http://www.cca.courts.state.tx.us/opinions/72795.htm
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
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NO. 72,795
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DARLIE LYNN ROUTIER, Appellant
v.
THE STATE OF TEXAS
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ON DIRECT APPEAL FROM DALLAS COUNTY
ON CHANGE OF VENUE TO KERR
COUNTY
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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 ß19.03(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, ß2(g). Direct
appeal to this Court is automatic. Tex. Code Crim. Proc. art. 37.071, ß2(h).
The appellant raises fourteen points of error. We shall affirm.
The evidence that supports the
verdict shows that the appellant stabbed and killed her two sons, Damon and
Devon, (1)
while her husband and infant son were asleep upstairs in the house. The
appellant does not challenge the legal or factual sufficiency of the evidence
to support her conviction, and therefore, it is not necessary to set out the
evidence in detail.
I. Claims Regarding the Record
In her brief, the appellant makes
several claims regarding the preparation and certification of the reporter's
record in addition to claims regarding her trial. We will address claims
dealing with the accuracy of the record before dealing with the appellant's
claims regarding her trial. Specifically, the appellant complains that she is
entitled to a new trial because of problems with the reporter's record. She
argues that, at a minimum, she is entitled to a hearing before the record can
be used to decide her appeal. A review of the facts pertaining to these points
of error is necessary.
The appellant's trial took place in
January 1997. The certified court reporter, Sandra Halsey, took stenographic
notes during the trial. Halsey simultaneously typed notes of the proceedings
onto paper strips ("notes") and onto computer edit disks
("disks") that automatically translated the stenographic symbols into
English. In April 1998, under an order of contempt issued by this Court the
month before, (2)
Halsey prepared, certified, and filed the original reporter's record in the
case ("Halsey record").
In a motion to correct and clarify
Halsey's record, filed October 13, 1998, the appellant raised the first dispute
about the accuracy of the record. An excerpt of the record that had been read
to the jury did not match the corresponding portion of the Halsey record. Also,
counsel noted discrepancies about who was present during the trial and when.
The next day this Court granted the appellant's motion and ordered Halsey to
prepare, certify, and file a supplemental reporter's record containing any
omitted items. We also ordered the trial court (3) to resolve any dispute raised in the appellant's motion and to
ensure that the reporter's record conformed to what occurred at trial.
The trial court conducted a hearing
and decided that the entire record had to be reviewed to comply with this
Court's October 14, 1998 order. In a hearing held October 30, 1998, pursuant to
our order, Halsey testified that she made audiotape recordings
("tapes") in addition to the notes and disks during the trial. Halsey
claimed that the audiotape recorder worked during only the voir dire portion of
the trial. The trial court ordered Halsey to produce her notes, disks, and
tapes from the trial. The trial court also ordered her to conduct a review of
the record and make note of any problems she found or corrections she made.
At a hearing held on November 4,
1998, the trial court appointed three certified court reporters, Tommy Mullins,
Judy Miller, and Jerry Calloway ("the experts"), to perform a review
and to compare the notes and disks to Halsey's record to determine whether
Halsey's record could be certified.
Although Halsey had told the trial
court and the experts that she possessed no tapes from the guilt and punishment
phases of the trial, on November 12, 1998, she told prosecutor Lindsey Roberts
and appellant's counsel Stephen Cooper that tapes from those phases of the
trial did exist. According to a stipulation read into the record, she went with
Roberts to retrieve the tapes from a storage facility in Plano. Halsey told
Roberts that the tapes she produced were from the Routier trial. These tapes
were produced during the hearing in the trial court on November 13, 1998. The
appellant expressed concern about the authenticity of the tapes. The trial
court received the tapes with the understanding that the question of their
authenticity would be subject to further review.
Also during the hearing on November
13, the experts testified that they performed their review by comparing a total
of twelve random pages from four of the ten volumes of Halsey's record of the
trial with the corresponding notes and disks. On each of the four pages, the
experts found several differences between what was in the notes and what was on
the pages from the record. They concluded that the only way to account for so
many differences between the notes and Halsey's record is that someone listened
to tapes from the trial and made changes based on the tapes. (4)
Halsey's daughter and transcription
scopist, (5)
Suzy Crowley, testified that Halsey gave her tapes of the guilt and punishment
phases of trial. Crowley stated that she used the tapes to make permanent
changes to the English translation of the original proceedings on the disks.
She testified that the tapes presented by Roberts looked similar to the ones
she had used and that they had labels on them that identified them as being
from the Routier trial. Scopist Michelle Reynolds reviewed and edited the voir
dire portion of the trial.
Halsey did not testify at the hearing
on November 13, 1998. The trial court appointed counsel for her. At the
conclusion of the hearing, the trial court rescinded its prior order of October
30, 1998, to have Halsey review her record and ordered her to cease any
proceedings regarding the record. The trial court said it would appoint a
certified reporter, agreeable to both the State and the appellant, to review
Halsey's record and determine whether it could be made to conform to what
occurred at trial.
On November 19, 1998, the trial
court appointed Susan Simmons, a certified court reporter for the United States
District Court in Tyler, to perform a review of the guilt and punishment phases
of the record, as well as the pretrial hearings. (6) The parties and the experts all agreed that Simmons was qualified
and competent to perform the review. During the hearing, the appellant's
counsel explained that he was not sure if it was legally permissible or even
possible to certify the record. He reserved the right to offer evidence on this
point at a later time. Halsey appeared with her attorney that day. To comply
with a subpoena duces tecum requesting all materials regarding the appellant's
trial, her attorney turned over the notes and disks for the entire trial.
Halsey refused to testify, however, and asserted her Fifth Amendment privilege.
On December 9, 1998, Halsey's
attorney produced twelve more tapes, which he claimed were additional tapes
from the trial. Halsey was then relieved of her duties as the official court
reporter in this case. The trial court ordered Halsey to continue to look for
more tapes.
On April 1, 1999, the trial court
conducted a hearing during which Simmons testified that she had revised the
Halsey record of the guilt and punishment phases of the appellant's trial.
Simmons submitted the revised record ("Simmons record") and her
red-lined copy of the Halsey record that reflected all of the changes that she
had made. Counsel for the appellant and the State were not permitted to
question Simmons directly. (7) Before the hearing, the trial court provided to the parties the
questions it would ask Simmons. The parties were permitted to submit written
questions to the trial court, and the trial court read the questions that it
concluded were relevant and not repetitive. The trial court instructed the
parties not to object to questions during the testimony; they weredirected to
submit those objections before the next hearing. The trial court stated that it
would also afford the parties an opportunity to submit a bill of exceptions.
The parties were given a break during the testimony to submit further questions
based on the testimony that had already been heard.
Simmons testified about the standard
procedures for preparing a record of proceedings. First, during the
proceedings, the certified court reporter writes on a machine notes of what
occurs. The notes include a list of the people who are present, the date of the
proceedings, the name of the proceedings, the testimony taken, and the list of
exhibits. The machine simultaneously prints the symbols onto the notes and
records the symbols onto a disk or hard drive. The symbols on the notes cannot
be read or deciphered by someone without some training as a court reporter or
scopist. The notes are labeled with the date and subject matter. It is common
for the court reporter to use an audiotape recorder as a backup. Generally, the
recorder is connected to the microphones on the witness stand, the attorneys'
tables, and the judge's bench.
Simmons testified that after the
proceedings are over, the court reporter takes the disk to a computer and uses
software, to which the reporter's personal dictionary has been added. The
dictionary in the software produces an English translation of the symbols. The
computer produces a split screen on the monitor, which shows the symbols on one
side and the English translation on the other side. The English translation
will show some "untranslates," which are symbols that the software
does not recognize. After the reporter enters the correct word, the symbol for
the word and its translation are added to the reporter's personal dictionary.
According to Simmons's testimony, if
the reporter uses a scopist, and most do, the translation is put on a duplicate
disk, which is given to a scopist along with the backup tapes. The scopist
performs the first edit. Ordinarily, the scopist loads the disk and listens to
the tapes going line-by-line checking for corrections and unrecognized words.
Then this edited version is saved on another disk to leave intact the original English
translation that was produced at trial, (8) and all the materials are returned to the reporter.
Simmons indicated that the reporter,
after receiving the materials from the scopist, proofreads either the hard copy
of the new translation or the on-screen copy while listening to the tapes. Then
the reporter proofreads the record one more time, checks for spelling errors,
and prints and certifies the record.
Simmons testified about her work in
the appellant's case. She explained that she followed the instructions in the
trial court's order. The trial court had not ordered Simmons to certify the
record; she was ordered to review the record from the guilt and punishment
phases of the trial and to certify it if possible. She possessed the Halsey
record, the disks, tapes, notes, and some handwritten notations by Halsey. She
followed the procedure that is ordinarily employed when a court reporter is
unable to produce the record because of either death or disability.
Simmons testified that she first
went through the notes and the tapes to be sure that she had them for each
volume of the Halsey record she had been assigned. She said that it appeared
that she had been provided with a complete set of materials for the guilt and
punishment phases of the trial. She said it was possible to create a
certifiable record based on the materials provided. The notes prepared on the
machine appeared to be complete with no gaps in the proceedings and within the
range of competent reporting. The disks were in useable form and appeared to be
complete. The tapes were audible and seemed to be complete with no discernible
gaps or alterations.
Simmons testified that she started
the review process by listening to the tapes while going through the Halsey
record line-by-line. She marked the corrections onto her copy of the Halsey
record. When she had questions, she flipped to the appropriate portion of the
notes. She did not perform a systematic review of the notes. She was able to
identify witnesses when they stated their names at the beginning of their
testimony. If a voice was not identified in this manner, she used the notes,
which contained symbols identifying the speakers.
Simmons then took the marked version
of the Halsey record and the disks to her scopist. The scopist copied each disk
onto her hard drive. Then she made the changes marked in pen and saved the
files on new disks so that there would be no alteration of the disks provided
by Halsey. The scopist printed a hard copy of the changes. Simmons proofread
the hard-copy by doing a page-by-page comparison of the changes.
This procedure was followed until
all of the volumes for the guilt and punishment phases were completed. Then
Simmons prepared a master index, exhibit index, and witness index, which was
compared to the scopist's list. Three hard copies of the final edited version
("Simmons record") were produced along with disks with a universal
translation. (9)
Simmons testified that she believed
that Halsey used more than one scopist to create the record. It is standard
practice for the reporter who actually heard the trial to review the changes a
scopist makes using the tapes. It is normal for the final record to be
different in some respects from the unedited notes. The purpose of editing the
notes is to make them reflect, as nearly as possible, what happened at trial.
Simmons said that the Halsey record was inaccurate and poorly prepared. She
opined that the deficiencies in the Halsey record were based on a lack of
proper editing. Simmons did not attend any of the proceedings in Kerrville and
had no personal knowledge of what happened at trial. But Simmons testified that
she believed, based on the materials provided and her expertise, she was able
to render a complete and accurate record that conforms to what occurred at
trial. She said that, if the materials did not contain a complete and accurate
account of the proceedings, then the Simmons record could suffer from the same
flaws. But she believed that the materials provided accurate information for
preparing the record. Simmons has reconstructed trial records in other cases,
and she was able to certify records in those cases. In her expert opinion, the
record as prepared by her had been made to conform to what happened at trial to
ninety-five percent accuracy.
On April 26, 1999, the Court of
Criminal Appeals ordered the trial court to ensure that the entire record,
including voir dire and pretrial proceedings, conformed to what happened at
trial. We ordered the trial court to independently review other parts of the record
in the same manner as it had the guilt and punishment phases. On May 4, 1999,
the trial court appointed Simmons and her scopist to prepare the remaining
portions of the record.
On October 14, 1999, a hearing was
held to receive the remaining portions of the record that Simmons had
completed. She testified that the tapes were audible and seemed to have no gaps
or alterations, the disks for the volumes-other than Volume 16-were useable,
and the notes-although there were mistakes-could be used to the extent she
needed them. She testified that, once again, she was able to certify that the
record conformed to what occurred at trial. She testified that she used the
same procedures used to complete the guilt and punishment phases of the record,
with one exception. For Volume 16, there was no disk. Therefore, Simmons
proofread the hard copy of the Halsey record with the tapes and had her scopist
retype the entire volume.
Later, the parties and the trial
court became aware that Volumes 10 and 11 had not been sent to Simmons for
preparation. The materials were then sent to Simmons, and she was ordered to
review the materials in the same manner as she had reviewed the other portions
of the trial. The trial court ordered Simmons to revise and certify a record if
possible. (10)
At a hearing on January 28, 2000,
Simmons testified that she followed the same procedure for preparing and
certifying the record, except for the first 54 pages of Volume 10. (11) These pages contained the
proceedings for October 21, 1996. For those 54 pages, Simmons had the Halsey
record, the notes, and the disk, but no tape. Going line-by-line, she compared
the Halsey record with the notes taken on the day the proceedings occurred. She
noted that there did not appear to be any gaps in the notes and that they were
in good and useable form. Simmons refused to certify these pages, however. She
explained that, based on the portions of the record she had prepared already
and the state of the Halsey record, she was not comfortable certifying the first
54 pages without a tape to compare to the Halsey record. She said that her
record for the first 54 pages of Volume 10 is an accurate transcription of
Halsey's notes. Her decision not to certify was based on the following facts:
she was not present at trial; she had no tape to use as a backup; and her
review of the rest of the record indicated that she needed a tape to correct
the record because it had been edited so poorly.
Simmons testified that on the tape
for the afternoon session of court on October 21, 1996, in a conversation
between Halsey and someone from the Sheriff's Department, Halsey mentioned that
she needed some batteries. (12) Simmons believed that this might explain the absence of a tape
for the morning session. Simmons believed, however, that a tape existed for the
morning session because there were words that appeared in the Halsey record
that did not appear in the notes. At the conclusion of the hearing, the trial
court announced that it would give the parties 120 days in which to review the
entire record and make objections.
On February 9, 2000, the trial court
issued an order stating that Volumes 10 and 11 of the Simmons record should
replace the same volumes of the Halsey record because the Halsey record did not
conform to what occurred at trial. The Court, by agreement of the parties, gave
the parties until March 6, 2000, to file objections to the Simmons record.
On March 2, 2000, the appellant
filed written objections to the Simmons record and a written request for a
hearing to resolve factual disputes about the record. The State's response to
the appellant's written objections was filed April 28, 2000. On September 1,
2000, the trial court scheduled a hearing on the appellant's objections to the
record to take place on September 8, 2000. The appellant's attorney subpoenaed
several witnesses, including Judy Miller, Mary Docklar, Jerry Calloway, Doug
Mulder, Jeff Crilley, Lindsey Roberts, Toby Shook, and Greg Davis.
On September 7, 2000, the trial
court issued findings on the record and an order cancelling the hearing
scheduled for the next day. The findings say that the trial court reviewed the
orders issued by the Court of Criminal Appeals, the record from all hearings
held to comply with the orders issued by the Court of Criminal Appeals, the
findings and orders of the trial court, the appellant's objections to the
record, and the State's response. The trial court found that the appellant's
objections were clear and concise and would apprise the Court of Criminal
Appeals of the appellant's concerns about the record. It found that the
appellant's motions to suppress evidence in the proceedings on the record were
beyond the scope of the orders of the Court of Criminal Appeals. It also found
that an evidentiary hearing as requested by the appellant was not necessary to
comply with the orders of the Court of Criminal Appeals, the orders had been
complied with, and that it would not hold any other hearings unless the Court
of Criminal Appeals so ordered.
In response to the trial court's order
cancelling the hearing, the appellant filed her Formal Bill of Exception No. 1
and a Motion for a Hearing to Make an Offer of Proof on September 25, 2000.
The trial court responded with a
finding that it no longer had jurisdiction of the case. The court forwarded the
appellant's pleadings to the Court of Criminal Appeals without taking action.
A. Third Point of Error: The Entire Record is Inaccurate and
Unreliable
In her third point of error, (13) the appellant claims that she is
entitled to a new trial because the reporter's record does not conform to the
requirements of Texas Rule of Appellate Procedure 34.6(a)(1) (14) and because the defect cannot be
corrected. Specifically she states that Rule 34.6(a)(1) requires that the
reporter's record be a certified verbatim transcription of the stenographic
notes of the court reporter who attended the trial. Because the Simmons record
is a transcription of unauthenticated tapes prepared by a court reporter who
did not attend the trial, the appellant argues, the record does not comply with
the Rule. Also, the appellant argues, Halsey's notes cannot be transcribed
accurately because the trial court found that the notes do not conform to what
occurred at trial. (15)
She also claims that settling disputes about the record with extrinsic evidence
would be impossible because the trial judge who presided over the trial is
retired (16)
and the court reporter who created the notes has lost her certification. In
essence, the appellant claims the Simmons record is a new record that consists
of a transcription of the tapes. Further, she argues that the transcription of
the tapes was not done in accordance with Rule 34.6(a)(2), (17) and to permit the Simmons record to
be used would blur the distinction between the two methods of producing the
reporter's record.
We disagree with the appellant's
characterization of the Simmons record. The revised record is not a new record
created from the tapes. The Simmons record is a corrected transcription of the
notes taken at trial by Halsey. Simmons testified that the defects with the
Halsey record were a result of poor editing and that Halsey's notes were within
the range of competent court reporting. Simmons used the tapes to correct the
Halsey record that was a poorly-edited transcription of the notes taken at
trial.
The appellant asserts that Simmons
should not have used the tapes to correct the record. For this proposition, the
appellant cites Valenzuela v. State,
940 S.W.2d 664, 666 (Tex. App.-- El Paso 1996, no pet.), and Ex parte Occhipenti, 796 S.W.2d 805, 807
(Tex. App.-- Houston [1st Dist.] 1990, no pet.). These cases are
distinguishable.
In Valenzuela, the defendant's attorney requested that the official
court reporter provide him with certified tapes of the proceedings so that
preparation of the record would be less expensive. The El Paso Court of Appeals
supported its decision to deny Valenzuela's request with many reasons. Chief
among them was the fact that the "Rules of Appellate Procedure provide for
preparation of the record on appeal by the clerk of the trial court and the
court reporter who transcribed the proceeding and do not contemplate
preparation of the appellate record by a party or his counsel." Valenzuela, 940 S.W.2d at 666. The Court
of Appeals also noted that the reporter's record in a criminal case may consist
of a transcription of the tapes only when authorized by the Court of Criminal
Appeals. Ibid. Because the use of
tapes as the reporter's record was not authorized in Brewster County, the court
reporter was not authorized to certify the tapes as the official reporter's
record. Ibid. Valenzuela is distinguishable from the appellant's case because the
tapes in the appellant's case were used to edit the record that was created
from Halsey's notes from trial.
In Ex parte Occhipenti, a civil case, tapes were made, but no notes
were made of the trial court proceedings. The Court of Appeals held that it
could not consider the tapes because the Texas Supreme Court had not authorized
Harris County district courts to use tape recordings as the certified record. Occhipenti, 795 S.W.2d at 807. Once
again, the record in the appellant's case is a transcription of Halsey's notes
that was edited with the assistance of the tapes. The appellant's case is
distinguishable from Occhipenti on
that basis.
The appellant also asserts that Bond v. State, 694 S.W.2d 622,623 (Tex
App.-- Beaumont 1985, pet. ref'd), supports her claim that the record in this
case cannot be used to decide her appeal. In Bond, the Court of Appeals reversed the conviction because the
court reporter could not take notes during part of the State's closing argument
because the prosecutor was speaking too quickly for the reporter's ability. It
was later found that the tape was faulty and did not record the argument. Ibid. The question in the case was
whether the defendant had failed to exercise due diligence in failing to object
to the missing portion of the record when it was discovered. The Court held
that the defendant need be diligent only in requesting the transcription of the
record and that when, through no fault of his own, the defendant is deprived of
the record, an appellate court cannot affirm the conviction. Ibid. The appellant's case is
distinguishable because she has not shown that she has been deprived of the
record. (18)
The appellant also directs us to State Farm Fire & Cas. Ins. Co. v.
Vandiver, 941 S.W.2d 343 (Tex App.-- Waco 1997, no pet.). In that case, the
court reporter failed to take notes of portions of depositions that were read
into the record. The Court of Appeals held that the tapes could be used to
establish the pages and lines of the depositions and that the record could be
supplemented with the parts of the depositions. Id. at 343. The Court of Appeals specifically rejected its prior
holding that the use of materials other than the notes taken at trial to
supplement the reporter's record would constitute a new record. Id. at 349 (overruling Home Ins. Co. v. Hambric, 906 S.W.2d 956
(Tex. App.--Waco 1995, no pet.)). The appellant argues that her case is
distinguishable from Vandiver because
the procedure in that case was dependent on the existence of "a proper
written transcription of the testimony made at the time the deposition was
given." Ibid.
The State argues that Vandiver stands for the proposition that
courts can use materials other than the official notes taken during proceedings
to obtain an accurate reporter's record. The Court of Appeals said that:
While it cannot be denied that a
contemporaneous verbatim recording of the events at trial is a large part of
ensuring that a complete and accurate record of the trial court proceedings is
prepared, the conclusion does not follow that the record will necessarily be
incomplete in every instance where there is some absence of a contemporaneous
verbatim recording.
Ibid. In Vandiver, portions of several exhibits and depositions were read to
the jury. An audio recording of every instance where this occurred was made by
the court reporter. There was no contention that what was read at trial
differed in any way from the actual wording of the relevant exhibits and
depositions. In addition, it was undisputed that the court reporter, by
listening to the audio tapes to find where the portions of these exhibits and
depositions began and ended, could reconstruct the very testimony that was
missing from the original statement of facts. Therefore, the Court concluded
that the statement of facts could be properly supplemented with the exhibit and
deposition testimony that was missing from the original statement of facts. Ibid.
We agree with the State's reading of
Vandiver and we adopt the reasoning
of Vandiver. In this case, Simmons
corrected the Halsey record with tapes that allowed her to reconstruct the
testimony despite the inaccurate editing performed by Halsey and her scopists.
Simmons and Mullins testified that
it is a common practice for court reporters to use tape back-ups in the
preparation of any record to correct the notes taken at trial and to make the
record as accurate as possible. The situation in the appellant's case is
similar to when a court reporter is unable to certify a record due to death or
disability. Halsey lost her certification and was unable to correct and certify
the record herself. The procedure Simmons used is the same as that used when a
court reporter is disabled or dies before the record can be transcribed and
certified. Simmons testified that she had used the same procedure in the past.
The appellant claims that the
procedure is flawed because Simmons did not transcribe the notes. The machine
used to record the notes translates the symbols to English. Simmons testified
that the problem with the Halsey record was that it had been edited improperly.
Transcribing Halsey's notes would not have changed the process of correcting
the record with the use of the tapes. Therefore, it was not necessary.
In Williams v. State, 427 S.W.2d 868 (Tex. Crim. App. 1967), we
approved of a similar procedure in a case when the court reporter died before
preparing and certifying the record. Id.
at 870, 872. We said:
We fail to see what more the able
trial judge in the case at bar could have done under the circumstances. An
appellant is not entitled to reversal merely because of the death of the court
reporter. Here the trial judge availed the appellant and his counsel of three
different opportunities to demonstrate why the statement of facts as finally
prepared and approved were not a full, accurate and complete transcription of
the court reporter's notes taken at the trial. He certainly had his day in
Court upon the settlement of the record. In absence of a showing made that the
record before us is not what occurred at the trial and that the appellant's
rights were prejudiced, we overrule appellant's first ground of error.
Id. at 872. The death or
disability of a court reporter, without more, does not entitle the appellant to
a new trial. Likewise, that a court reporter has lost her certification,
without more, does not entitle the appellant to a new trial.
The appellant admits that the use of
another court reporter and backup tapes is a common practice when a court
reporter is unable to complete and certify the record, but she says that
Simmons used the tapes to make more than 30,000 substantive changes to the
record without systematically reviewing the notes. The appellant fails to point
to any specific corrections made by Simmons that show that the Simmons record
is incomplete or inaccurate. The appellant argues that, if the court reporter
can use tapes to make so many substantive changes to the record without a
hearing, she should be required to follow the rules to protect the integrity of
the tapes. See Tex. R. App. P.
13.2(e). (19)
There is no threshold number of
changes that triggers Rule 13.2(e). And, no matter the number of corrections
made, the appellant has not even attempted to show that the record is
incomplete or inaccurate. Simmons used all the materials provided her to revise
the record.
The appellant also directs us to Soto v. State, 671 S.W.2d 43, 44-46
(Tex. Crim. App. 1984). In that case, we held that a record created from tapes
of proceedings was unacceptable. The defendant had requested that a court
reporter record proceedings in his case. The trial court denied the defendant's
request because no court reporter was available. The county clerk made tape
recordings of the proceedings instead. The deputy county clerk transcribed the
tapes. Parts of the tapes were inaudible, and therefore the record contained
gaps.
We granted review to determine
whether former Texas Code of Criminal Procedure Article 40.09 "mandated
that a certified court reporter take down and transcribe the testimony at trial
or whether the trial court may employ other comparable alternative methods of
insuring an appellate record is prepared, after the appellant requested that a
court reporter take down the proceedings." Id. at 44. We held that deviating from the procedure set out in
former Article 40.09 in this way was not permitted. We have said that the
reasoning of Soto is sound today
although it was an application of Article 40.09 rather than Rule of Appellate
Procedure 34.6(a)(1), 34.6(e)(2), and the Appendix, Order Directing Form of
Appellate Record (b)(1)(q). See Gomez v.
State, 962 S.W.2d 572, 574 (Tex. Crim. App. 1998). The requirements of the
former article were incorporated in the Rules of Appellate Procedure. Ibid.
We conclude that the appellant's
case is more like Williams than Soto. The tapes in this case were used
to correct and edit the Halsey record; Simmons did not create a new record. In
this case, Halsey made notes of the trial that Simmons testified were within
the range of competent reporting. Simmons testified that the editing process
caused the inaccuracies in the Halsey record. Simmons used the tapes and the
notes from the trial to correct the Halsey record and make it conform to what
occurred at trial.
(1) Tapes
The appellant also complains of the
authenticity and accuracy of the tapes used by Simmons to correct the record.
The unauthenticated and possibly inaccurate tapes, she argues, should not have
been used to correct and certify the record.
The testimony during hearings on the
reporter's record supports a finding that the tapes were authentic. Simmons
testified that the tapes contained recordings of proceedings at trial that
corresponded with the notes and Halsey's record. An assistant district attorney
testified that Halsey gave him the tapes. She represented those tapes as being
from the appellant's trial. Although Halsey may have lied to cover up the
existence of the tapes, other independent evidence indicates that the tapes
were authentic. Crowley testified that the tapes looked like the ones she used
to edit the record.
The greater concern is whether the
tapes are complete and accurate. The testimony given during the post-trial
proceedings indicates that the trial court could have concluded that the tapes
were complete and accurate. The trial judge who presided over the post-trial
proceedings about the record listened to the tapes. He implicitly found that
the tapes were complete and accurate because he allowed Simmons to use them to
review and certify the record. Simmons testified that the tapes sounded
complete, they flowed logically, and there were no audible alterations. Simmons
explained that she is not an expert regarding audio recordings and that she had
not been present for the proceedings in the trial. As a certified court
reporter, however, she had prepared many transcripts using tapes to make
corrections. Simmons had extensive experience listening to tapes of court
proceedings. She testified that in the past she had prepared and certified
records of other proceedings with the use of backup tapes where she had not
been present for the proceedings. The appellant has failed to present any
evidence that the tapes were not complete and accurate. She did not submit
expert testimony about the ease with which a tape may be altered, and she did
not request an expert to test the tapes for alteration.
The appellant claims that she was
not given an opportunity to compare the Simmons record to Halsey's notes. We do
not address whether the trial court would have abused its discretion to deny
such a request. The appellant never requested an opportunity to compare the
Simmons record to the notes.
The appellant concedes that the
trial court's findings are entitled to deference, but she alleges that the
trial judge who presided over the post-trial proceedings did not listen to the
tapes and is erroneously relying on the opinion of Simmons who is not an expert
and was not present for the proceedings and had no personal knowledge thereof.
Judge Robert Francis did not rely solely on the opinion of Simmons. He stated
on the record that he listened to the tapes himself. Simmons was recommended by
the three court reporters who reviewed the Halsey record initially. She had
years of experience preparing and certifying records. And the appellant agreed
to have Simmons review the record and certify it if possible. If the appellant
did not trust Simmons's opinion about the accuracy and completeness of the
tapes, she could have requested an expert to examine the tapes. Without more,
we cannot say that the trial court erred in permitting Simmons to use the tapes
to correct the record.
(2) Parentheticals
The appellant also complains about
the accuracy of the parentheticals that Simmons adopted from the Halsey record,
which the trial court declared did not conform to what occurred at trial. As
explained above, Simmons testified that Halsey's notes were within the range of
competent reporting. The parentheticals came from that record. The trial court
declared that the Halsey record did not conform to what occurred at trial and
Simmons testified that the problem with the record was the editing that took
place after the notes were taken. The trial court could have found that the
parentheticals taken down at trial were accurate because they would not have
been changed during Halsey's editing process. Simmons changed some of the
parentheticals, but there is no indication and the appellant does not argue
that any of these changes were material. For example, one change was to add
"no response" to the parenthetical when initially it had been in the
verbal text. Simmons also added the parenthetical "shakes no" when
the verbal answer was, "NUm-hum," [sic] and she added "nod affirmatively" when the verbal
answer was "Uh-hum." In another instance, the verbal answer was
"Uh-huh," and Simmons changed the parenthetical from nod
affirmatively to shake no. "Uh-huh" was used in other places in the
record to show a negative response. Of approximately 500 parentheticals found
in the voir dire portion record in a table provided by the appellant, only
fifteen were changed by Simmons and none were material. See Tex. R. App. P. 34.6(f).
(3) Correcting the Record
The appellant argues that the
Simmons record cannot be a corrected record because the official record can be
corrected only if a party alleged that a specific part of the record was
inaccurate and the trial court held a hearing. She claims that no hearing was
held in accordance with the Rules. The appellant is referring to Rule 34.6(e),
which provides for correcting the record. (20)
The Halsey record was filed with
this Court before the appellant discovered any inaccuracies. When the appellant
brought the specific inaccuracies to our attention, we submitted the dispute to
the trial court and ordered it to ensure that the record conformed to what
occurred at trial. The trial court conducted hearings, found that the Halsey
record did not conform to what occurred at trial, and appointed Simmons to
correct the record, if possible. Simmons was able to correct and certify that
the record, with the exception of the first 54 pages of Volume 10, conformed to
what occurred at trial.
The appellant cites Little v. State, 131 Tex. Crim.164, 97
S.W.2d 479 (1936), for the proposition that when a court reporter died before
transcription of the notes, disputes regarding the record could not be resolved
in a death penalty case. The Court failed to mention whether the proceedings
were recorded, but it is unlikely that in 1936 tape recorders were widely
available for the use of recording court proceedings. (21) Today we have use of reliable
recording devices to back up the court reporter's notes. And we have since
recognized their efficacy. See Williams,
427 S.W.2d at 868.
The appellant is now complaining
about the entire Simmons record. But unlike her complaints about the Halsey
record, she has provided no specific examples of inaccuracies in the Simmons
record. A global complaint that the entire record is inaccurate, in light of
the procedures used in the profession and in the absence of any specific
examples of inaccuracies, is not sufficient for us to conclude that the record
is inaccurate.
To say that there were problems in obtaining
the reporter's record in this case is a gross understatement. Halsey's
credibility has been seriously called into question: she may have lied to the
trial court about the existence of the tapes; she spoke with reporters about
the problems with the record while asserting her Fifth Amendment privilege to
not incriminate herself in court; she told a reporter that she hoped the
appellant would not get a new trial because of the mistakes; she also told a
reporter that she would not rely on the tapes because they could be altered.
Other facts that tend to discount the accuracy of the record include the fact
that Simmons used the same materials to create the corrected record that Halsey
used to create the first record. And Halsey's record was declared to not
conform to what occurred at trial. In addition, the trial judge who presided
over the correction of the record had no personal knowledge of the proceedings
at trial because he did not preside over the appellant's trial.
But according to Simmons, the main
flaw with the Halsey record was the editing process. Although she testified
that Halsey's notes contained mistakes, she also testified that the notes were
within the range of competent reporting. It was the process of editing the
notes, not the materials used to edit the notes, that caused there to be so
many mistakes in the Halsey record. Simmons was found to be an experienced
certified court reporter. Both parties agreed to have her appointed, and she
was recommended by the three experts who initially reviewed the Halsey record.
She testified that she was able to certify the record with the use of the
tapes. And the appellant did not produce any evidence that Simmons's method was
not accepted by other certified court reporters. We overrule the appellant's
third point of error.
B. Second Point of Error: A Significant Portion of the Record Has
Been Lost or Destroyed
In her second point of error, the
appellant claims that her conviction must be reversed because a significant
portion of the record necessary to her appeal has been lost or destroyed
through no fault of her own. Here, the appellant is complaining about the first
54 pages of volume 10 of the Simmons record, which consisted of a transcription
of the proceedings from the morning of October 21, 1996. This is the portion of
the record Simmons would not certify as a true and accurate transcription of
what occurred in the proceedings. Instead, she certified that it is a true and
accurate transcription of Halsey's notes of the proceedings. Because the record
cannot be certified either as a verbatim transcription of the notes taken at
trial or as a transcription of tapes in accordance with Rule 34.6(a)(2), and
because the uncertified portion of the record is necessary to the resolution of
her complaint about trial counsel's conflict, the appellant asserts she is
entitled to a new trial under Rule 34.6(f).
Texas Rule of Appellate Procedure
34.6(f) provides that an appellant is entitled to a new trial if a significant
and necessary part of the reporter's record is lost or destroyed through no
fault of her own, the appellant timely requested the record, and the parties
cannot agree to the record.
Rule 34.6(f) is a relatively new
rule, but the principles that brought it into being are not. It has a predecessor
in the former Rules of Appellate Procedure and more than one predecessor within
former versions of the Code of Criminal Procedure. We have noted before that
the cases under former versions, including Article 40.09 of the Code of
Criminal Procedure, are still helpful and that the principles underlying these
former versions apply to the newer rules. See
Gomez v.State, 962 S.W.2d 572, 574 (Tex. Crim. App. 1998); Gibbs v. State, 819 S.W.2d 821, 828
(Tex. Crim. App. 1991).
The Rule applies whether we are faced
with the loss or destruction of the entire record or only a portion of the
record. See, e.g., Harris v. State,
790 S.W.2d 568, 574 (Tex. Crim. App. 1989) (pretrial motion); Austell v. State, 638 S.W.2d 888, 890
(Tex. Crim. App. 1982) (voir dire examination); Gamble v. State, 590 S.W.2d 507, 509 (Tex. Crim. App. 1979) (final
arguments); Hartgraves v. State, 374
S.W.2d 888, 890 (Tex. Crim. App. 1964) (hearing on motion for new trial). We
have said that "the circumstances in such cases should be viewed from the
appellant's standpoint, and any reasonable doubt resolved in favor of the
appellant." Gamble, 590 S.W.2d
at 508 (citing Young v. State, 146
Tex. Crim. 220, 222, 172 S.W.2d 500, 501 (1943); Lamkin v. State, 138 Tex. Crim. 311, 317, 136 S.W.2d 225, 228
(1940)). Further, the unavailability of the record through no fault of the
appellant is not immune from a harm analysis. The provision in the rule that
the appellant show that the missing portion of the record is necessary to her
appeal is itself a harm analysis. Issac
v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999).
So, the appellant must show (1) that
a significant portion of the record was lost or destroyed, (2) through no fault
of her own, (3) that the missing portion of the record is necessary to her
appeal, and (4) the parties cannot agree on the record. The third requirement
is dispositive of this point of error. (22)
The appellant asserts that the part
of the record at issue in this point of error is essential and necessary to her
appeal on two bases. First, she alleges that the first 54 pages of Volume 10
are essential to resolve her first point of error regarding a potential
conflict of interest. Second, the appellant alleges that the missing portion of
the record is necessary to her appeal because prospective jurors received
preliminary instructions that may have been erroneous.
The appellant includes no point of
error regarding the instructions given to prospective jurors. The suggestion
that instructions may have been
erroneous, without more, does not make that portion of the record necessary to
her appeal. Also, as the State notes, the instructions given to prospective
jurors during the morning session were virtually identical to the instructions
given during the afternoon session. And Simmons testified that the afternoon
session that she heard on tape was very similar to the notes from the morning
session. The appellant has not shown that the portion of the uncertified record
dealing with prospective jurors is necessary to her appeal.
Next, we will address whether the
missing pages dealing with the substitution of counsel and potential conflict
are necessary to the appeal. In her first point of error the appellant claims
that her Sixth Amendment right to effective assistance of counsel was violated
because her lead counsel, Doug Mulder, had an actual conflict of interest and
the trial court failed to conduct a hearing on the State's motion to determine
whether Mulder should be disqualified.
A close look at this point of error
indicates that the appellant is not complaining about the trial court's actions
on October 21, 1996. The State filed its motion on November 12, 1996, and any
potential error in the trial court's failure to hold a hearing on that motion
can be reviewed without reference to the uncertified portion of the record. Her
complaint that the trial court did not hold a hearing on the State's motion
regarding a potential conflict arises after the proceedings that are contained
within the first 54 pages of Volume 10 were held. The appellant concedes as
much when she says in her brief:
Furthermore, a knowing and
intelligent waiver of the conflict on October 21 would not have waived
Appellant's right to object to [the conflict] on November 12, when the State
disclosed new circumstantial evidence of Darin's involvement in the capital
murder, unless she prospectively waived her right to raise the issue again if
new evidence emerged.
Because her complaint on appeal is
about the trial court's failure to hold a hearing after the State filed its
motion about a potential conflict, the appellant fails to satisfy the
requirement of Rule 34.6(f) because she has failed to show that the missing
portion of the record is necessary to her appeal. We overrule the appellant's
second point of error.
C. Fourth and Fifth Points of Error: Failure to Hold a Hearing on
Objections to the Simmons Record
In the appellant's fourth and fifth
points of error, she complains that the proceedings the trial court conducted
about the appellant's objections to the Simmons record did not comply with the
requirements of federal due process or Texas Rule of Appellate Procedure
34.6(e)(2). As a result, she claims, she is entitled to a hearing before the
Simmons record can be used to decide her appeal. The appellant cites Chessman v. Teets, 354 U.S. 156 (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.
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. Id. 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. Id.
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. Ibid.
Notice of the issues to be resolved are necessary to due process. Ibid.
The appellant's case is
distinguishable from Chessman and Lankford because the appellant and her
counsel had notice of the proceedings, were present during the extensive
proceedings on the certification of the Simmons record, and were given ample
opportunity to make objections to the Simmons record. The proceedings conducted
by the trial court to make the record conform to what happened at trial
complied with federal due process. We overrule the appellant's fourth point of
error.
The appellant also claims that she
is entitled to a Rule 34.6(e)(2) hearing to settle disputes about the record
before it can be used to decide her appeal. The appellant asserts that the Rule
requires the trial court to settle disputes about the record after notice and a
hearing. Further, the appellant says that, in hearings required by the Texas
Code of Criminal Procedure, the defendant must be allowed to present live
testimony and cross-examine the State's witnesses unless a hearing based on
documents is allowed. See Garcia v. State,
15 S.W.3d 533, 536 (Tex. Crim. App. 2000). She sees no reason this rule should
not apply in a Rule 34.6(e)(2) hearing.
But Rule 34.6(e)(2) and its
requirements apply when inaccuracies are discovered before a reporter's record is filed in the appellate court. In this
case, the inaccuracies were discovered after
the record was filed in this Court. The Halsey record was filed April 24, 1998.
The appellant filed a motion in this Court to correct or clarify the record on
October 13, 1998.
Rule 34.6(e)(3) applies when
inaccuracies are discovered after a record has been filed in the appellate
court. It states that: "If the dispute arises after the reporter's record
has been filed in the appellate court, that court may submit the dispute to the
trial court for resolution. The trial court must then ensure that the
reporter's record is made to conform to what occurred in the trial court."
There is no requirement that a hearing be held to correct the record after the
record has been filed in the appellate court. And, as we explained above, the
Simmons record is not a new record; it is the correctly-edited transcription of
Halsey's notes.
Even if we were to assume that the
Simmons record was a new record that had not been filed in this Court prior to
discovery of the inaccuracies, the appellant had three opportunities to put on
witnesses and ask questions about the Simmons record. Although her counsel was
not permitted to ask questions of Simmons directly, counsel for both the
appellant and the State were permitted to submit questions to Judge Francis who
read them to Simmons. The appellant was given an opportunity to submit more
questions after a break in the proceedings and again several days after the
hearings. Simmons prepared the record in stages. First she prepared and
submitted the record for the guilt and punishment phases. These volumes were
delivered to the trial court, the appellant, and the State on April 1, 1999.
And then, pursuant to this Court's order and by appointment of Judge Francis,
Simmons prepared and submitted the record for voir dire and the pretrial
hearings. These volumes were delivered to the trial court, the appellant, and
the State on October 14, 1999. Later the parties discovered that Simmons had
never received the materials to correct and certify volumes 10 and 11. Simmons
was provided these materials with which she prepared and submitted corrected
volumes on January 28, 2000. She followed the same procedure in preparing the
entire record with the exception of the first 54 pages of volume 10, for which
she had no tape, and volume 16, for which she had no edit disk but had the
tape.
The appellant had over six months to
review the first installment of the Simmons record and to have another expert
review it for problems. When the second installment was delivered, the
appellant had another opportunity to submit questions to be answered by
Simmons. Then the appellant had another three months to review the portions of
the record already received before the final installment of the record was
received.
After all the corrected volumes had
been received, the appellant submitted her written objections to the trial
court, including a request for another hearing. The State responded to the
request by stating that there were no factual disputes needing to be resolved.
The trial court set a hearing date but later cancelled it, finding that further
proceedings were outside the scope of this Court's orders. The appellant still
showed no factual disputes that required an additional hearing to be resolved.
We hold that the appellant was not
entitled to a hearing under Rule 34.6(e)(2). In the alternative, we hold that
the appellant had ample notice and opportunity to present live witnesses
regarding her objections to the Simmons record. We overrule the appellant's
fifth point of error.
D. Fourteenth Point of Error: Failure to Rule on Bill of Exception
In the appellant's fourteenth point
of error, she complains that the trial court erred in refusing to rule on her
formal bill of exception. Within this point of error, she claims that Rule of
Appellate Procedure 33.2 requires the trial court to conduct a hearing unless
the parties agree to the bill of exception.
The appellant filed her formal bill
of exception September 25, 2000. It explains that on September 1, 2000, in the
presence of the State and the appellant's counsel, the trial court announced
that it would hold a hearing on the appellant's objections to the trial record.
On the same day, the appellant presented a written application to subpoena an
out-of-state witness. The trial court orally authorized another district judge
to sign a certificate granting the request. On September 6, 2000, one or more
of the State's attorneys made an ex parte request to seal the appellant's motion
to suppress the tapes and Halsey's statement regarding the tapes. On September
7, 2000, the trial court filed a written order canceling the hearing scheduled
for the next day without giving the appellant an opportunity to be heard on the
matter.
The State makes several arguments in
response. It argues that the appellant's formal bill of exception failed to (1)
identify issues that could not be resolved from the existing records or (2)
include evidence that the appellant wished to produce at a hearing. It also
argues that pursuant to Lewis v. State,
711 S.W.2d 41, 43 (Tex. Crim. App. 1986), and the cases cited therein, the
trial court had authority to act only within the scope of the order abating the
case. Because the order abating the case gave the trial court authority to make
the reporter's record conform to what occurred at trial, the State argues, the
trial court did not have authority to rule on the appellant's formal bill of
exception. The State's final argument is that the trial court's failure to act
on the appellant's bill of exception was harmless. It states that the matters
in the bill are generally reflected in the record and do not support her claims
on appeal.
The appellant failed to identify in
the formal bill of exception claims that she could not have presented on
appeal. On September 25, 2000, the appellant filed her formal bill of
exception. The trial court issued an order on October 3, 2002, stating that it
had no jurisdiction to consider the appellant's pleadings because the case had already
been returned to this Court.
We will assume without deciding that
the appellant's request to make a formal bill of exception was within the scope
of this Court's orders to the trial court to make the record conform to what
occurred at trial. Even so, much of the information included in the appellant's
formal bill of exception was already in the record forwarded to this Court. The
remaining information does not relate to the appellant's claims on appeal. And,
as the State argues, the appellant has failed to point to any claims on appeal
she could not make because of the trial court's failure to rule on her formal
bill of exception. Therefore, she has failed to show she was harmed. Tex. R.
App. P. 44.2(b). We overrule the appellant's fourteenth point of error.
E. Eleventh, Twelfth, and Thirteenth Points of Error: Providing
Jury with an Inaccurate Transcription of the Record
In her eleventh, twelfth, and
thirteenth points of error, the appellant claims that the trial court violated
Code of Criminal Procedure Articles 36.27 and 33.03 and Fourteenth Amendment
Due Process by providing the jury with an inaccurate transcription of Darin
Routier's testimony while the appellant was not present. The State responds
that the trial court did not err because (1) the appellant's attorney waived
her presence at the in-chambers discussion of the jury note and the trial
court's response and (2) the record reveals no harm because the inaccurate
portions of the record were immaterial to the jury's questions.
During the jury's deliberations on
the question of the appellant's guilt, the jury sent a note to the trial court
stating, "Some of us remember hearing Darin say that he did not lock the
door from the utility room to the garage before he went to bed, 6/5/96, the
rest of us remember that Darin said he locked this door. Which is right?"
RR 46:5358. Before a meeting in chambers with three of the appellant's
attorneys and one of the prosecutors, the trial court had the court reporter
prepare an excerpt of the relevant testimony. The trial court provided copies
to the attorneys and asked if they had any objections. The attorneys stated on
the record that they had no objections to providing the jury with the excerpt.
Then the trial court noted that the
appellant herself was not present for this meeting. The trial court asked the
appellant's attorneys, Mulder and Mosty, if they waived the appellant's
presence at that meeting. Mulder and Mosty each said that they waived the
appellant's presence. The excerpt was sent to the jury.
(1) Articles 33.03 and 36.27
The appellant argues that she had a
right under Article 33.03 to be present when the court responded to the jury's
request. (23)
She failed to object at the earliest opportunity that her rights under these
Articles were violated. Thus, she has failed to preserve error. Tex. R. App. P.
33.1. Nonetheless, in an abundance of caution, we will address the merits of
the appellant's claim.
Article 33.03 provides criminal
defendants with a statutory right to be present during their trials. It also
allows criminal defendants to be absent, if they choose, after pleading to the
indictment in a bench trial or after jury selection in a jury trial.
The appellant cites Hill v. State, 54 Tex. Crim. 646, 114
S.W. 117 (1909), in support of her claim. In that case, the Court found
reversible error when a defendant voluntarily absented himself from his
proceedings even though his attorney waived his right to be present. Id. at 650, 114 S.W. at 119. The Court
applied no harm analysis because that decision predated the adoption of the
Rules of Appellate Procedure.
The record does not reveal why the
appellant was not present. The record shows that the appellant's attorneys
waived her presence. The appellant does not allege that the waiver was erroneous,
and she does not allege that she was not aware of the proceedings. She has not
shown that the trial court erred in accepting her attorneys' waiver of her
presence.
Article 36.27 (24) provides a procedure in the event
jurors have questions about the case. Before answering a jury's question, the
trial court should use reasonable diligence to secure the defendant's and her
counsel's presence. The appellant does not allege that the trial court failed
to use reasonable diligence in obtaining her presence. The appellant's only
quarrel with the trial court's procedure is that she was not present for the
proceedings when the trial court read the jury's question to the attorneys for
her and the State and when the trial court read its proposed response. The
appellant has not explained the reason for her absence from this meeting. She
still does not allege that she was unaware of the proceedings. The trial court
did not err in accepting her attorneys' waiver of her presence.
(2) Federal Due Process
The appellant claims that the trial
court also violated her constitutional right to be present at a critical stage
in her trial. She claims that she had a right to be present because the
proceeding had a substantial relationship to her ability to defend herself. The
State argues that the appellant, through her counsel, waived her right to be
present.
The appellant cites Adanandus v. State, 866 S.W.2d 210 (Tex.
Crim. App. 1993), in support of her claim. In that case, the defendant was not
present for a pretrial meeting in the judge's chambers regarding a television
reporter's recording of potential jurors as they entered the courtroom. In
accord with the United States Supreme Court's holdings, we said that a
defendant's right to be present is triggered when the proceedings bear a
substantial relationship to the opportunity to defend. Id. at 219 (citing Snyder v.
Massachusetts, 291 U.S. 97, 105-08 (1934)).
In this case, the appellant claims
that because the testimony was not about trivial or insubstantial matters, her
due process right to be present was triggered. In Snyder v. Massachusetts, 291 U.S. 97 (1934), the Supreme Court
outlined the parameters of a defendant's due process right to be present at a
proceeding. The Court said "whenever [the defendant's] presence has a
relation, reasonably substantial, to the fullness of his opportunity to defend
against the charge" the defendant has a right to be present. The
"presence of a defendant is a condition of due process to the extent that
a fair and just hearing would be thwarted by his absence, and to that extent
only." Id. at 105-106, 108.
The appellant has failed to show
that a fair and just hearing was thwarted by her absence, especially since her
attorneys were present and waived her right to be present. In the absence of a
showing that the waiver was erroneous, we cannot say that the trial court
violated the appellant's federal due process right to be present for the
proceeding.
(3) Harm Analysis
Even if we were to assume that the
trial court erred, the appellant could not prevail under either the
constitutional or the nonconstitutional error standard. See Tex. R. App. P. 44.2(a) & (b). (25) An appellant is harmed by a
constitutional error unless after reviewing the record, the reviewing court
determines beyond a reasonable doubt that the error did not contribute to the
conviction or punishment. Tex. R. App. P. 44.2; Chapman v. California, 386 U.S. 18, 24 (1967). Any
nonconstitutional violation is reviewed under the standard explained in Johnson v. State, 967 S.W.2d 410 (Tex.
Crim. App. 1998), in which we said "[a] criminal conviction should not be
overturned for non-constitutional error if the appellate court, after examining
the record as a whole, has fair assurance that the error did not influence the
jury, or had but a slight effect." Id.
at 417.
The appellant asserts that she was
harmed because the trial court gave incorrect information to the jury in her
absence. The record does not support the appellant's claim.
The jury had a dispute about Darin's testimony that he had locked the garage door and the front door, but not the utility room door on the night of the murders. The State impeached Darin with testimony from the pretrial bond hearing at wh