFORE, We command you to observe the Order

of our said COURT OF CRIMINAL APPEALS in this

behalf and in all things have it duly recognized, obeyed and

executed.

WITNESS, THE HONORABLE SHARON KELLER

Presiding Judge of our said

COURT OF CRIMINAL APPEALS,

with the Seal thereof annexed, at the City of Austin,

this 10" day of SEPTEMBER, A.D. 2003.

TROY C. BENNETT, JR., Clerk

s/ Veronica Arellano, Deputy Clerk

Veronica Arellano

84a

APPENDIX C — ORDER OF THE COURT OF

CRIMINAL APPEALS ISSUED OCTOBER 14, 1998

NO. 72,795

DARLIE LYNN ROUTIER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

Appeal from DALLAS County

ORDER

On this the 14th day of October, 1998, came on to be

considered the appellant’s second motion to supplement the

reporter’s record and the appellant’s “Motion to Correct/

Clarify Reporter’s Record”. The motions relate to the

reporter’s record in the above styled and numbered cause

now before this Court on direct appeal from appellant’s

capital murder conviction in Cause No. F96-39973-J in

Criminal District Court No. 3 of Dallas County.

Upon due consideration, appellant’s motions are granted.

The court reporter is directed to prepare, certify and file in

this Court within 30 days a supplemental reporter’s record

containing any omitted items. Additionally, in response to

appellant’s “Motion to Correct/Clarify Reporter’s Record”,

85a

Appendix C

the dispute is submitted to the trial court for resolution.

The trial court must ensure that the reporter’s record is made

to conform to what occurred at trial.

The actions required by this order shall be completed

within 30 days of the date of this order.

IT IS SO ORDERED THIS THE 14™ DAY OF

OCTOBER, 1998.

PER CURIAM

86a

APPENDIX D — DEFENDANT’S MOTION TO HAVE

HER ATTORNEY QUESTION SUZAN SIMMONS AND

BILL OF EXCEPTION ABOUT THE QUESTIONS

THAT HE WANTS TO ASK HER

FILED APRIL 1, 1999

No. F96-39973-MJ

DALLAS COUNTY CRIMINAL

DISTRICT COURT NO. 3

No. 72,795

TEXAS COURT OF CRIMINAL APPEALS

THE STATE OF TEXAS

VS.

DARLIE ROUTIER,

Defendant-Appellant

DEFENDANT’S MOTION TO HAVE HER

ATTORNEY QUESTION SUZAN SIMMONS AND

BILL OF EXCEPTION ABOUT THE QUESTIONS

THAT HE WANTS TO ASK HER

COMES NOW, the defendant, Darlier Routier, by and

through her attorneys of record, and moves this Honorable

Court to allow her attorney to question Suzan Simmons under

oath at the April 2 hearing on her objections to the reporter’s

record. In support of this motion, the defendant will show:

The court informed counsel at an unrecorded in chambers

conference that it was inclined not to allow the attorneys for

87a

Appendix D

either side to question Suzan Simmons at the April 1 hearing

on her objections to the reporter’s record. The court stated

that it would only permit the attorneys to propose questions

for the court to ask her.

This unprecedented procedure would violate the

defendant’s sixth amendment right to counsel, the

confrontation clause and the due process clause. In Chessman

v. Teets, 354 U.S. 156 (1957), the Supreme Court held that

these constitutional provisions guarantee that counsel must

be permitted to actively participate in an adversarial hearing

on the accuracy of the record in a criminal trial. At any hearing

in a capital case when a judge determines the facts, counsel

must have “an opportunity to be allowed to substantiate a

claim before it is rejected” by presenting evidence and cross-

examining witnesses. Ford v. Wainwright, 477 U.S. 399, 412-

13 (1986). Tex.Evid.R. 611 only gives the court discretion

to exercise reasonable control over counsel’s interrogation

of witnesses and discretion to participate in the questioning,

Merzger v. Sebek, 892 S.W.2d 20 (Tex.App. Hous. - 1st Dist.

1994). Rule 611 does not permit the judge to complete

perclude counsel from asking any questions about relevant,

material facts. Prezelski v. Christinansen, 775 S.W.2d

(Tex.App. 4th Dist, 1989).

If the court refuses to allow counsel to question Simmons

at all, it should treat the following questions as a bill of

exception and offer of proof.

1. What raw materials did you use to prepare the hard

copy of the record that you produced?

88a

Appendix D

2. Please explain exactly how you used each of these

materials to prepare your record?

3. The record shows that you were given a paper copy

of Halsey’s steno notes, an edit disk of her steno notes that

translated the symbols into English, audio tapes of both

phrases of the trial and pretrial hearings and a hard copy of

the record that Halsey prepared. Do you recall receiving a

written order from Judge Francis to compare each of these

materials with the others? If not, refresh her recollection with

a copy of the order.

4. Did Judge Francis change the instructions that he gave

you in that order in any way? If so, please explain what

changes were made and what you and Judge Francis said to

each other about them.

5. Did you compare every line of the steno notes on the

edit disks with every line of the hard copy of Halsey’s record

and the audio tapes? If so, did you make a record of each

discrepancy that you found between these materials?

6. If you did not compare the edit disks or paper copy

of the steno notes with the hard copy of Halsey’s record and

audio tapes, please explain why?

7. Do you have personal knowledge of whether Halsey’s

steno notes and/or the hard copy of Hasey’s record contain a

complete and accurate transcription of what happened at the

trial?

89a

Appendix D

8. Do you have personal knowledge of whether the audio

tapes are a complete, accurate, unedited recording of the trial?

9. Did you have the ability to identify every speaker on

the audio tapes by relying on your personal knowledge?

10. Can you certify that based on your personal

knowledge, the record that you prepared “‘is a true and correct

transcription of all portions of evidence and other

proceedings.”

11. Ifany or all of the materials that you used to prepare

your record are not a complete and accurate account of the

proceedings, isn’t is a fact that your record could suffer from

the same flaw as the materials?

12. Assume that the court reporter’s stenographic notes

are the official record ot the trial in Texas, can you certify

that your record agrees with those notes since you did not

compare them? If so, explain why.

13. If the court reporter’s stenographic notes used the

official record of the trial, could you determine whether the

hard copy of Halsey’s record was an accurate transcription

of the official one without comparing the hard copy to the

notes?

14. If Texas law forbids a court from using uncertified

audio tapes of a trial to determine the accuracy of the hard

copy of the reporter’s record, can a court determine the

accuracy of your hard copy?

90a

Appendix D

15. Isn’t it a fact that your record is only as good as the

materials that you used to prepare it because you have no

personal knowledge of what happened at the trial?

16. Isn’t it true that you cannot certify that your record

is acomplete record of the trial regardless of which materials

you used to prepare it because you do not know whether

Halsey failed to make a stenographic or electronic record of

part of it?

17. Do you believe that an independent court reporter

must review Halsey’s record of the voir dire before it is

certified?

18. Isn’t it true that Halsey’s record is the worst one

that you have ever seen?

If the court asks Simmons these questions, the defendant

reserves the right to make an additional bill about follow up

questions that he would have asked.

WHEREFORE, for the reasons stated above, the court

should allow counsel to question Simmons or alternatively

accept his offer of proof and bill of exceptions about the

questions that he would have asked her.

Respectfully submitted,

s/ J. Stephen Cooper

J. Stephen Cooper

3524 Fairmont St.

Dallas, Tx. 75219

214-522-0670

SBN 04890100

9la

Appendix D

s/ Steven Losch

Steven Losch

906 Delia Drive

Longview, Tx. 75601

903-234-1373

SBN 00789805

92a

APPENDIX E — ORDER OF THE COURT OF

CRIMINAL APPEALS, AUSTIN TEXAS

DATED APRIL 26, 1999

IN THE

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

CAUSE NO. 72,795

DARLIE LYNN ROUTIER

VS.

STATE OF TEXAS

ORDER

On this 26th day of April, 1999, came on to be considered

the motion of the appellant’s counsel to correct/clarify the

reporter’s record in the above styled and numbered cause

now before this Court on direct appeal from appellant’s

capital murder conviction in Cause No. F-9639973-J in the

Criminal District Court No. 3 of Dallas County.

AND SUCH MOTION is hereby granted. The trial court

is ordered to conduct an independent review of all portions

of appellant’s court proceedings to ensure that the entire

reporter’s record is made to conform to what occurred at trial.

IT IS SO ORDERED.

PER CURIAM

93a

APPENDIX F — DEFENDANT-APPELLANT’S

OBJECTIONS TO THE PROPOSED

NEW REPORTER’S RECORD

FILED MARCH 2, 2000

No. F96-39973-MJ

IN THE CRIMINAL DISTRICT COURT

NO. 3 OF

DALLAS COUNTY, TEXAS

THE STATE OF TEXAS

V.

DARLIE LYNN ROUTIER

DEFENDANT-APPELLANT’S OBJECTIONS TO

THE PROPOSED NEW REPORTER’S RECORD

COMES NOW, the defendant/appellant, Darlie Lynn

Routier (hereafter referred to as the defendant), by and

through her attorneys of record, and objects that the proposed

corrected reporter’s record for her direct appeal in the above

numbered and entitled cause violates her rights under the

Texas Rules of Appellate Procedure, U.S.CONST.amend.

XIV, and TEX.CONST.art. I, §19 because it is incomplete

and inaccurate and the procedure for creating it was

fundamentally unfair. In support of this objection, the

defendant will show:

94a

Appendix F

1.

ASIGNIFICANT PART OF THE REPORTER’S

RECORD NECESSARY TO THE APPEAL

WAS LOST OR DESTROYED BECAUSE THE

RECORD OF A HEARING THAT WAS

CONDUCTED TO DETERMINE WHETHER

TRIAL COUNSEL DOUGLAS MULDER HAD

A CONFLICT OF INTEREST IS MISSING.

STATEMENT OF FACTS

On September 19, 1996, the State filed a motion to

remove the defendant’s court appointed lawyers from the case

alleging Douglas Mulder was retained to represent her.

CR 474.' Exhibit A. Mulder appeared in court that day to

represent the defendant’s husband, Darin Routier, and her

mother, Darlie Kee, at a hearing to show cause why they

should not be held in contempt for violating a gag order.

RR.8: 6-7.* Mulder actively represented Darin Routier and

Kee at the show cause hearing. RR.8: 9-11. The trial court

accepted his argument that Darin did not violate the gag order.

RR.8: 12-13.

1. The clerk’s record is cited as CR.

2. The proceedings conducted on September 9, 1996, appear

in Volume 8 of the redlined copy of the record that Simmons prepared

to reflect any differences between her record and the Halsey record.

Both versions of this part of the record are virtually identical.

All references to the reporter’s record (RR.) herein will be to this

red-lined copy of the record.

95a

Appendix F

When the show cause hearing was completed, the trial

court asked Darin Routier whether he had retained Mulder

to represent the defendant. RR.8: 16. Darin denied this.

RR.8: 16-17. The trial court then asked Darin whether he

knew of any arrangements to have Mulder represent her.

RR.8: 16. Darin responded that he did not, but Mulder

informed the court that Kee retained him “to assist” the

defendant’s court appointed lawyers. RR.8: 16-17. The trial

court ruled that Mulder could act as a consultant to appointed

counsel and remain in the courtroom during the trial, but he

could not file motions or participate in the litigation of the

case unless he filed a motion to substitute retained counsel

for appointed counsel. RR.8: 18-19.

On October 21, 1996, Mulder filed a written motion to

substitute counsel and made his first appearance in court as

the defendant’s lawyer. CR 52. The docket sheet for October

21, 1996, states that Mulder’s motion to substitute himself

as the defendant’s counsel was granted after testimony and

evidence was received at a hearing. CR 6. The official court

reporter, Sandra Halsey, made a stenographic record of the

proceedings that were conducted in the morning on that date,

but she did not turn over an audio tape of that part of the

trial. The new court reporter, Susan Simmons, transcribed

Halsey’s stenographic notes of those proceedings, but

Simmons would not certify that part of the reporter’s record

without a tape.

According to the transcript of Halsey’s stenographic

record of the proceedings on the morning of October 21,

1996, the trial court asked Mulder whether his “arrangement

96a

Appendix F

as a consultant” with Kee was terminated. RR.10: 10.? Mulder

responded that 1t was expanded and the defendant confirmed

that she wanted Mulder to represent her. RR.10: 10. The trial

court then, without placing her under oath, asked:

THE COURT: If there is any potential conflict

with Mr. Mulder representing you and being a

consultant to Ms. Kee, do you waive any potential

conflict that might exist? (Emphasis added.)

THE DEFENDANT: I’m not sure if I understand.

MR. DOUGLAS MULDER: He wants to know

if you give up any claim to a conflict in so far as

I represent your mother. (Emphasis added.)

THE DEFENDANT: No, there is no conflict.

THE COURT: So you waive any conflict that

might exist, is that correct?

THE DEFENDANT: Yes, sir.

RR.10: 10-11.

3. The pertinent part of the transcription of Halsey’s

stenographic record of the proceedings in the morning on October

21, 1996, appears in Volume 10 at pages 8-10 of the redlined copy of

the record that Simmons produced. There are no material differences

between Halsey’s stenographic notes and the hard copy of the Halsey

record of those pages.

97a

Appendix F

The trial court granted Mulder’s motion to substitute as

the defendant’s lead counsel after this colloquy was

completed. RR.10: 11. Mulder’s SE of Darin

Routier was not mentioned at all.

On November 12, 1996, the State filed a motion that

was styled NOTICE OF POSSIBLE CONFLICT OF

INTEREST. CR 55. (Exhibit B). The State’s motion asserted

that Mulder had a potential conflict because Darin had the

opportunity to kill the children and “recent analysis of

physical evidence suggests that Darin Routier may have

participated with the defendant in the crime or coverup of

the crime.” CR 56. The State’s motion asked the trial court

to conduct a hearing to determine whether Mulder had a

conflict of interest because of his prior representation of Darin

Routier and, if so, whether the defendant and Darin Routier

would waive it. CR 56.

On the day that the State’s NOTICE OF POSSIBLE

CONFLICT OF INTEREST was filed, the trial court

conducted a colloquy with the defendant and the prosecutors

that Halsey audio taped and stenographically recorded.

Simmons has testified that the audio tape of this part of the

proceeding reflected the following:

THE COURT: All right. Let’s put this 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.

SO RO a? eee SON Te eee T! AER” fee eee ey

98a

Appendix F

THE COURT: 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 Mrs. Routier previously waived any conflict

of interest. Is that not so, Miss Routier?

THE DEFENDANT: Yes, yes sir.

THE COURT: And I believe that your husband

Darin Routier also knowingly and intentionally

waived any conflict of interest.

THE DEFENDANT: Yes, he did.

THE COURT: IJ think that was all in the record.

Was it not?

THE DEFENDANT: It was asked to us at the

beginning when we changed.

THE COURT: That is my recollection of things.

THE DEFENDANT: Yes, sir.

THE COURT: We did that the first day here,

didn’t we?

MR. TOBY L. SHOOK: I think so.

THE DEFENDANT: We did it that day, but you

had asked me when | was changing attorneys.

99a

Appendix F

THE COURT: Yes, ma’am. But I mean in

Kerrville. We did it right then and there.

THE DEFENDANT: Yes.

THE COURT: As I recall it, it was the first day

before the jury, change of venue and all that,

before we got into the jury selection.

MS. SHERRI WALLACE: Judge, I think this is

new evidence and Greg just wanted to make real

sure. There is some new evidence.

THE COURT: Well, I will tell you what will do.

We will have the hearing when this jury’s picked.

We will have a hearing all over and I will ask

Miss Routier again and I will ask Mr. Routier

again. I’m sure we will see what the questions |

are. |

THE DEFENDANT: I know you have to got

through that procedure but the questions will be—

THE 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.

THE DEFENDANT: Yes, sir.

THE COURT: All right.

RR.22: 2671-73. (Emphasis added.)

100a

Appendix F

On Nov. 18, 1996, the trial court again briefly addressed the

State’s motion to determine whether Mulder had a conflict of

interest without ruling on it. This colloquy was also tape recorded

and stenographically recorded by Halsey. According to

Simmons, the following statements were made about the State’s

motion during the colloquy:

THE COURT: Now, I have several motions.

I have a motion filed last week considering any

conflict of interest that Mr. Mulder might have.

THE COURT: The Routiers, / think we have already

waived that. We have got him on the record, was it

not Ms. Halsey.

THE COURT REPORTER: Yes sir.

THE COURT: On the 2\st, as I recall, I put

Ms. Kee under oath, Mr. Routier under oath, Mrs.

Darlie Routier under oath for this purpose only. And

they both waived any conflicts that may exist.

THE COURT: Has anything new happened since

then?

MR. RICHARD MOSTY: Our response that Darlie

Routier signed last week further reconfirms that.

THE COURT: That’s nght. 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.

RR.26: 3323-24. (Emphasis added.)

10la

Appendix F

The trial court did not mention the State’s motion or

Mulder’s conflict again in the Halsey or Simmons records.

The signed response that Mosty referred to is not in the clerk’s

record.

ARGUMENT AND AUTHORITIES

The hearing about the conflict of interest that resulted

from Doug Mulder’s representation of the defendant’s

husband that the trial court discussed with the attorneys and

the defendant on November 12 and 18, 1996, does not appear

in the Simmons record, the hard copy of the Halsey record,

Halsey’s stenographic notes or her audio tapes. The record

of that hearing is essential to the appeal because the defendant

needs it to show that she did not make a knowing and

intelligent waiver of the conflict.

The Simmons and Halsey records of the proceedings on

November 12" and November 18" prove that there was a

hearing about the conflict that resulted from Mulder

representation of Darin Routier before the State filed a motion

to reconsider the issue on November 12". Halsey’s statement

to Judge Tolle that she made a record of the defendant and

her husband waiving that conflict under oath is authoritative

because it was her duty to state for the record whether she

made a record of a particular proceeding if that question

arose. Jones v. State, 923 S.W.2d 158, 159-60 (Tex.App. -

Beaumont 1996), rev’d on other grounds, 942 S.W.2d 1

(Tex.Crim.App. 1997) (reporter’s parenthetical note in record

that she did not transcribe part of court’s comments to venire

was sufficient to prove that comments were not transcribed).

Judge Tolle’s recollection of the missing hearing during his

102a

Appendix F

colloquy with Halsey confirms that her statement about

it was correct. Moody v. State, 827 S.W.2d 875, 879

(Tex.Crim.App. 1993) (accepting recollection of trial judge

and deputy clerk that there was an unrecorded sua sponte

excusal of a juror). The uncontradicted statements of the

attorneys for both sides about the missing hearing are also

authoritative because they each had the power to supplement

the record by describing events that were not transcribed by

the official reporter. Hill v. State, 3 S.W.3d 249 (Tex.App.-

Waco 1999, pet. filed). Appellate courts have accepted the

unsworm undisputed statements of a single prosecutor or

defense attorney about unrecorded court proceedings as true

in several cases. See, e.g., Rey v. State, 897 S.W.2d 333, 336

(Tex.Crim.App. 1995) (accepting defense counsel’s repeated

statements that there was an unrecorded adverse ruling on

motion); Quevedo v. State, 661 S.W.2d 321 (Tex.App. -

Corpus Christi 1983, pet. ref’d) (accepting prosecutor’s

statement that defense counsel requested instruction about

lesser included offense at unrecorded in chambers charge

conference); Hicks v. State, 525 S.W.2d 177, 178

(Tex.Crim.App. 1975) (accepting defense attorney’s

description of prosecutor pointing at defendant during

summation). The evidence of the missing hearing about

Mulder’s conflict is overwhelming in comparison to the

evidence that was accepted in those cases because every

concerned participant in the trial stated that it occurred and

the judge confirmed it twice.

It is inconceivable that the trial judge, five defense

attorneys, three prosecutors, the defendant and the court

reporter confused the hearing ahout the trivial conflict arising

from Mulder’s representation of the defendant’s mother in

103a

Appendix F

the uncertified record of the proceedings on the morning of

October 21, 1996, with the hearing about the serious conflict

arising from his representation of her husband that the State

addressed in its motion. The judge and prosecutors must have

known that there would be an automatic reversible error if

no hearing was conducted on the State’s motion even if the

defendant did not object or show some harm. United States

v. Kliti, 156 F.3d 150 (2™ Cir. 1998); United States v.

Fish, 34 F.3d 488, 992 (7th Cir. 1994); United States v.

Levy, 25 F.3d 146, 154 (2d Cir. 1994). The defendant’s

acknowledgment on November 12" that she waived that

conflict at a prior proceeding could not establish that it was

a knowing and voluntary waiver because the record does not

show that she was admonished about the nature of

the conflict. Jordan v. State, 571 S.W.2d 883, 884

(Tex.Crim.App. 1978). The defendant’s waiver of the conflict

that resulted from Mulder’s representation of her mother

certainly could not waive the separate conflict that resulted

from his representation of her husband. United States v Abner,

825 F.2d 835, 843 (Sth Cir. 1987).

The fact that the judge and prosecutors did not conduct

a hearing about the conflict arising from Mulder’s

representation of Darin Routier after the State alleged that

there was new evidence that required it is also very strong

evidence that there was a hearing about that conflict before

the State’s motion was filed. It is possible that the judge and

prosecutors believed that a waiver of the conflict did not

have to be repeated to avoid reversible error, but it would

defy common sense to suggest that they forgot to conduct a

hearing on the State’s motion if there was no recorded waiver

before it was filed.

104a

Appendix F

This Court does not have to determine when the hearing

was conducted, why it does not appear in Halsey’s

stenographic notes or whether Halsey audio taped it.*

The only material facts are that the hearing occurred and

Halsey made a record of it that cannot be found.

4. There is a plausible explanation for the fact that no

stenographic or electronic recording of the hearing exists. Judge Tolle

could have conducted a very brief colloquy with the defendant and

Darin Routier during the lunch break on October 21, 1996, because

he realized that the defendant had only waived conflict that resulted

from Mulder’s representation of her mother at the morning session.

Halsey may have decided to make an audio tape of the proceeding

with the intent of stenographically transcribing it later on because

she did not want to interrupt her lunch to type a record. Halsey’s

tape recorder may not have been working because Halsey told a bailiff

on the audio tape of the afternoon session that she needed some

batteries.

105a

Appendix F

2.

ASIGNIFICANT PART OF THE REPORTER’S

RECORD NECESSARY TO THE APPEAL

WAS LOST OR DESTROYED BECAUSE THE

RECORD OF THE PROCEEDINGS ON

THE MORNING OF OCTOBER 21, 1996,

THAT SIMMONS CANNOT CERTIFY IS

ESSENTIAL TO PROVE THAT NO HEARING

WAS CONDUCTED TO DETERMINE

WHETHER THE DEFENDANT WAIVED THE

CONFLICT OF INTEREST THAT RESULTED

FROM MULDER’S REPRESENTATION OF

HER HUSBAND.

If the Court is not convinced that there was a

hearing about the conflict which resulted from Mulder’s

representation of the defendant and her husband that does

not appear in the Simmons record or Halsey’s stenographic

notes, a significant part of the record necessary to the appeal

was still lost or destroyed because there is no certifiable

record of the proceedings on the morning of October 21,

1996. The Simmons record presently shows that the judge,

the official court reporter, the prosecutors, the defense

attorneys and the defendant agreed that the defendant waived

the conflict that arose from Mulder’s representation of her

husband on the morning of October 21. The defendant needs

a record of those proceedings to prove that she did not waive

the conflict or the waiver was not valid because she was not

adequately admonished about it.

106a

Appendix F

The uncertified transcript of Halsey’s stenographic notes

of the proceedings on the morning of October 21* cannot be

used to fill in the gap in the Simmons record because the

entire record must be certified. TEX.R.APP.P. Appendix,

ORDER DIRECTING THE FORM OF APPELLATE

RECORD IN CRIMINAL CASES (b)(1)(q); Ex parte Smith,

561 S.W.2d 842 (Tex.Crim.App. 1978). The clerk of the

Court of Criminal Appeals will have to return the uncertified

part of the record to Simmons and order that defect corrected.

See TEX.R.APP.P. 37.2. Halsey cannot perform that task

because she lost her court reporter’s license and Simmons

has testified that she will not do it.

The hard copy of the Halsey record of the proceedings

on the morning of October 21, 1996, cannot be used because

the certificate on her record is void on its face. Halsey’s

certificate states that the record “contains a full, true,

complete and accurate transcript of the proceedings held in

this matter to the best of [her] knowledge.” (Emphasis

added.) The certificate should unequivocally assert that the

reporter’s record is “a true and correct transcription of

all portions of evidence and other proceedings.”

See TEX.R.APP.P. Appendix, ORDER DIRECTING THE

FORM OF APPELLATE RECORD IN CRIMINAL CASES

(b)(1)(q). :

The hard copy of the record of the proceedings on the

morning of October 21, 1996, that Halsey certified cannot

be used to prosecute an appeal even if the defect in the

wording of her certificate is not fatal, because her certificate

was factually false. A certified reporter’s record is presumed

to be a complete and accurate transcript of the trial, but that

107a

Appendix F

presumption can be overcome with evidence. Melendez v.

State, 936 S.W.2d 287, 290 (Tex.Crim.App. 1996); McGee

v. State, 774 S.W.2d 246 (Tex.Crim.App. 1989); Smith vy.

Morris, 70 S.W.2d 994, 995 (Tex. 1934); Spencer v. State,

30 S.W. 46 (Tex.Crim.App. 1895). The truthfulness of the

certificate is a question of fact for the trial court to decide.

McGee v. State, supra, at 247: Johnson v. State, 924 S.W.2d

750, 751 (Tex.App. - Houston [1* Dist.] 1996, no pet).

An appellate court cannot accept the record if the reporter’s

certificate was false and the defect cannot be corrected.

Ex parte Smith, 561 S.W.2d 842 (Tex.Crim.App. 1978).

There is overwhelming evidence that Halsey knowingly

signed a false certificate. This Court adopted Simmons’

opinion that the hard copy of Halsey’s record of the

proceedings on the morning of October 21,'1996, is not

accurate and should not be certified. Halsey admitted under

oath at the hearing to revoke her license that she knew when

she signed the certificate that her record was not full, true,

complete and accurate (Exhibit C). She has also confessed

that she lied to conceal mistakes in her record that could

require a new trial because she believes that the defendant is

guilty (Exhibit D). And this Court can take judicial notice of

the multiple and repeated lies and misrepresentations, sworn

and unsworn, by Sandra Halsey as to her preparation of the

original reporter’s record in this case. Furthermore, by

definition, Halsey engaged in unprofessional conduct in

“producing an inaccurate transcript or statement of facts”

and “producing an incomplete transcript or statement of

facts.” Standards and Rules for Certification of Certified

Shorthand Reporters, Rule IV, B.2. and 3., by order of the

Supreme Court of Texas pursuant to TEX.GOV’T CODE

ANN. §52.002.

108a

Appendix F

3.

OTHER SIGNIFICANT PARTS OF THE

REPORTER’S RECORD OF THE

PROCEEDINGS ON OCTOBER 21, 1996,

WHICH ARE NECESSARY TO THE APPEAL

WERE LOST OR DESTROYED.

The record of several other legally significant events

which occurred on the morning of October 21, 1996, was

also lost or destroyed. Simmons cannot certify that part of

the record. The certificate on Halsey’s record of the

proceedings was false and did not conform to TEX.R.APP.P.

Appendix, ORDER DIRECTING THE FORM OF

APPELLATE RECORD IN CRIMINAL CASES (b)(1)(q).

According to the docket sheet and Halsey’s stenographic

notes of the October 21‘ morning session, the trial court:

1) dismissed the defendant’s court appointed lawyers and

allowed new retained attorneys to parachute into a very

complex capital case on the day before jury selection began;

2) administered an oath to the panel of prospective jurors;

3) gave preliminary instructions to the venire pursuant to

TEX.CODE CRIM.PROC.ANN. art. 35.17(2); and 4) excused

several prospective jurors. CR 6; RR.10: 7-60. An appeal

cannot be prosecuted without a certified record of all of those

significant events.

109a

Appendix F

2

THE REPORTER’S RECORD OF HUNDREDS

OF ANSWERS TO IMPORTANT VOIR DIRE

QUESTIONS WAS LOST BECAUSE HALSEY

USED PARENTHETICAL DESCRIPTIONS OF

THE JURORS’ HEAD NODS AND SHAKES TO

INTERPRET THEIR UNINTELLIGIBLE

RESPONSES AND SIMMONS CANNOT CER-

TIFY THAT HALSEY’S STENOGRAPHIC

NOTES ABOUT THEIR HEAD MOVEMENTS

WERE ACCURATE.

The Simmons record contains hundreds of parenthetical

descriptions of non-testimonial answers to voir dire questions

that she did not observe and could not verify by listening to

the audio tapes (Exhibit E).5 Simmons included Halsey’s

parenthetical descriptions of the jurors’ head nods and shakes

in the new record that she certified, but in doing so she did

not intend to vouch for the

This text is long and has been trimmed here. Open the source document for the complete record.