No. 72,795
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
DARLIE LYNN ROUTIER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
APPELLANT'S BRIEF
On Appeal from the
Criminal District Court No. 3 of
Dallas County, Texas
Trial Court No. F96-39973-J
TO THE HONORABLE JUDGES OF THE COURT
OF CRIMINAL APPEALS:
COMES NOW DARLIE LYNN ROUTIER, Appellant
in the above styled and numbered cause and files
this her Appellant's Brief in support of her
prayer that the judgment of conviction be reversed
and the cause remanded for a new trial and,
as appropriate, the Court order further hearings
in the trial court as requested herein.
STATEMENT OF THE CASE
Appellant was indicted for the capital
murder of a child under the age of six. TEX.PENAL CODE ANN. §19.03(a)(8). A jury found Appellant guilty as charged, CR.1A:
150, and by operation of the jury's answers
to the two special issues, CR.1A: 220-1, punishment
was assessed at death, CR.1A: 220.
POINTS OF ERROR
Point of Error NUMBER ONE
APPELLANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
WAS VIOLATED BECAUSE HER LEAD COUNSEL HAD AN
ACTUAL CONFLICT OF INTEREST AND THE TRIAL COURT
DID NOT CONDUCT A HEARING ON THE STATE'S MOTION
TO DETERMINE WHETHER HE SHOULD BE DISQUALIFIED.
Point of Error NUMBER TWO
APPELLANT'S CONVICTION MUST BE REVERSED BECAUSE A SIGNIFICANT PART OF
THE REPORTER'S RECORD NECESSARY TO THE APPEAL
WAS LOST OR DESTROYED THROUGH NO FAULT OF HER
OWN.
Point of Error NUMBER THREE
APPELLANT IS ENTITLED TO A NEW TRIAL BECAUSE THE REPORTER'S RECORD DOES
NOT CONFORM TO THE REQUIREMENTS OF TEX.R.APP.P.
34.6(A)(1) AND THE DEFECT CANNOT BE CORRECTED.
Point of Error NUMBER FOUR
APPELLANT IS ENTITLED TO A HEARING WHICH COMPORTS WITH DUE PROCESS ON
HER OBJECTIONS TO THE COMPLETENESS AND ACCURACY
OF THE REPORTER'S RECORD BEFORE IT CAN BE USED TO DECIDE HER APPEAL.
Point of Error FIVE
APPELLANT IS ENTITLED TO A RULE 34.6(E)(2) HEARING TO SETTLE THE DISPUTES
ABOUT THE REPORTER'S RECORD BEFORE IT CAN BE
USED TO DECIDE HER APPEAL.
POINT OF ERROR NUMBER SIX
THE
COURT VIOLATED FORMER TEX.R.CRIM.EVID. 613 WHEN
IT REFUSED TO ALLOW APPELLANT'S PRIVATE INVESTIGATOR
TO TESTIFY ABOUT A PRIOR INCONSISTENT STATEMENT
OF THE STATE'S BLOOD SPATTER EXPERT.
POINT OF ERROR NUMBER SEVEN
THE COURT DENIED APPELLANT DUE PROCESS
WHEN IT REFUSED TO ALLOW HER PRIVATE INVESTIGATOR
TO TESTIFY ABOUT A PRIOR INCONSISTENT STATEMENT
OF THE STATE'S BLOOD SPATTER EXPERT.
POINT OF ERROR NUMBER EIGHT
THE TRIAL COURT
VIOLATED APPELLANT'S RIGHT TO COUNSEL BY USING
AN UNRECORDED EX PARTE COMMUNICATION FROM AN
UNNAMED PERSON THAT OCCURRED WHEN HER LAWYER
WAS NOT THERE AS THE ONLY BASIS FOR DISCHARGING
A SWORN JUROR.
POINT OF ERROR NUMBER NINE
THE TRIAL COURT
VIOLATED APPELLANT'S RIGHT TO BE PRESENT DURING
AN UNRECORDED EX PARTE COMMUNICATION WITH AN
UNNAMED PERSON THAT PROVIDED THE ONLY BASIS
FOR THE TRIAL COURT'S FINDING THAT A SWORN JUROR
WAS DISABLED.
POINT OF ERROR NUMBER TEN
THE TRIAL COURT
ABUSED ITS DISCRETION UNDER TEX.CODE CRIM.PROC.ANN.ART.
36.29 BY REPLACING A SWORN JUROR WHEN THERE
WAS NO EVIDENCE IN THE RECORD TO SHOW THAT SHE
WAS DISABLED.
POINT OF ERROR
NUMBER ELEVEN
THE TRIAL COURT
VIOLATED TEX.CODE CRIM.PROC. ANN.ART. 36.27,
BY PROVIDING THE JURY WITH AN INACCURATE TRANSCRIPT
OF A CRUCIAL PART OF DARIN ROUTIER'S TESTIMONY
WHEN APPELLANT WAS NOT PRESENT.
POINT OF ERROR
NUMBER TWELVE
THE TRIAL COURT
VIOLATED TEX.CODE CRIM.PROC. ANN.ART. 33.03,
BY PROVIDING THE JURY WITH AN INACCURATE TRANSCRIPT
OF A CRUCIAL PART OF DARIN ROUTIER'S TESTIMONY
WHEN APPELLANT WAS NOT PRESENT.
POINT OF ERROR
NUMBER THIRTEEN
THE TRIAL COURT
VIOLATED APPELLANT'S DUE PROCESS RIGHT TO BE
PRESENT AT A CRITICAL STAGE OF HER TRIAL BY
PROVIDING THE JURY WITH AN INACCURATE TRANSCRIPT
OF A CRUCIAL PART OF HER HUSBAND'S TESTIMONY
WHEN SHE WAS NOT PRESENT.
POINT OF ERROR NUMBER
FOURTEEN
THE TRIAL COURT ERRED IN REFUSING TO RULE ON APPELLANT'S FORMAL BILL
OF EXCEPTION.
STATEMENT OF
FACTS
Darlie Lynn Routier was charged with
stabbing her five-year-old son to death in the
early morning hours of June 6, 1996, in the
downstairs "Roman" room of her own
home. She was further accused of stabbing to death
her six-year-old son Devon in the same transaction
while her husband Darin and infant son Drake
were asleep upstairs. RR.29: 31. Appellant's motive for these acts as alleged by the State was that
she was "angry" over her family's
purported economic difficulties and the negative
effect this had on her "lifestyle."
RR.29: 34.
Appellant's written and oral statements
explained that she and her two older boys went
to sleep in front of the big screen TV that
summer's evening.
Appellant had frequently slept downstairs
recently because the baby's movement in the
crib in her bedroom often woke up this young
mother. RR.29: 36; Defendant's Exhibit No. 76A; RR.53:
6143.
Appellant said she was awakened during
the night from the feeling of pressure on her
shoulder and the sound of Damon saying "Mommy."
Defendant's Exhibit No. 76A; RR.53: 6143.
She then saw a male intruder walking
away from her and then go through the kitchen,
through the utility room, and out to the attached
garage. Appellant followed this person initially,
then turned on a light, and she saw a big knife
on the floor which she picked up and placed
on the kitchen counter. She ultimately noticed blood all over the Roman
room, saw her children injured, and noticed
she too was bleeding. Appellant screamed for
her husband who soon came downstairs and she
called 911. Defendant's Exhibit No. 76A; RR.53:
6143
The police investigation of the scene
discovered in the garage an open window with
a screen which had been cut; a variety of blood
"trails" in the house; and microscopic
fiber on the household's bread knife that was
similar to the material from which the cut screen
was made; and four spots of blood on Appellant's
night-shirt which each had combinations of Appellant's
blood and of one or the other dead boys. RR.28: 41-2.
The police also found a sock down an
alley some 75 yards from Appellant's house which
contained the blood of both Devon and Damon,
but not Appellant's.
RR.28: 46.
The police focused their investigation
on Appellant virtually from their arrival and
weeks prior to any confirmed analysis of the
blood evidence and in doing so all but ignored
the reports from neighbors of a suspicious black
car which had been seen in the area recently,
including the night of the offense.
RR.28: 47-8.
The State's theory was that Appellant's
wounds were "superficial," although
this was a medical term simply meaning not "deep."
Actually, Appellant's slashed throat
was but 2 millimeters away from causing her
death in 2-3 minutes time.
RR.30: 795-6.
It is strongly urged that this Court
review the photographs of Appellant's injuries. Such will reveal the same to be anything but
"superficial" in non-medical language. Defendant's Exhibit Nos. 1, 2, 3, 4, 5, 91, 92; RR.53: 6067, 6068,
6069, 6070, 6071, 6160, 6161. State's Exhibit
Nos. 52A, 52B, 52C; RR.51: 5914, 5915, 5916.
Further specific evidence and testimony
will be cited in support of the relevant points
of error herein.
SUMMARY OF
THE ARGUMENTS
The record fails to reflect Appellant
waived her constitutional right to conflict-free
counsel after the State filed a motion alleging
her lead counsel might have a conflict from
his previous representation of Appellant's husband.
A significant portion of the reporter's
record was lost or destroyed thus requiring
a reversal of the conviction.
Additionally, Appellant is entitled to
a new trial because the reporter's record fails
to conform with the law and cannot be corrected,
or, alternatively, Appellant is entitled to
a hearing on her challenges to the record.
The trial court's refusal, because of
a violation of "the Rule," to permit
Appellant's investigator to testify as to what
the State's bloodstain expert told the investigator
and defense attorneys violated the applicable
rule and due process.
The trial court excused a sworn juror
in violation of the rules and constitution.
The trial court also violated the rules
and constitutions in addressing and answering
a jury question during deliberations outside
Appellant's presence.
Lastly, the trial court erred in refusing
to act on a formal bill of exception filed by
Appellant.
Point of Error NUMBER ONE
(Restated)
APPELLANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
WAS VIOLATED BECAUSE HER LEAD COUNSEL HAD AN
ACTUAL CONFLICT OF INTEREST AND THE TRIAL COURT
DID NOT CONDUCT A HEARING ON THE STATE'S MOTION
TO DETERMINE WHETHER HE SHOULD BE DISQUALIFIED.
STATEMENT OF FACTS
Appellant's Lead Counsel
Represented Her Husband
At A Hearing That Was
Substantially Related To The
Facts Of Her Case When
Her Husband Was A
Prosecution Witness
And A Suspect
Appellant was initially represented
by court appointed counsel because she could
not afford to retain a lawyer. On September
19, 1996, the State filed a motion to discharge
her court appointed attorneys because she was
no longer indigent. The State's motion alleged
that Douglas Mulder, "one of the most .
. . successful attorneys in the State of Texas,"
had informed the trial court on September 12,
1996, that he was retained to represent Appellant.
CR.1B: 474-75.
Appellant's court appointed lawyers
appeared as her counsel of record and Mulder
was present in the courtroom on September 20,
1996, when the trial court conducted a show
cause hearing to determine whether her husband,
Darin Routier, and her mother, Darlie Kee, should
be held in contempt for violating a gag order.
RR.8: 6-7; CR.1A: 11-16. At
the beginning of the hearing, Mulder announced,
"I am retained by Ms. Kee to represent
her and she has asked me to represent Darin
as well, I didn't know that until this morning." RR.8: 8. Mulder informed
the trial court that he asked one of Appellant's
attorneys to represent Darin, but the attorney
told him that he could not do so. RR.8: 8.
Darin Routier was accused of violating
a gag order which prohibited any witness or
prospective witness from furnishing "any
statement or information which could reasonably
be expected to be disseminated by means of public
communication" about the following subjects:
1) the expected testimony of the defendant or
any witness; 2) the character, reputation or
credibility of a witness; 3) the contents of
any statement given by the defendant and 4)
the nature of the evidence which may be presented.
CR.1A: 12-14. Darin Routier was a witness
and a prospective witness because he had testified
about the facts of the case at a bond hearing
and received a subpoena to testify for the State
at the trial.
RR.8: 8.
The show cause order alleged that
Darin Routier provided unspecified "statements
and information" about Appellant's case
"to the KRLD radio talk show hosted by
Rick Roberts which was aired on July 26, 1996"
after he received his subpoena. CR.1B: 309. On the day after the talk show
was broadcast, a Dallas newspaper published
a story which stated, "prosecutors and
police reacted angrily yesterday after the mother
and husband of Darlie Routier appeared on a
radio talk show to contend that Routier is innocent
of charges that she fatally stabbed her two
children. Assistant District Attorney Greg Davis
filed a notice that Darlie Kee and Darin Routier
had violated a court gag order and asked District
Judge Mark Tolle to schedule a hearing to consider
sanctions against them." Defendant's Ex. 70, p. 6; S.Ex. The article also
stated that Rowlett Police Chief Randall Posey
was "outraged that the Routiers would so
directly violate Judge Tolle's court order."
Defendant's Exhibit. 70, p. 7; S.Ex.1.
When the State introduced a tape
recording of the Rick Roberts talk show at the
hearing, Mulder assured the trial court that
he had already reviewed it.
RR.8: 9-10; State's Exhibit ZZZ. Mulder
did not introduce any evidence or call Darin
as a witness.
RR.8: 12. Without placing him under oath,
the trial court asked Darin whether he knew
that the gag order pertained to him but it did
not question him about what he said to the media.
Darin acknowledged that he received a subpoena
to testify for the prosecution, but he claimed
that he was not aware that the gag order applied
to him. RR.8: 12-13.
Mulder argued that Darin Routier
did not violate the gag order by appearing on
the talk show because "as I understand
it, he did not discuss the evidence or really
anything that pertained to the case."
RR.8: 12. The trial court reluctantly
agreed with Mulder: "Well, I have heard
what Mr. Routier stated on the show. I listened
to those tapes several times. You did not go
into any of the facts of the case. You were
under the gag order, but since you did not go
into any of the facts in the case, the Court,
at this time, is unable to hold you in contempt."
RR.8: 12-13.
Lead Counsel's Third
Party Fee Arrangement
When the show cause hearing was completed,
the trial court asked Darin Routier whether
he had retained Mulder to represent Appellant
at her trial.
RR.8: 16. Darin denied this.
RR.8: 16-17. The trial court then asked
Darin whether Appellant had arranged to have
Mulder represent her at her trial. RR.8: 16. Darin responded that he did not know of such an arrangement,
but he added, "I don't understand exactly
what-- he has met with her."
RR.8: 17. The trial court repeated the
question and Darin unequivocally denied that
Appellant had made any arrangements to have
Mulder represent her. RR.8: 17.
Mulder attempted to clarify his role
in the case by informing the trial court that
Kee retained him as a "consultant"
to assist Appellant's court appointed lawyers. RR.8: 17. The trial court ruled that Mulder
could act as a consultant to her appointed counsel
and remain in the courtroom during the trial,
but he could not file motions or directly participate
in the litigation of the case.
RR.8: 18. The trial court advised Mulder
that he had to file a formal motion to substitute
himself as counsel of record before he could
take control of the defense. RR.8: 19.
The Uncertified Record
Of The Hearing On The
Motion To Substitute
Counsel
Mulder filed a written motion to
substitute himself and his associates as Appellant's
counsel of record on October 21, 1996, which
was the first day of jury selection. CR.1A: 52. The trial court's entry on docket
sheet for that date stated, "hearing on
atty Douglas Mulder's motion to substitute counsel.
Testimony & evidence rec'd. Motion granted.
Douglas Mulder & associates substituted
as def's attorneys in this case." CR.1A: 6.
There is no certified reporter's
record of the proceedings on the morning of
October 21, 1996. The proceedings were stenographically
transcribed by the court reporter who filed
the original record in this case, Sandra Halsey,
but the trial court found that Halsey's entire
record had to be replaced with a new record
because it did not conform to what happened
at the trial. SCR.1: 128-9.
The court reporter who prepared the
new record, Susan Simmons, included a 54 page
uncertified English translation of Halsey's
paper stenographic notes of the proceedings
on the morning of October 21, 1996, in Volume
10 of the new record. RR.10: 1-54. Simmons signed a certificate in
that volume, but it expressly states that Simmons
did not certify that those pages were
a true and correct transcription of what happened
in court.
Mulder's prior representation of
Darin Routier at the show cause hearing was
not mentioned in the uncertified English translation
of Halsey's stenographic record of the proceedings
on the morning of October 21, 1996. The uncertified
pages did contain a brief discussion of a separate
conflict of interest arising from Mulder's representation
of Appellant's mother, Darlie Kee. RR.10: 9-10.
According to Halsey's uncertified
stenographic notes, when Mulder presented his
motion to substitute himself as Appellant's
attorney of record, the trial court asked Mulder
whether his "arrangement as a consultant"
with Kee was terminated. RR.10: 9-10. Mulder responded that it was "expanded"
to include representation of Appellant during
the trial.
RR.10: 10.
The trial court asked Appellant whether
she wanted Mulder to represent her. Appellant
stated that she did. RR:10: 10.
The trial court then asked Appellant:
[THE COURT:] ... If there is any potential conflict with
Mr. Mulder representing you and
being a consultant to Ms. Kee, do
you waive any potential conflict that might
exist.
THE DEFENDANT: I'm not sure if I
understand.
MR. DOUGLAS MULDER: He wants to know
if you give up any claim to a conflict in
so far as I represent your mother as a consultant.
THE DEFENDANT: No, there is no conflict.
THE COURT: So you waive any conflict
that might exist, is that correct?
THE DEFENDANT: Yes, sir.
RR.10: 10-11. (Emphasis
added.)
The trial court granted Mulder's
motion to substitute himself and his associates
as Appellant's counsel of record and discharged
her court appointed attorneys after that colloquy
was completed. RR.10: 11.
The State's Motion
To Determine Whether
Appellant's Lead Counsel
Had A Conflict Of Interest
On November 12, 1996, the State filed
a motion that was styled NOTICE OF POSSIBLE
CONFLICT OF INTEREST. CR.1A: 55. The State's motion asked the trial
court to determine whether Mulder had an actual
conflict of interest because of his prior representation
of Darin Routier at the show cause hearing and,
if so, whether Appellant and Darin Routier would
waive it. CR.1A: 55-56. The State's motion alleged
that Mulder knew when he represented Darin Routier:
... that the State disbelieved and
intended to disprove the defendant's claim that
these murders were committed by an unknown intruder.
Mr. Mulder knew that the only other adult person
in the residence during and immediately after
these murders was his other client, Darin Routier.
Mr. Mulder knew that the State's investigation
was ongoing with regards to the analysis of
physical evidence. Recent analysis of physical
evidence suggests that Darin Routier may have
participated with the defendant in the crime
or cover-up of the crime.
CR.1A: 56.
The State disclosed two new pieces
of circumstantial evidence that connected Darin
to the murder of his sons and linked him to
the stabbing of Appellant. A white tube sock
that was found in the alley behind the Routier
house had the blood of both children, a faint
trace of Appellant's DNA, and fibers from Darin's
sneakers on it. RR.38: 3127-8, 3144-5; CR.1A: 58. There was
also a head hair on the knife that inflicted
the children's wounds and Appellant's
wounds which matched a known sample of Darin's
head hair. CR.1A: 58-59.
The Evidence Of Darin
Routier's Guilt
That The Trial Court
Was Aware Of
The trial court was aware of the
significance of the new evidence that connected
Darin Routier to the murder weapon and sock
because the State presented a preview of its
case at a bond hearing. The record of that
hearing and the trial contains a substantial
amount of other circumstantial evidence which
also tended to incriminate Darin Routier.
Darin Routier had a powerful pecuniary
motive to kill Appellant. Darin's business was
failing and he was deeply in debt. RR.1: 10-38.
Appellant's life was insured for $250,000. RR.5: 315; HR.6: 491; Defendant's Exhibit No.
6, p. 3.
Appellant suffered multiple knife
wounds during the offense, HR.6: 475-7; State's
Exhibit Nos. 17-19, and Darin was totally unharmed,
HR.6: 490; Defendant's Exhibit No. 5, p. 3.
Dr. Vincent DiMaio testified that Appellant
could not have inflicted her own wounds and
she had to stab herself with both hands to do
so. RR.43: 4524; 4548-50.
A significant part of Darin's description
of what happened on the night of the murder
was implausible and inconsistent with Appellant's
version. Darin was in the bedroom on the second
floor and Appellant was on the first floor with
their sons, Damon and Devin, when the children
and Appellant were stabbed. Darin testified
at a pre-trial hearing that he was awakened
by the sound of glass breaking and Appellant
screaming.
RR.4: 123. Darin and Appellant agreed
in their written statements that Darin ran down
the stairs and went straight to the room where
the boys were attacked. HR.6: 478; State's Exhibit No. 20, p. 7; HR.6: 488; Defendant's
Exhibit No. 3, p. 2. Appellant told the police
that Darin yelled, "What is it? What is
it?" and she responded, "he cut them,
he tried to kill me, my neck."
HR.6: 478; State's Exhibit No. 20. At the bond
hearing, Darin acknowledged that he saw Appellant
standing at the foot of the stairs when he came
out of the bedroom. RR.4: 127. Appellant's throat
was cut and her white night shirt was drenched
in blood, but Darin claimed in his written statement
that he ran past Appellant to the room where
the boys were killed
without noticing that she was injured.
HR.6: 488; Defendant's Exhibit No. 3,
p. 5.
Darin Routier made suspiciously inconsistent
statements about his blue jeans. At the hospital
early after the attacks, the police noticed
blood on his blue jeans and a tear just below
the right knee.
When asked about the tear, he said he
got it while working on the back yard gate just
the day before. According to the police report, he didn't explain
how blood got on his jeans because he said he
came down the stairs naked and got blood on
his stomach and bare knees while trying to give
CPR to Devon.
HR.6: 488; Defendant's Exhibit No. 5,
p. 3. In
his written statement, Darin told the police
that he went to sleep naked, rushed downstairs
nude when he heard Appellant scream, and then
went back upstairs to put his pants on after
he gave first aid to the children.
HR.6: 488; Defendant's Exhibit No. 3,
p. 3. At the bond hearing, Darin claimed that
he went to sleep nude and took the time to put
his jeans on before he rushed downstairs to
find out why Appellant was screaming. RR.4: 124.
Several eyewitnesses saw Darin Routier
remain at the crime scene for an inordinate
amount of time after Appellant was rushed to
the hospital. Officer Matt Walling noticed that
Darin was sitting on the curb near the house
after the ambulance left. Walling asked Darin
whether he had a way to get to the hospital
and Darin told him that he did not. One of Darin's
neighbors assured Walling that he would drive
Darin to the hospital. Thirty minutes later
Walling noticed that Darin was still at the
crime scene. Walling told him that he had to
go to the hospital and he finally left.
S.Ex.1; Defendant's Exhibit No. 70.
A neighbor, Nelda Watts, saw Darin
lingering at the crime scene when his wounded
wife and dead children were at the hospital.
Watts thought that it was "strange"
that Darin did not leave. She told the police
that she believed that Darin and Appellant were
both involved in the capital murder.
S.Ex.1; Defendant's Exhibit No. 70.
Another neighbor, Bill Gorsuch, also
saw Darin lingering at the crime scene. Gorsuch
thought that it was very strange that Darin
did not appear to be upset.
S.Ex.1; Defendant's Exhibit No. 70.
When the surgeons were operating
on Appellant at the hospital, Detective Patterson
noticed that Darin "acted as if nothing
serious had happened." HR.6: 490; Defendant's Exhibit No. 5, p. 3. Darin "smiled and
laughed" and boasted to the detective about
the size of Appellant's breasts.
HR.6: 490; Defendant's Exhibit No. 5,
p. 2.
Appellant's statements to the police
did not conclusively exonerate her husband.
Appellant stated that she only had a brief glimpse
of her assailant in the dim light that emanated
from a large screen television a moment after
she regained consciousness. Appellant was initially
uncertain about the intruder's race and she
did not see his face. Her description of a white
male with long hair in blue jeans fit Darin
as far as it went: Darin wore blue jeans that
night and he had his hair in a pony tail at
the hospital.
RR.4: 54, 111-2; HR.6: 489; Defendant's
Exhibit No. 4, p. 3; S.Ex.1; Defendant's Exhibit
No. 70, Supplemental Report of Officer Walling
at p.2; Statement of E. Zimmerman at p.3.
The Trial Court's Unfulfilled
Promises To Conduct
A Hearing To Determine
Whether Appellant's Lead
Counsel Had A Conflict
Of Interest
