Opinion
No. 05-11-00099-CR No. 05-11-00100-CR
07-24-2012
DANIEL JUAREZ, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued July 24, 2012
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court Cause Nos. 26255; 26254
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Bridges
Daniel Salgado Juarez appeals his possession of marijuana conviction in cause number 05-11-00099-CR and his possession of cocaine with intent to deliver conviction in cause number 11-00100-CR. A jury convicted appellant and the trial court sentenced him to two years' confinement in state jail in cause number 05-11-00099-CR and fifteen years' confinement in cause number 05-11-00100-CR. In a single issue, appellant argues the trial court erred by permitting the arresting officer to remain in the courtroom during opening statements. We affirm the trial court's judgments.
Prior to the reading of the indictments and appellant's entering a plea of not guilty to the charged offense, appellant invoked "The Rule." After appellant entered his plea of not guilty to the charged offenses, the trial court asked if the State had an opening statement. Appellant's counsel stated, "Excuse me, Judge, we invoke the rule prior to anybody explaining what the testimony may or may not be." The prosecutor responded, "Judge, that has to do with testimony, not opening statements, closing statements." Appellant's counsel reiterated, "Judge, our position is for the purpose of the record is that if either side is explaining what they believe the testimony may or may not be, therefore if a witness hears that, that would be or could be a possible violation, so we're going to ask that the witness be excused during opening statements." The trial court confirmed the State had only its first witness, the arresting officer, present in the court room. The trial court stated, "Well, the rule doesn't apply to opening statements. Statements aren't evidence" and denied appellant's request.
In his opening statement, the prosecutor discussed what he believed the arresting officer's testimony would show and what a lab report would show concerning the marijuana and cocaine. Appellant failed to show how this would have affected the arresting officer's testimony. At the conclusion of trial, the jury convicted appellant in each case. At punishment, appellant testified he was in the country illegally, he was sentenced in 2005 to a state jail felony for endangering a child, and he admitted he was transporting the drugs in the charged offenses from Texas to Alabama for $800. The trial court assessed punishment in each case, and these appeals followed.
In a single issue, appellant argues the trial court erred in failing to exclude the arresting officer, Texas State Trooper David John Reynolds, from the courtroom during opening statements. Appellant argues his invoking the Rule necessitated Reynolds' removal. Rule of evidence 614 provides that "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. By its terms, the rule applies only to witness testimony. See id.; Creel v. State, 493 S.W.2d 814, 820 (Tex. Crim. App. 1973) (article 36.03 of code of criminal procedure pertaining to invocation of rule 614 does not require exclusion of witnesses during jury voir dire and before trial testimony begins); Price v. State, 626 S.W.2d 833, 834 (Tex. App.-Corpus Christi 1981, no pet.) (article 36.03 has no application to exclusion of witnesses during voir dire and before any testimony on trial has begun). See also Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) (analyzing issue in terms of whether witness actually conferred with or heard testimony of other witness and whether witness's testimony contradicted testimony of witness from opposing side or corroborated testimony of witness he had conferred with or heard). Thus, no violation of rule 614 occurred in this case. See Tex. R. Evid. 614; Creel, 493 S.W.2d at 820. We overrule appellant's issue.
We affirm the trial court's judgments.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110099F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DANIEL JUAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00099-CR
Appeal from the 354th District Court of Hunt County, Texas. (Tr.Ct.No. 26255).
Opinion delivered by Justice Bridges, Justices FitzGerald and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 24, 2012.
DAVID L. BRIDGES
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DANIEL JUAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00100-CR
Appeal from the 354th District Court of Hunt County, Texas. (Tr.Ct.No. 26254).
Opinion delivered by Justice Bridges, Justices FitzGerald and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 24, 2012.
DAVID L. BRIDGES
JUSTICE