# Appendix — Routier v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 1040

## Text

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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.

9a
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.

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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.

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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

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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.

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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.

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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.

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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

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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.

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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?

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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).

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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)

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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.

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Appendix A

under the Rule, the trial court must balance the interests of
the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0813%3A2. Public record. Not legal advice.