      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00804-CR
                                       NO. 03-17-00805-CR
                                       NO. 03-17-00806-CR
                                       NO. 03-17-00807-CR



                            Christopher Lynn Newberry, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NOS. D-1-DC-16-301801, D-1-DC-16-301800, D-1-DC-16-301799 & D-1-DC-16-205616
                 HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Christopher Lynn Newberry pleaded guilty to one count of sexual assault,

see Tex. Penal Code § 22.011(a), one count of burglary of a habitation with the intent to commit

sexual assault, see id. § 30.02(d), one count of aggravated assault, see id. § 22.02(a)(2), and one

count of burglary of a habitation, see id. § 30.02(d). He also pleaded true to three enhancement

allegations of prior felony convictions. After holding a sentencing hearing, the trial court sentenced

Newberry to 36 years’ imprisonment for each count, with the sentences to run concurrently. In his

sole point of error, Newberry contends that the trial court abused its discretion in allowing the

victim’s mother to testify after she was present in the courtroom while the victim testified. We will

affirm the trial court’s two judgments of conviction for burglary of a habitation. We will modify the
judgments of conviction for aggravated assault and sexual assault to correct non-reversible clerical

errors and affirm those judgments as modified.


                                         BACKGROUND

                Near the beginning of the sentencing hearing, the Rule was invoked, see Tex. R.

Evid. 614, and the trial court instructed the witnesses to be present in the courtroom only when

offering their testimony. Among other witnesses, the State called Katherine Reed, the victim of

the charged offenses.1 Reed testified that she was lying on her bed one morning when she saw a man

standing in her room. The man was “about 6 foot, maybe 185” and “looked dirty, smelled.”

According to Reed, the man, later identified as Newberry, struck her with what “looked like a long

piece of metal.” Newberry then grabbed her throat and held her down, telling her that “if [she] said

anything or made any noise, he was going to kill [her].” Newberry also told her that she was his

girlfriend now. He called Reed “a dumb bitch” and started hitting her on her face and head with his

fist. Newberry then told Reed “that [she] was going to suck his dick or he was going to kill [her].”

Newberry also tried to remove Reed’s underwear, saying that “he was going to fuck the shit out of

[her] and then kill [her].” He tried to force his penis into her mouth, and, although she tried to keep

her mouth shut, “every now and then [she] would start crying and so it would like get inside [her]

lip area.” Reed kept looking over at the nightstand, where she kept a firearm, but Newberry told her,

“You stupid, bitch, I know where you keep your guns. I know everything about you.” Eventually,

Reed was able to strike Newberry with her knee and escape. Reed further testified concerning the

negative impact of the incident on her life.


       1
           Katherine Reed was the pseudonym the victim used during the hearing.

                                                  2
                The State also called James Cazin. Cazin testified that, on the same morning, he

suddenly saw a man standing in the house he was visiting. According to Cazin, the man, later

identified as Newberry, was holding “a pipe or a rebar or something.” Cazin “thought maybe he was

working outside or something,” so Cazin asked Newberry if he needed help. Newberry then said,

“You know I’m in your house and if you want you could kill me, right?” After Newberry “made a

motion like he was going to swing it at [Cazin],” Cazin fled to a room where a woman was sleeping,

locked the door, and called the police. After the police arrived and arrested Newberry, the police

brought Cazin over to the patrol vehicle to identify Newberry as the intruder. Cazin testified, “[A]s

I was identifying him and looking at him, he proceeded to blow me a kiss and said, I would have

raped you, too, if I had the chance.”

                When the State prepared to call Reed’s mother, Nancy Reed,2 the attorneys noted

that she had been in the courtroom during her daughter’s testimony. Newberry’s attorney objected

to her testimony because she was present in violation of the Rule. The court overruled the objection

and allowed her to testify. Reed’s mother testified concerning the negative impact the assault had

on her daughter and their family.

                Newberry also testified at the hearing. According to Newberry, his father sexually

abused him as a child, he was addicted to methamphetamine and was under the influence of

methamphetamine at the time of the offenses, and he had been in and out of prison for years.

Newberry further testified that he had been hearing voices since childhood that told him to kill




       2
           Reed’s mother used this pseudonym during the hearing.

                                                 3
himself. Newberry stated that he expected to receive a life sentence for the offenses. He also read

a statement apologizing to Reed for the assault.

               At the conclusion of the hearing, the court pronounced sentence, and this appeal

followed.


                    APPLICABLE LAW AND STANDARD OF REVIEW

               Texas Rule of Evidence 614, commonly referred to as “the Rule,” codifies the

witness-sequestration rule. When invoked by either party or the trial court, the Rule mandates the

exclusion of witnesses from the courtroom during trial so they cannot hear the testimony of other

witnesses. See Tex. R. Evid. 614; Sponsler v. State, No. 03-11-00654-CR, 2013 WL 6002763,

at *10 (Tex. App.—Austin Nov. 8, 2013, pet. ref’d) (mem. op., not designated for publication).

“The Rule is designed to prevent witnesses from altering their testimony, consciously or not, based

on other witnesses’ testimony.” Routier v. State, 112 S.W.3d 554, 590 (Tex. Crim. App. 2003); see

Walker v. State, 461 S.W.3d 599, 608 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (“In a criminal

case, the Rule’s purpose is to prevent one witness’s testimony from being ‘materially affected if the

witness hears other testimony at the trial.’”) (quoting Tex. Code Crim. Proc. art. 36.03(a)); Harris

v. State, 122 S.W.3d 871, 882 (Tex. App.—Fort Worth 2003, pet. ref’d) (“The purpose of the Rule

is to prevent corroboration, contradiction, and the influencing of witnesses.”). When the Rule is

invoked, a witness should not hear testimony in the case or talk to any other person about the case

without the court’s permission. See Harris, 122 S.W.3d at 882; see also Tex. Code Crim. Proc.

arts. 36.05 (“in no case where the witnesses are under rule shall they be allowed to hear any

testimony in the case”); 36.06 (“Witnesses, when placed under rule, shall be instructed by the court

                                                   4
that they are not to converse with each other or with any other person about the case, except by

permission of the court, and that they are not to read any report of or comment upon the testimony

in the case while under rule.”).

                Although a trial court must exclude witnesses covered by the Rule, “the court’s

decision to allow testimony from a witness who has violated the rule is a discretionary matter.”

Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) (per curiam). We review such a decision

for an abuse of discretion. Id.; accord Gipson v. State, No. 03-12-00808-CR, 2015 WL 661277,

at *3 (Tex. App.—Austin Feb. 12, 2015, pet. ref’d) (mem. op., not designated for publication). To

determine whether the trial court abused its discretion, we perform a two-step analysis. Guerra v.

State, 771 S.W.2d 453, 476 (Tex. Crim. App. 1988); Minor v. State, 91 S.W.3d 824, 829 (Tex.

App.—Fort Worth 2002, pet. ref’d); see also Mescher v. State, No. 03-10-00517-CR, 2012 WL

2981104, at *2 (Tex. App.—Austin July 12, 2012, pet. ref’d) (mem. op., not designated for

publication) (citing Minor). In the first step, we consider whether the witness who violated the Rule

(1) was sworn in or listed as a witness in the case, or (2) was a person not intended to be a witness

and was not connected with the State’s or defendant’s case-in-chief but who, because of events

during trial, became a necessary witness. See Mescher, 2012 WL 2981104, at *2; Minor, 91 S.W.3d

at 829. If the witness lacked personal knowledge of the offense and was not likely to be called as

a witness, then the trial court did not abuse its discretion in allowing the witness to testify. Guerra,

771 S.W.2d at 476; Minor, 91 S.W.3d at 829. Otherwise, we must proceed to the second step.

                In the second step of the analysis, “we look at whether or not the defendant was

harmed or prejudiced by the witness’s violation.” Bell, 938 S.W.2d at 50; accord Minor, 91 S.W.3d

at 829. Two criteria guide our analysis of harm: “(a) whether the witness actually conferred with or

                                                   5
heard testimony of other witnesses, and (b) whether the witness’s testimony contradicted testimony

of a witness from the opposing side or corroborated testimony of a witness he had conferred with

or heard.” Bell, 938 S.W.2d at 50; accord Gipson, 2015 WL 661277, at *4; see Gonzales v. State,

No. 03-13-00333-CR, 2015 WL 3691180, at *3 (Tex. App.—Austin June 11, 2015, no pet.) (mem.

op., not designated for publication) (“The appellant has the burden to demonstrate that the record

supports a finding under both prongs.”).

                “If both of the above criteria are met, then the trial court abused its discretion by

allowing the testimony over objection.” Mescher, 2012 WL 2981104, at *2. However, even if we

determine that the trial court abused its discretion by allowing the testimony, we may reverse the

trial court’s judgment only if the error affected the defendant’s substantial rights. See Russell v. State,

155 S.W.3d 176, 181 (Tex. Crim. App. 2005) (“Because the appellant complains about the violation

of an evidentiary rule, the error is non-constitutional and will be disregarded unless it affected the

appellant’s substantial rights.”) (citing Tex. R. App. P. 44.2(b)); Mescher, 2012 WL 2981104, at *2;

see also Lewis v. State, 402 S.W.3d 852, 858 (Tex. App.—Amarillo 2013), aff’d, 428 S.W.3d 860

(Tex. Crim. App. 2014) (“A violation of the rule is not in itself reversible error, but only becomes

so where the objected-to testimony is admitted and the complaining party is harmed.”). The error

affects substantial rights when it “has a substantial and injurious effect or influence in determining

the [fact-finder’s] verdict.” Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005) (quoting

Russell, 155 S.W.3d at 183). “Substantial rights are not affected by the erroneous admission of

evidence if the appellate court, after examining the record as a whole, has fair assurance that the error

did not influence the [fact-finder], or had but a slight effect.” Mescher, 2012 WL 2981104, at *2.



                                                    6
                                           DISCUSSION

                Applying the framework described above, we must first determine whether Reed’s

mother was a witness “who had personal knowledge of the offense and who the party clearly

anticipated calling to the stand.”3 See Finch v. State, No. 06-14-00182-CR, 2015 WL 2376344, at

*4 (Tex. App.—Texarkana May 19, 2015, no pet.) (mem. op., not designated for publication)

(quoting Guerra, 771 S.W.2d at 476). The record before us indicates that Reed’s mother had no

personal knowledge of the charged offenses and that she testified only at the punishment hearing.

The Texarkana Court of Appeals has held that a trial court does not abuse its discretion in allowing

a witness to testify “in the punishment phase who has no personal knowledge of the charged

offense.” See id. at *5 (collecting cases in which courts of appeals have concluded that the trial court

did not abuse its discretion in allowing witnesses to testify in violation of the Rule when the witness

testified only during the punishment phase); see also Thomison v. State, No. 11-10-00368-CR,

2012 WL 5989193, at *2 (Tex. App.—Eastland Nov. 29, 2012, no pet.) (mem. op., not designated

for publication) (“We must consider the kind of witness, the nature of the testimony, and how it

relates to the case-in-chief. For example, admitting testimony related to something other than guilt

is unlikely to violate the rule because, usually, that type of testimony neither corroborates nor

contradicts another witness’s testimony.”) (cleaned up).


       3
          The record before us does not indicate that Nancy Reed was present when the Rule was
invoked and the trial court instructed the witnesses. The State argues that Reed’s mother did not
violate the Rule because she was not present to receive the court’s instructions. We will assume,
without deciding, that Nancy Reed was subject to the Rule despite not being present when it was
invoked. But see Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991) (“[I]n this case, there
was no violation of the rule because the evidence showed that the Deuchers had not yet come
forward on the first day of trial; they were not known to be witnesses, and were not covered by the
invocation of the rule on the first day.”).

                                                   7
                Even in the absence of a per se rule that a court can never abuse its discretion in

permitting the testimony of a witness in violation of the Rule when the witness testifies only at the

punishment phase, we agree with our sister courts that, at the very least, “the admission of testimony

related to something other than guilt or innocence is unlikely to result in the violation of [the Rule].”

See Upton v. State, 894 S.W.2d 426, 428 (Tex. App.—Amarillo 1995, pet. ref’d). Here, Nancy Reed’s

testimony was offered only during the punishment phase (indeed, there was no guilt-innocence

phase, because Newberry pleaded guilty), she testified concerning her personal knowledge of the

effect on her family of Newberry’s assault, her testimony did not concern the offenses, nor did she

claim personal knowledge of the offenses, and her testimony did not corroborate any other witness’s

testimony on a point of disputed fact. Moreover, Newberry has not shown any prejudice from

Nancy Reed’s testimony. At the hearing, Newberry stated that he expected a life sentence, and the

State asked for a sentence of 50 years during closing argument. The trial court sentenced Newberry

to 36 years, which is less than the sentence Newberry expected and less than that requested by the

State. Given the grave nature of the offenses to which Newberry pleaded guilty and Katherine

Reed’s testimony concerning her struggles since the assault, it does not appear reasonably likely on

this record that the trial court’s sentence was elevated by Nancy Reed’s testimony.4

                For all of these reasons, we cannot conclude that the trial court abused its discretion

in allowing Nancy Reed to testify. And, even if the court did abuse its discretion, we could not




        4
          We note that, in his appellate brief, Newberry does not explain how the trial court’s
decision to allow Nancy Reed to testify in violation of the Rule affected his substantial rights and
was therefore reversible error.

                                                   8
conclude that the error affected Newberry’s substantial rights. Accordingly, we overrule Newberry’s

sole point of error.5

                 Finally, we note that the State has filed a motion calling our attention to non-

reversible clerical errors in two of the judgments. Specifically, the State points out that the judgment

for trial court cause number D-1-DC-16-301799 (appellate cause number 03-17-00806-CR)

incorrectly indicates that Newberry was found guilty of aggravated assault causing serious bodily

injury, a first-degree felony. See Tex. Penal Code § 22.02(a)(1). The judgment should indicate

that the offense was aggravated assault with a deadly weapon, a second-degree felony. See id.

§ 22.02(a)(2), (b). In addition, the State points out that the judgment for trial court cause number

D-1-DC-16-301801 (appellate cause number 03-17-00804-CR) incorrectly indicates that Newberry

was found guilty of sexual assault, a first-degree felony. The judgment should indicate that the

offense was a second-degree felony. See id. § 22.011(a)(1)(B), (f). We agree with the State that

these clerical errors should be corrected. This Court has authority to modify incorrect judgments

when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State,

865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we will modify the judgments to

correct these errors.6




        5
         In their appellate briefing, the parties argue whether a special exception exists allowing
close family members of the victim to remain in the courtroom after the invocation of the Rule.
Given our disposition of the appeal, we need not address that question.
        6
            We dismiss the State’s Motion for Judgments Nunc Pro Tunc as moot.

                                                   9
                                        CONCLUSION

               We affirm the trial court’s judgments of conviction in trial court cause numbers

D-1-DC-16-301800 (appellate cause number 03-17-00805-CR) and D-1-DC-16-205616 (appellate

cause number 03-17-00807-CR). We modify the judgment of conviction in trial court cause number

D-1-DC-16-301799 (appellate cause number 03-17-00806-CR) to indicate that Newberry was found

guilty of aggravated assault with a deadly weapon, a second-degree felony, pursuant to Texas Penal

Code section 22.02(a)(2), and we affirm the judgment as modified. We modify the judgment in trial

court cause number D-1-DC-16-301801 (appellate cause number 03-17-00804-CR) to indicate that

Newberry was found guilty of sexual assault, a second-degree felony, and we affirm the judgment

as modified.



                                             __________________________________________

                                             Scott K. Field, Justice

Before Chief Justice Rose, Justices Field and Toth

03-17-00804-CR: Modified and, as Modified, Affirmed
03-17-00805-CR: Affirmed
03-17-00806-CR: Modified and, as Modified, Affirmed
03-17-00807-CR: Affirmed

Filed: November 15, 2018

Do Not Publish




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