TEXANA COMMUNITY MHMR CENTER v. LINDA J. SILVAS--Appeal from 23rd District Court of Wharton County

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State: Texas

Court: Texas Northern District Court

Docket No: 13-01-00435-CV

Case Date: 11/29/2001

Plaintiff: Cedric Nickerson

Defendant: TDCJ-ID, et al--Appeal from 136th District Court of Jefferson County

Preview:NO. 07-05-0285-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D DECEMBER 22, 2006 ______________________________ ROBERT EDWARD SHARP, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 69TH DISTRICT COURT OF MOORE COUNTY; NO. 3133; HON. RON ENNS, PRESIDING _______________________________ Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Robert Edward Sharp (appellant) appeals his conviction for indecency with a child. Via various issues, he contends that the trial court erred by 1) allowing the State's investigator to remain in the courtroom once the rule was invoked, 2) permitting a witness to impart hearsay when the State failed to comply with article 38.072 of the Code of Criminal Procedure, 3) admitting appellant's pen packet without proper authentication, and 4) allowing the State to reopen during punishment after it had rested. We affirm.

Issue One - Rule 614 In his first issue, appellant contends the trial court erred when it allowed a State's witness to remain in the courtroom after he had invoked Rule 614 of the Texas Rules of Evidence. We disagree and overrule the issue. According to the record, the State's investigator, Terry Vogel (Vogel), was allowed to remain in the courtroom during trial after the State invoked Rule 614 of the Texas Rules of Evidence. And, though Vogel was identified as a potential witness, the State asked that he be allowed to stay in the courtroom during the trial. The trial judge was also told by the prosecutor that "I'm probably not even going to call him, but in case I feel like I need to, just to explain how the investigation came about." (Emphasis added). So too did the

prosecutor state that he believed he was entitled to have a "representative" of the State remain in the courtroom.1 Thereafter, the trial court overruled appellant's complaint regarding Vogel's continued presence. Once trial began, Vogel was indeed called to testify, but the party doing so was appellant. The latter called him as an adverse witness. Furthermore, the State asked the witness no questions once appellant completed his examination of him. Eventually, Vogel was called by the State at the punishment phase of the trial. But, immediately before that phase began, the trial court once again asked if "either party wish[ed] the witness rule be invoked for this portion of the trial?" Appellant responded "yes," and the names of the witnesses to be called then were disclosed to the trial court.

Though a "representa tive" m ay be perm itted to rem ain in court, this encompasses persons who are "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 . . . ." T EX . R. E VID . 614 (2) (em pha sis adde d).

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The list included Vogel. Appellant, however, did not renew his objection to Vogel's presence. And, when the State called him as its first witness, appellant voiced no objection about him testifying. According to Texas Rule of Evidence 614, "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." T EX . R. EVID . 614. Assuming arguendo that Vogel was encompassed within this rule and should have been excluded, we conclude that appellant invited any harm that may have resulted and the error was waived. The purpose of invoking the rule is to prevent potential witnesses from being influenced by, or modifying their testimony because of, the testimony of other witnesses. Russell v. State, 155 S.W.3d 176, 179-80 (Tex. Crim. App. 2005). Given this, logic dictates that any harm arising from a violation of the rule can arise only if the witness is called to testify. Simply put, if he does not testify, then there is no chance that he can impart modified or influenced testimony. Here, after appellant complained about Vogel's continued presence and the prosecutor represented that he would "probably not" have him testify, appellant called Vogel as a witness. This act effectively invited the harm sought to be avoided by the rule. And, by inviting the harm, appellant cannot now complain of it. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (stating that one cannot complain of error that he invites). Moreover, when the trial court again asked, during the punishment phase, whether the parties wanted the rule invoked, appellant said nothing about excluding Vogel, though Vogel was expressly identified as a witness by the State. Nor did appellant object to Vogel testifying when called by the State. By calling the witness to testify during the 3

guilt/innocence phase and then withholding further objection once the trial court provided renewed opportunity to do so, appellant waived any complaint he may have had to Vogel's testifying in the punishment phase. See Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990) (holding that one must complain each time an infraction is perceived, otherwise the complaint is waived). Accordingly, we overrule his first issue.2 Issue Two

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