Mitchell, Thomas Cox v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Memorandum Opinion filed April 21, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01362-CR

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THOMAS COX MITCHELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 951,911

M E M O R A N D U M O P I N I O N

This is an appeal from a conviction for possession of cocaine with intent to deliver. Appellant Thomas Cox Mitchell argues in two issues that the trial court erred by failing to grant a mistrial or strike the testimony of a police officer based on a violation of the witness sequestration rule. We affirm.

Appellant was arrested by two police officers, both of whom testified at appellant s trial. Officer J.N. Cardenas testified on the first day of trial and for a short time on the second day. Officer Jonathan Fraley testified on the second day of trial. Before trial began, the trial court announced that the Rule, or Rule 614 of the Texas Rules of Evidence, which excludes witnesses from the courtroom so that they cannot hear the testimony of other witnesses, had been invoked and that while outside the courtroom witnesses should not discuss their testimony with each other. See Tex. R. Evid. 614.

On the morning of the trial s second day, before the trial had resumed, Officers Cardenas and Fraley met together with the prosecutor. At the meeting, the prosecutor apparently went over the questions that he would be asking each officer that day. Appellant contended that this meeting violated the Rule and objected to Officer Fraley s being permitted to testify. The trial court withheld ruling and allowed Officer Fraley s testimony. In the presence of the jury, both officers testified that at the meeting, Officer Cardenas s first-day testimony was not discussed in the presence of Officer Fraley.

During a break in Officer Fraley s testimony, the trial court held a hearing to discuss the officers potential Rule 614 violations. At the hearing, appellant moved for a mistrial and moved to strike Officer Fraley s testimony. The trial court acknowledged that the meeting between the officers and the prosecutor violated Rule 614, but denied both motions.

In two issues, appellant argues that the trial court erred in denying his motion for mistrial and motion to strike Officer Fraley s testimony. Appellant maintains the trial court erred in allowing Officer Fraley to testify after Officer Fraley violated Rule 614. We review a trial court s decision to allow a witness who violates the Rule to testify under an abuse of discretion standard. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). In reviewing the trial court s decision to allow the testimony, we look at whether appellant was harmed or prejudiced by the witness s violation. Id. Two criteria for determining injury or prejudice in this situation are (1) whether the witness actually conferred with or heard testimony of other witnesses and (2) whether the witness s testimony contradicted testimony of a witness from the opposing side or corroborated testimony of a witness he had conferred with or heard. Id.

Assuming the officers meeting with the prosecutor violated the Rule, we do not find any resulting harm or prejudice to appellant. Appellant cross-examined both officers about their meeting with the prosecutor before the second day of trial. Officer Fraley testified that Officer Cardenas s first-day testimony was not discussed at this meeting. Officer Cardenas testified that his first-day testimony was not discussed in front of Officer Fraley, but that he did discuss his first-day testimony with the prosecutor during a short period when Officer Fraley left the meeting. Both officers testified that although the prosecutor went over the questions that he planned to ask each officer, they did not discuss their answers.

Appellant argues that he was harmed because Officer Fraley s testimony corroborated Officer Cardenas s testimony. It is true that portions of each officer s testimony regarding the appellant s arrest are similar. Both testified that they approached appellant and another man on foot; that when appellant became aware of the officers presence, he tried to swallow a small plastic bag containing a white substance; and that appellant then spit out the bag and threw it onto a second-floor balcony.

However, there are also several differences between the two officers testimony. For example, Officer Cardenas testified that the two officers went to the apartment complex where appellant was arrested in order to perform a trespass investigation or to look for gang members; Officer Fraley testified that they were there to perform a standard walk-through. Officer Cardenas heard the man with appellant say, Hey, the cops are here. Officer Fraley could not hear what the man said. Also, Officer Cardenas detailed the manner in which he retrieved the bag appellant threw; whereas, during that time, Officer Fraley arrested appellant and escorted him to the patrol car, which was a few hundred feet away. Officer Cardenas testified that appellant was initially arrested for littering, and Officer Fraley testified that the arrest was for cocaine possession. After appellant was arrested, he complained that the handcuffs were too tight around his wrists. When Officer Fraley attempted to loosen the handcuffs, appellant tried to flee. Officer Fraley grabbed onto appellant, swung him around toward Officer Cardenas, and Officer Cardenas then struck appellant across the nose with his flashlight. Officer Cardenas testified that he swung at and struck appellant once; whereas, Officer Fraley testified that Officer Cardenas swung at appellant twice and struck him once.

Further, Patrick Foster, a defense witness who was the other man present when appellant was arrested, largely corroborated both officers testimony regarding appellant s arrest. Foster testified appellant had a bag of marijuana, not cocaine; appellant first put the bag in his mouth when the officers arrived; and appellant then spit out the bag and threw it up in the air. Foster also stated that after appellant was arrested, one of the officers led appellant away.

Because only portions of the officers testimony corroborate each other and because these portions are largely corroborated by Foster s testimony, there is no evidence that the meeting between the officers and the prosecutor influenced Officer Fraley s testimony. Accordingly, we find that the trial court did not abuse its discretion in allowing Officer Fraley to testify. See Potter v. State, 74 S.W.3d 105, 111 (Tex. App. Waco 2002, no pet.) (finding no abuse of discretion in allowing testimony from witnesses who were heard discussing case outside courtroom when nothing in record indicated that witnesses conversation affected their testimony); Reed v. State, 14-02-00671-CR, 2003 WL 21782537, at *3 (Tex. App. Houston [14th Dist.] July 31, 2003, pet. ref d) (not designated for publication) (holding no abuse of discretion in allowing testimony from witnesses who discussed case in violation of the Rule when there was no evidence that discussion influenced witnesses testimony).

Because we find that the trial court did not abuse its discretion in allowing Officer Fraley to testify, there was no error in denying appellant s motion to strike Officer Fraley s testimony or motion for mistrial based on Officer Fraley s testimony.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed April 21, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).