Manuel Quinones v. The State of Texas--Appeal from 79th Judicial District Court of Jim Wells County

No. 04-99-00595-CR
Manuel QUINONES,
Appellant
v.
The STATE of Texas,
Appellee
From the 79th District Court, Jim Wells County, Texas
Trial Court No. 98-12-10057
Honorable Woody Densen, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 17, 2001

AFFIRMED

In seven issue, Appellant Manuel Quinones challenges his conviction of murder. Quinones raises legal and factual sufficiency of the evidence, asserts his waiver of arraignment was invalid because a visiting judge was improperly assigned, and claims the trial court erred in amending the indictment, in allowing the selected jury to separate for ninety-three days before being sworn, and in excluding the identity of a government informant. Quinones also argues the State withheld evidence of an agreement which freed a witness from prison in exchange for testimony. We affirm.

FACTUAL SUMMARY

Because Quinones raises legal and factual sufficiency, we review the evidence. Benito Rosales testified he was with the victim, Jose Maria Lopez, the night of the murder. Rosales testified he drank about thirteen beers over about five hours at various bars in Alice, Texas. Between 11:30 p.m. and midnight, Rosales and Lopez were walking from Porky's Bar through an alley when Rosales was hit from behind, fell down, and was knocked out. Rosales testified he awoke with a cut on his left arm, and he walked home, arriving around 1:00 or 2:00 a.m. At home, Rosales washed himself with a hose and put his clothes, which were covered with blood, in the trash. Rosales stated his mother, whom he lives with, and his sister, Cristina Rosales Soliz, cleaned his wound and washed his clothes. Rosales testified he did not see Quinones that night, and on cross examination, Rosales testified he had never seen Quinones before. Rosales also stated that due to a light blow to the head, he normally passed out "very fast" because he is "soft."

Cristina Rosales Soliz, an attorney, testified to her brother's memory loss and history of blacking out due to being hit on the head. Soliz was called by her mother in the early morning of March 16, 1998. Soliz explained she went over to help treat Rosales's cut and placed his clothes in the washing machine. Soliz stated she left her mother's house to drive around the scene, but she saw no one and nothing out of the ordinary. She gave the clothes to Detective Santiago Soliz when he arrived at the house. Cristina Soliz gave Detective Soliz a written statement a few days later, and she identified Rosales's statement which she had written out for him to sign.

On cross examination, Cristina Soliz testified she shared an office building with the District Attorney. She also revealed during cross examination her brother's tendency to pass out due to minor head contact and blackouts usually involved drinking.

The State called Lucio Arredondo and Reynaldo Hernandez, who testified they were driving in Alice around midnight on the night of the murder. Hernandez saw the victim fall down near a funeral home on Main Street. Thinking he might be drunk and need assistance, Arredondo and Hernandez stopped, saw the victim bleeding, and sought out assistance from the nearby EMS/ambulance station.

Andrew Bryce was a paramedic who treated the victim near the funeral home at 12:01 a.m. on March 16, 1998. Bryce stated the victim had facial lacerations and seven very deep stab wounds in the back. Bryce testified they took the victim at 12:35 a.m. to Alice Regional Hospital in an ambulance, and the victim was breathing and had a pulse upon arrival.

Lance Lowry, an Alice police officer, was the lead investigator at the scene. Lowry arrived just after 12:07 a.m. and described the crime scene, including the two large pools of blood, a beer can, and a black cap in the alley and the trail of blood from the alley to the funeral home. Lowry also identified another trail of blood heading north, which Lowry said was traced to Benito Rosales by DNA analysis.

Patrolman Leo Martinez also arrived around 12:07 a.m. He observed the paramedics treating Lopez and followed them to the hospital where he photographed the victim. He described the facial injuries and stab wounds of the victim.

Rex Ramon, an investigator with the Alice Police Department, photographed the scene of the stabbing, including the pools of blood and the black cap, and the area near the funeral home where Lopez was discovered. Ramon revealed on cross-examination he had gone to the Rosales's home with Santiago Soliz in the early morning of March 16, 1998. Ramon explained they learned from Porky's bartender Albert Acuna that Rosales had been with the victim and Santos Chapa before the killing. Ramon asked Sheriff's Sergeant Chuy Salinas to assist them when going to question Chapa, who resided outside the city. Ramon had no statement from Chapa, and believed Chapa was intoxicated when questioned. Finally, Ramon described the bloody clothes which Soliz removed from Rosales's washing machine.

Dr. Lloyd White, the Nueces County Medical Examiner, qualified as an expert in forensic pathology. White conducted an autopsy on Lopez. White testified the cause of death was bleeding due to the stab wounds. In his opinion, the injuries were caused by a single edged blade, probably a knife, at least three inches long. White described numerous wounds to the head and back of Lopez. On cross examination, White stated he did not discover any blood or skin under the victim's fingernails, but he considered that normal because a patient is cleaned up during medical treatment.

Lisa Harmon, a Criminalist-Forensics Serologist DNA Analyst, described the DNA analysis in this case. Her testimony showed Rosales's clothes had blood consistent with Rosales's blood, and the testing on the clothes was inconclusive on other blood which could possibly have been of the deceased. Harmon also tested the blood on the victim's clothes, and it was consistent with the victim's blood and did not match Rosales's blood. Harmon did not examine a hair found on the black cap because only the victim's hair was submitted to the lab, but testing protocol requires a suspect's sample as well.

Bartender Albert Acuna testified he saw Rosales and Lopez at Porky's Bar the night of the killing. Acuna also saw Quinones with another man around 10:00 p.m.. Acuna closed Porky's around 11:00 or 11:30 p.m., and Rosales, Lopez, and Chapa were the last people there.

Santiago Soliz, an investigator in the Alice Police Department, testified he was called in on the Lopez case just after midnight in the morning of March 16, 1998. He testified the black cap found at the scene belonged to the victim. Soliz recounted the evidence found at the scene and his investigation at the Rosales home, where he found blood on the sidewalk and, inside, Benito Rosales, Cristina Rosales Soliz, and their mother. Soliz recovered a shirt, pants, and tennis shoes from the washing machine. Soliz indicated Rosales was a possible suspect because he was with the victim just before the killing, and Soliz revealed Quinones became a suspect during a conversation with Michelle Seballos of Beeville. Soliz's investigation led him to Grand Rapids, Michigan where he interviewed several witnesses whose testimony followed. Soliz was cross examined about various detail of his investigation. In particular, Soliz stated there was no physical evidence, e.g., blood, fingerprints, or murder weapon, linking Quinones to the murder. Finally, Soliz admitted new suspects were being investigated, "Papo" Hinojosa and Rafael Saenz.

Kenneth Bledsoe, of Grand Rapids, Michigan, identified the defendant as Manuel "Porky" Quinones, a man who had stayed with "Melinda," Bledsoe's neighbor. Bledsoe testified he overheard a conversation in the spring of 1998 between his brother, Alan, and Quinones where Quinones said he had to leave Texas because he messed somebody up real bad and was wanted. Bledsoe testified Quinones's exact words were, "I fucked somebody up really bad. . . I had to leave Texas." Bledsoe admitted he did not hear Quinones say he had killed or stabbed someone in Alice. Bledsoe also testified he was interviewed only by Grand Rapids police officer Jack Vanderwal, not Santiago Soliz or Sean Wymore.

Alan Bledsoe, of Grand Rapids, Michigan, identified Manuel "Porky" Quinones as a man who has stayed with "Melinda." Bledsoe's testimony was that Quinones said he left Texas to start his life over because while drinking, "he got into it with some guys and. . . he had to fuck one of them up," and "he got into a big fight with some guy, and he had to fuck one of them up really bad." Bledsoe admitted he had been convicted of three felonies: possession of, and with intent to deliver, imitation substance; assault to do great bodily harm less than murder; and retail fraud. Bledsoe admitted Quinones never said he stabbed or killed anyone. On cross-examination of both Bledsoe brothers, defense counsel inquired about their plane tickets and accommodation in Texas which were paid for by the State.

Abel Morin lived in Grand Rapids with his mother Melinda Gonzalez, and he was seventeen years old at the time of trial. Morin testified Quinones had stayed with Melinda for about six weeks before moving in with his fiancée Brenda Esparza. Quinones told Morin about being in a fight and stabbing a guy in Alice. Morin told the jury he and Quinones got tattoos together about a year before trial. (1) Morin said Quinones got a teardrop tattoo under his eyelid, which Quinones explained was because he had killed somebody. On cross, Morin admitted Wymore had interviewed him at the Ken County Correctional Facility, and Morin had been convicted of receiving and concealing a motor vehicle and sexual contact with a minor. Morin also gave details about Quinones's description of the fight; particularly, its location outside a bar in Alice. Morin testified Danny Trevi o made the teardrop tattoo on Quinones. Quinones also told Morin "Papo" Hinojosa and Ralph Saenz were present at the killing.

Michelle Seballos, of Beeville, testified she is the mother of Quinones's four year old child. She testified Quinones visited her in October 1998 to be with his son. Prior to this visit, Seballos stated she had not seen him in a year and a half, but Quinones stayed with her for two months. Seballos said Quinones told her "I do not want to kill any more," while crying.

The State re-called Lisa Harmon who testified about further DNA testing. Her analysis showed none of the suspect's (Rosales) blood on the victim's clothes and none of the victim's blood on the suspect's (Rosales) clothes. She did not test a stain on Rosales's shoes.

Melinda Gonzalez of Grand Rapids testified she visited Alice in March 1998 and left with her son, Abel Morin. They went to Michigan with Brenda Esparza, her four children, and "Porky" Quinones. According to Gonzalez, they left in mid-March, 1998. Her testimony was Quinones told her in Michigan "he was in a lot of trouble. . . he did a fuck up in Alice", "he had stabbed somebody here in Alice", and "I stabbed him seven times." She testified Quinones told her he made a drug connection at Porky's Lounge while selling heroin, the man did not have the right amount of money, and the junkie got what he deserved. Gonzalez was cross examined about her conversations with investigating officers and about leaving Thunder Road Dance Hall with Quinones and Esparza at 2:00 a.m. on March 16, 1998. Her testimony was she met Quinones at Thunder Road that night, she did not know Zamarripa, and she had a fiancée in prison. She testified Quinones had mentioned "Papo" Hinojosa, Ralph Saenz, and Mike Garza were with him the night of the killing.

David Gonzalez, of Grand Rapids, testified Quinones went to Michigan around April, and they worked together and sometimes partied together at David's sister's (Melinda) house. David told the jury Quinones admitted to stabbing a guy near Porky's Bar. The State rested.

The defense called Sergeant Jesus "Chuy" Salinas of Jim Wells County. Salinas discussed assisting Soliz on March 16, 1998 with the questioning of Santos Chapa. Salinas also stated he questioned Quinones later, and Quinones had said he was at Porky's Bar "early," but knew nothing about the killing. Salinas testified he has known Quinones since he was thirteen or fourteen years old and Quinones had had the teardrop tattoo for "maybe two or two and one-half years." Salinas stated he had seen the outline of a teardrop, but did not recall whether it had always been filled in.

Grand Rapids Police Officer Jack Vanderwal was in contact with Santiago Soliz and Wymore, helping investigate by contacting Melinda Gonzalez, the Bledsoes, Esparza, Morin, and tattoo artist Danny De La Cruz.

Sean Wymore, an investigator with the District Attorney's office, became involved in this investigation after a warrant was issued for Quinones's arrest. Wymore was questioned about the statements and affidavits he took from various witnesses. Wymore denied he suggested witnesses change their testimony, and he said it took him five minutes to get the correct story from Morin, after Vanderwal had been unable to get a useful statement. Wymore testified Morin had been scared and did not trust Vanderwal, but knew and trusted Wymore and Soliz. The defense then showed a videotape of Wymore questioning Alan Bledsoe.

Adelydia Smithwick, the mother of Rafael Saenz, testified she had known Quinones for four years. She testified she picked up Quinones and Saenz at 8:15 or 8:30 p.m. on March 15, 1998 at Thunder Road, which was closed. They ate dinner, Saenz left with a friend, and Quinones asked Ruben Vela for a ride to Thunder Road at about 10:00 p.m. Smithwick testified Quinones returned after 2:00 a.m. with Mellie Gonzalez and Esparza. They were looking for Saenz.

Lydia Cisneros testified she was with Smithwick on March 15, 1998, and they picked up Quinones and Saenz at Thunder Road before 8:00 p.m.

Ruben Vela testified he dropped off Quinones at Thunder Road sometime between 10:50 and 10:55 p.m. based on the clock in his car, which he stated was set to daylight savings time. (2) Vela also testified Thunder Road was a five to ten minute walk from Porky's Bar.

Linda Lopez testified she arrived at Porky's Bar while it was still daylight, around 8:00 or 8:30 p.m. She saw Quinones and Saenz enter Porky's Bar between 8:30 and 9:00 p.m. Lopez stated she left around 9:15 or 9:30 p.m. and Quinones had left.

Steven Roberson testified he was called in by the police to search with his canine to backtrack where Lopez had come from before falling in front of the funeral home. Roberson stated the dog trailed the victim's scent past the large pool of blood and baseball cap in the alley to the door of Porky's Club. Roberson testified his dog is not a bloodhound, but is a certified human track dog that follows scent, and he believed it was beyond a reasonable doubt the victim had come from Porky's.

Diana Villanueva testified she saw Quinones at Thunder Road after midnight on the morning of March 16, 1998, but did not see him at Porky's between 8:00 and 9:00 p.m. She estimated it would take three to five minutes to walk from Thunder Road to the parking lot next to the alley where the victim was stabbed.

Brenda Esparza testified she had known Quinones for seven months, and they were engaged to be married. According to Esparza, she was at Thunder Road with Quinones in the early morning of March 16, 1998. She testified she had been drinking a lot, and they left between 1:00 and 2:00 a.m., before the bar closed. She spent the night, for the first time, with Quinones, and Melinda and Tony stayed in the living room. Two weeks later, she left to Michigan with Quinones, Melinda, and their children. She also stated Quinones had his facial tattoos when she met him, and he did not get any more tattoos in Michigan.

Antonio Zamarripa testified he was in prison for aggravated robbery. He stated he was picked up by Melinda Gonzalez, who was with Esparza and Quinones, between 12:30 and 1:30 a.m. on March 16, 1998. According to Zamarripa, all four stayed at Quinones's house that night. On cross, he explained a teardrop tattoo could mean various things, including killing someone. Zamarripa said he had seen Quinones's teardrop tattoo in June "of last year," and he believed Quinones had the tattoo before leaving to Michigan. He did not recall whether the teardrop was an outline or filled in when he had seen it.

Enrique Lopez testified he saw Ralph Saenz at Porky's Bar around 10:00 or 10:30 p.m, but did not see Quinones there on March 15, 1998. Lopez left Porky's around 10:30 p.m. Lopez had a teardrop tattoo under his left eye, and said it signified time lost due to being a fool ("tiempo perdido").

Santos Chapa testified he did not know Quinones, and he had known Benito Rosales for a long time. He did not remember seeing either of them at Porky's on March 15, 1998. Chapa admitted he had been convicted of murder in 1976. On cross, Chapa stated he drank "ten or twelve" that night, and he did not know where Rosales and the victim went after leaving Porky's.

Victor Trevi o testified he had a teardrop tattoo which was not colored in, and he got it for no particular reason when young and foolish. He testified Quinones had his teardrop tattoo for four or five years, and Quinones's tattoo was colored in.

Raymond Chavarria testified he had known Quinones for two or three years and did not remember whether Quinones had a tattoo.

Rafael Saenz recounted the night before he learned Lopez was killed. Saenz was with Quinones at Porky's from 8:30 to 8:45 p.m. drinking a beer and waiting for Thunder Road to open. They went to Thunder Road which was still closed, so they got a ride home from his mother. They ate, and Saenz left to Robstown with "Papo" Hinojosa.

Quinones recounted the night of the Lopez killing. He and Saenz went to Porky's Bar between 8:00 and 8:15 p.m., stayed for fifteen minutes, and left for Thunder Road, which was closed. Saenz's mother picked them up and took them to her house where they ate. Saenz left with "Papo" Hinojosa, and Quinones got a ride to Thunder Road with Vela. Quinones stated he arrived at 10:00 or 10:15 p.m. and remained there until closing time, 2:00 a.m. He was there with Melinda and Brenda, but walked home because they left earlier. Quinones waited to try to get a ride, but failed. He estimated the walk home at twenty to twenty-five minutes. He thought Melinda and Brenda arrived around 3:00 a.m., and they all left to pick up Zamarripa. Quinones denied ever knowing the victim and denied killing him. On cross, Quinones admitted he did not carry a watch and displayed some confusion about the timing of events. Quinones went to Michigan to turn his life around and leave the lifestyle he lived in Alice. Quinones also denied making the incriminating statements to the State's witnesses. He also testified he got his teardrop tattoo five or six years before trial at age nineteen because he lost a girlfriend and did not want to cry for her.

DISCUSSION

Legal and Factual Sufficiency

In his first and second supplemental issues, Quinones raises legal and factual sufficiency. The standard for reviewing the legal sufficiency of evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The standard of review is the same in both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.1995). The State may prove its case by circumstantial evidence if it proves all of the elements of the charged offense beyond a reasonable doubt. See Easley v. State, 986 S.W.2d 264, 271 (Tex. App.-San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319). The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. See Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App.1987). It is important to remember that all the evidence the jury was permitted, properly or improperly, to consider must be taken into account in determining the sufficiency of the evidence. See Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App.1994).

The jury is the exclusive judge of the facts proved, the weight to be given the testimony, and the credibility of the witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App.1995). The jury is free to accept or reject any or all of the evidence presented by either party. See Cain v. State, 976 S.W.2d 228, 233 (Tex. App.-San Antonio 1998, no pet.). The jury maintains the power to draw reasonable inferences from basic facts to ultimate facts. See Welch v. State, 993 S.W.2d 690, 693 (Tex. App.-San Antonio 1999, no pet.). The reconciliation of evidentiary conflicts is solely within the province of the jury. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App.1995).

Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence; rather, it is to position itself as a final due process safeguard insuring only the rationality of the fact finder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.1988). It is not the reviewing court's duty to disregard, realign, or weigh the evidence. See id. The jury's verdict must stand unless it is found to be irrational or unsupported by more than a "mere modicum" of evidence, as viewed under the Jackson light. See id.

Once a court has determined the evidence is legally sufficient, it may review factual sufficiency. The reviewing court should view all the evidence without the prism of "in the light most favorable to the prosecution," and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The court reviews the evidence tending to prove the existence of the elemental fact in dispute and compares it with the contrary evidence. Id. This review, however, must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and should not substantially intrude upon the fact finder's province to determine the weight and credibility given to witness testimony. Id.

In his sufficiency points, Quinones argues the State's case is built on unreliable and uncorroborated hearsay and raises the issue of corroboration of extrajudicial confessions, citing Gribble v. State, 808 S.W.2d 65 (Tex. Crim. App. 1990) (Plurality op.) and Emery v. State, 881 S.W.2d 702 (Tex. Crim. App. 1994). Of course, admissions by a party offered against the party are not hearsay. Tex. R. Evid. 801(e)(2)(A). Furthermore, we must review all the evidence, regardless of whether it was properly admitted.

The extrajudicial confession of a criminal defendant must be corroborated by other evidence tending to show that a crime was committed. Gribble, 808 S.W.2d at 70. The independent evidence need not connect the defendant to the crime; it need only show that a crime was committed. Emery, 881 S.W.2d at 705. In addition, such evidence need not be sufficient by itself to prove the offense; it need only be some evidence which renders the corpus delicti more probable than it would be without the evidence. Id.

In Emery, the defendant confessed to three people he had stabbed a woman while trying to burglarize her apartment. Id. The State offered independent evidence of the corpus delicti of the murder by proving the identity of the body and proving the death was caused by stabbing. Id. The evidence against Quinones reviewed above is similar and is sufficient to show the corpus delicti of murder occurred. The extrajudicial confessions are adequately corroborated.

The evidence in this case shows several witnesses testified Quinones confessed to stabbing and killing someone in Texas, or at least "messing up" or "fucking up" someone so severely he fled to Michigan. Quinones denied these confessions. The evidence also has some conflicts and inconsistencies regarding the time line of March 15-16, 1998. These conflicts were resolved by the jury. Quinones testified he was at Thunder Road from 10:00 p.m. until 2:00 a.m., and his departure time was corroborated by other witnesses. His time of arrival and assertion of continuous presence was not corroborated. Considering Quinones's obvious bias and the confession testimony of multiple witnesses, the jury disbelieved Quinones and had sufficient reason to do so. We hold the evidence is legally and factually sufficient to support the verdict. We overrule Quinones's first and second supplemental issues.

Jurisdiction of Visiting Judge

In his second issue, Quinones asserts his waiver of arraignment was invalid. The waiver was signed by Judge Woody Densen and entered into the minutes of the court on January 7, 1999. Judge Densen was assigned as a visiting judge in the Seventy-Ninth District Court for January 7-8, 1999. The order assigning Judge Densen was signed by Presiding Judge Darrell Hester on January 15, 1999. (3) Quinones argues the waiver of arraignment was invalid because the order assigning Judge Densen was untimely. Quinones argues this irregularity deprived Judge Densen of subject matter jurisdiction and thus the power to accept the waiver.

Assignment of visiting judges is governed by The Texas Court Administration Act, Chapter 74 of the Texas Government Code. As necessary, a presiding judge of an administrative region may assign visiting judges to try cases and dispose of other business. See Tex. Gov't Code 74.056 (Vernon 1998). A procedural irregularity in the assignment of an otherwise qualified former judge may not be objected to for the first time on appeal. Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998). An objection of this nature must be made in the trial court to preserve error, if any, and allow appropriate corrective action to be taken, if necessary. See id. at 380-81. Quinones does not challenge Judge Densen's legal qualification to hear the case, which could be raised for the first time on appeal. See id. at 380 n.3. We overrule Quinones's second appellate issue.

Amendment of Indictment

In his fifth appellate issue, Quinones claims the trial court erred in allowing amendment of his indictment to a substantially more severe crime. The indictment reads in relevant part:

MANUEL QUINONES. . . did then and there intentionally and knowingly cause the death of an individual, namely, JOSE MARIA LOPEZ, by stabbing him, with a knife [handwritten signature omitted] against the peace and dignity of the state (handwritten portion italicized).

The handwritten portion was added upon motion of the State file-stamped April 8, 1999 citing Article 28.10 of the Texas Code of Criminal Procedure.

Quinones asserts the amendment caused the indictment to allege a new, substantially more severe offense, in violation of the United States and Texas Constitutions and Article 26.01 of the Texas Code of Criminal Procedure. The State responds by asserting the indictment did not prejudice the substantial rights of the defendant because the offense charged was unchanged and the additional allegation was not used to support a deadly weapon finding. The State also argues the error, if any, was waived because Quinones failed to object to the amendment at or before trial.

Quinones has failed to preserve the alleged error. Furthermore, Article 28.10 of the Code of Criminal Procedure permits amendment of indictments as to matters of substance, and those changes do not violate a criminal defendant's right to be indicted by a grand jury. See Cuesta v. State, 763 S.W.2d 547, 550 (Tex. App.-Amarillo 1988, no pet.). The amendment does not change the offense charged and does not prejudice the defendant in any way. The amended indictment actually increased the State's burden of proof on the issue of how the crime was committed. We overrule Quinones's fifth appellate issue.

Jury Separation

In his first appellate issue, Quinones asserts the trial court committed reversible error by allowing the selected jury to separate for ninety-three days before being sworn. Jury selection was conducted on April 9, 1999. Because the State was not prepared for trial due to the discovery of possible new witnesses in Michigan, the trial judge stated he would not swear in the jury to avoid implicating double jeopardy. The jury was sworn on July 12, 1999 prior to the start of trial.

This issue complains of the timeliness of the oath required by Article 35.22 of the Texas Code of Criminal Procedure. (4) While the complete failure to administer the oath may be raised for the first time on appeal, an objection to the timeliness of the oath must be made in the trial court. See White v. State, 629 S.W.2d 701, 704 (Tex. Crim. App. 1981). Quinones also complains about the separation of the jury. (5) In the absence of a timely objection in the trial court to the separation of the jury, there is nothing for this court to review. See Gregg v. State, 881 S.W.2d 946, 950 (Tex. App-Corpus Christi 1994, pet. ref'd); see also State v. Hood, 828 S.W.2d 87, 93 (Tex. App-Austin 1992, no pet.) (recognizing improper separation of jury during deliberation must be raised during trial or in a motion for new trial).

Furthermore, instead of objecting, trial counsel for Quinones agreed to the procedure which caused the jury to be separated. At the start of voir dire, the court recounted a discussion which had taken place the previous day:

THE COURT: [Y]esterday [District Attorney] Garza spoke to me. He was requesting a continuance because they found some additional information he anticipates might be offered for the trial of this case. Counsel for the Accused, Mr Canales, said he wanted to go ahead and pick a jury.

The Court offered and suggested that we proceed with jury selection today and that after the jury was selected, that it would not be sworn in so as to attach jeopardy[].

Mr. Canales agreed to that, and we have that understanding dictated on the record. If there is some deviation from the record. . . please state them now.

After the Court went through other elements of the agreement, Quinones's attorney stated "The agreement as of yesterday, it is, Your Honor." The alleged error was in no way preserved; instead, Quinones's trial attorney agreed to the procedure as an attempt to get Quinones to trial as quickly as possible. We overrule Quinones's first issue as waived in the trial court.

Exclusion of Informant's Identity

Quinones third appellate issue asserts the trial court erred in excluding evidence regarding informants used by the State during investigation. The following exchange took place during cross examination of Investigator Santiago Soliz:

Q. [by defense counsel, Canales] And as a result of informants, did you have occasion to go out in digging up for a weapon?

A. I did not go. Somebody else went.

Q. Is that a "yes" that you didn't go?

A. Yes, sir. That's correct.

Q. Who went?

A. Sergeant Wymore and - I'm sorry. Investigator Wymore, an investigator with the DA's office.

Q. And this informant told you that in so many words, I assume, because you were digging up yard for a weapon; is this correct?

A. I did not go.

Q. I know you didn't go. The investigation procession went up there and you were digging up this yard, right?

A. That's correct.

Q. Did you find anything?

A. No, sir.

Q. Who was your informant?

MR. GARZA [District Attorney]: Objection, Your Honor.

MR. CANALES: That's fine. That's fine. (emphasis added)

THE COURT: Sustained.

The digging was in search of a knife, but nothing was found. Quinones's trial counsel accepted the State's objection to revealing the identity of these informants. Furthermore, the identity of government informants is privileged. Tex. R. Evid. 508(a). Quinones did not raise an exception to the privilege in the trial court or on appeal. See Tex. R. Evid. 508 (c) (exceptions to informant privilege). We overrule Quinones's third issue as waived.

Release from Prison of Witness After Testimony

Quinones's fourth point of error concerns an alleged deal struck between the State and Abel Morin Jr., a witness against Quinones. Prior to trial, Morin was apparently in jail as a condition of a Michigan probation sentence. The record includes an order from a Circuit Court of Kent County, Michigan. The order, dated July 7, 1999, reads as follows:

To facilitate his travel to and from the State of Texas for purposes of giving testimony there in a homicide prosecution:

IT IS HEREBY ORDERED AND ADJUDGED that the probation orders in these cases be, and the same hereby are, MODIFIED effective immediately, as permitted by Michigan law, to delete therefrom the jail terms imposed as a condition of those probation sentences.

IT IS FURTHER ORDERED AND ADJUDGED that defendant be, and the same hereby is, GRANTED authority to remain in Texas without an escort for however long it takes to give the testimony for which he has been subpoenaed and thereafter to travel without escort back to the State of Michigan for purposes of continuing his probation here. Defendant is to report to his probation officer here within two weeks after being released from his subpoena in Texas.

In his motion for new trial, Quinones argued the Michigan order was not given to defense counsel and constituted evidence of a deal or consideration given to Morin in exchange for his testimony. Sean Wymore, as investigator with the District Attorney's office, testified at Quinones's motion for new trial hearing. At the hearing, Wymore testified he offered no consideration in exchange for Morin's testimony; he had no knowledge of why Morin's sentence was modified by the Michigan authorities; and he learned of the order on the day before trial. Wymore stated "The only thing that we requested from them was that he be allowed to be transported down here by a transportation company while still in custody and allowed to testify." The Michigan order was not turned over to Quinones's attorney because it was not considered exculpatory.

Due process requires any agreement or deal for testimony between the State and a witness be revealed to a defendant, even if evidenced only by suggestions and innuendos. See Burkhalter v. State, 493 S.W.2d 214, 217 (Tex. Crim. App. 1973); Cf. Cook v. State 940 S.W.2d 623, 629 (Tex. Crim. App. 1996) (recognizing due process obliges State to disclose exculpatory evidence). Exposing a witness's motivation to testify for or against the accused or the State is a proper and important purpose of cross-examination. Carpenter v. State 979 S.W.2d 633, 634 (Tex. Crim. App. 1998). This record, however, does not contain evidence of a deal between the State and Morin regarding his testimony. The order from the Michigan Court sets forth the reason for the modification, namely, to facilitate travel. There is no contrary evidence in the record. We overrule Quinones's fourth issue.

The judgment of the trial court is affirmed.

Tom Rickhoff, Justice

Do Not Publish

1. Trial was held July 12-15, 1999.

2. The spring forward clock advancement commonly referred to as "Daylight Saving Time" has begun the first Sunday in April since 1986. See 15 U.S.C. 260a(a).

3. We note the assignment order attached to Quinones's brief is not part of the Clerk's Record. The record does not contain an order granting Judge Densen authority to sit as a visiting judge.

4. The code provides:

When the jury has been selected, the following oath shall be administered them by the court or under its direction: "You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God".

Tex. Code Crim. Proc. Ann. art. 35.22 (Vernon 1989).

5. The code provides in relevant part:

The Court may adjourn veniremen to any day of the term. When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury. The court on its own motion may and on the motion of either party shall, after having given its charge to the jury, order that the jury not be allowed to separate, after which the jury shall be kept together, and not permitted to separate. . .

Tex. Code Crim. Proc. Ann. art. 35.23 (Vernon Supp. 2000).