No. 01-03-00167-CR.
Opinion issued February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 925751.
Panel consists of Justices NUCHIA, ALCALA, and HANKS.
GEORGE C. HANKS, Jr., Justice.
A jury found appellant, David Ywain Young, guilty of felony theft and assessed punishment at confinement for two years. Appellant stipulated that he has two prior convictions for felony theft. We affirm. Appellant does not complain about the sufficiency of the evidence to support the theft conviction. In two points of error, appellant asserts that the trial court erred in allowing a bailiff, Harris County Sheriff's Department Deputy Mike Garcia, to testify because (1) Deputy Garcia was precluded from testifying because he was serving as the bailiff for the jury who decided the punishment in the case and (2) "the rule" had been invoked and the bailiff was present in the courtroom when appellant testified. During the punishment stage, appellant testified that many of his jail privileges had been revoked in retaliation for the "numerous complaints" he had filed "within the jail and also in the federal courts against Harris County Jail." Appellant acknowledged that he had filed a grievance against Deputy Garcia, the bailiff in his theft case. He denied, however, that he had complained that Deputy Garcia had brought appellant into the courtroom while appellant was naked. At the conclusion of the punishment trial and after appellant rested, the State called Deputy Garcia to testify. Appellant's attorney objected arguing that
I have an objection to make at this point in time. I am going to object to them calling this deputy at this point in time. He is not on the witness list. We had no knowledge that he was going to be called. He has been sitting here throughout the testimony.
If we had known he was going to be called, we would have invoked the Rule. And this rises to the level of undue surprise for us. We have no way to prepare ourselves for this witness at this point in time. And we would object to them calling him.
Without response from the State, the trial court responded that "the defendant opened the door to the issue. So, I will overrule your objection." The "rule" had been invoked at the beginning of trial. Appellant's trial counsel was mistaken in his assertion that the rule had not been invoked.
Bailiff Witness
In point of error one, appellant argues that the trial court erred in permitting Deputy Garcia to testify during the punishment trial because Deputy Garcia had been serving as bailiff for the jury who decided the punishment in this case. Appellant correctly states that article 36.24 of the Texas Code of Criminal Procedure provides that "if the person furnished by the sheriff [to be the bailiff] is to be called as a witness in the case he may not serve as bailiff." TEX. CODE CRIM. PROC. ANN. art 36.24 (Vernon 1981). Here, however, appellant's objection at trial does not comport with his complaint on appeal. Appellant did not object to Deputy Garcia's testimony based on article 36.24. His objection was that he was unduly surprised by Deputy Garcia's testimony because he was not on the witness list and, despite appellant having invoked the rule, Deputy Garcia had been sitting in the courtroom during trial. Appellant, therefore, presents nothing for review in this point of error. See Tex.R.App.P. 33.1(a)(1) (party complaining on appeal has burden to preserve claim with specific and timely objection and obtain a ruling on it); Canales v. State, 98 S.W.3d 690, 699 (Tex.Crim.App. 2003). We overrule point of error one. "Rule" Invoked
In point of error two, appellant argues that the trial court erred in permitting Deputy Garcia to testify during the punishment trial because Deputy Garcia had been in the courtroom while appellant testified, and this violated "the rule" which had been invoked at the beginning of the trial. When the trial court invokes "the rule," it excludes witnesses from the courtroom pursuant to Rule 614, which provides in relevant part that "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." TEX. R. EVID. 614. The purpose of the rule is to prevent the testimony of one witness from influencing the testimony of another. Martinez v. State, 867 S.W.2d 30, 40 (Tex.Crim.App. 1993); Phillips v. State, 64 S.W.3d 458, 459 (Tex.App.-Houston [1st Dist.] 2001, no pet.). The trial court must invoke the rule if requested to do so. TEX. R. EVID. 614. After the rule has been invoked, enforcement of the rule is within the trial court's discretion. Guerra v. State, 771 S.W.2d 453, 474-75 (Tex.Crim.App. 1988); Phillips, 64 S.W.3d at 459. A violation of the rule may not be relied upon for reversal of the case unless it is shown that the trial court abused its discretion in allowing the violative testimony. Guerra, 771 S.W.2d at 474-75; Phillips, 64 S.W.3d at 460. Here, during the punishment phase of the trial, Garcia proceeded to testify that he was a bailiff/process server assigned to the 180th district court, and that appellant had filed a grievance against him. Garcia testified that appellant accused him of bringing appellant into the courtroom naked and humiliating him in front of everyone. Garcia testified that the event referenced in the grievance occurred while appellant was in a holding cell, and Garcia had been asked to bring appellant into the courtroom. Appellant refused to be led into the courtroom and told Deputy Garcia that "if we wanted to bring him out here, we were going to have to use force." Deputy Garcia's supervisor was notified and assisted Garcia. They were able to take appellant into the courtroom without incident. Deputy Garcia testified that he took appellant back to the holding cell and Garcia was then told to bring appellant back into the courtroom. When Garcia went back into the holding cell to retrieve appellant the second time, he found appellant dressed only in his t-shirt and underwear. Appellant told Deputy Garcia that he had stuffed his jail clothes into the toilet. Appellant refused to walk into the courtroom, so Deputy Garcia and his supervisor found a chair with wheels and wheeled appellant into the courtroom wearing his t-shirt and boxer-styled underwear. Although appellant's attorney stated during his objection that Deputy Garcia "has been sitting here throughout the testimony," Deputy Garcia was not directly asked by the attorneys whether he heard appellant's testimony, and this evidence was never presented in any motion for new trial. Moreover, there is no evidence in the record that Deputy Garcia's testimony was affected by having heard appellant's testimony, if he did. Appellant has not demonstrated that the purpose of the rule, to prevent one witness from influencing the testimony of the other, was affected under the circumstances of this case. Therefore, we conclude that the trial court did not abuse its discretion in allowing the testimony. See Guerra, 771 S.W.2d at 476; Phillips, 64 S.W.3d at 460. We overrule point of error two. Conclusion
We affirm the judgment.