Routier v. State

• Decision Date: 21 May 2003
• Docket Number: No. 72795.,72795.
• Parties: Darlie Lynn ROUTIER, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

112 S.W.3d 554

Darlie Lynn ROUTIER, Appellant, v. The STATE of Texas.

No. 72795.

Court of Criminal Appeals of Texas.

May 21, 2003.

Rehearing Denied September 10, 2003.

J. Stephen Cooper, Dallas, for Appellant.

John R. Rolater, Jr., Asst. DA, Dallas, Matthew Paul, State's Attorney, Austin, for State.

PRICE, J., delivered the unanimous opinion of the Court.

The appellant was convicted of the capital murder of a child under six years of age. Tex. Penal Code § 19.03(a)(8). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Tex.Code Crim. Proc. art. 37.071, § 2(g). Direct appeal to this Court is automatic. Tex.Code Crim. Proc. art. 37.071, § 2(h). The appellant raises fourteen points of error. We shall affirm.

The evidence that supports the verdict shows that the appellant stabbed and killed her two sons, Damon and Devon,¹ while her husband and infant son were asleep upstairs in the house. The appellant does not challenge the legal or factual sufficiency of the evidence to support her conviction, and therefore, it is not necessary to set out the evidence in detail.

I. Claims Regarding the Record

In her brief, the appellant makes several claims regarding the preparation and certification of the reporter's record in addition to claims regarding her trial. We will address claims dealing with the accuracy of the record before dealing with the appellant's claims regarding her trial. Specifically, the appellant complains that she is entitled to a new trial because of problems with the reporter's record. She argues that, at a minimum, she is entitled to a hearing before the record can be used to decide her appeal. A review of the facts pertaining to these points of error is necessary.

The appellant's trial took place in January 1997. The certified court reporter, Sandra Halsey, took stenographic notes during the trial. Halsey simultaneously typed notes of the proceedings onto paper strips ("notes") and onto computer edit disks ("disks") that automatically translated the stenographic symbols into English. In April 1998, under an order of contempt issued by this Court the month before,² Halsey prepared, certified, and filed the original reporter's record in the case ("Halsey record").

In a motion to correct and clarify Halsey's record, filed October 13, 1998, the appellant raised the first dispute about the accuracy of the record. An excerpt of the record that had been read to the jury did not match the corresponding portion of the Halsey record. Also, counsel noted discrepancies about who was present during the trial and when. The next day this Court granted the appellant's motion and ordered Halsey to prepare, certify, and file a supplemental reporter's record containing any omitted items. We also ordered the trial court³ to resolve any dispute raised in the appellant's motion and to ensure that the reporter's record conformed to what occurred at trial.

The trial court conducted a hearing and decided that the entire record had to be reviewed to comply with this Court's October 14, 1998 order. In a hearing held October 30, 1998, pursuant to our order, Halsey testified that she made audiotape recordings ("tapes") in addition to the notes and disks during the trial. Halsey claimed that the audiotape recorder worked during only the voir dire portion of the trial. The trial court ordered Halsey to produce her notes, disks, and tapes from the trial. The trial court also ordered her to conduct a review of the record and make note of any problems she found or corrections she made.

At a hearing held on November 4, 1998, the trial court appointed three certified court reporters, Tommy Mullins, Judy Miller, and Jerry Calloway ("the experts"), to perform a review and to compare the notes and disks to Halsey's record to determine whether Halsey's record could be certified.

Although Halsey had told the trial court and the experts that she possessed no tapes from the guilt and punishment phases of the trial, on November 12, 1998, she told prosecutor Lindsey Roberts and appellant's counsel Stephen Cooper that tapes from those phases of the trial did exist. According to a stipulation read into the record, she went with Roberts to retrieve the tapes from a storage facility in Plano. Halsey told Roberts that the tapes she produced were from the Routier trial. These tapes were produced during the hearing in the trial court on November 13, 1998. The appellant expressed concern about the authenticity of the tapes. The trial court received the tapes with the understanding that the question of their authenticity would be subject to further review.

Also during the hearing on November 13, the experts testified that they performed their review by comparing a total of twelve random pages from four of the ten volumes of Halsey's record of the trial with the corresponding notes and disks. On each of the four pages, the experts found several differences between what was in the notes and what was on the pages from the record. They concluded that the only way to account for so many differences between the notes and Halsey's record is that someone listened to tapes from the trial and made changes based on the tapes.⁴

Halsey's daughter and transcription scopist,⁵ Suzy Crowley, testified that Halsey gave her tapes of the guilt and punishment phases of trial. Crowley stated that she used the tapes to make permanent changes to the English translation of the original proceedings on the disks. She testified that the tapes presented by Roberts looked similar to the ones she had used and that they had labels on them that identified them as being from the Routier trial. Scopist Michelle Reynolds reviewed and edited the voir dire portion of the trial.

Halsey did not testify at the hearing on November 13, 1998. The trial court appointed counsel for her. At the conclusion of the hearing, the trial court rescinded its prior order of October 30, 1998, to have Halsey review her record and ordered her to cease any proceedings regarding the record. The trial court said it would appoint a certified reporter, agreeable to both the State and the appellant, to review Halsey's record and determine whether it could be made to conform to what occurred at trial.

On November 19, 1998, the trial court appointed Susan Simmons, a certified court reporter for the United States District Court in Tyler, to perform a review of the guilt and punishment phases of the record, as well as the pretrial hearings.⁶ The parties and the experts all agreed that Simmons was qualified and competent to perform the review. During the hearing, the appellant's counsel explained that he was not sure if it was legally permissible or even possible to certify the record. He reserved the right to offer evidence on this point at a later time. Halsey appeared with her attorney that day. To comply with a subpoena duces tecum requesting all materials regarding the appellant's trial, her attorney turned over the notes and disks for the entire trial. Halsey refused to testify, however, and asserted her Fifth Amendment privilege.

On December 9, 1998, Halsey's attorney produced twelve more tapes, which he claimed were additional tapes from the trial. Halsey was then relieved of her duties as the official court reporter in this case. The trial court ordered Halsey to continue to look for more tapes.

On April 1, 1999, the trial court conducted a hearing during which Simmons testified that she had revised the Halsey record of the guilt and punishment phases of the appellant's trial. Simmons submitted the revised record ("Simmons record") and her red-lined copy of the Halsey record that reflected all of the changes that she had made. Counsel for the appellant and the State were not permitted to question Simmons directly.⁷ Before the hearing, the trial court provided to the parties the questions it would ask Simmons. The parties were permitted to submit written questions to the trial court, and the trial court read the questions that it concluded were relevant and not repetitive. The trial court instructed the parties not to object to questions during the testimony; they were directed to submit those objections before the next hearing. The trial court stated that it would also afford the parties an opportunity to submit a bill of exceptions. The parties were given a break during the testimony to submit further questions based on the testimony that had already been heard.

Simmons testified about the standard procedures for preparing a record of proceedings. First, during the proceedings, the certified court reporter writes on a machine notes of what occurs. The notes include a list of the people who are present, the date of the proceedings, the name of the proceedings, the testimony taken, and the list of exhibits. The machine simultaneously prints the symbols onto the notes and records the symbols onto a disk or hard drive. The symbols on the notes cannot be read or deciphered by someone without some training as a court reporter or scopist. The notes are labeled with the date and subject matter. It is common for the court reporter to use an audiotape recorder as a backup. Generally, the recorder is connected to the microphones on the witness stand, the attorneys' tables, and the judge's bench.

Simmons testified that after the proceedings are over, the court reporter takes the disk to a computer and uses software, to which the reporter's personal dictionary has been added. The dictionary in the software produces an English translation of the symbols. The computer produces a split screen on the monitor, which shows the symbols on one side and the English translation on the other side. The English translation will show some "untranslates," which are symbols that the software does not recognize. After the reporter enters the correct word, the symbol for the word and...