EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, January 24, 2021

Texas Court of Appeals Finds Sequestration of Defense Expert Was Proper During Deputy's Testimony

Texas Rule of Evidence 614 states that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person and, in civil cases, that person’s spouse;

(b) after being designated as the party’s representative by its attorney:

(1) in a civil case, an officer or employee of a party that is not a natural person; or

(2) in a criminal case, a defendant that is not a natural person;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.

So, would a defense psychiatric expert fall under subsection (c) if that expert planned to testify about the defendant's Miranda waive and confession? That was the question addressed by the Texas Court of Appeals, Houston, in its recent opinion in Durham v. State, 2021 WL 208875 (Tex. App. 2021).

In Durham, Daniel Travis Durham was charged with murder and have a confession while being interrogated by Deputy Mario Quintanilla and Sergeant Mark Reynolds. Subsequently, 

Because appellant reported a history of mental illness (schizophrenia and depression), he was referred for psychiatric assessment. On that same day, the Mental Health and Mental Retardation Authority (“MHMRA”) conducted an initial psychiatric assessment, diagnosing appellant with Schizoaffective Disorder and Polysubstance Dependence; he was prescribed medication to manage his psychiatric symptoms. The examiner observed appellant to be stable and not in need of specialized mental health housing. On July 7, 2014, after being reported to have “behave(d) oddly,” appellant underwent another initial psychiatric assessment. The assessing psychiatrist added Cocaine Abuse and Alcohol Abuse to appellant's diagnostic profile, changed his medication regime, and referred him to housing in the mental health unit of the jail for stabilization. Appellant refused cognitive behavior therapy, was discharged from the mental health unit, and moved to administrative separate housing where he was monitored by MHMRA staff.

At trial, the defense presented the theory that Durham's mental illness rendered him incapable of understanding the meaning and effect of his waiver and confession. To support this claim, the defense called Dr. Alissa Sherry, a clinical psychologist. But, before Dr. Sherry testified, the judge denied a defense motion to preclude her from sequestration when the Deputy Quintanilla testified:

THE COURT: You say she's a psychologist. Are you asking her to remain because of somebody's testimony she needs to hear?
[DEFENSE COUNSEL]: Yes, Your Honor. I think one of the witnesses, the police officer of course, ‘cause she's the expert. That goes to the voluntariness of the statement. Her testimony impacts that directly so this officer's testimony, some aspect of the statement as well as it gets deputy Donna Durham, who will testify as well who observed the defendant before this happened before he —.
THE COURT: If she's going to testify to the voluntariness of the statement I don't understand why this Court, based on what I'm understanding she's rendered an opinion based on reviewing the recording.
[DEFENSE COUNSEL]: She's reviewed the report and records as well and jail records and medical records, reviewed all that material but reviewing Donna Durham's statement because he (sic) was there during the interrogation. Some of the things that happened off the video or anything of that nature she would also be able to be assisted in that as well but if the Court want her to remain outside —
THE COURT: What's the State's position?
[THE STATE]: I would object to her being in the courtroom. If she's had an opportunity to view the video, which is the best evidence of what the defendant said that night and whether or not a statement's given voluntary anything that she surmises from deputy Quintanilla's testimony would be inflamed by questions that [Defense counsel] is going to ask and have no relevance to her ability to view a video and [whether] the statement was waived voluntary (sic).

I upholding this ruling on appeal, the court held that

The record does not reflect that Dr. Sherry did not have enough material to make an assessment. In making her assessment, Dr. Sherry reviewed appellant's interrogation video, “the various things that went on with regards to his arrest,” who the police interviewed, appellant's Rusk Hospital records, his competency evaluation, his sanity evaluation, and the Harris County Jail records. Dr. Sherry diagnosed appellant with “paranoid schizophrenia” Given the range of information at her disposal, there is no indication that being present in the courtroom for Officer Quintanilla's trial testimony was necessary. The State expressed concern that the defense counsel's questions to Officer Quintanilla could signal to Dr. Sherry what her testimony should contain. Although appellant argues in his brief that he was harmed by the expert not being able to sit in on the testimony of his mother, this was not the trial court's ruling. The trial court only ordered Dr. Sherry to step out when Officer Quintanilla testified.



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