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In the Court
of Criminal Appeals of Texas
No. 74,595
Pete Russell, Jr., Appellant
v.
The State of Texas
Appeal
from Harris County
Womack, J., delivered the opinion for a
unanimous court.
In February 2003, a
jury convicted the appellant of a capital murder
(1) that was
committed on August 13, 2001. Pursuant to the jury's answers to
the statutory special issues,
(2) the trial
court sentenced the appellant to death.
(3) Appeal to
this Court is automatic.
(4) We affirm.
The
appellant raises four points of error. Although he does not
challenge the sufficiency of the evidence at either stage of trial,
a brief recitation of the facts will give a context for his points.
The
appellant was convicted of intentionally causing the death of
Tanjala Brewer while in the course of committing or attempting to
commit the offense of retaliation against her. Brewer was in a
relationship with the appellant, and she also was a police
informant. On May 2, 2001, she took undercover narcotics officer
D.K. Bush to the appellant's house and introduced them. The
appellant agreed to sell Bush several ounces of crack cocaine. The
appellant said that he could provide it. A few hours later, Bush
called the appellant to arrange the transaction. The two met at a
store and completed the transaction. Bush signaled other officers
to arrest the appellant.
On
August 9, 2001, the appellant pleaded guilty to the charge of
delivering a controlled substance and received a ten-year sentence.
He asked the court to delay the date for execution of the sentence.
The court reset the case, and the appellant agreed to turn himself
in on September 7.
Around 11:00 p.m. on August 12, Brewer's neighbor, Andre Wilson,
saw Brewer and the appellant walking down the street near Brewer's
house. After the appellant left and shortly before midnight,
Brewer's boyfriend, Wilbert Reed, stopped by Brewer's house and
spent some time with her before he went to work. He called Brewer
from his workplace every thirty minutes or so throughout his shift,
but he always got a busy signal.
About
1:00 a.m., Wilson heard Brewer's screen door close, and he saw the
appellant walking down Brewer's driveway. The appellant was
running by the time he reached the street. Brewer was found dead
around 9:30 that morning. Natural gas valves had been turned on in
the house, and candles were burning.
Wilson's account and evidence at the scene led police to suspect
the appellant. When they found him at a local motel, the appellant
was sitting in the bathtub, fully clothed, with a bottle of rat
poison in his hand, and he was foaming at the mouth. Officers took
the appellant to a hospital where his stomach was pumped. At the
hospital, the appellant said (in a tape-recorded statement) that
after he had broken off his relationship with Brewer, she had set
him up. He admitted killing her.
Point One
In
his first point of error, the appellant complains that the trial
court erred in allowing the jury to use transcripts of his
recorded oral statements to assist them during deliberations.
Before trial, the appellant moved to suppress the two oral
statements he had given. During a hearing on the motion, the State
offered the audiotapes of the two statements into evidence. The
State also gave the court written transcripts of the tapes. The
judge noted on the record that he recognized the transcripts were
not evidence but were only to assist him in listening to the
tapes. The appellant commented that he had "no objection to the
Court following along with" the transcripts. The court denied the
appellant's motion to suppress the audiotaped confessions and
overruled the objection that they were of "poor audio quality" and
unable to be understood without the assistance of a transcript.
At
trial, the officer who had taken the confessions testified that
the transcripts fairly and accurately depicted what was on the
audiotapes. The court admitted the audiotapes into evidence over
the appellant's objection and admitted the transcripts of the
tapes as demonstrative evidence. The appellant did not object to
the admission of the transcripts, but he did request a "prophylactic
explanation" to the jury that the transcripts were only to be used
as a guide. When the jurors were given copies of the transcripts,
the court instructed them that the transcripts were to assist them,
if they could, in understanding what was said on the tapes. The
court told them that the substantive evidence was what was stated
on the tapes and the jury would not be allowed to take the
transcripts into the jury room with them.
After
the jury had retired to deliberate, the foreman sent a note
requesting that the jurors be allowed to listen to the audiotapes
and to use the transcripts to aid them. The appellant agreed that
the jury was entitled to listen to the tapes, but he argued that
use of the transcripts was improper because the jury was engaged
in deliberations. The State responded that the court could suspend
deliberations and bring the jury back into open court to listen to
the tapes with the aid of the transcripts. After verifying that
the appellant did not dispute the general accuracy of the
transcripts, the court brought the jurors back into the courtroom
and instructed them that they would be allowed to use the
transcripts to assist them in listening to the tapes. The court
reminded them that the transcripts were not substantive evidence,
and if they noticed a discrepancy between what they heard on the
tape and what they read in the transcript, they were to resolve it
in favor of what they heard on the tape. The jurors were then
handed copies of the transcripts and allowed to listen to the
tapes. After the tapes were played, the bailiff collected the
transcripts, and the jury returned to the jury room to resume
deliberating.
The
appellant argues that the statute allowing the jury to receive "any
exhibits admitted as evidence in the case"
(5) does not
include demonstrative exhibits. He also says that once the jury
has retired to deliberate, the deliberation cannot be suspended
and resumed. We need not decide those issues. Even if it were
error for the court to have furnished the transcripts, the
appellant suffered no harm.
Under
Rule of Appellate Procedure 44.2(b), this Court disregards all
non-constitutional errors that do not affect the appellant's
substantial rights. A substantial right is affected "when the
error has a substantial and injurious effect or influence in
determining the jury's verdict."
(6)
The
jurors did not discuss the case while they were in open court, and
they reviewed exactly what they reviewed during trial -- no more
and no less. This procedure did not affect the appellant's
substantial rights. The appellant's first point of error is
overruled.
Point Two
In
his second point of error, the appellant complains that the trial
court abused its discretion by allowing a witness for the State to
remain in the courtroom throughout the guilt stage of trial "absent
a showing by the State that he fell within an expressed exemption
or exception in Texas Rules of Evidence, Rule 614."
(7)
The
procedure of excluding witnesses from the courtroom is commonly
called putting the witnesses "under the rule." The purpose of
placing witnesses under the rule is to prevent the testimony of
one witness from influencing the testimony of another, consciously
or not.
(8)
Several articles in Chapter 36 of the Code of Criminal Procedure
speak to witnesses under the rule. The main features of the
procedure are stated in Articles 36.05 and 36.06. The former says,
"[I]n no case where the witnesses are under rule shall they be
allowed to hear any testimony in the case." The latter says, "Witnesses,
when placed under rule, shall be instructed by the court that they
are not to converse with each other or with any other person about
the case except by permission of the court, and that they are not
to read any report of or comment upon the testimony in the case
while under rule."
Rule
of Evidence 614 speaks to the issue of which witnesses may be
excluded. It does not authorize the court to exclude certain
witnesses. In criminal cases, those witnesses are (1) a defendant
who is a natural person, the representative of a defendant that is
not a natural person, (2) a person whose presence a party shows to
be essential to the presentation of the party's case, and (3) a
victim if the court does not determine that the victim's testimony
would be materially affected by hearing other testimony.
(9) (A statute
also speaks to the exclusion of victims, their guardians, and
close relatives of deceased victims.
(10) It is not
involved in this point of error.)
Under
Rule 614, a party has the burden to show that its witness is one
of those whose exclusion from the courtroom is not authorized by
that Rule.
(11)
Before the jury was brought into the courtroom, both parties
requested that the court put the witnesses under the rule. The
court instructed all the witnesses who were present not to discuss
their testimony among themselves or with anyone other than the
lawyers, and to retire to the hallway until they were called to
testify.
After
the pleadings and opening statements had been presented to the
jury and three witnesses had testified, the prosecutor asked the
court's permission for Police Sergeant Hal Kennedy, who "wasn't
here earlier this morning
, to sit with us at counsel table as
the case agent" because "he was the primary homicide detective on
the case." The following exchange occurred:
THE
COURT: Okay.
[DEFENSE
COUNSEL:] I thought that was a federal rule. I didn't think it
applied to state court.
THE
COURT: Well, it's --
[DEFENSE
COUNSEL:] We would object for purposes of the record.
THE
COURT: Okay. I will overrule your objection and he will be allowed
to serve as case agent and sit at counsel table.
[THE
STATE:] He's also going to be a witness in the trial.
THE
COURT: But he also will be placed under the Rule also [sic].
[THE
STATE:] Yes, sir. He wasn't placed under the Rule earlier because
he wasn't here, but he's here now.
THE
COURT: Bring him up and let's do that up here at the bench.
[DEFENSE
COUNSEL:] I presume that by you saying that he is going to be
under the Rule, Your Honor, that this is going to preclude him
from participating in any further investigation should something
develop at trial that he has to go check out or determine what to
do that he now becomes a --
THE
COURT: That's a bridge we will cross when we get to it.
* * *
Sergeant Kennedy, would you approach, please?
* * *
You're going to be allowed to be case agent, sit at counsel table,
but you will be under the Rule. That means you may not discuss
your testimony among the other witnesses or with anyone other than
the lawyers trying the case.
[THE
STATE:] Thank you, Your Honor.
The
State then called its next witness.
The
State's designating a witness as a "case agent" does not make a
witness one whom the court may not exclude from the courtroom
under Rule 614. As the appellant correctly pointed out in his
objection, the government's designation of a "case agent" in the
trial of a criminal case is permitted in federal courts by the
federal counterpart of Rule 614,
(12) but it is
not permitted in the courts of this state. This Court deliberately
chose to make our rule different when we adopted Rule 614(2).
(13) Neither the
State nor a defendant who is a natural person may take away the
court's authority to exclude one of its witnesses by simply
designating the witness.
Because the State did not meet its burden to show that Kennedy was
a witness whose exclusion from the courtroom was not authorized by
Rule 614, the trial court erred in permitting Kennedy to remain in
the courtroom during the trial.
Recognizing that error occurred, we must now determine whether the
error requires reversal. Because the appellant complains about the
violation of an evidentiary rule, the error is non-constitutional
and will be disregarded unless it affected the appellant's
substantial rights.
(14) We hold that
it did not.
As
previously noted, the purpose of placing a witness under the rule
is to prevent that witness from being influenced in his testimony
by the testimony of another witness. The question in assessing the
harm of allowing Kennedy to remain in the courtroom is whether he
was influenced in his testimony by the testimony he heard.
The
appellant's brief argues that Kennedy was influenced in his
testimony in that he corroborated the other police officer who was
present when the appellant gave his statement, and he "contradicted
appellant's testimony in two crucial areas":
First,
appellant testified that Sergeant Kennedy induced him to make an
audio-taped statement because "this could help you in trial."
Second, appellant explained that he referred to Ms. Brewer being
an informant in his tape-recorded statement because Sergeant
Kennedy told him this fact before he gave the statement. Appellant,
had heard a rumor that Ms. Brewer had "set him up", but he did not
have that confirmed until Sergeant Kennedy confirmed it.
(15)
Kennedy and Officer Richard Moreno were the only officers who were
present when the appellant made his oral statements. The State
called both officers to testify in its case in chief. The
prosecutor asked each officer whether he knew that Brewer was an
informant, and each testified that he did. The prosecutor asked
each officer whether he told the appellant that Brewer was an
informant or heard the other officer say anything to the appellant
about Brewer's being an informant. Each testified that he did not.
Before Kennedy testified, he had heard Moreno's answers.
When
the appellant testified in his case in chief, he admitted killing
Brewer but stated that he had done so in a jealous rage. He
testified that the only reason he said what he did in his first
statement was because Kennedy told him that Brewer had set him up.
He said that Kennedy told him, before he gave his tape-recorded
statement, that "your girl set you up with the law." His counsel
asked him whether, before he talked with Kennedy, he was "ever
sure that Ms. Brewer had anything to do with your arrest." He said,
"I didn't really just knew [sic]
until he told me."
On
cross-examination, the appellant admitted that it was "the talk on
the streets" for months that Brewer had informed on him, that "probably"
he suspected that she had done so, and that when Kennedy asked him
on the tape recording what happened, the first words out of his
mouth were, "She set me up with the police." This was a reference
to the first question and answer in his oral statement:
KENNEDY: Okay. Now you know why you're under arrest? You're under
arrest for murder you know that? In your own words tell me what
happened and why you did what you did.
RUSSELL: She
She set-she set me up-she set me up with the police.
(16)
We
also notice the sixth question and answer:
KENNEDY: Okay ah now tell me how it is-how it is that she got
killed whatever.
RUSSELL: Basically ah I went over her house and you know since she
let me in and she was smoking some drugs whatever and you know we
were just talking whatever you know about the things we used to do
and I was basically asking her "Why did you set me up?" "Why did
you set me up" and she kept on denying it talking about I ain't
set you up. I ain't set you up.
(17)
There
was other impeachment of the appellant's claim he did not know
that Brewer had cooperated with police before Officers Kennedy and
Moreno told him about it in the hospital. Brewer's "best friend,"
Deborah Calhoun, testified that in early July, more than a month
before the murder, the appellant told her that he knew Brewer had
set him up in his case and that he appeared to be angry about it.
After
the appellant rested, the State called Kennedy to the stand in
rebuttal. He denied again that he told the appellant about
Brewer's being an informant.
We
see no likelihood that Kennedy's denial that he told the appellant
that making a statement could help him, and his denial that he
told the appellant that Brewer was an informant, were influenced
by his hearing the testimony of Moreno and the appellant. We will
not say from this record that the court's error in allowing
Kennedy to remain in the courtroom had a substantial and injurious
effect or influence in determining the jury's verdict. The error
did not affect the appellant's substantial rights. Point of error
two is overruled.
Point Three
The
appellant complains in his third point of error that the trial
court erred in permitting the State to cross-examine him during
the guilt stage of trial regarding an extraneous drug offense. He
asserts that this evidence was not relevant at the guilt stage of
trial, tended to show only that he was a criminal generally, and
prejudiced his credibility as a witness.
Although the appellant objected to the admission of nineteen
photographs, his brief does not discuss these exhibits. His only
specific complaint is, "The State forced appellant to admit that
he possessed crack cocaine at his residence," citing one page of
the reporter's record. There the State asked the appellant about a
photograph: "State's Exhibit 211, what is that?"
The
appellant answered, "Crack cocaine.
Looks like it was in the
truck."
The
State then asked, "This is stuff that you sold or some of the
stuff that you sold to Officer Bush after Tanjala [Brewer]
introduced you to him, isn't it, sir?"
The
appellant answered, "Yes, sir."
Next
the State asked the appellant about another photograph: "State's
Exhibit No. 199, is that your car?" The appellant testified that
it was his mother's car, and that he was driving it when he sold
the cocaine to Officer Bush.
These
questions, and the photographs on which they were based, were
about the offense of cocaine delivery to Bush for which the
appellant had been indicted and convicted before the murder -- the
offense that began when Brewer cooperated with Officer Bush by
introducing him to the appellant. The indictment alleged that it
was in retaliation for that act of cooperation that the appellant
killed Brewer. This was not an irrelevant, extraneous offense that
showed only that the appellant was a criminal generally. There was
no error in the admission of the two photographs or the cross-examination
during which they were admitted.
There
are no other complaints in point of error three that are
sufficiently specific for us to identify and answer. The point is
overruled.
Point Four
In
his fourth point of error, the appellant claims the Texas death-penalty
scheme is unconstitutional because it allows the application of
the death penalty without providing meaningful appellate review of
any of the special issues giving rise to the sentence of death.
This Court has previously addressed and rejected this precise
contention.
(18) The
appellant has given us no reason to revisit the issue here. Point
of error four is overruled.
We
affirm the judgment of the trial court.
En
banc.
Delivered February 2, 2005.
Publish.
*****
1.
See
Tex. Penal Code § 19.03(a)(2).
2.
See
Tex. Code Crim. Proc. art. 37.071, §§ 2(b) & (e).
3.
See
id., § 2(g).
4.
See id., § 2(h).
5.
See
id., art. 36.25 ("There shall be furnished to the jury upon
its request any exhibits admitted as evidence in the case").
6.
Simpson v. State, 119 S.W.3d 262, 266 (Tex. Cr. App. 2003),
cert. denied, 124 S.Ct. 2837 (2004).
7.
Brief,
at 25.
8.
Routier v. State, 112 S.W.3d 554, 590 (Tex. Cr. App. 2003),
cert. denied, 124 S.Ct. 2157 (2004);
Bell v. State, 938 S.W.2d 35, 50 (Tex. Cr. App. 1996),
cert. denied, 522 U.S. 827 (1997).
9.
"Rule
614. Exclusion of Witnesses
"At
the request of a party the court shall order witnesses excluded so
that they cannot hear the testimony of other witnesses, and it may
make the order of its own motion. This rule does not authorize the
exclusion of:
"(1)
a party who is a natural person or in civil cases the spouse of
such natural person;
"(2)
an officer or employee of a party in a civil case or a defendant
in a criminal case that is not a natural person designated as its
representative by its attorney;
"(3)
a person whose presence is shown by a party to be essential to the
presentation of the party's cause; or
"(4)
the victim in a criminal case, unless the victim is to testify and
the court determines that the victim's testimony would be
materially affected if the victim hears other testimony at the
trial."
10.
See
Tex. Code Crim. Proc. art. 36.03(a)-(d).
11.
Moore v. State, 882 S.W.2d 844, 848 (Tex. Cr. App. 1994).
12.
See F. R. Evid. 615 ("This rule does not authorize exclusion
of
(2) an officer or employee of a party which is not a natural
person designated as its representative by its attorney
").
13.
"This
rule does not authorize exclusion of:
(2) an officer or employee
of a party
in a civil case or a defendant in a criminal case that is not
a natural person designated as its representative by its attorney
." Tex. R. Evid. 614 (emphasis added).
See 1 Steven Goode
et al., Tex as Practice -- Guide to the Texas Rules of
Evidence § 614.1 n.18 (1993).
14.
Tex.
R. App. P. 44.2(b).
15.
Brief,
at 28-29.
16.
State's Exhibit 1A, at 1-2 (punctuation, including ellipsis,
sic).
17.
Id., at 2 (punctuation
sic).
18.
Valle v. State, 109 S.W.3d 500, 502-03 (Tex. Cr. App. 2003). |
