Jose Jaime Rodriguez v. State ( 2000 )

NUMBER 13-99-582-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JOSE JAIME RODRIGUEZ

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 92 District Court of Hidalgo County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Yañez and Kennedy⁽¹⁾

Opinion by Justice Kennedy

Appellant was convicted, in a three count indictment, of two counts of assault on a public servant⁽²⁾ and one count of evading arrest.⁽³⁾ He was convicted by a jury in each count and the jury assessed punishment on each count at confinement for two years, the terms to run concurrently.

The State's evidence tended to prove that on the occasion in question appellant was in a car with some or all of his children, parked in front of his wife's house. He was arguing with his wife when the City of Alamo Police arrived in response to his mother-in-law's phone call. When the police arrived, appellant began to move his car away from the scene. The police followed with flashing lights and, finally, appellant stopped. When the officers approached appellant's car, appellant remained inside but rolled up the windows and locked his car. Appellant then exited his car and was told by the officers that he was going to be arrested for evading arrest. At this point, appellant began to fight the officers and succeeded in striking both officers. Appellant was then subdued with help from other officers who had arrived at the scene.

Appellant brings to this Court six points of error. We first address point of error number two because we consider it dispositive of this appeal.

Point of error number two is:

The trial court abused its discretion in refusing to permit an eye witness to testify when called by appellant because the accidental violation of the "rule" would not taint her testimony which was very material to his defense.

The record shows that a defense witness entered the courtroom while Dr.

Emery Suderman was testifying for the defense.

The witness's proposed testimony was tendered in the form of an affidavit attached to the motion for new trial. It stated:

On or about June 2, 1998, my family and I heard a woman screaming at our next door neighbor's house. We all came out to see what was going on. I saw my neighbor Martha Rodriguez standing at the rear passenger door of a car. I noticed that her husband, Jaime Rodriguez along with his children were in the car. They were arguing with each other.

Martha was yelling at her husband using very obscene vulgar language. I saw Christy run out of the house, and get into the car with her father. I could hear the children telling Martha to close the door, Martha would not close the door. Martha kept yelling at her husband, saying the police were on their way to put him in jail. Jaime, the father of the children, started to leave pulling away very slowly, and when he had gone about thirty feet to about the front of our house next door. I then saw him stop, and closed the rear door. Martha was screaming furiously as the police pulled up. As Jaime drove off, the officers got in to their car and turned on their lights and sirens, I saw Jaime stop immediately. The officers pulled up behind his car, and walked over to the driver's side of the car.

One of the officers started yelling at him, repeatedly through the window, to get out of the car. I heard Jaime say, are you going to arrest me? I saw the officer nod his head and say no. As Jaime stepped out of his car, the two officers attacked him, striking him on his shoulders repeatedly from each side.

The three children in the car started screaming in terror, along with the other two children at the house. Martha and her family went over to the car, and grabbed the children very aggressively, as the children kept screaming and crying out daddy, daddy.

Several other police cars arrived, as about three more officers surrounded him, they were all simultaneously striking him repeatedly.

I then saw him fall to his knees and then to the ground, as they all got on top of him. I saw one of the officers kick Jaime on the head. They were on him for several minutes, as they handcuffed him.

The officers then picked him up like a rag and put him in the police car. He seemed to be in a lot of pain. His children were all crying and wailing, as the police drove with their father away. My mother, who saw the whole incident, started to cry. I had never seen a family man brutally attacked by officers of the law.

This incident has confused me and shaken the trust, peace, and security our local law enforcement stood for in our community.

These are the facts, that occurred on that day, as I witnessed them.

Rule 614 of the Rules of Evidence provides, in pertinent part:

RULE 614. EXCLUSION OF WITNESSES

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. This rule does not authorize exclusion of:

(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause;

Tex. R. Evid. 614(3) (Vernon Special Pamphlet 2000).

Where the "particular and extraordinary circumstances" show neither the defendant nor his counsel have consented, procured, connived or have knowledge of a witness or potential witness who is in violation of the sequestration rule, and the testimony of the witness is crucial to the defense, it is an abuse of discretion exercised by the trial court to disqualify the witness. Webb v. State, 766 S.W.2d 236, 244 (Tex. Crim. App. 1989). In Davis v. State, 872 S.W.2d 743 (Tex. Crim. App. 1994), the court of criminal appeals, citing Webb, reversed a conviction for delivery of cocaine, saying: "Such disqualification [of a defense witness for violating the sequestration rule] must be viewed in light of the defendant's constitutional right to call witnesses on his behalf." Davis at 745. The court also said (quoting Webb):

A reviewing court will determine: (1) if the rule was violated and the witness disqualified, were there other particular circumstances, other than the mere fact of the violation, which would tend to show the defendant or his counsel consented, 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 existed to justify disqualification, was the excluded testimony crucial to the defense.

Id. at 746.

The tendered testimony of the eyewitness to the altercation was in no way related to, or dependent upon, the testimony of the witness whose testimony she heard. Dr. Suderman was testifying to appellant's physical condition, apparently in an effort to show that he was unable to harm another person. There is no showing in the record that the defense was guilty of any wrongful conduct in the witness violating the rule.

The testimony of the witness, Castillo, was crucial to the defense in this case because she was an eyewitness to the altercation and her testimony directly bears upon whether appellant "stopped immediately" when he saw the officers turn on their lights. It also tends to refute the state's testimony concerning who struck the first blow. We hold that the trial court abused its discretion when it denied appellant the use of this witness's testimony.

We reverse and remand the cause for a new trial consistent herewith.

In view of a new trial, we suggest that the trial court reconsider its ruling that appellant's children not be permitted to testify.

NOAH KENNEDY

Retired Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 7th day of December, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. Tex. Penal Code Ann. § 22.01(a)(b)(1) (Vernon 2000).

3. Tex. Penal Code Ann. § 38.04 (Vernon 2000).