Morin, Gerardo Ray v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Opinion issued November 7, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00627-CR

GERARDO RAY MORIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 37108

O P I N I O N

A jury convicted appellant, Gerardo Ray Morin, of one count of aggravated sexual assault of a child and one count of sexual abuse of a child. Both complainants were appellant's step-daughters. Appellant pled true to the indictment's enhancement paragraph, and the jury assessed his punishment at 55 years' confinement on each count. In a single point of error on appeal, appellant asserts the trial court abused its discretion when it disqualified his wife as a witness for violation of the exclusionary rule. We affirm.

At the beginning of trial, appellant's wife, Roxanne Morin ("Roxanne"), was sitting with appellant at the counsel table in the courtroom. At the State's request, the trial court instructed Roxanne to "move behind the railing." After the State's opening argument, the State's witnesses were sworn by the court clerk. Appellant's counsel stated that his witnesses were not present but were "on standby." Although she was present, Roxanne was not sworn as a witness.

The trial court instructed the witnesses who were sworn as follows:

"The Rule (1) has been invoked in this case, which means, among other things, you have to sit outside while the case is going on. You cannot be present in the courtroom except when you're called upon to testify or until you're discharged from the case. . . ."

The State's first witness, complainant Roseanna Morin ("Roseanna"), testified that her mother and appellant had been divorced for one or two years at the time of trial. Roseanna testified that during the 1996 Christmas holiday, when her mother and appellant were separated, her mother dropped her off at appellant's house. Roxanne, who was not yet married to appellant, was also there.

Roseanna testified that Roxanne left for El Campo the day after she, Roseanna, arrived at appellant's house. That night, while Roxanne was still away, Roseanna testified that appellant drove her to a back road and had sexual intercourse with her; she was 13 years old at that time. When Roseanna awoke the next morning, Roxanne had returned. Roxanne drove Roseanna home later that day.

The second witness, complainant Rebecca Morin ("Rebecca"), Roseanna's sister, testified that she visited appellant on weekends while appellant and her mother were separated. She testified that during one of these visits in the fall of 1996, appellant asked her to perform oral sex on him, and she complied. Rebecca was 14 years old at the time.

During the defense's case-in-chief, appellant's counsel called Roxanne to testify. The State objected that the Rule had been violated because Roxanne had been present in the courtroom during the testimony of at least some of the State's witnesses. During an evidentiary hearing outside the jury's presence, appellant's counsel elicited from Roxanne what her testimony would be if she was permitted to testify.

Roxanne's proffered testimony set out the defense of alibi for appellant on the indictment's first count, contradicting Roseanna's testimony that she was left alone with appellant when Roxanne went to El Campo. Roxanne testified that during Roseanna's 1996 Christmas visit, Roseanna accompanied her to El Campo to visit Roxanne's grandmother. Roxanne further testified that during that time, she and appellant had only one car, which she drove to El Campo; that she dropped appellant off at work before the trip and picked him up from work later that day; that she and Roseanna were always together; and that Roseanna was never alone with appellant.

Roxanne testified that she was in the courtroom during Roseanna's testimony, but not during Rebecca's. The State argued that, by hearing Roseanna's testimony, Roxanne was able to tailor her testimony to support appellant's defense of alibi to count one of the indictment.

Appellant's counsel stated: "[T]he other thing, Judge, is when I requested that [Roxanne] sit here with me because she is his wife, the court instructed me to put her behind the bench [sic] and normally during the procedures in the trial the wife is permitted to stay right next to her husband even if she testifies." At the conclusion of the hearing, the trial court stated it would allow appellant to call his other witnesses and would rule before the defense rested on whether Roxanne could testify.

The defense called Cecilia Canales ("Cecilia"), Roxanne's grandmother, who testified that, during the 1996 Christmas holiday, Roxanne visited her at her home in El Campo and brought along with her a child named either "Roseanna" or "Roxanna," who met Cecilia's son at that time.

Elroy Canales ("Elroy"), Cecilia's son, testified that, at his mother's house in El Campo during the 1996 Christmas holidays, he met a girl who was introduced to him as appellant's stepdaughter; that he thought the girl's name was "Rosa"; and that before trial, he learned her name was actually Roseanna.

Following Elroy's testimony, the trial court heard additional argument outside the jury's presence as to whether Roxanne should be allowed to testify. The trial court stated its recollection that after the jury was selected, defense counsel introduced Roxanne to the courtroom, that Roxanne was inside the railing, sitting behind the counsel table; that the State objected to her being there, and the trial court instructed her to be seated in the gallery. The trial court further recalled asking counsel for both parties whether they had witnesses present to be sworn. Although Roxanne was present in the courtroom, she did not take the oath and was not under "the Rule" when she heard Roseanna's testimony. Based on this stated recollection, the trial court sustained the State's objection and excluded Roxanne's testimony.

Appellant's counsel then made a bill of exceptions consisting of Roxanne's testimony, which was consistent with her testimony at the earlier hearing.

Following a recess, appellant's counsel again asked the trial court to hear argument regarding the State's objection that the Rule had been violated. The following exchange then occurred between appellant's counsel and the trial court:

[Appellant's counsel]: [W]hile I was researching this matter I tried to review the--the events as they occurred and what I remember, Your Honor, was this: That I had requested, I believe, that Mr. Morin's wife could sit with him and then she was asked to be behind the railing, Your Honor, I think, and the next thing that I remember, Your Honor, was that the witnesses were brought in, the State's witnesses and I particularly remember, Your Honor, that one of the witnesses was crying and that seemed--I focused my attention on that because if I remember right, that she came to testify and I got up and put the box of Kleenexes--

THE COURT: Well, what's that got to do with the fact of what you're arguing now?

[Appellant's counsel]: I didn't realize, Judge, in my--that if she had stayed in here there would be--

THE COURT: [Y]ou've just admitted to me that you knew she stayed in here.

[Appellant's counsel]: Judge, but--

THE COURT: You knew she was in here.

[Appellant's counsel]: --but my attention was taken away.

(Emphasis added.)

The trial court again sustained the State's objection.

On appeal, appellant contends that the trial court abused its discretion in disqualifying Roxanne from testifying.

DISCUSSION

Standard of Review

Rule of Evidence 614 governs the exclusion of witnesses: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of the other witnesses, and it may make the order on its own motion." Tex. R. Evid. 614 (formerly Tex. R. Crim. Evid. 613). Once invoked, witnesses should not be allowed to hear any testimony in the case or talk to any other person about the case without the court's permission. Tex. Code. Crim. Proc. Ann. arts. 36.05, 36.06 (Vernon 1981). The parties do not dispute that Roxanne's presence in the courtroom during Roseanna's testimony violated the Rule.

The disqualification of a defense witness must be considered in the context of the accused's constitutional right to call witnesses on his behalf. Davis v. State, 872 S.W.2d 743, 745 (Tex. Crim. App. 1994); Webb v. State, 766 S.W.2d 236, 240 (Tex. Crim. App. 1989); Lopez v. State, 960 S.W.2d 948, 953 (Tex. App. Houston [1st Dist.] 1998, pet. ref'd). An accused has the right to call and have his witness testify and, generally, a defense witness should not be excluded solely for violation of the Rule. Lopez, 908 S.W.2d at 953.

The admissibility of the testimony of witnesses who have not been placed under the Rule is left to the discretion of the trial court. Id. We will assume such discretion was properly exercised unless abuse is evident. Id. A trial court abuses its discretion if its ruling is outside the zone of reasonable disagreement. Id; see Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

In reviewing the exclusion of a witness for violating the Rule, an appellate court must determine: (1) if there were particular circumstances, other then the mere violation of the Rule, tending to show that the defendant or his counsel consented to, procured or otherwise had knowledge of the witness's presence in the courtroom, together with knowledge of the content of that witness's testimony; and (2) if no particular circumstances were found to justify disqualification, whether the excluded testimony was crucial to the defense. Webb, 766 S.W.2d at 245; Davis v. State, 872 S.W.2d 743, 746. Appellant has the burden of establishing both prongs. Webb, 766 S.W.2d at 246; Lopez, 960 S.W.2d at 953.

Analysis Under the Webb Test

With regard to the first prong, the record reflects that defense counsel knew Roxanne remained in the courtroom after the State invoked the Rule. At the hearing on the admissibility of Roxanne's testimony, defense counsel argued that Roxanne remained in the courtroom because he thought that she, as appellant's wife, was entitled to remain during the testimony of other witnesses. As the trial court pointed out, defense counsel's statements amounted to an admission that he knew Roxanne had remained in the courtroom after the Rule was invoked.

The record also shows that, as to count one, the defense called Roxanne as the first of three alibi witnesses in appellant's case-in-chief, not as a rebuttal witness. From her testimony elicited during the hearing on the State's objection, it is apparent that the primary purpose of Roxanne's testimony was to support appellant's alibi defense that Roseanna was with her at the time of the alleged sexual assault, and could not have been with appellant.

Thus, the record shows, and our determination is, that defense counsel (1) knew of Roxanne's presence in the courtroom when the Rule was invoked, and (2) knew the content of Roxanne's proposed testimony.

Appellant therefore failed to meet his burden with regard to the first prong of the Webb test. Accordingly, we need not determine whether, under Webb's second prong, the testimony was crucial (2) to appellant's defense.

Alternative Sanctions

On appeal, appellant contends the trial court should have considered alternative sanctions. In determining whether to disqualify a witness for violating the Rule, the trial court must balance the interests of the State and the accused, consider alternative sanctions, and consider disqualification in light of the nature and weight of the testimony to be offered. Davis, 872 S.W.2d at 745.

Before sustaining the State's objection the trial court stated:

[I]t seems to me it is even more egregious because she was a person who was a spectator, an interested party who sits in the courtroom and listens to the testimony of a witness; she actually heard the testimony of the witness, Roseanna Morin and based upon what she testified to, she, being the wife of the defendant, her testimony would contradict the testimony of the witness, Roseanna Morin.

Thus, it is apparent that the trial court considered the nature and weight of the testimony to be offered, based its decision to exclude upon the egregiousness of the violation, and concluded that the appropriate sanction was to disqualify Roxanne from testifying.

Purposes of the Rule

The exclusionary rule serves two purposes: (1) it prevents witnesses from consciously or unconsciously tailoring their testimony to fit that of other witnesses, and (2) in the case of witnesses testifying for the same side, it enhances the jury's ability to detect falsehood by exposing inconsistencies in their testimony. Lopez, 960 S.W.2d at 953. At trial, the State argued that Roxanne was able to tailor her testimony to a specific time frame after hearing Roseanna's testimony. Appellant contends that this argument has no merit because the date of the offense was stated in the indictment. Appellant states that if Roxanne "tailored" her testimony to fit a specific time frame, she could have done so after reading the indictment. However, Roxanne's testimony contradicted details of Roseanna's testimony that went beyond the mere time frame involved. Thus, the purpose of the Rule was implicated here.

We hold the trial court did not abuse its discretion in disqualifying Roxanne from testifying.

We overrule appellant's sole point of error.

CONCLUSION

We affirm the trial court's judgment.

Lee Duggan, Jr. (3)

Justice

Panel consists of Justices Hedges, Keyes, and Duggan.

Do not publish. Tex. R. App. P. 47.

1. "The Rule" refers to Rule of Evidence 614, which provides for the exclusion of witnesses from the courtroom while another witness is testifying. See Tex. R. Evid. 614; see also Tex. Code. Crim. Proc. Ann. art. 36.06 (Vernon 1981).

2. Excluded testimony is not considered crucial if it can be supplied by witnesses other than the excluded witness. Cooper v. State, 578 S.W.2d 401, 403 (Tex. Crim. App. 1979); Flores v. State, 915 S.W.2d 651, 653 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd).

The trial court heard testimony on both prongs of the Webb Test before ruling on the State's motion to exclude Roxanne's testimony. As stated earlier, the trial court deferred its ruling excluding Roxanne's testimonyuntil after appellant presented alibi testimony of Roxanne's grandmother, Cecilia Canales, and Cecilia's son, Elroy Canales. Roxanne's testimony would therefore have been cumulative to that of Cecilia Canales and Elroy Canales.

In any event, the exclusion of Roxanne's alibi testimony as to count one, the alleged aggravated sexual assault on Roseanna at Christmas 1996, had no relevance to count two, the alleged earlier sexual assault of Rebecca in the fall of 1996.

3. The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.