Gregg Potter v. State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-00-348-CR

GREGG POTTER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # F33286

CONCURRING OPINION

The Rule was not violated. As noted by the majority the event occurred before testimony began. Further, based on Hoover s testimony at the hearing, the discussion only involved procedural events that occurred in the courtroom.

The Rule provides: 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 Rule ... is for the purpose of preventing witnesses from hearing and being informed as to the testimony of other witnesses. The rule has no application to the exclusion of witnesses during voir dire of jurors and before any testimony on the trial has begun. Creel v. State, 493 S.W.2d 814, 820 (Tex. Crim. App. 1973).

A violation of the Rule occurs when a nonexempt prospective witness remains in the courtroom during the testimony of another witness, or when a nonexempt prospective witness learns about another's trial testimony through discussions with persons other than the attorneys in the case or by reading reports or comments about the testimony.

Drilex Systems, Inc. v. Flores, 1 S.W.3d 112, 117 (Tex. 1999). Accordingly, because the discussion involved pretrial events and did not involve testimony, The Rule was not violated.

Further, the majority fails to differentiate the purported error from the harm analysis. A harm analysis is only necessary if there is error. The majority conducts a review of the record for harm to determine if the trial court erred by abusing its discretion in allowing the witnesses to testify. As a result of this flawed analysis, the majority has determined that the issue should be overruled.

I concur in the result reached by the majority, but not their reasoning.

TOM GRAY

Justice

Concurring opinion delivered and filed March, 27, 2002

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