Kennie Lewis Cook, Jr. v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00001-CR
KENNIE LEWIS COOK, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Cass County, Texas
Trial Court No. 2019F00062
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion on Remand by Justice van Cleef
MEMORANUM OPINION ON REMAND
A Cass County jury convicted Kennie Lewis Cook, Jr., of aggravated sexual assault of a
child. The trial court sentenced Cook to forty years’ imprisonment and ordered him to pay a
$1,000.00 fine. In a prior opinion, we reversed the trial court’s judgment and remanded the case
for a new trial after sustaining Cook’s complaint that the trial court erred by allowing an officer
to testify that he believed the child victim. Cook v. State, 636 S.W.3d 35, 37 (Tex. App.—
Texarkana 2021), rev’d, Nos. PD-0850-21, PD-0853-21, PD-0854-21, 2023 WL 152984 (Tex.
Crim. App. Jan. 11, 2023). The Texas Court of Criminal Appeals declined to address whether
the admission of the officer’s testimony was error, but nevertheless found that Cook was
unharmed by the officer’s testimony. Cook, 2023 WL 152984, at *3. As a result, it reversed our
opinion and remanded the case to us to “reach the merits of [Cook’s] remaining grounds.” Id. at
*6.
Cook argues in his remaining grounds (1) that the jury’s verdict is not supported by
legally sufficient evidence,1 (2) that the trial court should have ruled on his Batson2 challenge,
(3) that his counsel rendered ineffective assistance by failing to preserve his Batson challenge,
and (4) that the trial court erred by permitting a witness to testify in violation of Rule 614, the
witness sequestration rule.
We find (1) that legally sufficient evidence supported the jury’s verdict of guilt, (2) that,
while Cook’s counsel waived his Batson challenge, harm from the alleged ineffective assistance
1
In companion cause numbers 06-20-00002-CR and 06-20-00003-CR, Cook also appeals from two other convictions
for aggravated sexual assault of the same child.
2
Batson v. Kentucky, 476 U.S. 79 (1986).
2
of counsel is not shown, and (3) that the trial court did not abuse its discretion in overruling
Cook’s Rule 614 objection. As a result, we affirm the trial court’s judgment.
I. Legally Sufficient Evidence Supports the Jury’s Verdict of Guilt
A. The Evidence at Trial
The State’s first witness was the victim, Chance Scallion,3 who was seven when he made
an outcry of sexual abuse against Cook. According to Chance, Cook sexually abused him at his
great-grandmother’s home after a church service at Hendrix Temple Institutional Church of God
and Christ, where Cook served in various capacities, including as an organist and music director.
The evidence at trial established that Chance often went to church with his great-
grandmother and church superintendent, Laura. Laura lived two blocks from the church and,
after church concluded at 1:30 p.m., would always return to her home to prepare and serve a
meal for the bishop and her grandson, Darrius, who attended church almost every Sunday. Cook
ate with the group every other Sunday. Chance alleged that Cook abused him when he and Cook
were alone in the living room of Laura’s house after church “when Granny went to the
bathroom.”
According to Chance, Cook directed him to retrieve the television remote and “cut off the
TV, [and] then . . . pulled [his] pants down,” followed by his underwear. Chance said that Cook
“put his finger in [his] butt,” and “sucked [his] little thing.” The child identified his “little thing”
as “what [he] use[d] to go to the bathroom . . . number one.” Chance said that his little thing was
“[h]ard” and that Cook said that “[i]t taste[d] good.” The child also testified that Cook “made
[him] suck his little thing” with his mouth and that Cook’s “little thing” was soft and looked like
3
We use pseudonyms for the child victim and his family to protect the identity of the child. See TEX. R. APP. P.
9.10.
3
a crayon. Chance testified that the acts made him feel sad and that he felt “[m]ad” when he saw
Cook because of what he did. Cook stopped when they heard Laura coming out of the bathroom
and made “[Chance] pull back up [his] pants.”
Chance’s mother, Fiona, testified that she found Chance sucking the head of a yellow
rubber duck during bath time and later caught him sucking his brother’s penis. When she asked
Chance about his behavior, Fiona said Chance pointed to his penis and alleged that Cook had
sucked it. Fiona also said that Chance “put his hands in two girls’ tops, in their shirt tops, and
was touching their bottom[s].” Chance testified that he “[s]ucked his [four-year-old brother’s]
little thing” because he was thinking about Cook.
Fiona testified that she grew up with Cook, that their families had close ties, and that she
allowed Chance to be around Cook and accept gifts from him. According to Fiona and Laura,
Cook gave Laura money for Chance and bought Chance everything he asked for, including
clothes, a backpack, school supplies, and toys. Cook also took Chance to the movies, would
drop the child off at school, and took him to band practice at another school where Cook was
employed as the band director. Testimony from both Chance and Cook showed that Chance was
also allowed to spend two nights at Cook’s apartment, unsupervised, where he slept with Cook in
Cook’s bed. Laura testified that Cook lived alone and did not have a wife or girlfriend.
After Chance’s outcry to Fiona, Fiona went to the church with Chance and asked him to
tell Darrius about his allegations against Cook. Chance testified that he denied the allegations in
front of Darrius “[b]ecause somebody else was outside that day” who did not “need to know”
about the abuse and said instead that Cook only “whooped [him].” Both Fiona and Laura
testified that Cook spanked Chance. According to Laura, with her permission, Cook hit Chance
4
with a belt for “showing out” in church by playing with other boys during a class. Darrius
testified that he told Cook about his conversation with Fiona and Chance. According to Chance,
Cook never touched him again after Fiona went to the church to speak to Darrius.
In spite of the allegations, the evidence showed that Cook was a trusted family friend and
that few believed Chance. Laura testified that she did not believe Chance’s allegations because
she knew Cook well and that it was “not his character” and because the incidents allegedly
occurred at her home. Darrius’s sister, Dolly, who had known Cook since she was a little girl,
described Cook as an honest, church-going man. Chance’s great-aunt, Lucille, who knew Cook
for fifteen years, also testified that Cook was an upstanding gentleman and that he never told a
lie. Theodus Luckett, III, director of fine arts at the school where Cook worked, testified that he
knew Cook for fourteen years, testified that he supervised him at work, and described him as a
phenomenal worker who had professional relationships with his students.
Laura, Darrius, and Lucille also believed that Cook lacked an opportunity to abuse
Chance at Laura’s home. They testified (1) that Cook was never left alone with Chance because
there was always someone else at Laura’s home after church, (2) that there was a clear line of
sight into the living room from the kitchen, and (3) that someone else would have witnessed the
abuse had it occurred. Laura added that she only used the restroom when she first returned home
from church before others arrived and never used the restroom while guests were in her home.
Darrius said that he watched television in the living room every Sunday that he was present and
that, if Laura took a nap, she would sleep on the couch in the living room. However, Darrius
also testified that he and the bishop were not present every Sunday and that Cook arrived at
Laura’s house before Darrius on one or two occasions.
5
Several family members also thought that Fiona’s husband, Tucker, sexually abused
Chance. Tucker was incarcerated during the alleged incident for domestic violence against
Fiona. Laura testified that she believed Tucker sexually abused Chance because she was always
suspicious of him and because Chance told her that Tucker “messed with” him. Darrius also
testified that Chance did not make an allegation against Cook but made one against Tucker
instead. During cross-examination, Fiona, who was under suspicion of committing two felony
offenses after Chance’s allegations were reported, admitted that Tucker recorded himself playing
with his own bottom. However, Chance testified in front of the jury that Tucker did not inflict
any abuse on him and that Cook was the only person who sexually assaulted him.
Nevertheless, Laura opined that Chance was coached by Fiona to make up the allegations
against Cook because she was “a liar[], . . . a manipulator[,] . . . [and] just not right,” and Darrius
and Lucille, who described Fiona as “a liar, a schemer, and . . . a troublemaker,” agreed with that
assessment. Dolly also testified (1) that Fiona “like[d] to lie and manipulate” compulsively,
(2) that she witnessed Fiona teaching Chance how to lie to obtain government benefits, and
(3) that Fiona falsely accused her of sexually touching one of her other sons.
In an attempt to discredit Chance’s outcry, Laura made an audio recording of the child
several months after the allegations. The audio recording revealed that Laura repeatedly told
Chance that Cook loved him and missed him. As a result of Laura’s leading questions, Chance
denied the allegations and said that Cook only spanked him and that his “momma was the one
that started it.” When Laura asked Chance if anybody “messed with” him, Chance said that
Tucker had.
6
Yet, the Atlanta Police Department (APD) arrested Cook after Chance spoke with Jessica
Kelly, a forensic interviewer with the Texarkana Children’s Advocacy Center (CAC). Kelly
testified that Chance made three allegations of abuse. According to Kelly, Chance said that
“somebody at church had been touching him” and that “Cook had made him suck his little
thing,” which looked like a crayon and “tasted nasty.” Kelly explained that “little thing” was
Chance’s term for penis. Kelly also testified that Chance said that “Mr. Cook put his finger in
his bottom” and that it felt hard “on the inside.” Kelly told the jury that she looked for signs of
coaching, deception, or manipulation, but found “nothing that made [her] to believe that [the] . . .
child had been coached or had said something that he did not believe to be true.” Kelly
described the process of grooming for the jury and explained that predators groom children, their
families, and the community.
Kelly also testified that Laura’s recording of Chance, which showed the leading nature of
Laura’s questions, amounted to an improper interview that was not capable of obtaining an
unbiased statement. According to Kelly, Chance denied being sexually abused by anyone other
than Cook. Jima Hicks, a sergeant with the APD, testified that, while there was no DNA
evidence substantiating the allegations, he arrested Cook after Chance said, during his CAC
interview, that Cook penetrated his rectum with Cook’s finger.
Kaleigh Dodson, Chance’s licensed professional counselor, testified that she had many
counseling sessions with Chance, who exhibited signs of and was experiencing trauma. Dodson
reported that Chance said Cook touched his private parts when he should not have. Dodson
testified that Chance brought up Cook on his own during counseling sessions and never
mentioned that anyone else touched him. Dodson (1) saw no red flags indicating deception,
7
(2) believed Chance was not faking the trauma symptoms, which were consistently present in his
many counseling sessions, and (3) did not think that Chance was being manipulated into making
a false accusation. Dodson added that Chance, who had been held back one grade, “was
definitely developmentally behind a 7-year-old” and would not have been able to sustain any
deception over time given his intellectual stage.
Cook, who had never been convicted or accused of a crime, testified in his defense.
Cook said that Chance’s home life was horrible and that Cook felt that Chance needed stability
in his life from a man that he could look up to. As a result, Cook acted as Chance’s caregiver
and role model because he was told that the child was not getting much care. Cook admitted that
he spanked Chance on the buttocks, but claimed it was with his hand, not a belt. Cook told the
jury that Laura was supportive of his role in Chance’s life.
Cook denied the allegations, claimed that he was not sexually attracted to boys, and said
that Darrius was present every time he went to Laura’s home. Cook, who held a doctorate in
education and was certified as a principal, admitted that Chance slept in his bed with him twice
but told the jury that he saw no problem with sleeping in the same bed with a child he was not
related to. Cook opined that Fiona made up the allegations because he spanked Chance.
In rebuttal, the State called Fiona’s sister, Arwin, and Fiona’s mother, Georgia. Arwin
testified that, when Fiona brought Chance to speak with Darrius at the church, Chance was
“scared and nervous . . . it’s a way [she] had never seen him before.” Arwin testified that she
believed Chance’s allegations, that the child would not lie about something so serious, and that
she did not believe that he was coached. Arwin testified that Laura talked with her about the
allegations but was most concerned with Cook’s reputation, not Chance. Georgia testified that
8
Chance would not lie about the allegations against Cook and that she did not believe Fiona
taught him to lie.
After hearing all the conflicting evidence, the jury convicted Cook of three counts of
aggravated sexual assault of Chance.
B. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)). “Our rigorous [legal
sufficiency] review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323
S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007))).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof
9
or unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).
In this case, the State alleged that Cook “intentionally or knowingly cause[d] the
penetration of the anus of Chance Scallion (pseudonym), a child who was then and there younger
than 14 years of age, by defendant’s finger.” See TEX. PENAL CODE ANN. § 22.021(a)(1)(B). In
companion cause number 06-20-00002-CR, the State alleged that Cook “intentionally or
knowingly cause[d] the penetration of the mouth of Chance Scallion (pseudonym), a child who
was then and there younger than 14 years of age, by the defendant’s sexual organ.” In
companion cause number 06-20-00003-CR, the State alleged that Cook “intentionally or
knowingly cause[d] the sexual organ of Chance Scallion (pseudonym), a child who was then and
there younger than 14 years of age, to contact the mouth of the defendant.”4
C. Analysis
Chance, who was younger than fourteen, testified (1) in support of Cook’s conviction in
this case, that Cook removed his pants and underwear and “put his finger in [his] butt”; (2) in
support of Cook’s conviction in 06-20-00002-CR, that Cook “made [him] suck his little thing,”
which was soft and looked like a crayon, with his mouth; and (3) in support of Cook’s conviction
in 06-20-00003-CR, that Cook “sucked [his] little thing.” Chance told the jury that the term
“little thing” meant “what [he] use[d] to go to the bathroom . . . number one.”
Cook argues that the evidence is legally insufficient because Chance’s testimony was not
corroborated. However, corroboration of Chance’s testimony is not required because “[t]he
testimony of a child victim alone is sufficient to support a conviction for aggravated sexual
4
Cook has questioned the legal sufficiency of the evidence in all three cases. For the sake of judicial economy, we
address in this opinion whether the evidence was legally sufficient to support Cook’s convictions in all three cases.
10
assault.” Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref’d). As a
result, Chance’s testimony alone was legally sufficient to establish each and every element of the
offenses alleged by the State.
Moreover, Fiona testified that Chance pointed to his penis and alleged that Cook sucked
it, and according to Hicks, Chance said during the CAC interview that Cook had penetrated
Chance’s rectum with his finger. Dodson testified that Chance made allegations of sexual abuse
against Cook during counseling sessions, and according to Kelly, Chance said Cook had put his
“hard” finger “on the inside” of his bottom and made him suck Cook’s penis, which looked like a
crayon and “tasted nasty.”
Even so, Cook argues that the jury’s verdict was not rational due to conflicting evidence
refuting the plausibility of Chance’s allegations and implying the possibility of coaching by
Fiona. In other words, Cook wants this Court to re-weigh the evidence. However, “[u]nder a
legal sufficiency review, ‘our role is not to become a thirteenth juror. This Court may not re-
evaluate the weight and credibility of the record evidence and thereby substitute our judgment
for that of the fact-finder.’” Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)
(quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). As the fact-finder, it
was up to the jury to decide whether it believed Chance’s testimony that Cook abused him at
Laura’s house or the testimony addressing lack of opportunity. Because Darrius testified that
there were occasions that Cook arrived at Laura’s house before him and Chance testified that the
abuse happened when Laura was using the restroom, the jury was free to believe Chance. Given
Kelly’s testimony about the statements Chance made in his CAC interview and Dodson’s
testimony that Chance consistently referred to Cook during counseling sessions, did not exhibit
11
any signs of coaching, and lacked the intellectual capability to sustain any deception over time,
the jury was free to reject the testimony that speculated that Fiona had coached Chance.
Because we find the evidence legally sufficient to support each of Cook’s convictions of
aggravated sexual assault, we overrule Cook’s first point of error.
II. While Cook’s Counsel Waived His Batson Challenge, Harm from the Alleged
Ineffective Assistance of Counsel Is Not Shown
In his second point of error, Cook argues that “the State violated Equal Protection by
striking the only Black venireperson within the strike zone” and that the trial court erred in
failing to rule on his Batson challenge. He also argues that his counsel rendered ineffective
assistance by failing to bring a timely Batson challenge. We find that the Batson challenge is
unpreserved, that the trial court did not err in declining to rule on an untimely objection, and that
no harm from counsel’s alleged ineffective assistance is shown.
A. Procedural Background
After voir dire, the State moved to strike several veniremembers for cause without
objection by Cook. After Cook also moved to strike veniremembers for cause, the trial court
assessed the panel, as follows:
THE COURT: All right. The Court’s going to, has struck . . . No. 3, No.
5, No. 8, No. 12, No. 24, No. 27, No. 28. That’s going to put the strike line at No.
39, so you have ten strikes below -- 39 or below. . . . We’ll take the first 13.
Everybody good?
[BY THE STATE]: Thank Your Honor.
[BY THE DEFENSE]: Yes, Your Honor.
12
The appellate record does not document the peremptory strikes that were made, although it is
apparent that the parties exercised preemptory strikes. The record also shows that the jury was
seated, and no objections were lodged before it was sworn.
After the jury was sworn, Cook asked to approach the bench and lodged a Batson
challenge asserting that the State “struck the only African-American juror.” The trial court
overruled the challenge because it had been waived. Cook’s counsel explained that “it was
difficult for [him] to stand up and make [a timely] objection prior to the jury being sworn in”
because he “was trying to do some research prior to standing . . . at the podium.” Cook’s counsel
did note that the struck juror, A.B., said that “he really didn’t want to be [there] . . . [and] was
nervous.” The State responded that it struck A.B. because he did not want to be there, was
“slouching quite a bit, . . . was looking around, [and] . . . did not seem to pay attention” and
because it “want[ed] people who [were] going to pay attention.” The State also noted that it did
not strike “Juror No. 35,” an African American who was within the strike zone. Because the
issue was waived, the trial court again declined to rule on the Batson challenge.
B. Cook’s Counsel Waived His Batson Challenge
Cook argues the merits of the Batson challenge, but it is not preserved for our review.
The Texas Legislature codified Batson in Article 35.261 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 35.261; Hill v. State, 827 S.W.2d 860, 863
(Tex. Crim. App. 1992). The Texas Court of Criminal Appeals has “held that [A]rticle 35.261
was ‘intended to create uniform procedures and remedies to address claimed constitutional
violations during jury selection.’” Hill, 827 S.W.2d at 863 (quoting Oliver v. State, 808 S.W.2d
492, 496 (Tex. Crim. App. 1991) (en banc)). “Therefore, whenever a claim is made that
13
veniremembers were peremptorily challenged on the basis of their race, [A]rticle 35.261 must be
followed.” Id.Article 35.261(a) provides, “After the parties have delivered their lists [of peremptory
challenges] to the clerk . . . and before the court has impanelled the jury, the defendant may
request the court to dismiss the array and call a new array in the case.” TEX. CODE CRIM. PROC.
ANN. art. 35.261(a). As a result, for a Batson challenge to be timely, it must be made after the
parties have delivered their lists of peremptory challenges and “before the court has impanelled
the jury.” Id.; see Hill, 827 S.W.2d at 863. “A jury is considered ‘impanelled’ when the
members of the jury have been both selected and sworn.” Hill, 827 S.W.2d at 864 (citing Price
v. State, 782 S.W.2d 266 (Tex. App.—Beaumont 1989, pet. ref’d)).
“As a prerequisite to presenting a complaint for appellate review, the record must show
that” it “was made to the trial court by a timely request, objection, or motion.” TEX. R. APP. P.
33.1(a). Because the record shows that Cook’s Batson challenge was untimely, the trial court did
not err in failing to consider it. See Hill, 827 S.W.2d at 864. As a result, we will not address
Cook’s unpreserved issue on the merits. We overrule this issue.
C. Harm from the Alleged Ineffective Assistance of Counsel Is Not Shown
We next address Cook’s ineffective assistance claim. As many cases have noted, the
right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d
475, 483 (Tex. Crim. App. 2006). “[T]o prevail on a claim of ineffective assistance of counsel,
[the appellant] must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S.
668, [687–88] . . . (1984).” Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009)
14
(orig. proceeding). A failure to make a showing under either prong defeats a claim for
ineffective assistance. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
The first prong requires a showing “that counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. Under the second prong, a defendant
must show that “the deficient performance prejudiced the defense.” Id. at 687. “This requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. The second Strickland prong applies to a claim that counsel
rendered ineffective assistance for failing to preserve a Batson challenge. See Batiste v. State,
888 S.W.2d 9, 16–17 (Tex. Crim. App. 1994).
For purposes of our analysis, we assume that Cook met the first Strickland prong and
focus on the second. The Batson analysis guides our finding that no harm is shown.
Batson challenges are subjected to a three-step inquiry. Purkett v. Elem, 514 U.S. 765,
767–68 (1995) (per curiam); Nieto v. State, 365 S.W.3d 673, 676 (Tex. Crim. App. 2012); Ford
v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Under the first step, the person raising a
Batson challenge is required to “make a prima facie showing of racial discrimination.” Nieto,
365 S.W.3d at 676 (citing Batson, 476 U.S. at 96–97); see Ford, 1 S.W.3d at 693. Once that
prima facie showing is accomplished, the burden shifts to the State to present a racially neutral
reason for the challenged jury strike. Nieto, 365 S.W.3d at 676 (citing Batson, 476 U.S. at 97–
98); Ford, 1 S.W.3d at 693. Third, once the State’s reason is proffered, the burden of persuasion
shifts back and the person raising the challenge must then convince the court that the reason
given by the State was not race-neutral and was merely pretext for concealing discrimination.
Ford, 1 S.W.3d at 693 (citing Purkett, 514 U.S. at 767–68).
15
Here, Cook asserts that he made a prima facie showing of racial discrimination by
arguing that the State “struck the only African-American juror” within the strike zone. However,
this assertion is incorrect. The State noted that it did not strike veniremember number 35, an
African American who was also within the strike zone. Next, the State offered race-neutral
reasons for striking A.B., including his physical demeanor, which showed that he was not paying
attention, and the veniremember’s statement that he did not want to be in the courtroom. In
response to that reason, Cook offered no argument to support the third step of the Batson
analysis. As a result, we find that Cook cannot show that he was harmed by his counsel’s failure
to raise a timely Batson challenge. We overrule this point of error.
III. The Trial Court Did Not Abuse Its Discretion in Overruling Cook’s Rule 614
Objection
Next, Cook argues that the trial court erred by allowing Arwin’s testimony because it
violated the witness sequestration rule, which states, “At a party’s request, the court must order
witnesses excluded so that they cannot hear other witnesses’ testimony.” TEX. R. EVID. 614.
Because Arwin was neither listed nor expected to be a witness, we find that the trial court did not
abuse its discretion in permitting her testimony.
A. Standard of Review
“We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion.” Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d)
(citing Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). “Abuse of discretion
occurs only if the decision is ‘so clearly wrong as to lie outside the zone within which reasonable
people might disagree.’” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.
16
2008)). “We may not substitute our own decision for that of the trial court.” Id. (citing Moses v.
State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). “We will uphold an evidentiary ruling if it
was correct on any theory of law applicable to the case.” Id. (citing De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009)).
B. Procedural Background
On the second day of trial, the State brought to the court’s attention that there was an
individual sitting in the back of the courtroom who went in and out of the courtroom several
times. The State said, “I’m just concerned that some violation of the rule might have gone on. I
don’t know, but it seems she’s going outside and talking to people.” After both the State and
Cook said that they did not know who the person was, the trial court had her brought into the
courtroom where she was later identified as Fiona’s sister, Arwin. The State informed the trial
court that it did not list Arwin as a witness and that she was not told that she would be a witness
but indicated that it wished to call her in rebuttal as a result of the testimony presented in Cook’s
defense.
As a result, the following transpired:
[BY THE STATE]: No, we have not admonished her about the Rule. She
has been here, but we haven’t told her that she had to be here. She showed up,
and so whenever she showed up, we decided we might --.
THE COURT: Okay. So you have not identified her as a witness?
[BY THE STATE]: No.
THE COURT: She’s just a citizen who’s concerned, who somehow has
touched this case and is here in the courthouse. Is that correct?
[BY THE STATE]: Possibly, yes, Your Honor. Your Honor, I’m not -- I
don’t want to call her if there’s been some rule violation, but it is true, yes, that I
17
never told her that she is a witness. I didn’t -- she’s not here because I told her to
be here.
[BY THE DEFENSE]: Defense would object strenuously to that, Judge.
THE COURT: What’s your objection?
[BY THE DEFENSE]: Well, my objection is that her testimony’s been
tainted, if they’re going to call her as a rebuttal witness.
[BY THE STATE]: Well, we just need to clear this up because I don’t
know if there’s been any communication.
THE COURT: All right. Ma’am, if I could ask you to come -- in the
black shirt, yes, ma’am, what’s your name?
UNIDENTIFIED WOMAN: [Arwin].
THE COURT: All right. You’ve come in and out of the courtroom a
couple of different times this morning. Is -- have you been listening to the
testimony and then telling somebody else about what’s going on in the
courtroom?
[ARWIN]: No, sir. Reason why I’m coming in and out is because that’s
my nephew, and that -- like that hurts, so you know, I take a minute and then I
come back. That’s it.
....
THE COURT: Okay. And I’m just trying to find out whether you’ve
been talking to anybody outside the courtroom about what’s been going on inside
the courtroom.
[ARWIN]: No, sir.
When the State called Arwin in rebuttal, Cook objected that she had been in the courtroom and
“heard a lot of the testimony.” The trial court overruled the objection and found the following:
“[W]hile she’s been in and out of the courtroom a couple of times today, she’s not -- was not
present yesterday. She was, like we said, in and out, and it appeared to me that she was only in
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and out one, maybe two witnesses at the most.” The trial court also said that Cook could “cross-
examine her on what she may have heard” and whether it “would affect her testimony.”
C. Analysis
We review a trial court’s admission of testimony from a witness who has violated Rule
614 under an abuse-of-discretion standard. Guerra v. State, 771 S.W.2d 453, 474 (Tex. Crim.
App. 1988); see Harris v. State, 122 S.W.3d 871, 882 (Tex. App.—Fort Worth 2003, pet. ref’d).
In Guerra, the Texas Court of Criminal Appeals set forth a two-step process for
determining whether the trial court abused its discretion in allowing testimony in violation of the
Rule. Guerra, 771 S.W.2d at 475–76; see Harris, 122 S.W.3d at 882 (citing Minor v. State, 91
S.W.3d 824, 829 (Tex. App.—Fort Worth 2002, pet. ref’d)); see also Loven v. State, 831 S.W.2d
387, 399 (Tex. App.—Amarillo 1992, no pet.). “The first step of the analysis requires us to
determine what kind of witness was involved.” Harris, 122 S.W.3d at 882 (citing Guerra, 771
S.W.2d at 476). The first category is a witness “who had no connection with either the State’s
case-in-chief or the defendant’s case-in-chief and who, because of a lack of personal knowledge
regarding the offense, was not likely to be called as a witness.” Guerra, 771 S.W.2d at 476.
There is no abuse of discretion when this category of witness is allowed to testify. Id.; see Webb
v. State, 766 S.W.2d 236, 240 (Tex. Crim. App. 1989); Harris, 122 S.W.3d at 882; Minor, 91
S.W.3d at 830; Loven, 831 S.W.2d at 399.
The second category of witness is “one who had personal knowledge of the offense and
who the party clearly anticipated calling to the stand.” Guerra, 771 S.W.2d at 476; see Harris,
122 S.W.3d at 882, Minor, 91 S.W.3d at 830; Loven, 831 S.W.2d at 399. If the witness is a
category two witness, then we proceed to the second step, which requires “us to determine
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whether the witness actually conferred with or heard the testimony of another witness” and
“whether the witness’s testimony contradicted the testimony of a witness [she] actually heard
from the opposing side or corroborated the testimony of another witness [she] actually heard
from the same side on an issue of fact bearing upon the issue of guilt or innocence.” Harris, 122
S.W.3d at 882–83 (citing Guerra, 771 S.W.2d at 475). On the other hand, if the witness is of the
first category, we need not consider the second step. See Guerra, 771 S.W.2d at 476.
Cook’s argument presumes that Arwin was a category two witness. We disagree.
Although Arwin was present when Fiona brought Chance to the church to speak with Darrius,
she had no personal knowledge of the offense, “was not present during the commission of the
offense[,] and thus could shed no light on appellant’s involvement.” See Guerra, 771 S.W.2d at
476. The record shows that neither the State nor Cook anticipated that Arwin would be a
witness. As a result, we find that Arwin was a category one witness and that the trial court did
not abuse its discretion in allowing her to testify. We overrule this remaining point of error.
IV. Conclusion
Having overruled the merits of Cook’s remaining grounds following remand from the
Texas Court of Criminal Appeals, we affirm the trial court’s judgment.
Charles van Cleef
Justice
Date Submitted: February 22, 2023
Date Decided: March 10, 2023
Do Not Publish
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