The State's Brief

The State requests oral argument

No. 72,795

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

AT AUSTIN

DARLIE LYNN ROUTIER,

APPELLANT

THE STATE OF TEXAS,

APPELLEE

On appeal from the Criminal District Court No. 3 of Dallas County, Texas

In Cause No. F96-39973-J,

on change of venue to Kerr County, Texas

In Cause No. A-96-253

STATE’S BRIEF

Counsel of Record:

BILL HILL JOHN R. ROLATER, JR.

CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY

DALLAS COUNTY, TEXAS STATE BAR NO. 00791565

FRANK CROWLEY COURTS BUILDING

LIBRA (LIBBY) LANGE 133 N. INDUSTRIAL BOULEVARD, LB-19

ASSISTANT DISTRICT ATTORNEY DALLAS, TEXAS 75207-4399

DEPUTY CHIEF, APPELLATE DIVISION (214) 653-3625

(214) 653-3643 fax

Attorneys for the State of Texas

TABLE OF CONTENTS

INDEX OF AUTHORITIES................ iv

PARTIES AND COUNSEL ix

STATEMENT OF THE CASE...... 10

STATEMENT OF FACTS 10

SUMMARY OF ARGUMENT................. 22

ARGUMENT................. 27

RESPONSE TO POINTS OF ERROR 1 and 2........ 27

RESPONSE TO POINT OF ERROR 3................. 46

RESPONSE TO POINTS OF ERROR 4 and 5........ 51

RESPONSE TO POINTS OF ERROR 6 and 7........ 56

RESPONSE TO POINTS OF ERROR 8, 9 and 10 63

RESPONSE TO POINTS OF ERROR 11, 12, and 13............ 68

RESPONSE TO POINT OF ERROR 14............ 75

PRAYER. 79

CERTIFICATE OF SERVICE 79

INDEX OF AUTHORITIES

Cases

Allen v. State,

536 S.W.2d 364 (Tex. Crim. App. 1976).. 62

also Ex parte Mitchell,

977 S.W.2d 575 (Tex. Crim. App. 1997).. 64

Boatwright v. State,

933 S.W.2d 309 (Tex. App.–Houston [14th Dist.] 1996, no pet.)..... 65

Brooks v. State,

990 S.W.2d 278 (Tex. Crim. App. 1999).. 62

Broxton v. State,

909 S.W.2d 912, 918 (Tex. Crim. App. 1995)............ 65

Carranza v. State,

960 S.W.2d 76 (Tex. Crim. App. 1998)(Overstreet, J., concurring)........... 51

Cuyler v. Sullivan,

446 U.S. 335 (1980)...... 26, 31

Damian v. State,

776 S.W.2d 659 (Tex. App.–Houston [14th Dist. 1989, pet. ref’d)... 67, 71

Davis v. State,

872 S.W.2d 743 (Tex. Crim. App. 1994).. 56

Duncan v. Evans,

653 S.W.2d 38 (Tex. Crim. App. 1983)............ 74

Ex parte McJunkins,

954 S.W.2d 39 (Tex. Crim. App. 1997)............ 66

Ex parte Morrow,

952 S.W.2d 530 (Tex. Crim. App. 1997).. 27

Ex parte Occhipenti,

796 S.W.2d 805 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding)........... 46

Farris v. State,

712 S.W.2d 512 (Tex. Crim. App. 1986).. 74

Foxworth v. Wainwright,

516 F.2d 1072 (5th Cir. 1975)............ 29

Garcia v. State,

919 S.W.2d 370 (Tex. Crim. App. 1994).. 66, 67

Gomez v. State,

962 S.W.2d 572 (Tex. Crim. App. 1998).. 39

House v. State,

947 S.W.2d 251 (Tex. Crim. App. 1997).. 58

Issac v. State,

989 S.W.2d 754 (Tex. Crim. App. 1999).. 34, 39

James v. State,

763 S.W.2d 776 (Tex. Crim. App. 1989).. 27

Jones v. State,

982 S.W.2d 386 (Tex. Crim. App. 1998).. 40, 41, 42, 63

Jordan v. State,

883 S.W.2d 664 (Tex. Crim. App. 1994).. 51, 52

Kemp v. State,

846 S.W.2d 289 (Tex. Crim. App. 1992).. 42

Landrum v. State,

788 S.W.2d 577 (Tex. Crim. App. 1990).. 64

Levy v. United States,

25 F.3d 146 (2d Cir. 1994)............ 31

Lewis v. State,

711 S.W.2d 41 (Tex. Crim. App. 1986)............ 74

Marin v. State,

851 S.W.2d 275 (Tex. Crim. App. 1993).. 60, 65

Marquez v. State,

620 S.W.2d 131 (Tex. Crim. App. 1981).. 63

Michigan v. Lucas,

500 U.S. 145 (1991)............ 59

Moore v. State,

999 S.W.2d 385 (Tex. Crim. App. 1999).. 38

Norvell v. Illinois,

373 U.S. 420 (1963)............ 45

Perillo v. Johnson,

205 F.3d 775 (5th Cir. 2000)............ 27

Perillo v. State,

758 S.W.2d 567 (Tex. Crim. App. 1988).. 27

Ransom v. State,

789 S.W.2d 572 (Tex. Crim. App. 1989).. 65, 66

Reyes v. State,

30 S.W.3d 409 (Tex. Crim. App. 2000).. 62, 63

Santiago v. United States,

977 F.2d 517 (10th Cir. 1992)...... 60, 61

Soto v. State,

671 S.W.2d 43 (Tex. Crim. App. 1984)............ 47

Stafford v. State,

63 S.W.3d 502,

2001 Tex. App. Lexis 6383 (Tex. App.–Fort Worth 2001, no pet.)..... 53

State Farm Fire and Cas. Ins. v. Vandiver,

941 S.W.2d 343 (Tex. App.–Waco 1997, no writ) 44, 45

Taylor v. Illinois,

484 U.S. 400 (1988)............ 59

Tell v. State,

908 S.W.2d 535 (Tex. App.–Fort Worth 1995, no pet.)..... 58

United States v. Alvarez,

696 F.2d 1307 (11th Cir.),

cert. denied, 461 U.S. 907 (1983)............ 28

United States v. Benavidez,

664 F.2d 1255 (5th Cir.),

cert. denied, 457 U.S. 1135 (1982) 31

United States v. Carr,

740 F.2d 339 (5th Cir. 1984),

cert. denied, 471 U.S. 159 (1985)............ 31

United States v. Casiano,

929 F.2d 1046 (5th Cir. 1991)............ 30

United States v. Gagnon,

470 U.S. 522 (1985)...... 61, 66

United States v. Jorn,

400 U.S. 470 (1970)............ 64

United States v. Kliti,

156 F.3d 150 (2nd Cir. 1998)............ 30

United States v. Partin,

601 F.2d 1000 (9th Cir. 1979)............ 30

United States v. Santiago,

167 F.3d 81 (1st Cir. 1999).. 30

Valdez v. State,

952 S.W.2d 622 (Tex. App.–Corpus Christi 1997, pet. ref’d)... 62, 63

Valenzuela v. State,

940 S.W.2d 664 (Tex. App.–El Paso1996, no pet.) 46

Webb v. State,

766 S.W.2d 236 (Tex. Crim. App. 1989).. 55, 56, 57, 58, 59

Williams v. State,

427 S.W.2d 868 (Tex. Crim. App. 1967).. 44, 45

Wolfe v. State,

917 S.W.2d 270 (Tex. Crim. App. 1996).. 51, 52

Wood v. Georgia,

450 U.S. 261 (1980)............ 32

Statutes

Tex. Code Crim. Proc. Ann. art. 11.071, §9(a)(Vernon Supp. 2001).. 52

Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989).. 66

Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 1981).. 66

Tex. Code Crim. Proc. Ann. art. 36.29(b)(Vernon Supp. 2002).. 61, 62

Rules

Tex. Disciplinary R. Prof. Conduct 3.08 (1989),

reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. (Vernon 1998).. 56, 58

Tex. R. App. P. 13.1(a)............ 49

Tex. R. App. P. 34.6(e)(3)............ 53

Tex. R. App. P. 34.6(f) 34, 35, 38, 39

Tex. R. App. P. 44.2(b) 58, 64, 71

Tex. R. Crim. Evid. 107............ 59

Tex. R. Crim. Evid. 613 55, 56, 57, 59

Tex. R. Evid. 614...... 55

PARTIES AND COUNSEL

Appellant: Darlie Lynn Routier

Trial Counsel: Douglas D. Mulder

Curtis D. Glover

Richard C. Mosty

S. Preston Douglas, Jr.

John H. Hagler

Appellate Counsel: J. Stephen Cooper

Appellee: The State of Texas

Trial Counsel: Greg Davis

Assistant District Attorney

Toby Shook

Assistant District Attorney

Sherri Wallace

Assistant District Attorney

Appellate Counsel: John R. Rolater, Jr.

Assistant District Attorney

Libra (Libby) Lange

Assistant District Attorney

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State of Texas submits this brief in reply to the brief of Appellant.

STATEMENT OF THE CASE

Appellant was indicted for the capital murder of her son Damon Routier, a child under six years of age, in cause no. F96-39973-J. On Appellant’s motion, venue of the trial was changed to Kerr County under cause no. A-96-253. Appellant was convicted of the charged offense after a jury trial. (CR: 4). The trial court assessed punishment at death in accordance with the jury’s answers to the special issues submitted under article 37.071 of the Code of Criminal Procedure. (CR: 220-21). Direct appeal to this Court was automatic.

STATEMENT OF FACTS

Appellant does not challenge the sufficiency of the evidence to sustain the conviction. The evidence and inferences, viewed in the light most favorable to the verdict, show that in the early morning hours of June 6, 1996, police and fire units were dispatched in response to a stabbing call at 5801 Eagle Drive in Rowlett, Dallas County, Texas. (RR.29: 294-95; 296-97; 299). The initial responders found Appellant’s oldest two children, Damon and Devon, stabbed and bloodied in the living room of her home. (RR.29: 308-310; 314). Appellant had wounds to her neck and arms. (RR.28: 125-26; 129; RR.32: 1480). Appellant’s husband, Darin, was trying to assist one of his sons, Damon. (RR.28: 311-12). Devon was already dead. (RR.32: 1477-78). Damon was transferred to Baylor Hospital of Dallas where he was pronounced dead. (RR.32: 1433-37; RR.30: 716-19; RR.31: 848). Appellant was also transferred to Baylor where she underwent exploratory surgery for her neck wound. (RR.30: 719). The treating surgeons found that Appellant’s neck wound was superficial, but she was transferred to the Intensive Care Unit because of the deaths of her children and to protect her from the news media. (RR.30: 723-26; 737-38; R.31: 854).

While Appellant was at the hospital, the Rowlett Police Department began its investigation of the offense. Appellant initially reported that a man had stabbed her and her children, she had chased him from the house into the garage, and that the man dropped the knife in the house. (RR.29: 316-20; 323). The responding officers checked the house for intruders and secured the crime scene. (RR.29: 326-32; 471-79). The officers noticed broken glass and blood on the kitchen floor and found a cut screen on an open window in the garage. (RR.29: 330; 478-479). A search of the surrounding neighborhood uncovered a bloodstained sock in the alley three houses down from the crime scene, but no other evidence of the offense. (RR.32: 1260; 1265; 1271; 1387).

James Cron, an expert crime scene investigator, walked through the crime scene with Rowlett officers later on the morning of the offense. (RR.34: 2143-49; 2156-83; RR.33: 1603; RR.32: 1391). Cron’s initial impression of the crime scene was that there was no intruder. (RR.34: 2196-97; RR.35: 2420-28). Fragile items in the living room were relatively undisturbed, undamaged, and unbloodied. (RR.34: 2159-68). There was no blood in the garage, and the dust on the windowsill was undisturbed where the intruder allegedly escaped into the back yard. (RR.34: 2172-80). The mulch outside the window appeared undisturbed, and there was no blood or evidence of forced entry or exit on the gate leading from the back yard. (RR.34: 2190; 2192; 2187-89). A vacuum cleaner and broken glass lay atop bloody footprints in the kitchen. (RR.34: 2167; 2217-18). Moreover, it appeared that someone had rolled the vacuum cleaner through the blood on the floor. (RR.34: 2218-19). Finally, blood found in the utility room—one of the locations where Appellant claimed she found the knife—was inconsistent with blood deposited from a dropped knife or by a running person. (RR.35: 2279-82).

A neighbor mentioned the Routier’s financial situation to the police. (RR.32: 1399-1400). Documents recovered from the room where the murders occurred included life insurance policies on the dead boys. (RR.33: 1751; 1756). Documents recovered from the trash included a letter showing that Appellant’s American Express account was $964 overdue and that her mortgage was two months past due. (RR.33: 1681; RR.42: 4358; RR.43: 4510; SX 83A; SX. 83B). Later, investigators learned that the Routiers were turned down for a $5000 vacation loan due to excessive debt and delinquent accounts only five days before the murders. (RR.34: 2120-29).

The staff at the hospital believed Appellant acted strangely. (RR.30: 747-51). Appellant had a flat affect, while most mothers who had recently lost children were hysterical. (RR.30: 747-51; RR.31: 1041-43; 932-34; RR.32: 1209-10). The visible wounds on Appellant’s forearm and hand did not appear to be typical defensive wounds, but could have been self-inflicted. (RR.30: 753-61; RR.28: 132-33). Appellant described the events at her home to several different nurses at the hospital, but her various accounts contained major discrepancies regarding the number of alleged assailants, how she awoke, and where she found the knife. (RR.31: 895-97; 923; 982-83; 1029-30; RR.32: 1206-07). None of the hospital staff noticed severe blunt trauma injuries to Appellant’s arms. (RR.30: 769-70;RR.31: 935-37; 1038-40; 1100-1102; 1163; RR.32: 1212-14). Photographs dated four days after the offense, however, showed Appellant with severe bruising on her arms that could only have been caused by readily apparent, severe blunt trauma injuries received within the prior 24 to 48 hours, at least two days after the offense. (RR.30: 765-68; RR.31: 935-37; 1037-40; 1099-1102; 1161-63; RR.32: 212-13).

Appellant also told different stories to her friend Barbara Jovell. First, she told Jovell that she awoke when she heard Damon say “Mommy Mommy,” and a man was on top of her stabbing at her throat. (RR.36: 2564-65). Later, she told Jovell that the man was rubbing the knife on her face and “looked like he enjoyed it.” (RR.36: 2568). Jovell was also present at a bizarre “birthday party” held at Devon’s grave on June 14, 1996. (RR.36: 2570-71). A news crew videotaped the family as they sang songs and played with Silly String, laughing, over the dead boys’ graves. (RR.36: 2572-75; SX 101). The jury watched the videotape of the “party.” (RR.36: 2572-75; SX 101). Jovell also testified that Appellant attempted to commit suicide about a month before the murders. (RR.36: 2551-53). After Appellant was arrested, she told Jovell not to speak to investigators from the District Attorney’s office. (RR.36: 2578-79).

The forensic investigation continued after Appellant was arrested and charged with the murders of her sons. Analysis of the kitchen sink by forensic serologist Kathryn Long showed seven distinct blood stains that appeared “washed out,” consistent with someone washing blood off their hands. (RR.36: 270-10). A blood transfer stain was on the bottom of the cabinet handle beneath the kitchen sink—the stain could not have been caused by blood dripping from above, but was consistent with someone with blood on her hand opening the cabinet. (RR.36: 2712-13). A streak that tested positive for blood was located inside the cabinet door beneath the kitchen sink. (RR.36: 2715-16) Cleaning products were stored inside the cabinet beneath the kitchen sink. (RR.36: 2715).

Trace evidence analyst Charles Linch found several cuts in Appellant’s nightshirt that did not correspond to the wounds she suffered. (RR.37: 2889-90). Linch also analyzed the window screen allegedly cut by the intruder to enter the house. (RR.37: 2896-2904). The screen was constructed of fiberglass coated with rubber. (RR.37: 2896-97). One of the knives from the knife block in Appellant’s kitchen was covered in debris consistent with the fiberglass and rubber from the screen. (RR.37: 2905-28; SX. 117). Robert Poole a firearm and toolmark examiner, determined that the knife that caused one of Devon’s wounds had characteristics similar to the butcher knife from the knife block in Appellant’s kitchen that she had identified as the murder weapon dropped by the “intruder.” (RR.38: 3098-99). DNA testing on the sock found in the alley showed that the bloodstains contained the DNA of both victims, but not that of Appellant. (RR.38: 3127; 3175). The toe of the sock contained faint traces of Appellant’s DNA, consistent with skins cells shed in the sock if worn by Appellant. (RR.38: 3128-29).

Tom Bevel, an expert in crime scene and blood spatter analysis with 25 years’ experience, examined the crime scene and evidence, reviewed the reports of other experts, and conducted tests. (RR.38: 3223-31). Bevel examined the bloodstains in the locations where Appellant claimed she picked up the knife—the utility room and living room. (RR.38: 3285-3301). Bevel conducted a test in which he dropped a blood knife from wait height onto the utility room floor. None of the bloodstains found in the utility room were consistent with the stains generated by Bevel’s test. (RR.38: 3285-97). Bevel conducted a similar test in the living room, again, none of the stains found were consistent with the stains generated by Bevel’s drop tests, but one stain was consistent with the bloody murder weapon being laid onto the carpet. (RR.38: 328-3301).

The vacuum cleaner had bloodstains on the handle consistent with someone grasping the handle with a bloody hand. (RR.38: 3802). Some portions of the vacuum cleaner had bloodstains consistent with low velocity blood dripping onto it while it was upright, while other portions had stains consistent with low velocity blood dripping onto it while it was lying on its side on the floor. (RR.38: 3302-06). The kitchen floor showed “roll marks” caused by the wheels of the vacuum cleaner soon after blood was deposited on the floor. (RR.38: 3307). The roll marks went in opposing directions, consistent with someone picking up the vacuum cleaner and rolling it in different directions through the blood on the floor shortly after the blood was deposited. (RR.38: 3308-12).

Bevel also examined the sock recovered in the alley. (RR.39: 3333-34). The stains could not have been deposited on the sock if a perpetrator were wearing the sock on his foot while wearing shoes. (RR.39: 3335). Similarly, the stains were inconsistent with a perpetrator wearing the sock on his hand as a glove during the offense because none of Appellant’s blood was found on the sock. (RR.39: 3336-38).

Bevel also examined two small bloodstains found on the upper right shoulder area of Appellant’s blood-soaked nightshirt. (RR.39: 3340). One stain was a combination of Damon’s and Appellant’s blood, and was consistent with blood being cast off of the knife as Appellant raised the knife in order to stab Damon while kneeling over him. (RR.39: 3344; 3347). The other stain was a combination of Devon’s and Appellant’s, blood and was consistent with blood being cast off as Appellant raised the knife to stab Devon another time while kneeling over him. (RR.39: 3344; 3345-46). Bevel also examined two small stains on the left shoulder of the nightshirt. (RR.39: 3348). One was a mixture of Damon’s and Appellant’s blood, and was consistent with being cast off as the knife was on the down stroke of a stab. (RR.39: 3348-50). The other left-shoulder stain was a combination of Devon’s and Appellant’s blood, and was consistent with being cast off during an upstroke before a stab. (RR.39: 3352). Finally, Bevel examined a small stain on the back of the shirt that consisted only of Damon’s blood. (RR.38: 3130-32; SX. 122). This stain was consistent with being cast off as the knife was raised up over Appellant’s head. (RR.39: 3354-56). Bevel was able to recreate similar stains through testing where he kneeled down and moved a bloody knife up and down as if stabbing into a victim. (RR.39: 3356-63).

Alan Brantley, a Special Agent and psychologist assigned to the FBI National Center for the Analysis of Violent Crimes, reviewed the investigative reports, crime scene photographs, and witness statements. (RR.40: 3655-61) In his opinion, the boys were killed by someone they knew well, and the crime scene was staged. (RR.40: 3661). Factors that supported this opinion included:

· The absence of similar crimes in the area; (RR.40: 3662-63)

· That the area was generally a low-crime area; (RR.40: 3663)

· The crime scene was “high risk” for a criminal, because other houses were nearby, lights were on, a car was visible in front of the house, and the house was on a cul de sac; (RR.40: 3663-66)

· The alleged point of entry—the window—was intimidating because of the animal cage immediately inside the garage; (RR.40: 3667-70)

· Window screens are normally removed during crimes rather than cut; (RR.40: 3671-72)

· The route through the garage was risky in the dark; (RR.40: 3672)

· The initial focus on the children was unusual and risky given the presence of an adult; (RR.40: 3673)

· The children’s wounds were dramatically different in type and severity from Appellant’s wounds; (RR.40: 3673; 3678).

· Appellant’s statements that she chased the intruder out was inconsistent with typical violent crimes due to the disparity in her size and the described size of the alleged intruder; (RR.40: 3673-74)

· Dropping a weapon while fleeing is risky and inconsistent with most reported crimes; (RR.40: 3674)

· The location of the sock was inconsistent with a real crime because it was in the opposite direction of the exit from the cul de sac; (RR.40: 3675)

· The children were low risk victims due to their ages and place in society, yet appeared to be the object of the attack, thus suggesting a personal motive for the attack; (RR.40: 3676-77)

· The attack appeared to be a personal assault because there were no indications of theft or robbery; (RR.40: 3676)

· The maximum damage to the children but minimum damage to property inside the home suggested a proprietary interest in the contents of the home; (RR.40: 3679)

· The minimal damage in the living room or “Roman Room” was inconsistent with a struggle between two adults; (RR.40: 3680-81; 3682-86)

· The position of the vacuum cleaner on top of blood stains suggests deliberate placement; (RR.40: 3681-82; 3688)

· The absence of blood in the garage escape route; (RR.40: 3682; 3690)

· The presence of window screen debris on a knife from inside the house; (RR.40: 3690-91)

· The use of two knives from the same knife block inside the house in committing the offense was inconsistent because most offenders carry weapons with them to crime scenes; (RR.40: 3691-93)

· The placement of one of the knives back into the knife block suggests a proprietary interest; (RR.40: 3691-93)

· Jewelry was in plain view in the house but left undisturbed. (RR.40: 3694-95)

· The killing of the children was inconsistent with a sexual assault attack because children are usually used as leverage to control the object of the sexual assault; (RR.40: 3695-97)

Appellant presented testimony from family members and friends who generally described her as a good mother who was not depressed and who grieved “appropriately” for her dead children. (RR.40: 3801-04; 3811-12; 3839-40; 3890-92; RR.41: 3929-35; 3966-70; 4000; 4006-07; 4225; 4265). Some of Appellant’s friends and family testified that they saw bruising on her arms in the hospital. (RR.40: 3808; 3893-94; RR.41: 3967-68; 4001-03; RR.42: 4323). Appellant presented testimony about an attempted burglary in Rowlett on the night of the murders. (RR.42: 4194-98). Darin Routier disputed the State’s evidence that the family was in financial difficulty, but admitted that his business had slowed, he was behind on his taxes, was behind on his office rent, and had large credit card debts. (RR.42: 4248-57; 4354-56; 4364; RR.43: 4445).

Appellant presented expert testimony from medical examiner Vincent Dimaio, that her wounds were consistent with defensive wounds and inconsistent with self-inflicted wounds. (RR.43: 4528-52). Dimaio agreed with the State’s suggestion, however, that the bruises on Appellants arms could have been caused by trauma inflicted after she left the hospital. (RR.43: 4577-81). Dimaio also testified that he did not believe a person could sleep through the knife attack or a blunt trauma sufficient to cause the arm bruises. (RR.43: 458-90). Appellant presented expert testimony from psychiatrist Lisa Clayton that she did not fit into the “categories” of mothers who kill their children. (RR.43: 4615-45). Clayton believed that Appellant suffered from “traumatic amnesia” due to the attack. (RR.43: 4647-56).

Appellant tesitified in her own defense. (RR.44: 4789). Appellant claimed that she woke when Damon said “mommy mommy.” (RR.44: 4868). Appellant saw a man walking away, and heard glass breaking. (RR.44: 4868). She followed the man and saw him walk into a utility room. (RR.44: 4868). She stopped to turn on the lights, then saw a knife on the floor of the utility room. (RR.44: 4868-69). According to Appellant, she picked up the knife, and took it into the kitchen. (RR.44: 4869). Then, she walked into the living room, saw Devon on the floor, and began screaming. (RR.44: 4869-70). She called 911. (RR.44: 4870-71). She made trips into the kitchen to get towels, which she wet at the sink before returning to the living room. (RR.44: 4870-71). She put towels on Damon’s back and Devon’s chest, while Darin performed CPR on Devon. (RR.44: 4872-73). Appellant claimed she used the vacuum cleaner like a cane to support herself, and that she took the vacuum cleaner with her when Officer Waddell ordered her to sit down. (RR.44: 4874; 4876-77). Appellant did not take the vacuum cleaner into the kitchen. (RR.44: 4877).

During cross-examination, Appellant testified that Darin did not commit the murders. (RR.44: 4921-23). She also admitted that Glenn Mize—whom she had identified as a suspect—did not commit the murders after she viewed him in open court with Detective Frosch. (RR.44: 4938-42). She did not believe she could sleep through the stabbings of her children and the attack on herself—instead, she felt that she could not remember the attacks. (RR.44: 4927-35).

Appellant also did not remember making her many inconsistent statements to the nurses and staff of the hospital. (RR.44: 4970-72; 4973-79). Appellant admitted, however, that she had called in to a radio program after her arrest and stated “she knew what happened in the house that night.” (RR.44: 5000-01). Appellant also admitted that she had written letters to friends and family in which she claimed that she knew who committed the murders. (RR.44: 5002-14). In fact, Appellant had identified both Glenn Mize and Gary Austin as the intruder even though she testified that she did not remember the attacks. (RR.44: 5003; 5004; 5005; 5007; 5012; 5013; 5014).

In rebuttal, the State called Bill Parker, a retired homicide detective who interviewed Appellant for the Rowlett Police Department after her arrest for three hours. (RR.45: 5054-66; 5071-73). During the interview, Appellant never denied killing her children. (RR.45: 5065-66). Parker confronted her several times with his belief that she had killed her children. (RR.45: 5065-66). Each time she replied: “If I did it, I don’t remember.” (RR.45: 5065-66).

Appellant presented rebuttal testimony from psychiatrist Richard Coons. (RR.45: 5122). Coons, who only reviewed crime scene photographs, testified that the quality and intensity of memory decreases as the level of trauma to an observer increases. (RR.45: 5129-32; 5164-66). A sufficient level of trauma could cause disassociation, in which a person simply does not experience something that would be overwhelming. (RR.45: 5131-32) Disassociation can lead to “snapshot” recall of a traumatic event, where only certain periods are remembered. (RR.45: 5132-33). The disassociated person is susceptible to suggestions in trying to fill-in gaps in memory. (RR.45: 5134-38; 4139-42). In Coons’s opinion, a person subjected to Appellant’s assumed facts could be suffering from disassociation and could have been awake during a traumatic event even though they have no memory of the event. (RR.45: 5142-46).

On cross-examination, Coons admitted that a forensic psychiatrist reviewing a case like this one would have to be cautious of malingering when evaluating the defendant. (RR.45: 5167-68). Evidence of a staged crime scene and disparity between the injuries of the defendant and victims would increase his level of caution. (RR.45: 5168; 5178-79). Coons agreed that the open-ended questions asked of Appellant by the detectives were not suggestive. (RR.45: 5172-73). Coons also agreed that many of the things remembered by Appellant were very traumatic. (RR.45: 5175-78).

The jury deliberated for 10 hours and found Appellant guilty as charged in the indictment. (RR.46: 5354-5359; RR.47: 5368-5371).

SUMMARY OF ARGUMENT

In Point of Error 1, Appellant claims that she is entitled to a new trial because her lead trial counsel, Douglas Mulder, had a conflict of interest because he briefly represented her husband, Darin Routier, at a show cause hearing months before trial. Appellant also claims that she is entitled to a new trial because the trial court did not sua sponte convene a hearing and investigate whether Mulder had a conflict of interest. The record demonstrates that no conflict of interest existed. Rather, the record demonstrates that, at most, Darin and Mulder had a fleeting, informal relationship that was unrelated to the merits of the case. Darin has never been charged in the offense, and no evidence adduced at trial implicated him in the charged offense. Darin was not a State’s witness during the trial, and his testimony strongly supported the defense. Appellant testified that Darin did not commit the offense. Finally, Appellant’s counsel assured the trial court that there was no conflict of interest, and Appellant had four other attorneys assisting her during the trial. Thus, the record fails to show that Mulder had an actual conflict of interest that adversely affected his performance. Likewise, the record does not show that the trial court was aware of a “particular conflict” it should have investigated.

In Point of Error 2, Appellant claims that she is entitled to a new trial because a potion of the reporter’s record has been lost or destroyed since 54 pages of the record were not certified by the court reporter. Appellant also claims that a hearing regarding the alleged conflict of interest has been lost. The record demonstrates that none of the court reporter’s notes have been lost or destroyed. Moreover, a transcription of the 54 pages that accurately sets out the contents of the underlying notes is in the record. As such, the transcription of those pages meets the certification test applicable when one court reporter transcribes notes for another court reporter. The 54 pages are a minute portion of the 10,000+ page record in this case and therefore do not constitute a significant portion of the record. Finally, the 54 pages are not necessary to the appeal because the record otherwise demonstrates that the events recorded in those pages could not be successfully appealed.

In Point of Error 3, Appellant claims that she is entitled to a new trial because the reporter’s record does not comply with the Rules of Appellate Procedure and cannot be corrected. This Court abated this cause to the trial court so that the reporter’s record could be made to conform to the events that occurred at trial. Hearings held in the trial court revealed that the original court reporter had not completed editing her record prior to filing it in this Court. The trial court appointed a new court reporter, who completed the editing process using the original reporter’s notes, edit discs, and audio tapes. The record and case authority reveal that the process used is acceptable practice.

In Points of Error 4 and 5, Appellant claims that the trial court violated rule 34.6(e)(2) of the Rules of Appellate Procedure and her due process rights by denying her a fourth evidentiary hearing regarding the reporter’s record while the case was abated to the trial court. Appellant identified no fact issues that that could not be resolved from the records before the trial court, nor did she make proffers of relevant evidence outside the record that the trial court needed to consider in order to completing its task. The appellate rule does not specify what process a trial court must use when resolving record disputes. Thus, the trial court was not required to convene a hearing and produced a record that correctly reflected the events that occurred at trial

In Points of Error 6 and 7, Appellant claims that the trial court violated Rule 613 of the Rules of Criminal Evidence and her due process rights by excluding the testimony of an impeachment witness, her investigator, who was present in the courtroom for the entire trial. The record demonstrates that the trial court did not abuse its discretion because defense counsel knew their investigator was in court and because they were aware of his status as a potential impeachment witness. The investigator’s testimony was not critical to the defense because three of Appellant’s attorneys could have testified in his place. Moreover, whether provided by the investigator or one of her attorneys, the impeachment testimony would have been of minimal value. Similarly, Appellant’s due process rights do not allow her to flagrantly violate state procedural rules.

In Points of Error 8, 9, and 10, Appellant claims that the trial court erred in determining that a juror was disabled due to the flu without conferring with the parties and without eliciting evidence from the parties on the extent of the illness. Appellant did not have constitutional right to be present when the trial court determined the juror was disabled. Moreover, Appellant has not established a violation of article 36.29 of the Code of Criminal Procedure. The Code does not specify what sort of evidence must be received, nor does it specify that a hearing must be held where the defendant and counsel are present. The record demonstrates that the trial court had a sufficient basis to determine the juror was disabled. Appellant never produced evidence showing that the juror was not disabled. Indeed, the trial court admitted a letter from the juror’s doctor, without objection from the defense, supporting the ruling. Moreover, the record demonstrates that Appellant was not harmed because she had a jury of twelve jurors selected by her counsel. Appellant had no right for her cause to be decided by a particular juror.

In Points of Error 11, 12, and 13, Appellant claims that the trial court violated articles 36.27 and 33.03 of the Code of Criminal Procedure and her due process rights by providing the jury with an inaccurate transcription of testimony in her absence. These claims are not presented for review because Appellant’s counsel affirmatively waived her presence when the trial court answered the jury’s note and provided the transcription. Appellant did not have a right to be present that could not be waived by counsel. Moreover, the record demonstrates that Appellant was not harmed because there were no material differences between the transcription provided to the jury and the transcription ultimately appearing in the reporter’s record.

In Point of Error 14, Appellant claims that the trial court erred when it refused to consider her bill of exception filed after the trial court forwarded its last supplemental record to this court. The record demonstrates that the supplemental record was filed in this court on the same day that Appellant filed her bill of exception. Thus, the trial court lacked jurisdiction to act on the bill and correctly refused to do so. In any event, Appellant was not harmed because the contents of the bill are generally reflected elsewhere in the record and do not support any of her claims on appeal.

ARGUMENT

RESPONSE TO POINT OF ERROR 1

In Point of Error 1, Appellant claims that she was denied effective assistance of counsel because of a conflict of interest between Appellant and her lead counsel, Douglas Mulder, due to his representation of Darin Routier. Appellant also claims that the trial court erred by failing to sua sponte convene a hearing regarding the conflict of interest.

The record of this case demonstrates that Appellant’s counsel did not have a conflict of interest. Specifically, the record and the Appellant’s motion to substitute counsel demonstrate that her lead counsel, Doug Mulder, did not have a formal attorney-client relationship with Darin and that, even if he did, Mulder was not actively representing conflicting interests at the time of trial. The only record evidence regarding any representation of Darin by Mulder is from a pretrial show cause hearing that was held in response to the filing of the State’s “Notice of Violation of Court’s Gag Order.” At the hearing, the following dialogue occurred:

THE COURT: Mr. Mulder, you represent Ms. Kee for the purposes of this hearing only; is that correct?

MULDER: Yes, sir.

* * *

THE COURT: So, Mr. Mulder, it’s my understanding for this hearing, you are representing both Darlie Kee and Darin Routier?

MULDER: Yes, sir.

THE COURT: You are retained to represent them; is that correct?

MULDER: I am retained by Ms. Kee to represent her and she has asked me to represent Darin as well, I didn’t know until this morning.

THE COURT: Is that correct, Ms. Kee?

MULDER: Judge, I had asked Mr. Parks if he represented him and he said he didn’t think he could, so I just volunteered to represent him.

(RR. 8:7-8) (emphasis added). At the time of the show cause hearing, Mulder was not representing Appellant; she had three court-appointed attorneys.

Approximately one month later, on the first day of general voir dire, Mulder requested to be substituted in as Appellant’s retained counsel, along with three other retained attorneys. At that time, he explained to the judge that, in addition to representing Appellant, he was continuing to represent Appellant’s mother, Darlie Kee, as a “consultant.” (RR. 10:10). The fact that Mulder did not say anything about representing Darin or his brief representation of Darin causing a conflict, demonstrates that they did not then have an attorney-client relationship. “Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises . . . . ” Cuyler v. Sullivan, 446 U.S. 335, 346 (1980) .

Thus, the record demonstrates that Mulder was simply representing Darin for the brief gag order hearing, which was tangential to the capital murder case. The record even reveals Mulder had no direct knowledge of Darin’s actions with regard to the gag order and did not call Darin as a witness. (RR.8: 12). Nothing about Darin’s actions with relation to the gag order hearing are related to any knowledge he might have regarding the murders. Mulder’s brief representation of Darin does not constitute a formal and substantial attorney-client relationship; rather, Mulder’s representation of Darin at the hearing was transient and insubstantial. A defense counsel’s involvement in a prior representation that was transient or insubstantial is less likely to give rise to an actual conflict of interest than where the prior representation involved a formal and substantial relationship. Perillo v. Johnson, 205 F.3d 775, 779 (5th Cir. 2000) . Because the matters were not substantially related, there is not presumption that confidential information was disclosed by Darin. Id. at 800.

Even if there was a formal attorney-client relationship between Darin and Mulder, Mulder’s representation of Darin and the defendant did not create an actual conflict of interest. An actual conflict of interest exists if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests to the detriment of his client’s interest. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997) . In order for a defendant to demonstrate a conflict of interest, he must show: 1) that defense counsel was actively representing conflicting interests, and 2) that the conflict had an adverse effect on specific instances of counsel’s performance. Morrow, 952 S.W.2d at 538. Two common conflict of interest situations occur where: 1) defense counsel represents more than one defendant during a single proceeding, James v. State, 763 S.W.2d 776 (Tex. Crim. App. 1989) ; and 2) defense counsel represents the defendant and also represents, or has done so in the past, a State’s witness. Perillo v. State, 758 S.W.2d 567 (Tex. Crim. App. 1988) .

In this case, the record clearly demonstrates that Mulder was in no way “actively representing conflicting interests” during the trial. First, the State never charged or indicted Darin in this case, and therefore, Darin and Appellant were not codefendants. In fact, the State never even suggested to the jurors during trial that Darin participated in the murders. In the guilt phase closing arguments the State argued, “The only issue is who did it? Identity. And it comes down to this: It’s either going to be some unknown intruder who came into that house and committed a horrible murder or it’s going to be the defendant.” (RR. 46:5212-13).

Second, Darin was a defense witness, not a State’s witness. And the record demonstrates that Darin’s and Appellant’s interests in the outcome of the trial were virtually identical. See United States v. Alvarez, 696 F.2d 1307, 1310 (11th Cir.), cert. denied, 461 U.S. 907 (1983) (holding that where testimony of codefendant is corroborative, no conflict of interest arises from counsel’s joint representation). In that regard, Appellant did not blame Darin for the murders; rather, both she and Darin blamed the murders on an unidentified intruder. Specifically, in his testimony for the defense, Darin supported his wife’s testimony and version of events by testifying that an intruder killed his two sons (RR. 43:4516-18). And, in an effort to explain why blood from both of the victims was found on the defendant’s night shirt, Darin testified that, contrary to the testimony of the police officers who reported to the scene and to Darin’s prior written statement to the police, Appellant did assist Darin in trying to save their two young son’s lives. (RR. 42:4293-4; RR. 43:4453-6). Likewise, in an effort to explain why Appellant’s blood was found on the vacuum cleaner and why watered-down blood was found in the sink, Darin testified that Appellant leaned on the vacuum cleaner for support and that she wet rags in the kitchen sink to use on the boys. (RR. 42: 4298; RR.43: 4459-60). And Darin further testified that the day before the murders he repaired the gate in the wooden fence surrounding his back yard so that, contrary to the testimony of the officers at the scene, the gate swung back and forth freely. (RR. 42:4271-2). Darin clearly gave this testimony to support Appellant’s theory and story that the intruder exited the house through the garage and then the back yard without difficulty.

Not only does Darin’s testimony alone establish that Mulder did not have a conflict of interest in representing both the defendant and her husband, but Appellant’s own testimony establishes that there was no conflict of interest as well. Specifically, during the State’s cross-examination of Appellant, she testified that her husband could not have killed her children because the man she saw was not her husband and because her husband could not have left the house through the garage and then re-entered the house and gone back upstairs. (RR. 44:4921-3).

The Fifth Circuit has held that “[a] conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to a codefendant whom counsel is also representing.” Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir. 1975) . That scenario is not present in this case. Appellant fails to even allege any specific argument or defense that Mulder was precluded from making or to any specific evidence that he was precluded from adducing on Appellant’s behalf.

Third, in addition to Mulder, Appellant was represented by three other trial attorneys—Curtis Glover, Richard Mosty, and S. Preston Douglas, Jr.—and one appellate attorney—John Hagler—each of whom was active in her representation. The presence of untainted counsel has in many cases been sufficient for a court to reject a defendant’s conflict of interest claim. See United States v. Casiano, 929 F.2d 1046, 1052 (5th Cir. 1991) (citing United States v. Partin, 601 F.2d 1000 (9th Cir. 1979) ). Appellant’s authorities disputing the value of additional counsel are distinguishable because, in each case, the record demonstrated that a lawyer with an undisputed, egregious conflict actively undermined other counsel.

Fourth, although the trial judge has a threshold obligation to determine whether the attorney has an actual or potential conflict, or no conflict, if he knows or reasonably should know of the possibility of a conflict of interest, “[i]n fulfilling this initial obligation to inquire into the existence of a conflict of interest, the trial court may rely on counsel’s representation.” United States v. Kliti, 156 F.3d 150, 153 (2nd Cir. 1998) (emphasis added); see also United States v. Santiago, 167 F.3d 81, 84 (1st Cir. 1999) . Here, defense counsel made just such representations of no conflict to the trial court. Specifically, the last day of voir dire, when Judge Tolle stated that he thought Appellant had waived all conflicts regarding Mulder’s representation of her mother and Darin, defense counsel Richard Mosty replied, “Our response, that Darlie Routier signed last week, further reconfirms that.” (RR. 26:3322) (emphasis added). The trial court then stated, “We can have a brief hearing when we start this on the 6th if everybody wants to, but I’m quite sure the answers will be the same.” (RR. 26:3323) (emphasis added). The fact that there never was a hearing after that statement demonstrates that Appellant’s position was that there was no conflict. As the Supreme Court has held:

Absent special circumstances . . . trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. Indeed . . . trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. “An ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.’” [citation omitted.]

Cuyler, 446 U.S. at 347 (emphasis added).

Thus, whether there was a hearing and whether Appellant made a knowing and intelligent waiver of a non-existent conflict of interest is insignificant and harmless. See United States v. Carr, 740 F.2d 339, 348-49 (5th Cir. 1984), cert. denied, 471 U.S. 159 (1985) (holding that in prosecution in which two lawyers jointly represented two defendants, although the trial court failed to “personally advise” each defendant of his rights to separate representation as required by Rule 44(c), such failure was inconsequential because there was no actual conflict); United States v. Benavidez, 664 F.2d 1255, 1258 (5th Cir.), cert. denied, 457 U.S. 1135 (1982) . Because there was no actual conflict of interest here even if Mulder did represent both Appellant and her husband, Appellant is not entitled to a new trial.

Appellant claims that the trial court had a duty to sua sponte convene a hearing regarding whether a conflict of interest existed. (Appellant’s brief at 25-27). According to Appellant, this failure leads to automatic reversal. Appellant’s own authority refutes this argument. In Levy v. United States, 25 F.3d 146, 154 (2d Cir. 1994) , the court noted that an inquiry as to the conflicts by the court answered by representations of counsel was sufficient to meet the trial court’s duty under Cuyler to investigate the matter. In this case, the trial court did take up the matter and was assured by Appellant’s counsel that there was no conflict and that Appellant waived any conflict. (RR. 26:3322-23) Combined with Appellant’s abundance of other counsel and the absence of evidence inculpating Darin, there was no evidence of a “particular conflict” the trial court was required to investigate. See Cuyler, 446 U.S. at 346-47 (trial court not required to investigate where the only evidence of a conflict was the fact that Cuyler’s lawyers represented multiple defendants in the case). Moreover, the appropriate remedy if the trial court should have held a hearing is abatement to hold the hearing, not reversal of the conviction. See Wood v. Georgia, 450 U.S. 261, 273-74 (1980) . The other cases cited by Appellant present far stronger evidence of the conflict the court did not investigate and are distinguishable. The record before this Court does not establish a conflict of interest or a duty on the part of the trial court to investigate such. Point of Error 1 should be overruled.

RESPONSE TO POINT OF ERROR 2

In Point of Error 2, Appellant claims that she is entitled to a new trial because a portion of the reporter’s record has been lost or destroyed.

On October 14, 1998, this Court ordered the trial court to ensure that the reporter’s record of the trial on the merits was made to conform to what occurred at trial. On April 26, 1999, this Court further ordered the trial court to conduct an independent review of all portions of Appellant’s court proceedings to ensure that the entire reporter’s record was made to conform to what occurred at trial. In compliance with these two orders, the trial court (with the agreement of the State and the defense) appointed certified court reporter Susan Simmons to independently review the entire trial, using court reporter Sandra Halsey’s original reporter’s record, her stenographic notes, her edit discs, and her audiotapes. (AR. 5:15-17; 16:3-4; 17:3-7). [1] After reviewing and editing the record, Simmons testified that she was able to produce an accurate record. (AR. 13:34; 23:12, 17; 26:9, 19). Simmons further testified that she certified the entire record except the first fifty-four pages of Volume 10, which included a hearing on the defendant’s request for substitution of counsel and the qualification of a morning jury panel. (AR. 13:39, 56; 23:12, 17; 26:9, 19). Although Simmons did not certify the fifty-four pages of the pretrial hearing, she nonetheless testified that those pages were a true and accurate transcription of Sandra Halsey’s stenographic notes. (AR. 26:12-13, 19). In fact, in its January 28, 2000 “Order and Court’s Findings” the trial court specifically found that “[t]he first 54 pages of Volume 10 of the Simmons record is a true and accurate transcription of the stenographic notes of Sandra Halsey, which notes appear to Ms. Simmons to flow uninterrupted without any gaps or lapses.” (Jan. 28, 2000 “Order and Court’s Findings” at 5).

Simmons did not testify that the first fifty-four pages of Volume 10 were not certifiable. Instead, she testified that she did not “feel comfortable” certifying the pages because, although Halsey’s stenographic notes appeared to be in good and usable form and she was able to transcribe the fifty-four pages from the notes, there was no corresponding audiotape for those pages. (AR. 26:10, 12, 13). Simmons further testified that, although everything in the stenographic notes flowed smoothly, and there did not appear to be any gaps or lapses or ‘anything missing, she did not “feel comfortable” certifying the pages without the aid of an audiotape because she did not attend the trial in Kerrville. (AR. 26:12, 19).

Nothing is Lost