AFFIRMED; Opinion Filed May 4, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00966-CR

                        SALVADOR MORA CERVANTES, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 5
                                   Dallas County, Texas
                           Trial Court Cause No. F-1061624-L

                              MEMORANDUM OPINION
                   Before Chief Justice Wright and Justices Francis and Evans
                                   Opinion by Justice Evans
       Salvador Mora Cervantes appeals his conviction for the offense of injury to a child

causing serious bodily injury. In a single issue, appellant contends the trial court abused its

discretion when it permitted a witness to testify in violation of Texas Rule of Evidence 614. We

affirm the trial court’s judgment.

                                        FACTUAL BACKGROUND

       Appellant was indicted for the offense of capital murder in connection with the death of

his three-month old daughter. After the jury was seated, the trial court swore in three witnesses

and informed them that, pursuant to the “rule,” they would be required to remain outside the

courtroom unless they were testifying.     It does not appear from the record that either party

requested that the rule be invoked but, rather, the court chose to invoke the rule on its own. Mike
Sandlin, an investigator with the district attorney’s office, was in the courtroom at the time.

Sandlin neither took the witness oath nor left the courtroom.

          As part of its case in chief, the State introduced evidence that appellant’s daughter

suffered significant injuries in the days and weeks leading up to her death. The State called

Rogelio Estrada, Jr., a relative of the deceased child’s mother, to testify. At the time of the

child’s death, appellant, the child, and the child’s mother were living with Estrada and Estrada’s

father.     The State questioned Estrada about statements he had made concerning appellant

mistreating his daughter. During direct examination, the following exchanges occurred:

          Prosecutor:   And you saw a few things with [appellant] mistreating the baby
                        that you actually said, “Hey, man, you can't do that”; is that right?

          Estrada:      No.

          Prosecutor:   That's not true?

          Estrada:      No.

          Prosecutor:   Rogelio, you remember that you saw him hold her by her legs and
                        you said, “Hey, man, you can't do that”; right?

          Estrada:      No.

          Prosecutor:   So you're telling me that that didn't happen?

          Estrada:      I never saw it happen.

          [. . .]

          Prosecutor:   Rogelio, do you remember telling me that you saw Alex hold
                        Greidys by her foot upside down and you said, “Hey, man, you
                        can't do that with her”?

          Estrada:      I never told you that.

          Prosecutor:   You never told me that?

          Estrada:      No.

          Prosecutor:   You never sat upstairs in an office with me and this gentleman
                        back here, Mike Sandlin, and told us that?

          Estrada:      I agree that I was there but I didn't say that.
                                                  –2–
       Prosecutor:    Okay. And do you remember telling me how you saw him throw
                      her up in the air like a basketball and you said, “Hey, man, you
                      can't do that with her”? You don't –

       Estrada:       No.

       Prosecutor:    – remember telling me that either?

       Estrada:       I didn't say that.

       Prosecutor:    You don't remember this morning us having this very same
                      conversation in a room back there where you confirmed again that
                      you saw those two things?

       Estrada:       No.

       [. . .]

       Prosecutor:    Okay. And so you don't recall ever telling Mike or I any
                      mistreatment that the Defendant did to Greidys?

       Estrada:       No, never.

       After Estrada was excused, the State called Sandlin to the stand as a witness. Appellant

objected on the ground that Sandlin had remained in the courtroom after the rule was invoked.

In a hearing outside the presence of the jury, the prosecutor explained that she had not

anticipated calling Sandlin as a witness because Estrada had confirmed his prior statements with

her earlier that day. Based on this, she did not expect his testimony to contradict what he had

told her in his interview. The prosecutor further stated that if she had known of the possibility

that Estrada would change his testimony, she would have asked Sandlin to leave the courtroom

when the court invoked the rule. Appellant responded that the State always contemplates calling

an investigator present during the questioning of a witness to testify because of the possibility

that the witness will change his story on the stand. The court overruled appellant’s objection,

and allowed him to testify. In his testimony, Sandlin confirmed that Estrada made the statements

he denied making during his direct examination.




                                              –3–
       After hearing the evidence, the jury convicted appellant of the lesser included offense of

injury to a child causing serious bodily injury, a first-degree felony. Punishment was assessed at

sixty years’ confinement. This appeal followed.

                                                ANALYSIS

       In his sole issue on appeal, appellant contends the trial court abused its discretion in

allowing Sandlin to testify after he remained in the courtroom following the exclusion of

witnesses under rule 614 of the Texas Rules of Evidence. Rule 614 requires the trial court to

exclude witnesses from the courtroom during the testimony of other witnesses at the request of

any party, or the court may choose to exclude witnesses on its own. TEX. R. EVID. 614. Whether

a witness who has violated the rule will be allowed to testify is a matter within the trial court’s

discretion. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) (per curiam). We presume

on appeal that such discretion was properly exercised until the contrary has been shown. Id.

       In determining whether the trial court abused its discretion, we first consider whether the

witness who violated the rule was (1) sworn in or listed as a witness in the case or (2) a person

not intended to be a witness and not connected with the State’s or defendant’s case in chief but

who, because of events during trial, became a necessary witness. See Guerra v. State, 771

S.W.2d 453, 476 (Tex. Crim. App. 1988) (citing Green v. State, 682 S.W.2d 271 (Tex. Crim.

App. 1984)); Minor v. State, 91 S.W.3d 824, 829 (Tex. App.—Fort Worth 2002, pet. ref’d). If

the witness was one who had no connection with either the State’s or defendant’s case in chief

and who, because of lack of personal knowledge regarding the offense, was not likely to be

called as a witness, then no abuse of discretion can be shown. See Guerra, 771 S.W.2d at 476.

       In this case, Sandlin was neither sworn in nor listed as a witness to be called by either

party. Appellant argues Sandlin was closely connected to the State’s case because he was the

“particular investigator” assigned to the case from the district attorney’s office. But this is not

                                               –4–
the type of connection contemplated by the test. The relevant inquiry is not whether Sandlin was

connected to the case at all, but whether Sandlin was connected to the State’s case in chief to be

presented at trial. In other words, we look at whether Sandlin had any personal knowledge of

factual evidence the State intended to present.

       At the hearing on appellant’s objection, the prosecutor explained that she had no intention

of calling Sandlin as a witness. Sandlin had no personal knowledge of any facts relevant to the

offense. Although, in theory, anyone present at the interview of a witness could be called upon

to testify if that witness denies his earlier statements at trial, the prosecutor here confirmed

Estrada’s testimony with him only hours before he was called to the stand. Accordingly, she had

no reason to believe Estrada would change his story and require Sandlin to be called as a rebuttal

witness.

       Because Sandlin had no personal knowledge of the offense and the State showed that, at

the time the rule was invoked, it was unlikely he would be called as a witness, the trial court did

not abuse its discretion in allowing Sandlin to testify. Id. We resolve appellant’s sole issue

against him and affirm the trial court’s judgment.




                                                        / David Evans/
                                                        DAVID EVANS
Do Not Publish                                          JUSTICE
Tex. R. App. P. 47
130966F.U05




                                                  –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

SALVADOR MORA CERVANTES,                            On Appeal from the Criminal District Court
Appellant                                           No. 5, Dallas County, Texas
                                                    Trial Court Cause No. F-1061624-L.
No. 05-13-00966-CR        V.                        Opinion delivered by Justice Evans. Chief
                                                    Justice Wright and Justice Francis
THE STATE OF TEXAS, Appellee                        participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of May, 2015.




                                              –6–
