Opinion
No. 14-06-00455-CR
Opinion filed August 2, 2007. DO NOT PUBLISH Tex. R. App. P. 47.2(b).
Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1045309.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant, Marcus Wayne Hardge, appeals his conviction for felony possession of cocaine with intent to deliver. In a single issue, appellant argues the trial court erred when it excluded the testimony of a defense witness when the witness violated Texas Rule of Evidence 614. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 27, 2005, Harris County homicide detectives Wischkoski and Pinkins were conducting an investigation. Wischkoski received information from a civilian informant, who then led Detective Wischkoski to a residential neighborhood where the informant identified appellant as appellant drove into the neighborhood. Appellant drove into a driveway and got out of his vehicle. Appearing to notice Detective Wischkoski's parked vehicle, appellant got back into his vehicle and drove off. Detective Wischkoski followed and when appellant stopped for a stop sign, Detective Wischkoski pulled up next to appellant, showed his badge and asked appellant to pull over. Appellant made a left turn and then turned into a driveway. Detective Wischkoski then instructed appellant to get out and move to the back of his vehicle, which appellant did. Detective Wischkoski patted appellant down for weapons and informed appellant they were investigating another offense and wanted to speak to him regarding their investigation. Appellant cooperated with the detectives and gave his verbal consent to search his vehicle. Detective Wischkoski then asked appellant to sign a written consent form. After appellant read the form, he signed it in the presence of detectives Wischkoski and Pinkins. As Detective Wischkoski moved to search appellant's vehicle, appellant told Detective Wischkoski "it was under the driver's side seat." Not knowing what appellant meant, Detective Wischkoski asked appellant what was under the seat. Appellant told Detective Wischkoski it was in a purple bag. Detective Wischkoski then retrieved a purple Crown Royal bag from under the driver's side seat. Inside the bag, Detective Wischkoski discovered 54.42 grams of cocaine. At the start of appellant's trial, appellant invoked Texas Rule of Evidence 614, commonly referred to as "the Rule." Tex. R. Evid. 614. The Rule provides that, at the request of a party, the trial court shall order witnesses excluded from the courtroom so that they cannot hear the testimony of the other witnesses. Id. Following the State's case in chief, appellant called Shantel McCall to testify. One of the State's prosecutors then informed the trial court she had observed Ms. McCall propping the courtroom door open listening to the testimony of the State's witnesses. The following exchange then occurred:[APPELLANT'S COUNSEL]: I want to make sure you know I didn't know anything about that.
TRIAL COURT: Of course not. Bottom line is the effect is the same.
[APPELLANT'S COUNSEL]: I agree. So that takes care of her testimony.
THE COURT: Okay.
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[APPELLANT'S COUNSEL]: Defense would rest and close.The jury found appellant guilty of felony possession of cocaine with intent to distribute. Tex. Health Safety Code Ann. § 481.112(d). Appellant's conviction was enhanced by two prior felony convictions and the jury sentenced appellant to seventy-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Tex. Pen. Code Ann. § 12.42(d).