Christopher Russell v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-25-00022-CR

CHRISTOPHER RUSSELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 5
Denton County, Texas
Trial Court No. CR-2024-01274-E

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION

A Denton County1 jury convicted Christopher Russell of misdemeanor driving while

intoxicated, and the trial court sentenced him to 120 days’ incarceration, suspended that

sentence, and placed Russell on twenty months’ community supervision. See TEX. PENAL CODE

ANN. § 49.04 (Supp.).

On appeal, Russell argues that (1) the trial court abused its discretion by refusing to strike

an officer’s testimony after she admitted to a violation of Rule 614 of the Texas Rules of

Evidence (the Rule), and (2) the trial court erred in denying his motion for a new trial based on

newly discovered evidence of that same violation.

Finding no error, we affirm the trial court’s judgment.

I. Evidence at Trial

Before opening statements, the trial court admonished Detective Stephanie Johnson and

Officer Aaron Gillespie, both with The Colony Police Department, about “the Rule.” See TEX

CODE CRIM. PROC. ANN. art. 36.03(e) (Supp.).

Johnson testified that she noticed a vehicle stopped at a stop sign with no headlights on.

She could not stop because she was responding to a different call. After she cleared that call, she

returned to the location of that vehicle and saw it still had not moved. Johnson approached the

vehicle and saw that the driver was not moving. She also noticed fresh damage to the driver’s

1
Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We are unaware of
any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3.
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side front door and a flat tire. In addition, Johnson saw exhaust coming from the rear of the

vehicle. She called for backup, and Gillespie responded.

Johnson woke up the driver, who eventually identified himself as Russell. Johnson

smelled alcohol, and Russell admitted to drinking alcohol. Johnson administered the standard

field sobriety tests. Based on her observations, Johnson determined that Russell was intoxicated

due to a loss of normal mental and physical faculties. After Russell refused to give his consent,

Johnson applied for a warrant to draw Russell’s blood. After the magistrate signed the warrant,

Johnson took Russell to Carrollton Regional Medical Center, where a registered nurse drew his

blood. Johnson later booked Russell into the jail.

During cross-examination, Johnson was asked about the impound report or tow sheet (a

document cataloguing the contents of the vehicle). Johnson stated that Gillespie stayed behind

with the vehicle to do an inventory while she transported Russell to the jail. She stated that she

did not know if Gillespie ever filled out an impound report or an inventory report containing a

list of any items found in Russell’s vehicle.

At the conclusion of Johnson’s cross-examination, the trial court recessed for lunch.

During the break, Johnson asked Gillespie if he had prepared a tow sheet, and if so, where it was.

After lunch, the State had obtained the tow sheet and provided a copy to Russell. Johnson

admitted as much to the trial court. Upon hearing that, the trial court arranged for an attorney

other than the State to represent Johnson during a hearing held outside the presence of the jury.

After conferring with Johnson, the attorney informed the trial court that the only topic of

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conversation between Johnson and Gillespie was the location of the tow sheet and that no other

subjects had been discussed.

Russell urged the trial court to strike Johnson’s entire testimony, not just Johnson’s

testimony about the tow sheet. That included the portions of Johnson’s testimony not addressing

the tow sheet, as well as Johnson’s testimony about what she saw before Gillespie arrived. The

trial court declined to strike Johnson’s testimony but ordered that the State not be allowed to

recall Johnson or to call Gillespie, who had not yet testified.2 The trial court also ordered that the

State not present any more testimony about the tow sheet. The trial court explicitly stated that

Russell could recall Johnson if he wished. The trial court also found Johnson in contempt as

required by law and fined her $56.25.3 See TEX. CODE CRIM. PROC. ANN. art. 36.06 (“[T]he

party violating the same shall be punished for contempt of court.”); but see TEX. CODE CRIM.

PROC. ANN. art. 36.03(e) (“The court may punish as contempt a witness who violates the

admonishment provided by the court.”). At the conclusion of the contempt hearing, the tow

sheet was admitted without objection “for record purposes only” as exhibit 7.

The State continued its case by calling Matthew Myers and Renée Hawkins, forensic

scientists with the Texas Department of Public Safety (DPS) Crime Laboratory. Myers, with the

DPS crime laboratory in Garland, testified that Russell’s blood alcohol concentration was 0.073.

Hawkins, with the DPS crime laboratory in Austin, testified that 0.33 milligrams per liter of

2
The State filed a discovery stipulation that included a notice that Gillespie did not have any body-camera footage.
3
The trial court reasoned that Johnson’s fine should be the amount of money the jury was owed for the time frame of
the contempt hearing.
4
methamphetamine4 was present in Russell’s system. The State did not rely on the per se

intoxication standard but instead proceeded under the theory that Russell had lost the normal use

of his mental and physical faculties. Russell did not call any witnesses at either phase.

The jury found Russell guilty, and the trial court assessed a punishment of 120 days in

the county jail, suspended that sentence, and placed him on community supervision for a period

of twenty months.

Russell filed a motion for new trial based on newly discovered evidence, arguing that

Johnson’s violation of the Rule constituted newly discovered evidence. Russell argued that the

tow sheet was material because it indicated that a “meth” pipe was found in the vehicle. The

State had referenced during opening arguments that a “meth” pipe had been found in the

passenger side of Russell’s vehicle. During the hearing, Russell relied solely on argument, and

the trial court denied the motion for new trial. Russell appeals.

II. Applicable Law

Rule 614 requires the trial court, upon a party’s request, to “order witnesses excluded so

that they cannot hear other witnesses’ testimony.” TEX. R. EVID. 614. “Or the court may do so

on its own.” Id. “The purpose of ‘the Rule’ is ‘to prevent the testimony of one witness from

influencing the testimony of another, . . . by one witness either overhearing the testimony of

another witness or talking to that witness regarding his testimony.’” Qualls v. State, 547 S.W.3d

663, 676 (Tex. App.—Fort Worth 2018, pet. ref’d) (quoting Webb v. State, 766 S.W.2d 236, 239

(Tex. Crim. App. 1989)).

4
Hawkins testified that .03 milligrams per liter of amphetamines were also found in Russell’s system.
5
III. No Error by Refusing to Strike Testimony After Admitted Violation of the Rule

In the first issue, Russell argues that, because Johnson talked to Gillespie about the tow

sheet immediately after testifying, “it cannot be assumed that Detective Johnson did not base any

responses on the understanding that she would discuss and recover the tow sheet with Detective

Gillespie.”

We review a trial court’s decision “to admit the testimony from a witness who violated

the Rule” for an abuse of discretion. Id. at 677. “A violation of the Rule . . . is not necessarily

reversible error.” Id. “An abuse of discretion occurs when the violative testimony prejudices or

harms the defendant.” Id. The Texas Court of Criminal Appeals stated,

Two criteria that have been suggested for determining injury or prejudice [when a
witness violates the Rule] are (a) whether the witness actually conferred with or
heard testimony of other witnesses, and (b) whether the witness’s testimony
contradicted testimony of a witness from the opposing side or corroborated
testimony of a witness he had conferred with or heard.

Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) (per curiam). “[T]he court’s decision to

allow testimony from a witness who has violated the rule is a discretionary matter.” Id.

Even though Johnson knew that the Rule had been invoked and understood the

consequences of a violation, the record does not reflect that Russell was prejudiced or harmed.

See id. The record only reflects that “the extent of the conversation was in regard to retrieving

the tow sheet, but they did not discuss the contents or . . . anything in specific in regards to the

evidence of the trial.” The record does not reflect that the conversations (and subsequent

retrieval of the tow sheet) contradicted any defense testimony or corroborated testimony of

Johnson or Gillespie. See id. Said differently, the conversation between Johnson and Gillespie

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did not involve “an issue bearing on the guilt or innocence of the accused and about which they

[would] later testify.” See Archer v. State, 703 S.W.2d 664, 667 (Tex. Crim. App. 1986).

Also, neither officer testified after the improper conversation. So, the jury did not hear

any testimony that could have been altered or influenced by any other testimony or any

testimony that may have been corroborated by another witness’s testimony based on the

violation. State v. Saylor, 319 S.W.3d 704, 710 (Tex. App.—Dallas 2009, pet. ref’d) (“[I]t is

undisputed that the nurse testified before the events in question and was not recalled to the stand,

so her trial testimony could hardly have been influenced by the conversation between the

prosecutor and the toxicologist, regardless of its content.”). Johnson testified to her personal

knowledge of her interaction with Russell. See Bell, 938 S.W.2d at 51. The jury was able to

make their own assessment by viewing the body-camera and dash-camera footage of Russell’s

demeanor at the time of the stop.

Therefore, Russell has not shown that he was prejudiced or harmed by the violation. The

trial court did not abuse its discretion in not striking Johnson’s testimony.

We overrule Russell’s first issue.

IV. No Newly Discovered Evidence

In his second issue, Russell argues the trial court erred by denying his motion for new

trial, arguing the improper conversation between Johnson and Gillespie was newly discovered

evidence.

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A. Applicable Law

“Motions for new trial based upon newly discovered evidence are controlled by Article

40.001 . . . .” Keeter v. State, 74 S.W.3d 31, 36 (Tex. Crim. App. 2002). To be entitled to a new

trial on the basis of newly available evidence, the defendant must show:

(1) the newly discovered evidence was unknown or unavailable to the movant
at the time of his trial;

(2) the movant’s failure to discover or obtain the evidence was not due to a
lack of diligence;

(3) the new evidence is admissible and is not merely cumulative,
corroborative, collateral, or impeaching; and,

(4) the new evidence is probably true and will probably bring about a different
result on another trial.

Id. at 36–37 (quoting Ayers v. State, 606 S.W.2d 936, 941 (Tex. Crim. App. 1980)); see Carsner

v. State, 444 S.W.3d 1, 2–3 (Tex. Crim. App. 2014). Further, “[t]rial courts should not grant a

new trial if the defendant’s substantial rights were not affected.” State v. Herndon, 215 S.W.3d

901, 908 (Tex. Crim. App. 2007). “Motions for new trials on grounds of newly discovered

evidence are not favored by the courts and are viewed with great caution.” Drew v. State, 743

S.W.2d 207, 225 (Tex. Crim. App. 1987).

“[A] trial court’s denial of a motion for new trial [is reviewed] for an abuse of discretion

. . . .” Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). We will reverse the trial

court “only if no reasonable view of the record could support the trial court’s ruling.” Id. Under

this standard, we “view the evidence in the light most favorable to the trial court’s ruling,” id.

(citing Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on other grounds

by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018)), and we “imply findings and
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conclusions in favor of that ruling if none are issued,” id. at 821 (citing Riley, 378 S.W.3d at

459). If it supports the trial court’s ruling, we must assume that the trial court disbelieved

testimony supporting the appellant’s claims. See id. “[W]hen there are two reasonable views of

the evidence,” “[t]he trial court’s ruling is within the ‘zone of reasonable disagreement,’” and we

must uphold the ruling. Id. at 820 (quoting Riley, 378 S.W.3d at 457).

B. Analysis

Russell fails to meet all the Keeter factors. First, the record demonstrates that Russell

was aware of the improper conversation and raised the issue during trial. The trial court held a

hearing that disclosed the entire contents of the conversation. See State v. Arizmendi, 519

S.W.3d 143, 149 (Tex. Crim. App. 2017) (“Although appellee’s motion for new trial discussed

the video of the stop, her attorney stated at the hearing on the motion for new trial that she had

reviewed the video before appellee’s plea.”). This shows that the issue was not unknown or

unavailable at the time of trial. See Carsner, 444 S.W.3d at 2–3; TEX. CODE CRIM. PROC. ANN.

art. 40.001 (“A new trial shall be granted an accused where material evidence favorable to the

accused has been discovered since trial.”).

Secondly, Russell concedes on appeal that the trial court would have allowed that

evidence to be admitted at the original trial. The trial court specifically stated that Russell could

recall Johnson. Russell did not exercise due diligence in requesting to recall Johnson or call

Gillespie for the limited purpose of the violation—if he so desired during the original trial.

Arizmendi, 519 S.W.3d at 150 (“Consequently, appellee’s failure to obtain the officer’s

testimony at the suppression hearing was due to [his] lack of diligence.”).

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Third, the “evidence [wa]s merely impeaching” of Johnson or Gillespie. See Lee v. State,

186 S.W.3d 649, 660 (Tex. App.—Dallas 2006, pet. ref’d); Strong v. State, 138 S.W.3d 546, 556

(Tex. App.—Corpus Christi–Edinburg 2004, no pet.). The jury was able to assess Russell’s

actions by viewing Johnson’s body-camera and dash-camera footage. See Burdick v. State, 474

S.W.3d 17, 23 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“There is no reasonable

probability that the newly discovered evidence, which merely impeached the officer’s history of

professionalism, would have changed the jury’s assessment of appellant’s intoxication.”).

Finally, the purported new evidence probably would not bring about a different result

since the issue was not material. TEX. CODE CRIM. PROC. ANN. art. 40.001; Keeter, 74 S.W.3d at

37 (“We characterized the requirement that the evidence be ‘probably true’ as an aspect of the

statute’s requirement that the new evidence be material.” (quoting Boyett v. State, 692 S.W.2d

512, 516 (Tex. Crim. App. 1985)))5. The tow sheet was not relevant to the ultimate issue of

intoxication. Contrary to Russell’s argument that the State’s “meth” pipe reference in its

opening statement was harmful, the tow sheet did not list the “meth” pipe in its inventory,

Gillespie did not testify to the contents of the inventory search, and the trial court barred any

further reference to the tow sheet. Whether a “meth” pipe was found does not negate the levels

of methamphetamine found in Russell’s blood. The State established the elements of

intoxication through firsthand observations of Johnson and the forensic analysists’ subsequent

analysis of Russell’s blood. The jury also viewed the body-camera and dash-camera footage and

5
The Texas Court of Criminal Appeals stated in Keeter that the materiality element survived even though the word
“materiality” is not in the new statute. Keeter, 74 S.W.3d at 37 (“Nevertheless, because we construed the rule to
incorporate the old statute’s materiality requirement, no substantive change in the law has been effected.”).
10
were able to make their own assessment of Russell’s demeanor as well as determine the

credibility of Johnson’s testimony.

Therefore, the trial court did not abuse its discretion by denying Russell’s motion for new

trial. We overrule Russell’s second issue.

V. Conclusion

We affirm the trial court’s judgment.

Jeff Rambin
Justice

Date Submitted: July 2, 2025
Date Decided: July 30, 2025

Do Not Publish

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