author: KELLER, P.J.,

text:
    Richard Allen MASTERSON, Appellant, v. The STATE of Texas.
    No. AP-74344.

      Court of Criminal Appeals of Texas.
    Feb. 2, 2005.

      Janet Morrow, Spring, for Appellant.
    Kelly Ann Smith, Asst. DA, Houston, Matthew Paul, State’s Attorney, for State.
   OPINION

KELLER, P.J.,

delivered the opinion of the unanimous Court.

Appellant was convicted of a capital murder committed on January 27, 2001. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure, Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Direct appeal to this Court is automatic. Appellant raises eight points of error. We will affirm.

I. GUILT

A. Appellant’s recorded confession

In points of error two and three, appellant complains about the admission into evidence of a tape-recorded confession taken from him by a Texas police officer while appellant was in custody in Florida. In point of error two, he complains that his confession was induced by a promise of leniency for his nephew. In point of error three, he complains that his confession was taken after he invoked his right to counsel.

1. Background

After the victim was murdered, appellant drove the victim’s car to Georgia. He left that car with relatives and continued on to Florida, where he was arrested after stealing another car. In the meantime, appellant’s nephew was arrested for possession of cocaine left by appellant in the victim’s car.

Houston police officer David Null interviewed appellant at the Marion County, Florida jail. Null testified that he advised appellant of all the warnings required by Article 38.22. After each warning, he asked appellant whether he understood the warning, and appellant answered affirmatively each time. Null then asked whether appellant wished to give up those rights, and appellant stated that “he wanted to clear things up.” Null testified that he never made any promises to appellant, never offered appellant anything in exchange for talking about the murder case, and never threatened appellant or any member of appellant’s family. Regarding appellant’s nephew, Null testified that he was aware that the nephew had been caught in a stolen car, but did not offer anything to the nephew in exchange for a statement in the case. Null said that appellant did say that there had been dope in the car and that the dope belonged to appellant and not to the nephew. When asked whether he offered to help the nephew in any way, Null testified: “I told him [appellant] that if the dope was his and he wanted to admit the dope was his that I would let the people know that he was admitting that the dope, it was his dope.” Null also testified that appellant never asked for an attorney.

Appellant testified that, when Null said he wanted to ask some questions, “I asked him if I needed a lawyer.” According to appellant, Null ignored his question. Appellant also testified that he had earlier asked a magistrate at extradition proceedings “if I could get a lawyer.” With regard to his nephew, appellant testified that he told Null about his nephew’s situation and asked “if they could get that took care of.” According to appellant, Null replied that “he’d see what he could do.” Appellant testified that he understood that answer to mean “[t]hat he, if I cooperated with him, he would help me out.”

At the end of the suppression hearing, the trial court found:

There is no credible evidence to indicate that the defendant was ever promised anything to make this statement. The credible evidence shows that the defendant never asked for a lawyer, that he waived his rights and freely and voluntarily gave the statement to Officer Null.

2. Analysis

In reviewing a trial court’s ruling on a motion to suppress, the appellate court should afford almost total deference to the trial court’s determination of the historical facts, especially when that determination involves an evaluation of the credibility and demeanor of witnesses. With respect to both of appellant’s claims, the trial court was free to believe Officer Null’s testimony and disbelieve appellant’s testimony.

With regard to whether an impermissible promise was made, Officer Null stated that he simply told appellant, if the drugs belonged to him and he wanted to admit to that, Null would pass along that admission. In Martinez v. State, we addressed a similar situation. In that ease, the police detective testified that he told the defendant that he needed to know who the drugs belonged to, and from that the defendant “could have gathered” that his father and brother would not be charged if the defendant “accepted responsibility.” We held that “the evidence supports the implied finding that no positive promise was ever made by the detective” to the defendant. In the present case, the police officer’s statements were even more circumspect because he simply indicated that he was willing to pass along any information the defendant wanted to convey. No positive promise was made. Moreover, the evidence suggests that appellant initiated the discussion regarding helping his nephew. “Having cast himself in the role of entrepreneur, [appellant] cannot expect an appellate court to find implied ‘promises’ in official responses (to his overtures) that are ambiguous at best.”

Regarding appellant’s claim that he requested counsel, the trial court was within its discretion to believe Null’s testimony that no counsel was requested. Appellant contends, however, that the trial court had no discretion to disbelieve appellant’s testimony about requesting counsel before the magistrate because the State never controverted that testimony. But the trial court has discretion to disbelieve testimony even if it is not controverted. The trial court did in fact discount appellant’s testimony and was within its discretion to do so. Points of error two and three are overruled.

B. Lesser-included offense

In point of error one, appellant contends that the trial court erred in refusing to submit his requested instruction regarding the lesser-included offense of criminally negligent homicide. At trial, appellant testified that he met the victim at a “hustler bar,” went home with him, and engaged in consensual sexual conduct with him. According to appellant, the victim requested that appellant perform a “sleeper hold” to enhance the quality of the victim’s sexual experience. Although the “sleeper hold” resulted in the victim’s death, appellant testified that this result was unintended.

Assuming, without deciding, that appellant was entitled to the requested instruction, we find any error to be harmless. The jury was instructed on the lesser-included offense of manslaughter. We held in Saunders v. State that the jury’s failure to find an intervening lesser-included offense (one that is between the requested lesser offense and the offense charged) may, in appropriate circumstances, render a failure to submit the requested lesser offense harmless. This is so because the harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer. The intervening lesser offense is an available compromise, giving the jury the ability to hold the wrongdoer accountable without having to find him guilty of the charged (greater) offense. While the existence of an instruction regarding an intervening lesser offense (such as manslaughter interposed between murder and criminally negligent homicide) does not automatically foreclose harm — because in some circumstances that intervening lesser offense may be the least plausible theory under the evidence — a court can conclude that the intervening offense instruction renders the error harmless if the jury’s rejection of that offense indicates that the jury legitimately believed that the defendant was guilty of the greater, charged offense.

In Saunders, the defendant was charged with murder by squeezing a baby’s head with intent to cause serious bodily injury. The trial court denied the defendant’s request to include in the jury charge an instruction on criminally negligent homicide but did include an instruction on “involuntary manslaughter” (now known simply as “manslaughter”). The basic difference between (involuntary) manslaughter and criminally negligent homicide was (and is) that “in the former, that actor recognizes the risk of death and consciously disregards it, while in the latter he is not, but ought to be, aware of the risk that death will result from his conduct.” We found significant evidence in the record that the defendant was aware of the risk of death, and therefore, manslaughter was a realistic option for the jury. Consequently, the jury’s conviction of the defendant for murder, despite the availability of involuntary manslaughter, indicated that the jury did in fact believe that the defendant harbored the specific intent required for the charged offense.

Like the defendant , in Saunders, appellant was denied an instruction on criminally negligent homicide but received an instruction on manslaughter. In addition, the record in the present case also contains significant evidence of appellant’s awareness of the risk of death. On the witness stand, appellant testified that he initially refused the victim’s request to apply a “sleeper hold” because doing so “scares” him. He testified that he had performed such a hold before, and he testified that he knew just by looking at the victim after he performed the “sleeper hold” that the victim was dead. Under the circumstances, if the jury truly believed that appellant performed a “sleeper hold” as a sexual maneuver and did not intend to kill the victim, the jury could easily have given effect to that belief by acquitting appellant of capital murder and convicting him of manslaughter. That the jury chose not to do so shows that it did not believe appellant’s story. We conclude that any error was harmless. Point of error one is overruled.

II. PUNISHMENT

A. Sufficiency of the evidence— future dangerousness

In point of error five, appellant contends that the evidence is legally insufficient to support the jury’s answer to the “future dangerousness” special issue because, due to his testimony that he would attempt to commit criminal acts of violence in the future, prison authorities would not allow him to do so in prison and parole authorities would refuse to ever authorize his release.

During direct examination at the punishment phase of trial, appellant testified:

[L]ike [the prosecutor] told ‘em from the beginning when they were picking the jury, they have to answer two questions, am I going to be a future danger? Am I going to protect myself by any means necessary? Yes I am. That makes me a future danger, yes, I am. Second issue, is there any mitigating circumstance. I don’t think so. Everybody lives and dies by the choices that they make. None of my family out there could control what I did. I did what I did because I wanted to do it, not because they made me do it, or because I got my ass whooped. I got my ass whooped because I deserved it a lot of times. Sometimes I got my ass whooped because I didn’t deserve it but most of the time I — I did something wrong, I got punished for it. So whatever your decision is, I accept that. You found me guilty, you must believe I’m guilty. And if you send me to prison, for life, the chances are, in the Texas Department of Corrections the chances are I’m going to have to defend myself, and like I said, I will defend myself, whether it’s against a guard or inmate or anybody else by any means necessary. If that means a guard puts his hands on me I’m going to put my hands on him. If a[n] inmate comes up to me with a knife and tries to stab me, I’m going to stab him or do whatever it takes to save my life from him.

Later, on cross-examination, the following transpired:

Q. You mentioned that you wanted— you think the jury should answer the special issues in such a way that you get the death penalty, right?
A. If they’re following the law, yes.
Q. They have to, right?
A. Yes, if they’re following the law, yes.
Q. Because it’s clear you’re a future danger, right?
A. If it’s- — if me protecting myself or my property, yes, I’m a future danger.
Q. And you would do whatever it takes, be it hurt another inmate, hurt another guard, to prove that, right?
A. Not necessarily, but if that arises, yes I will, and I’m sure within 40 years, it will arise sometimes.
Q. You’re positive there’s no way you could stay in prison probably even for a year without getting violent again, right?
A. Probably not. Probably not even a month.

In his brief, appellant argues that the evidence clearly showed that he is a danger to both prison and free society:

From the evidence of the primary offense against Shane Honeycutt, the offense against Steven and evidence at punishment about Appellant’s commission of threats and violence against others in the free world, the jury must have drawn the conclusion that Appellant presented a real danger, a threat to people in free society. The testimony of jail personnel about Appellant’s violent conduct toward others in the county jail, including fighting with other inmates and including verbal threats to one deputy, about his membership in the Aryan Brotherhood gang (a gang which was also present in the Texas prison system, according to a deputy witness) and his readiness to defend the Brotherhood against “disrespect” with violence. Together with Appellant’s own testimony that he would continue to commit criminal acts of violence in prison whenever he deemed it necessary (which he told the prosecutor he believed would probably occur “within a month”) was certainly evidence relevant to the jury’s decision about the likelihood of Appellant’s being a continuing threat to prison society. Appellant’s feelings of remorse, or even regret, for any of his violence toward others were remarkable for their absence; for example, Officer Null, who took Appellant’s tape recorded statement, testified at guilt that Appellant told him that Honeycutt’s death “didn’t really matter to him, he didn’t feel any remorse about it, he wasn’t upset about it because he didn’t know him — and it just didn’t matter.” At punishment, Deputy Urick said when he told Appellant in the jail that he would write him up for refusal to follow Uriek’s order to pick up his food tray, Appellant told him he would “choke you like I choke my victims.” In short, the evidence was strongly suggestive that Appellant would be, and would strive to be a continuing threat both in prison and in free society, were he ever to get there.

Appellant argues that, given the obvious threat he poses, prison officials would place him in lockdown to protect guards and other inmates from him. In addition, appellant argues that the parole authorities would never parole such a dangerous person. He concludes that he does not in fact constitute a future danger because the authorities will act to neutralize his ability to threaten others.

Appellant’s argument appears to be that he is so dangerous that he is not dangerous. His contention is ingenious but unpersuasive. If accepted, it would stand the capital punishment scheme on its head, giving relief to the most dangerous offenders. We will not speculate, for legal sufficiency purposes, about the effectiveness of the prison and parole authorities’ methods of protecting society from those who are intent on committing future criminal acts of violence. Point of error five is overruled.

B. Order of closing argument

In point of error four, appellant contends that the trial court erred in refusing his request to give the concluding argument in punishment on the mitigation special issue. Appellant contends that Article 36.07 does not govern capital cases, that the trial court has discretion to change the order of arguments in a capital case, that the State has no burden of proof on the mitigation issue and any burden that does exist is on the defendant, and that his constitutional rights were violated by the “psychological advantage” the State had “in making the last impression on the jury” in a death penalty case.

Article 36.07 provides: “The order of argument may be regulated by the presiding judge; but the State’s counsel shall have the right to make the concluding address to the jury.” Appellant contends that Article 36.07 does not apply to capital cases. His only reason for so concluding is the assertion that the procedure in capital cases is controlled by Article 37.071, and that article is silent as to the order of argument. However, the fact that Article 37.071 controls many aspects of capital punishment proceedings is not, by itself, sufficient to reject the applicability of a statute that, on its face, appears to apply to all criminal trials. And in fact, we have previously held that Article 36.07 applies to capital cases, including the punishment phase of a capital murder trial. The State suggests that Article 36.07 may be preempted by the following sentence in Article 37.071: “The state and the defendant or defendant’s counsel shall be permitted to present argument for or against a sentence of death.” But that provision covers only the content of argument: the parties are permitted to explicitly argue for or against a “death sentence” rather than simply arguing the special issues. That situation is unique to death penalty cases, and thus, is understandably included in Article 37.071. Nothing in the Code of Criminal Procedure limits the application of Article 36.07 to non-capital cases and we see no reason to do so.

Appellant argues that, in civil cases, the final argument falls to the shoulders of whoever has the burden of proof. But we have held that Article 36.07, not the civil rules, applies to criminal cases. In Martinez v. State, we rejected the defendant’s claim that the issue of insanity gave him the right to open and close argument, even though insanity was the only contested issue in the case and one on which the defendant carried the burden of proof. We held that the trial court’s refusal to permit the defendant to open and close under those circumstances did not deprive the defendant of any constitutional right. In a capital case, we have likewise rejected a defendant’s claim that a trial court’s failure to allow defense counsel to rebut the prosecutor’s arguments rendered his trial fundamentally unfair. We see nothing about the mitigation special issue, which imposes a burden of proof on neither party, that distinguishes appellant’s situation from our prior holdings. Point of error four is overruled.

C. Constitutionality of the death penalty

1. Future dangerousness issue

In point of error six, appellant contends that the future dangerousness issue is unconstitutional because the issue is not susceptible to proof beyond a reasonable doubt and cannot be applied fairly by the jury. He contends that a jury will tolerate no risk in determining whether the defendant constitutes a future danger to society. We have previously rejected this claim.

2. Failure to inform jurors of effect of hung jurg

In points of error seven and eight, appellant contends that his Eighth Amendment right against cruel and unusual punishments was violated by the trial court’s refusal to inform the jurors that a failure to arrive at a unanimous verdict in favor of the State on the punishment issues would result in a life sentence. He acknowledges that the failure to so inform the jury is sanctioned by statute and challenges the constitutionality of the part of Article 37.071 that is often called the “12-10” rule. We have previously rejected such arguments. Appellant relies upon the dissent in Jones v. United States, but the dissent is just that — a dissent. Relying upon the majority opinion in Jones, we have recognized that the Supreme Court has found that the Eighth Amendment does not require that jurors be informed of the effect of a failure to reach unanimous agreement on the punishment issues. Points of error seven and eight are overruled.

The judgment of the trial court is affirmed.

      . TEX. PEN. CODE § 19.03(a).

      . Art. 37.071, § 2(g). Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.

      . Art. 37.071, § 2(h).

      . Appellant argued these two points of error together in his brief, and we address them jointly here.

      . Maldonado v. State, 998 S.W.2d 239, 247 (Tex.Crim.App.1999)(citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) and applying its standard to a "promise” claim); Ripkowski v. State, 61 S.W.3d 378, 381-382 (Tex.Crim.App.2001), cert. denied, 539 U.S. 916, 123 S.Ct. 2274, 156 L.Ed.2d 133 (2003)(applying Guzman standard to Miranda claims).

      . 127 S.W.3d 792 (Tex.Crim.App.2004).

      . Id. at 793.

        .Id. at 795.

      . Johnson v. State, 68 S.W.3d 644, 654-655 (Tex.Crim.App.2002)(quoting Henderson v. State, 962 S.W.2d 544, 564 (Tex.Crim.App.1997), cert. denied, 525 U.S. 978, 119 S.Ct. 437, 142 L.Ed.2d 357 (1998))(bracketed material inserted, other brackets deleted).

      . State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

      . The jury was also instructed on the lesser-included offenses of murder, robbery, and aggravated assault.

      . 913 S.W.2d 564, 572 (Tex.Crim.App.1995).

      . Id.

      . Id.

        .Id. at 573.

      . Id. at 574.

      . Id. at 566.

      . Id. at 565-566.

      . See Acts 1993, 73rd Leg., ch. 900, § 1.01.

      . Saunders, 913 S.W.2d at 565.

      . Id. at 573-574.

      . Id. at 573.

      . Id. at 574.

      . The issue asks: "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Art. 37.071, § 2(b)(1).

      . Norris v. State, 902 S.W.2d 428, 442 (Tex.Crim.App.), cert. denied, 516 U.S. 890, 116 S.Ct. 237, 133 L.Ed.2d 165 (1995); see also Cherry v. State, 488 S.W.2d 744, 757 (Tex.Crim.App.1972)(opinion on original submission), cert. denied, 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1973).

      . Art. 37.071, § 2(a)(1).

      . Martinez v. State, 501 S.W.2d 130, 131-132 (Tex.Crim.App.1973), appeal dism'd, 415 U.S. 970, 94 S.Ct. 1547, 39 L.Ed.2d 863 (1974); Brown v. State, 475 S.W.2d 938, 957 (Tex.Crim.App.1971).

      . 501 S.W.2d at 132.

      . Id.

      . Morris, 902 S.W.2d at 442.

      . Escamilla v. State, 143 S.W.3d 814, 828 (Tex.Crim.App.2004).

      . Resendiz v. State, 112 S.W.3d 541, 546 (Tex.Crim.App.2003), cert. denied, - U.S. -, 124 S.Ct. 2098, 158 L.Ed.2d 713 (2004).

      . Escamilla, 143 S.W.3d at 828; Busby v. State, 990 S.W.2d 263, 272 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1081, 120 S.Ct. 803, 145 L.Ed.2d 676 (2000).

      . 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

      . Resendiz, 112 S.W.3d at 549.


source: Caselaw Access Project

author: WOMACK, J.,

license: Public Domain

text:
    Pete RUSSELL, Jr., Appellant, v. The STATE of Texas.
    No. AP-74595.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 2, 2005.

      Allen C. Isbell, Houston, for Appellant.
    Eric Rugler, Asst. DA, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   WOMACK, J.,

delivered the opinion for a unanimous court.

In February 2008, a jury convicted the appellant of a capital murder that was committed on August 13, 2001. Pursuant to the jury’s answers to the statutory special issues, the trial court sentenced the appellant to death. Appeal to this Court is automatic. We affirm.

The appellant raises four points of error. Although he does not challenge the sufficiency of the evidence at either stage of trial, a brief recitation of the facts will give a context for his points.

The appellant was convicted of intentionally causing the death of Tanjala Brewer while in the course of committing or attempting to commit the offense of retaliation against her. Brewer was in a relationship with the appellant, and she also was a police informant. On May 2, 2001, she took undercover narcotics officer D.K. Bush to the appellant’s house and introduced them. The appellant agreed to sell Bush several ounces of crack cocaine. The appellant said that he could provide it. A few hours later, Bush called the appellant to arrange the transaction. The two met at a store and completed the transaction. Bush signaled other officers to arrest the appellant.

On August 9, 2001, the appellant pleaded guilty to the charge of delivering a controlled substance and received a ten-year sentence. He asked the court to delay the date for execution of the sentence. The court reset the case, and the appellant agreed to turn himself in on September 7.

Around 11:00 p.m. on August 12, Brewer’s neighbor, Andre Wilson, saw Brewer and the appellant walking down the street near Brewer’s house. After the appellant left and shortly before midnight, Brewer’s boyfriend, Wilbert Reed, stopped by Brewer’s house and spent some time with her before he went to work. He called Brewer from his workplace every thirty minutes or so throughout his shift, but he always got a busy signal.

About 1:00 a.m., Wilson heard Brewer’s screen door close, and he saw the appellant walking down Brewer’s driveway. The appellant was running by the time he reached the street. Brewer was found dead around 9:30 that morning. Natural gas valves had been turned on in the house, and candles were burning.

Wilson’s account and evidence at the scene led police to suspect the appellant. When they found him at a local motel, the appellant was sitting in the bathtub, fully clothed, with a bottle of rat poison in his hand, and he was foaming at the mouth. Officers took the appellant to a hospital where his stomach was pumped. At the hospital, the appellant said (in a tape-recorded statement) that after he had broken off his relationship with Brewer, she had set him up. He admitted killing her.

Point One

In his first point of error, the appellant complains that the trial court erred in allowing the jury to use transcripts of his recorded oral statements to assist them during deliberations. Before trial, the appellant moved to suppress the two oral statements he had given. During a hearing on the motion, the State offered the audiotapes of the two statements into evidence. The State also gave the court written transcripts of the tapes. The judge noted on the record that he recognized the transcripts were not evidence but were only to assist him in listening to the tapes. The appellant commented that he had “no objection to the Court following .along with” the transcripts. The court denied the appellant’s motion to suppress the audiotape confessions and overruled the objection that they were of “poor audio quality” and unable to be understood without the assistance of a transcript.

At trial, the officer who had taken the confessions testified that the transcripts fairly and accurately depicted what was on the audiotapes. The court admitted the audiotapes into evidence over the appellant’s objection and admitted the transcripts of the tapes as demonstrative evidence. The appellant did not object to the admission of the transcripts, but he did request a “prophylactic explanation” to the jury that the transcripts were only to be used as a guide. When the jurors were given copies of the transcripts, the court instructed them that the transcripts were to assist them, if they could, in understanding what was said on the tapes. The court told them that the substantive evidence was what was stated on the tapes and the jury would not be allowed to take the transcripts into the jury room with them.

After the jury had retired to deliberate, the foreman sent a note requesting that the jurors be allowed to listen to the audiotapes and to use the transcripts to aid them. The appellant agreed that the jury was entitled to listen to the tapes, but he argued that use of the transcripts was improper because the jury was engaged in deliberations. The State responded that the court could suspend deliberations and bring the jury back into open court to listen to the tapes with the aid of the transcripts. After verifying that the appellant did not dispute the general accuracy of the transcripts, the court brought the jurors back into the courtroom and instructed them that they would be allowed to use the transcripts to assist them in listening to the tapes. The court reminded them that the transcripts were not substantive evidence, and if they noticed a discrepancy between what they heard on the tape and what they read in the transcript, they were to resolve it in favor of what they heard on the tape. The jurors were then handed copies of the transcripts and allowed to listen to the tapes. After the tapes were played, the bailiff collected the transcripts, and the jury returned to the jury room to resume deliberating.

The appellant argues that the statute allowing the jury to receive “any exhibits admitted as evidence in the case” does not include demonstrative exhibits. He also says that once the jury has retired to deliberate, the deliberation cannot be suspended and resumed. We need not decide those issues. Even if it were error for the court to have furnished the transcripts, the appellant suffered no harm.

Under Rule of Appellate Procedure 44.2(b), this Court disregards all non-constitutional errors that do not affect the appellant’s substantial rights. A substantial right is affected “when the error has a substantial and injurious effect or influence in determining the jury’s verdict.”

The jurors did not discuss the case while they were in open court, and they reviewed exactly what they reviewed during trial—no more and no less. This procedure did not affect the appellant’s substantial rights. The appellant’s first point of error is overruled.

Point Two

In his second point of error, the appellant complains that the trial court abused its discretion by allowing a witness for the State to remain in the courtroom throughout the guilt stage of trial “absent a showing by the State that he fell within an expressed exemption or exception in Texas Rules of Evidence, Rule 614.”

The procedure of excluding witnesses from the courtroom is commonly called putting the witnesses “under the rule.” The purpose of placing witnesses under the rule is to prevent the testimony of one witness from influencing the testimony of another, consciously or not.

Several articles in Chapter 36 of the Code of Criminal Procedure speak to witnesses under the rule. The main features of the procedure are stated in Articles 36.05 and 36.06. The former says, “[I]n no case where the witnesses are under rule shall they be allowed to hear any testimony in the case.” The latter says, “Witnesses, when placed under rule, shall be instructed by the court that they are not to converse with each other or with any other person about the case except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under rule.”

Rule of Evidence 614 speaks to the issue of which witnesses may be excluded. It does not authorize the court to exclude certain witnesses. In criminal cases, those witnesses are (1) a defendant who is a natural person, the representative of a defendant that is not a natural person, (2) a person whose presence a party shows to be essential to the presentation of the party’s case, and (3) a victim if the court does not determine that the victim’s testimony would be materially affected by hearing other testimony. (A statute also speaks to the exclusion of victims, their guardians, and close relatives of deceased victims. It is not involved in this point of error.)

Under Rule 614, a party has the burden to show that its witness is one of those whose .exclusion from the courtroom is not authorized by that Rule.

Before the jury was brought into the courtroom, both parties requested that the court put the witnesses under the rule. The court instructed all the witnesses who were present not to discuss their testimony among themselves or with anyone other than the lawyers, and to retire to the hallway until they were called to testify.

After the pleadings and opening statements had been presented to the jury and three witnesses had testified, the prosecutor asked the court’s permission for Police Sergeant Hal Kennedy, who “wasn’t here earlier this morning ..., to sit with us at counsel table as the case agent” because “he was the primary homicide detective on the case.” The following exchange occurred:

THE COURT: Okay.
[DEFENSE COUNSEL:] I thought that was a federal rule. I didn’t think it applied to state court.
THE COURT: Well, it’s—
[DEFENSE COUNSEL:] We would object for purposes of the record.
THE COURT: Okay. I will overrule your objection and he will be allowed to serve as case agent and sit at counsel table.
[THE STATE:] He’s also going to be a witness in the trial.
THE COURT: But he also will be placed under the Rule also [sic ].
[THE STATE:] Yes, sir. He wasn’t placed under the Rule earlier because he wasn’t here, but he’s here now.
THE COURT: Bring him up and let’s do that up here at the bench.
[DEFENSE COUNSEL:] I presume that by you saying that he is going to be under the Rule, Your Honor, that this is going to preclude him from participating in any further investigation should something develop at trial that he has to go check out or determine what to do that he now becomes a—
THE COURT: That’s a bridge we will cross when we get to it.
Sergeant Kennedy, would you approach, please?
You’re going to be allowed to be case agent, sit at counsel table, but you will be under the Rule. That means you may not discuss your testimony among the other witnesses or with anyone other than the lawyers trying the case.
[THE STATE:] Thank you, Your Hon- or.

The State then called its next witness.

The State’s designating a witness as a “case agent” does not make a witness one whom the court may not exclude from the courtroom under Rule 614. As the appellant correctly pointed out in his objection, the government’s designation of a “case agent” in the trial of a criminal case is permitted in federal courts by the federal counterpart of Rule 614, but it is not permitted in the courts of this state. This Court deliberately chose to make our rule different when we adopted Rule 614(2). Neither the State nor a defendant who is a natural person may take away the court’s authority to exclude one of its witnesses by simply designating the witness.

Because the State did not meet its burden to show that Kennedy was a witness whose exclusion from the courtroom was not authorized by Rule 614, the trial court erred in permitting Kennedy to remain in the courtroom during the trial.

Recognizing that error occurred, we must now determine whether the error requires reversal. Because the appellant complains about the violation of an eviden-tiary rule, the error is non-constitutional and will be disregarded unless it affected the appellant’s substantial rights. We hold that it did not.

As previously noted, the purpose of placing a witness under the rule is to prevent that witness from being influenced in his testimony by the testimony of another witness. The question in assessing the harm of allowing Kennedy to remain in the courtroom is whether he was influenced in his testimony by the testimony he heard.

The appellant’s brief argues that Kennedy was influenced in his testimony in that he corroborated the other police officer who was present when the appellant gave his statement, and he “contradicted appellant’s testimony in two crucial areas”:

First, appellant testified that Sergeant Kennedy induced him to make an audio-taped statement because “this could help you in trial.” Second, appellant explained that he referred to Ms. Brewer being an informant in his tape-recorded statement because Sergeant Kennedy told him this fact before he gave the statement. Appellant, had heard a rumor that Ms. Brewer had “set him up”, but he did' not have that confirmed until Sergéant Kennedy confirmed it.

Kennedy and Officer Richard Moreno were the only officers who were - present when the appellant made his oral statements. The State called both officers to testify in its case in chief. The prosecutor asked each officer whether he knew that Brewer was an informant, and each testified that he did. The prosecutor asked each officer whether he told The appellant that Brewer was an informant or heard the other officer say anything to the appellant about Brewer’s being an informant. Each testified that he did not. Before Kennedy testified, he had heard Moreno’s answers.

When the appellant testified in his case in chief, he admitted killing Brewer but stated that he had done so in a jealous rage. He testified that the only reason he said what he did in his first statement was because Kennedy told him that Brewer had set him up. He said that Kennedy told him, before he gave his tape-recorded statement, that “your girl set you up with the law.” His counsel asked him whether, before he talked with Kennedy, he was “ever sure that Ms. Brewer had anything to do with your arrest.” He said, “I didn’t really just knew [sic ] until he told me.”

On cross-examination, the appellant admitted that it was “the talk on the streets” for months that Brewer had informed on him, that “probably” he suspected that she had done so, and that when Kennedy asked him on the tape recording what happened, the first words out of his mouth were, “She set me up with the police.” This was a reference to the first question and answer in his oral statement:

KENNEDY: Okay. Now you know why you’re under arrest? You’re under arrest for murder you know that? In your own words tell me what happened and why you did what you did.
RUSSELL: She ... She set-she set me up-she set me up with the police.

We also notice the sixth question and answer:

KENNEDY: Okay ah now tell me how it is-how it is that she got killed whatever.
RUSSELL: Basically ah I went over her house and you know since she let me in and she was smoking some drugs whatever and you know we were just talking whatever you know about the things we used to do and I was basically asking her ‘Why did you set me up?” “Why did you set me up” and she kept on denying it talking about I ain’t set you up. I ain’t set you up.

There was other impeachment of the appellant’s claim he did not know that Brewer had cooperated with police before Officers Kennedy and Moreno told him about it in the hospital. Brewer’s “best friend,” Deborah Calhoun, testified that in early July, more than a month before the murder, the appellant told her that he knew Brewer had set him up in his case and that he appeared to be angry about it.

After the appellant rested, the State called Kennedy to the stand in rebuttal. He denied again that he told the appellant about Brewer’s being an informant.

We see no likelihood that Kennedy’s denial that he told the appellant that making a statement could help him, and his denial that he told the appellant that Brewer was an informant, were influenced by his hearing the testimony of Moreno and the appellant. We will not say from this record that the court’s error in allowing Kennedy to remain in the courtroom had a substantial and injurious effect or influence in determining the jury’s verdict. The error did not affect the appellant’s substantial rights. Point of error two is overruled.

Point Three

The appellant complains in his third point of error that the trial court erred in permitting the State to cross-examine him during the guilt stage of trial regarding an extraneous drug offense. He asserts that this evidence was not relevant at the guilt stage of trial, tended to show only that he was a criminal generally, and prejudiced his credibility as a witness.

Although the appellant objected to the admission of nineteen photographs, his brief does not discuss these exhibits. His only specific complaint is, “The State forced appellant to admit that he possessed crack cocaine at his residence,” citing one page of the reporter’s record. There the State asked the appellant about a photograph: “State’s Exhibit 211, what is that?”

The appellant answered, “Crack cocaine .... Looks like it was in the truck.”

The State then asked, “This is stuff that you sold or some of the stuff that you sold to Officer Bush after Tanjala [Brewer] introduced you to him, isn’t it, sir?”

The appellant answered, ‘Tes, sir.”

Next the State asked the appellant about another photograph: “State’s Exhibit No. 199, is that your car?” The appellant testified that it was his mother’s car, and that he was driving it when he sold the cocaine to Officer Bush.

These questions, and the photographs on which they were based, were about the offense of cocaine delivery to Bush for which the appellant had been indicted and convicted before the murder — the offense that began when Brewer cooperated with Officer Bush by introducing him to the appellant. The indictment alleged that it was in retaliation for that act of cooperation that the appellant killed Brewer. This was not an irrelevant, extraneous offense that showed only that the appellant was a criminal generally. There was no error in the admission of the two photographs or the cross-examination during which they were admitted.

There are no other complaints in point of error three that are sufficiently specific for us to identify and answer. The point is overruled.

Point Four

In his fourth point of error, the appellant claims the Texas death-penalty scheme is unconstitutional because it allows the application of the death penalty without providing meaningful appellate review of any of the special issues giving rise to the sentence of death. This Court has previously addressed and rejected this precise contention. The appellant has given us no reason to revisit the issue here. Point of error four is overruled.

We affirm the judgment of the trial court.

      . See Tex. Penal Code § 19.03(a)(2).

      . See Tex.Code Crim. Proc. art. 37.071, §§ 2(b) & (e).

      . See id., § 2(g).

      . See id., § 2(h).

      . See id., art. 36.25 (“There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case”).

      . Simpson v. State, 119 S.W.3d 262, 266 (Tex.Cr.App.2003), cert. denied, - U.S. -, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004).

      .Brief, at 25.

      . Routier v. State, 112 S.W.3d 554, 590 (Tex.Cr.App.2003), cert. denied, - U.S. -, 124 S.Ct. 2157, 158 L.Ed.2d 728 (2004); Bell v. State, 938 S.W.2d 35, 50 (Tex.Cr.App.1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997).

      . Rule 614. Exclusion of Witnesses
      At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize the exclusion of:
      • (1) a party who is a natural person or in civil cases the spouse of such natural person;
      (2)an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney;
      (3) a person, whose presence is shown by a party to be essential to the presentation of the party’s cause; or
      (4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.

      . See Tex.Code Crim. Proc. art. 36.03(a)-(d).

      . Moore v. State, 882 S.W.2d 844, 848 (Tex.Cr.App.1994).

      . See F.R. Evid. 615 (“This rule does not authorize exclusion of ... (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney ...”).

      . "This rule does not authorize exclusion of: ... (2) an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney ...." Tex.R. Evid. 614 (emphasis added). See 1 Steven Goode et al., Tex as Practice — Guide to the Texas Rules of Evidence § 614.1 n. 18 (1993).

      . TexR.App. P. 44.2(b).

      . Brief, at 28-29.

      . State’s Exhibit 1A, at 1-2 (punctuation, including ellipsis, sic).

        .Id., at 2 (punctuation sic).

      . Valle v. State, 109 S.W.3d 500, 502-03 (Tex.Cr.App.2003).


author: PRICE, J.,

text:
    Alex APOLINAR, Appellant, v. The STATE of Texas.
    No. PD-1057-03.
    Court of Criminal Appeals of Texas.
    Feb. 2, 2005.

      Ernest Davila, Houston, for Appellant.
    Lori Deangelo Fix, Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion for a unanimous Court.

During the appellant’s trial for aggravated robbery, the trial court admitted a hearsay statement made by the victim four days after the attack. We granted review to determine whether the victim’s hearsay statement qualifies as an excited utterance. We conclude that it does because a reasonable trial judge could have concluded that the victim was still under the influence of the startling event — the robbery— when he made the statement.

I. Facts and Procedural History

Pelagio Jimenez was attacked and robbed by two assailants on a Friday. During the attack, he disarmed the two attackers and stabbed them both. Albert Thompson, a man whose patio was about 200 feet away from the scene, saw the attack and called the police.

The police arrived a few moments later. One of the officers spoke to Jimenez in Spanish. The officer was able to discern two words in Spanish that Jimenez said: knife and two. Jimenez spoke a particular dialect of Filipino and a small amount of Spanish, but could not understand or speak English.

Jimenez was taken to the hospital, where a staff member called his daughter, Juliet Ralph. She went to the hospital, but was unable to see or speak with her father because he was in surgery. Hospital staff members told Ralph that they could not understand what Jimenez had been saying when he came into the emergency'room.

Ralph said that she was not able to speak with her father until Tuesday because after he was out of surgery he was heavily medicated, unconscious, or incoherent. On Tuesday, Jimenez was awake and alert. When Ralph asked Jimenez what had happened to him, Jimenez responded that “they robbed me again.” Ralph testified that he was “kind of mad” and that he was excited because he had gotten even with his attackers. Jimenez spoke in a loud voice and gestured with his hands. Ralph explained that her father is ordinarily a calm person and that it was unusual for him to be so upset. During her testimony, Ralph repeated Jimenez’s statement over the appellant’s objection.

On direct appeal, the appellant complained that the trial court erred in admitting the hearsay statement. The Court of Appeals held that the trial court did not abuse its discretion. The Court concluded that, although continuity of excitement from the startling event until the statement is made is one way to assure the reliability of a hearsay statement, it is not the only way. Jimenez’s statement could reasonably have been considered an excited utterance because he had not had the opportunity to reflect or fabricate while he was unconscious.

In a dissent from the denial of en banc review, Justice Jennings argued that the Court of Appeals’s holding is inconsistent with our holding in Zuliani v. State. , The dissent states that the'Court of Appeals’s reliance on unconsciousness as a substitute for continuous excitement “logically precludes the possibility that his statements were ‘made while [he] was under the stress’ ” of the attack.

We granted review to determine whether the Court of Appeals erred in holding that a hearsay statement made four days after a startling event could be admitted as an excited utterance. We will affirm because, under the unusual circumstances of this case, the trial court could have reasonably concluded that Jimenez was still under the influence of the attack and that he was incapable of reflection or fabrication.

II. The Law

We review a trial court’s decision to admit evidence over objection under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion. The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement.

Hearsay statements are generally not admissible unless the statement falls within a recognized exception to the hearsay rule. One such exception is the excited utterance exception. An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The exception is based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information.

To determine whether a statement is an excited utterance, trial courts should determine “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition” when the statement is made. Factors that the trial court may consider include the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving.

III. Arguments and Analysis

The appellant argues that the Court of Appeals erred in affirming the trial court’s admission of the statement. He focuses on two points: one legal and one factual. First, he argues that the state of excitement must be continuous during the period between the startling event and the statement. Next, he argues that, assuming that unconsciousness may be a substitute for continuous excitement, Jimenez was not unconscious during the entire period from when he was attacked until he gave the statement.

A. Must the State of Excitement Be Continuous?

First, the appellant claims that the state of excitement must be continuous. In support of this claim, he cites cases from Texas courts of appeals. He argues that the Court of Appeals’s theory that unconsciousness may substitute for continuous stress of excitement has not been recognized by other courts.

In response to the appellant’s first point, the State claims that the cases cited by the appellant in support of his claim are distinguishable and that there are cases in other jurisdictions that support the Court of Appeals’s holding that the unconsciousness can support the finding that Jimenez was still dominated by the stress of the attack when he gave the statement.

The appellant cites four eases from Texas courts of appeals in support of his claim that the stress from the exciting event must be continuous. We agree with the State that these cases are distinguishable from the case before us.

In Mosley v. State, , Gay v. State, and Vera v. State, the State sought to introduce victim outcry statements in cases of aggravated sexual assault as excited utterances. In Mosley, the statement came several days after Mosley molested his daughter. During that time period, the victim was returned to her normal caregiver and had the opportunity to reflect. In Gay, the statement was made ten days after the aggravated sexual assault. In Vera, the statement was made about five hours after the assault. In each case, the courts of appeals held that the children were capable of reflection.

Finally, in Ytuarte v. State, an aggravated assault case, the State offered the testimony of a police officer who interviewed the victim shortly after the attack. According to the officer, the victim had told him that Ytuarte had attacked her and threatened to kill her while brandishing a baseball bat. The officer said that the victim was tearful, distraught, and in a lot of pain. Before the victim had made her statement to the officer, she had gone to the hospital alone and, after waiting some time, returned home. Someone else took her to another hospital. After treatment and sedation, the officer questioned her. The Court of Appeals concluded that because of the lengthy delay and the period of time when the victim was not with her attacker, the victim had had an opportunity to reflect.

These cases are all distinguishable from the facts of this case because the victim-declarants were awake and coherent: not unconscious, heavily medicated, or incoherent. As a result, these cases do not support the appellant’s proposition.

More on point is Parks v. State In that case, the admission of a statement by a declarant who had been shot was held to be an abuse of discretion because of the six-hour delay and the fact that the victim had undergone surgery. In that case, the Court of Appeals found that the intervening circumstances — anesthesia, surgery, being in the recovery room — between the shooting and the statement attenuated the shock of the shooting.

But there have been other cases in other jurisdictions where courts have found that a period of unconsciousness or shock can support a finding that a hearsay statement was an excited utterance. For example, in State v. Wallace, the Ohio Supreme Court held that a hearsay statement made by the victim of an attempted murder and assault about fifteen hours after the attack was an excited utterance for purposes of Ohio’s version of the exception to the hearsay rule. During the fifteen-hour period between the attack and the statement, the declarant had been “unconscious, with intermittent periods of consciousness or semi-consciousness.” The Ohio Supreme Court said, “A period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited-utterance exception to the hearsay rule.” Ultimately, the Court decided that there was no indication in the record that the declar-ant had a meaningful opportunity to reflect during the intermittent periods of consciousness and semi-consciousness.

While intervening circumstances may diminish the stress from an exciting event, the opposite also can be true. Each case that involves a period of unconsciousness between the time of the startling event and the statement must be reviewed in light of the facts and circumstances of the case. Rather than say that unconsciousness is a substitute for continuity of the stress of the event, we conclude that the declarant’s state of consciousness is a factor to consider in the analysis. Trial courts and reviewing courts should address this fact within the factors for a traditional analysis to determine whether a hearsay statement falls within the excited utterance exception.

B. Must the Declarant Be Unconscious for the Entire Duration?

In his second argument in opposition to the Court of Appeals’s holding, the appellant claims that, even if unconsciousness is not a bar to the finding that a statement is an excited utterance, Jimenez’s statement still should not have been admitted. The appellant claims that because Jimenez was not unconscious during the entire period between the attack and the statement, he was capable of reflection and fabrication.

In response to the appellant’s second point, the State claims that the evidence supports that when Ralph visited Jimenez in the hospital he was in surgery, unconscious, heavily medicated, or incoherent until Tuesday, the day that he gave his statement. The State also claims that this is a fact finding, and that reviewing courts should afford almost total deference to the trial court’s findings of fact.

As in Wallace, the record in this case indicates that Jimenez was not unconscious during the entire four day period. He spoke to hospital staff members in the emergency room, and Ralph testified that, during the four-day period, her father was unconscious or heavily medicated or incoherent.

We find McCormick on Evidence to be helpful in dealing with situations in which a long period of time has passed between the startling event and the statement. It states

A useful rule of thumb is that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Testimony that the declarant still appeared “nervous” or “distraught” and that there was a reasonable basis for continuing emotional upset will often suffice.

We find this persuasive, particularly because it is similar to our analysis in Zulia-ni In that case, we held that a statement made twenty hours after an assault on the victim by the defendant was an excited utterance because (1) the victim had been with her attacker during the entire period and (2) the victim was clearly still very upset, and thus, still under the influence of the attack.

Just as the Court did in Wallace, we conclude that the declarant need not necessarily have been unconscious for the entire period between the startling event and the statement, so long as the record supports the reasonable conclusion that the declarant did not have a meaningful opportunity to reflect.

' IV. Application

We will now determine whether Jimenez was still dominated by the emotions, excitement, fear, or pain of the attack when he made the statement by considering the following factors: (A) the length of time between the occurrence and the statement and the circumstances, (B) the demeanor of the declarant, (C) whether the statement was made in response to a question, and (D) whether the statement is self-serving.

(A)Length of the Delay and the Circumstances

Four days is a very long time between the startling event and the statement. As a result, we must look-to the record for evidence that Jimenez ■ did not have a meaningful opportunity to reflect.

Jimenez attempted to communicate with hospital staff when he was in the emergency room before surgery. The trial court could have reasonably concluded that, in the time between when Jimenez was stabbed in the abdomen and when he went under anesthesia for surgery,, he was still in shock and under the influence of the emotions from the attack.

Ralph testified that, when she arrived at the hospital on the night of the attack, her father was in surgery. She visited him each day and found him to be unconscious, heavily medicated, or incoherent. On Tuesday, when Ralph arrived her father was awake and coherent. When Ralph asked him what had happened, Ralph said that her father was animated, angry, and excited. Jimenez made hand gestures and spoke in a loud voice. As he was talking, he drew the attention of other people in the room.

We conclude, based on the record, that the trial court could have reasonably concluded that Jimenez had no meaningful opportunity to reflect between the time when he was attacked and when he gave the statement. Although the delay was long, this factor weighs, though not strongly, in favor of admission because Jimenez did not have a meaningful opportunity to reflect.

(B)Demeanor of the Declarant

' Ralph testified that her father was ordinarily a cálm man and that it was unusual for him to be so loud and animated. We conclude that this factor weighs in favor of admission.

(C)Whether the Statement Was Made in Response to a Question

The statement in this case was made in response' to a question. Ralph testified that she asked Jimenez what had happened to him. There is no indication that the question was asked for any reason other than familial concern. And there is no indication that Jimenez’s answer was anything but a spontaneous response after becoming coherent after a period of surgery, unconsciousness, and heavy medication. This factor weighs in favor of admission.

(D)Whether the Statement Is Self-Serving

We can discern no self-serving motive from the record. The appellant suggests that Jimenez may have falsely accused the appellant to get even with him for a prior attack. Although Ralph was not the State’s last witness, she appeared near the end of the State’s case. The trial court had already heard substantial evidence from the State indicating that the appellant had, along with another man, attacked Jimenez. Within minutes of the arrival of the police on the scene, they found, the appellant and the other man involved in the offense. They both had stab wounds as described by one of the witness’s at the scene. The police had the two men transported to a hospital.

It seems more likely that Jimenez would want the actual people who attacked him to be charged and sentenced. We can discern no self-serving motive for Jimenez to fabricate his accusation against the appellant. This factor weighs in favor of admission.

V. Conclusion

Having found that all of the factors weigh in favor of admission, we cannot say that the trial court abused its discretion in admitting the statement made by Jimenez. We affirm the judgment of the Court of Appeals.

      . During the trial and before Ralph testified, Jimenez testified about his recollection of the events on the night of the attack.

      . The appellant’s objection was based solely on the general rule prohibiting the admission of hearsay. He did not object on the basis of the confrontation clause.

      . Apolinar v. State, 106 S.W.3d 407 (Tex.App.Houston [1st Dist.] 2003).

      . Id.., at 423 (citing Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003)).

      . Id., at 424.

      . Zuliani, 97 S.W.3d at 595.

      . Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992).

      . Tex.R. Evid. 802.

      . Tex.R. Evid. 803(2).

      . Zuliani, 97 S.W.3d at 595.

      . Zuliani, 97 S.W.3d at 596 (citing McFarland. v. State, 845 S.W.2d 824, 846 (Tex.Crim.App.1992)).

      . Id., at 595-96; see also 2 John W. Strong, McCormick on Evidence § 272, at 207-08 (5th ed.1999).

      . Ytuarte v. State, No. 09-01-00068-CR, 2002 WL 31322769, 2002 Tex.App. LEXIS 7494 (Tex.App.-Beaumont 2002, pet. dism'd, untimely filed) (not designated for publication); Mosley v. State, 960 S.W.2d 200 (Tex.App.-Corpus Christi 1997, no pet.); Gay v. State, 981 S.W.2d 864 (Tex.App.-Houston [1st Dist.] 1998, pet. ref’d); Vera v. State, 709 S.W.2d 681 (Tex.App.-San Antonio 1986, pet. ref’d).

      . The State first attempted to offer the statement under Code of Criminal Procedure Article 38.072. The Court of Appeals held that the State could not rely on Article 38.072 because it had not complied with the provisions of the Article.

      . Gay v. State, 981 S.W.2d 864 (Tex.App.Houston [1st Dist.] 1998, pet. ref’d).

      . Vera, 709 S.W.2d at 683.

      . Mosley, 960 S.W.2d at 204.

      . Gay v. State, 981 S.W.2d at 867.

      . Vera, 709 S.W.2d at 683.

      . Gay v. State, 981 S.W.2d at 867; Mosley, 960 S.W.2d at 204; Vera, 709 S.W.2d at 683.

      . Ytuarte, No. 09-01-00068-CR, 2002 WL 31322769, 2002 Tex.App. LEXIS 7494.

      . Id., at *1, at *12.

      . Parks v. State, 843 S.W.2d 693 (Tex.App.Corpus Christi 1992, pet. ref'd).

      . Id., at 697-98.

      . State v. Wallace, 37 Ohio St.3d 87, 524 N.E.2d 466 (1988). See also A.C.M. v. State, 855 So.2d 571 (Ala.Crim.App.2002); People v. Meras, 284 Ill.App.3d 157, 219 Ill.Dec. 579, 671 N.E.2d 746 (1996); People v. Washington, 71 Cal.2d 1170, 81 Cal.Rptr. 5, 459 P.2d 259 (1969).

      . Wallace, 524 N.E.2d at 470.

      . Ibid.

      . Ibid.

      . For this proposition, the State cites Hernandez v. State, 957 S.W.2d 851, 852 (Tex.Crim.App.1998).

      . 2 John W. Strong, McCormick on Evidence § 272, at 207-08 (5th ed.1999).

      . Zuliani, 97 S.W.3d at 596.

      . Ibid.


author: SAM GRIFFITH, Justice.

text:
    In re Quyen NGUYEN.
    No. 12-03-00162-CV.
    Court of Appeals of Texas, Tyler.
    June 18, 2003.

      Carole W. Clark, Tyler, for respondent.
    George Conner, III, Tyler, Ken W. Good, Mary Strand, Tyler, for relator.
    Thad W. Davidson, for Other.
    Leslie L. McLean, Tyler, for real party in interest.
    Panel consisted of WORTHEN, C.J. and GRIFFITH, J.
   OPINION

SAM GRIFFITH, Justice.

Relator Quyen Nguyen (“Nguyen”) seeks a writ of mandamus requiring the trial court to vacate its amended scheduling order and a writ of prohibition ordering the trial court to take no further action in the underlying proceeding. We conditionally grant the writ of mandamus and deny the writ of prohibition.

Background

Nguyen filed a petition for divorce from the real party in interest, Quan Tran (“Tran”). The trial court granted Nguyen’s motion for substituted service, and Tran was served by publication. The court also appointed an attorney ad litem to represent Tran. On December 16, 2002, a final decree of divorce was entered. On the same date, Tran filed a motion for new trial alleging that the attorney ad litem had located Tran and that Tran had retained the attorney ad litem to represent him and to file the motion for new trial. At a hearing on January 10, 2003, the trial court ordered the parties to mediation, but did not take up the motion for new trial. The mediation was unsuccessful.

On January 15, 2008, the trial court entered a scheduling order. On April 15, the parties appeared before the trial court at which time the court entered an amended scheduling order. The order scheduled pretrial for June 6 and trial for June 10. At the April 15 hearing, the attorneys raised the issue of the trial court’s jurisdiction on the ground that no new trial had been granted. In response, the trial court made an entry on the docket sheet stating that “ct. finds s/o entered on 1-15-03 is an order granting new trial.” On May 16, 2003, Nguyen’s attorney of record filed a motion to withdraw, and the trial court scheduled a hearing on the motion for June 2. On May 28, Nguyen filed her petition for writs of mandamus and prohibition with this court and also filed a motion requesting a stay of the trial court proceedings pending resolution of her petition. We granted Nguyen’s motion and issued a stay order on May 29.

Availability of Mandamus

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex.2000) (orig.proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id. Mandamus is proper if a trial court issues an order after its plenary power expires. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000) (orig.proceeding). Such an order is void and constitutes an abuse of discretion. Id. Because the order is void, the relator need not show it does not have an adequate remedy by appeal. Id.

Abuse of Discretion

The trial court has plenary power to grant a new trial within thirty days after the judgment is signed. Tex.R. Civ. P. 329b(d). If a motion for new trial is timely filed and is not determined by a written order signed within seventy-five days after the judgment is signed, the motion is overruled by operation of law on the expiration of the seventy-five-day period. Tex.R. Civ. P. 329b(c). The trial court has plenary power to grant a new trial until thirty days after all timely-filed motions for new trial are overruled, either by a written and signed order or by operation of law, whichever occurs first. Tex.R. Civ. P. 329b(e). Thus, the trial court’s plenary power to grant a new trial is limited to a maximum of 105 days after the judgment is signed.

In the instant ease, the final decree of divorce was signed on December 16, 2002, and Tran’s motion for new trial was filed on the same day. The trial court did not enter a written order expressly ruling on the motion for new trial. Moreover, it is undisputed that the court did not specifically address the motion for new trial in the hearing on January 10, 2003.

Tran points out that the scheduling order signed on January 15, 2003 is a written order, signed by the trial court prior to the expiration of the court’s plenary power. Furthermore, the scheduling order set a final trial date of April 15, 2003. Therefore, Tran contends that the trial court correctly found that the scheduling order is an order granting a new trial. We disagree.

An order granting a new trial must be in writing and signed by the trial court. Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex.1993). A written, signed scheduling order setting a case for trial is not a substitute for a written, signed order granting a motion for new trial because the order setting the case for trial does not adjudicate the merits of the motion for new trial. In re Hesser, No. 05-00-00769-CV (Tex.App.Dallas May 31, 2000, 2000 WL 694742, orig. proceeding) (not designated for publication), 2000 WL 694742; see also In the Interest of J.H., 39 S.W.3d 688, 690 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (docket entry, unsigned and undated handwritten entry on amended motion for new trial, notices of trial setting, and signed orders setting case for trial no substitute for signed, written order granting motion for new trial); Estate of Townes v. Wood, 934 S.W.2d 806, 807 (Tex.App.-Houston [1st Dist.] 1996, orig. proceeding) (written, signed order setting ease for trial does not, taken by itself or in conjunction with oral pronouncement and docket entry, constitute written, signed order adjudicating merits of motion for new trial); Cortland Line Co. v. Israel, 874 S.W.2d 178, 182-82 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (oral pronouncement, docket entry, and signed order setting hearing no substitute for written, signed order granting new trial). Here, the scheduling order does not contain any reference to the pending motion for new trial and does not expressly grant a new trial. Consequently, we conclude that the scheduling order does not constitute a written, signed order granting a new trial. See Tex.R. Crv. P. 329b(e). Because the trial court did not grant a new trial by written, signed order, Tran’s motion was overruled by operation of law on March 1, 2003, and the trial court’s plenary power expired on March 31, 2003. Therefore, the trial court was without jurisdiction to sign the amended scheduling order on April 15, 2003. Consequently, such order is void and constitutes an abuse of discretion. See In re Southwestern Bell, 35 S.W.3d at 605.

Writ of Prohibition

Each court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court. Tex. Gov’t Code Ann. § 22.221(a) (Vernon Supp.2003). Our jurisdiction to issue “all other writs” is limited to cases in which this court has actual jurisdiction of a pending proceeding. Faherty v. Knize, 764 S.W.2d 922, 923 (Tex.App.-Waco 1989, orig. proceeding); Lesikar v. Anthony, 750 S.W.2d 338, 339 (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding); see also Kantor v. Herald Pub. Co., 632 S.W.2d 656, 658 (Tex.App.-Tyler 1982, orig. proceeding). Therefore, a court of appeals does not have jurisdiction, absent actual jurisdiction of a pending proceeding, to issue a writ of prohibition requiring that a trial court refrain from performing a future act. Lesikar, 750 S.W.2d at 339. Because we do not have actual jurisdiction over a pending proceeding in this case, our jurisdiction is limited to mandamus authority. See Tex. Gov’t Code Ajnn. 22.221(b) (Vernon Supp.2003).

Conclusion

Based upon our review of the record and the foregoing analysis, we hold that Tran’s motion for new trial was overruled by operation of law on March 1, 2003 and that the trial court’s plenary power expired on March 31, 2003. Therefore, the amended scheduling order signed on April 15, 2003 is void and constitutes an abuse of discretion. Because Nguyen does not have an adequate remedy by appeal, we conditionally grant mandamus relief. We trust that the trial court will vacate its amended scheduling order; the writ will issue only if it fails to do so. Nguyen’s petition for a writ of prohibition is denied.


author: JAMES T. WORTHEN, Chief Justice.

text:
    In re JOHN M. O’QUINN, P.C.
    No. 12-02-00352-CV.
    Court of Appeals of Texas, Tyler.
    June 25, 2003.
    Rehearing Overruled July 22, 2003.

      J. Clay Gossett, Henderson, for respondent.
    Mike Hatchell, Tyler, J.R. Phenix, Henderson, Sam W. Cruse Jr., Billy Shepherd, John D. Vogel, Houston, for relator.
    Clay Wilder, Terry L. Scarborough, Cynthia Olson Bourland, Austin, William Fred Hagans, Carl D. Kulhanek Jr., J. Woodfin Jones, Joseph D. Jamail Jr., Ronald D. Krist, Houston, for Real Parties in Interest.
    Panel consisted of WORTHEN, C. J. and GRIFFITH, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Relator John O’Quinn, P.C. (“O’Quinn”) brings this petition for writ of mandamus complaining of the trial court’s reconsideration of its order compelling arbitration. We conditionally grant the writ.

Background

O’Quinn represented real parties in interest Martha Wood, Patricia Haynes, and Ellie L. Corley (collectively the “RPI”) in breast-implant litigation. Each of the RPI signed a contingent fee agreement (collectively the “fee agreements”). O’Quinn settled the claims of the RPI and deducted 1.5 percent of the gross settlement proceeds for expenses that, according to O’Quinn, were common to all clients in the litigation. Consequently, the RPI sued O’Quinn contending, inter alia, that the deduction for “common expenses” is not permitted by the fee agreements and therefore O’Quinn’s deduction constitutes a breach of the agreements. Further, the RPI allege that O’Quinn represented approximately three thousand women in the litigation, settled the claims of approximately two thousand of those women, and deducted 1.5 percent from the gross settlement proceeds of each settling client. Thus, the RPI filed them lawsuit as a class action on behalf of all clients of O’Quinn who had 1.5 percent of their settlement proceeds deducted for “common expenses.”

The fee agreements contain an arbitration provision providing that “[a]ny and all disputes, controversies, claims or demands arising out of or relating to [the] Agreement or any provision [thereof] ... or in any way relating to the relationship between Attorneys and Client ... shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the Commercial Arbitration Rules then in effect with the American Arbitration Association.” On November 3, 2000, the trial court granted various arbitration motions filed by O’Quinn and ordered that “all claims and causes of action ... shall be submitted to American Arbitration Association for binding arbitration under the Federal Arbitration Act.” The order also stayed the proceedings in the trial court “pending completion of and final decisions in the binding arbitration” and expressly provides that the trial court “has not made a decision or finding regarding class status or class certification.” The RPI sought mandamus review of the November 3 order from this court and from the Texas Supreme Court. Both courts denied relief. However, arbitration did not occur.

On November 4, 2002, the trial court, on motion of the RPI, reconsidered its prior order (the “first order”) and signed a second order. The second order referred “[a]ll claims and causes of action [pleaded by the RPI in their] Third Amended Petition, specifically including, without limitation, the class action claims” to arbitration under the Federal Arbitration Act (the “FAA”). Further, the order stated that

[t]he Arbitrator is specifically authorized to have the full limit of authority to determine the issues related to class action and to address and resolve all issues related to due process rights of putative class members and to determine all class action issues, including, without limitation, the issue of class certification, the issue of the definition of the class, and the issue of whether proceeding on class or individual claims is proper (emphasis added).

On November 7, 2002, O’Quinn filed a motion for rehearing, which the trial court denied. On December 4, 2002, O’Quinn filed a petition for writ of mandamus requesting this court to enter an order requiring the trial court to (1) vacate its order of November 4, 2002 (the “second order”); • (2) deny in its entirety the motion for reconsideration filed by the RPI; and (3) refer this case to binding, separate arbitrations.

Availability of Mandamus

Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex.2000) (orig. proceeding). A trial court clearly abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker, 827 S.W.2d at 840. Consequently, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. Where an arbitration agreement is governed by the Federal Arbitration Act (the “FAA”), mandamus is the appropriate means to assert that a trial court has failed to enforce the agreement according to its terms. See, e.g., In re Louisiana Pacific Corp., 972 S.W.2d 63, 65 (Tex.1998) (citing Freis v. Canales, 877 S.W.2d 283, 284 (Tex.1994) and Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992)).

Applicable Law

It is undisputed that the Federal Arbitration Act (the “FAA”) applies in this case. See 9 U.S.C.A. §§ 1-16 (West 1999). The FAA creates a body of federal substantive law that is applicable in both state and federal courts. Southland Corp. v. Keating, 465 U.S. 1, 12, 104 S.Ct. 852, 859, 79 L.Ed.2d 1 (1984) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). When interpreting an arbitration agreement, courts should generally apply state-law principles. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). Furthermore, federal procedure does not apply in Texas courts; Texas procedure controls, even when the FAA governs the interpretation of the agreement. Tipps, 842 S.W.2d at 272.

Subject Matter Jurisdiction

During oral argument, O’Quinn contended for the first time that the trial court lacked subject matter jurisdiction to reconsider its first order. Alleging a lack of subject matter jurisdiction raises fundamental error; consequently, the issue may be raised at any time. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993). Therefore, we first address the merits of O’Quinn’s jurisdictional complaint.

O’Quinn maintains that an order referring a case to arbitration is generally considered “final” for judicial purposes, and the trial court’s plenary judicial power over the merits of the case ceases. Thus, according to O’Quinn, the trial court lost plenary power thirty days after it signed the first order. As a result, his argument continues, the trial court was without jurisdiction to sign its second order, and therefore the order is void. In support of his argument, O’Quinn cites cases holding that a trial court has power to set aside an order of nonsuit for only thirty days after the order is signed. See America’s Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 878 (Tex.App.-San Antonio 1995, orig. proceeding); Mo. Pac. R. Co. v. Whitaker, 815 S.W.2d 348, 349 n. 2 (Tex.App.-Tyler 199.1, orig. proceeding).

The RPI, on the other hand, contend that the trial court’s first order was not a final judgment because “the order plainly states that the court was reserving the class action questions for another day....” Therefore, they argue, the first order is interlocutory because it does not dispose of all issues in the instant case, and the trial court had jurisdiction to reconsider the order. Furthermore, they distinguish an order granting a nonsuit and an order compelling arbitration because a nonsuit terminates the litigation while an order compelling arbitration does not.

Arbitration has been defined as:

a contractual proceeding by which the parties to a controversy or dispute, in order to obtain a speedy and inexpensive final disposition of matters involved voluntarily select arbitrators or judges of their own choice, and by consent submit the controversy to such tribunal for determination in substitution for the tribunals provided by the ordinary processes of the law.

Tipps, 842 S.W.2d at 268. Thus, an order compelling arbitration contemplates continuing resolution through the arbitration. Brooks v. Pep Boys Automotive Supercenters, 104 S.W.3d 656, 660 (Tex.App.-Houston [1st Dist.] 2003, no pet.). By compelling arbitration, the trial court simply takes the first step in the ultimate disposition of the dispute between the parties. Materials Evolution Dev., USA Inc. v. Jablonowski, 949 S.W.2d 31, 33 (Tex.App.San Antonio 1997, no writ). However, an order compelling arbitration is not a final order because it does not dispose of all parties or issues presented. E.g., Brooks, 104 S.W.3d at 660; Jablonowski, 949 S.W.2d at 33; Elm Creek Villas Homeowner Ass’n, Inc. v. Beldon Roofing & Remodeling Co., 940 S.W.2d 150, 153 (Tex.App.-San Antonio 1996, no writ); Gathe v. Cigna Healthplan of Texas, Inc., 879 S.W.2d 360, 363 (Tex.App.-Houston [14th Dist.] 1994, writ denied).

As a general rule, a trial court retains plenary power over its interlocutory orders until a final judgment is entered. Fruehauf v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993). Additionally, a trial court has the inherent authority to change or 'modify any interlocutory order until its plenary power expires. Mendez v. San Benito/Cameron County Drainage Dist. No. 3, 45 S.W.3d 746, 754 (Tex.App.-Corpus Christi 2001, pet. denied). Referral of a matter to arbitration does not deprive the trial court of jurisdiction, but merely limits the manner in which a trial court may exercise its jurisdiction. See, e.g., In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex.2002) (orig. proceeding) (trial court compelling arbitration must also stay its own proceedings); Transwestern Pipeline Co. v. Blackburn, 831 S.W.2d 72, 75 (Tex.App.-Amarillo 1992, orig. proceeding) (after compelling'arbitration, trial court not divested of jurisdiction but abused its discretion by ordering discovery after selection of arbitration panel). Therefore, the trial court had plenary power at the time the second order was signed.

O’Quinn argues the general rule relating to reconsideration of interlocutory orders should not apply here because if a trial court’s power over a referral to arbitration does not end at some point, the trial court could, after arbitration has begun, change its mind and stop the arbitration, withdraw issues, or add issues. This, in turn, would defeat the purpose of arbitration, which is “to get parties out of the judicial system and provide a speedy, efficient, and less costly method to resolve the parties’ dispute.” We agree that such a result would be contrary to the purpose of arbitration. However, a trial court cannot use its jurisdiction to unnecessarily interfere with the arbitration process agreed upon and instituted. Blackburn, 831 S.W.2d at 78. This rule provides a means for preventing the result O’Quinn anticipates.

We hold that the trial court had subject matter jurisdiction to enter the second order. O’Quinn’s argument to the contrary is overruled. We now turn to the merits of O’Quinn’s mandamus petition.

Abuse of Discretion

In their motion for reconsideration, the RPI alleged that “[c]ompelling arbitration deprives [the RPI] of a remedy, because the American Arbitration Association (“AAA”) takes the position that the trial court must first certify the class before referring [the case] to arbitration.” To support this allegation, the RPI attached a copy of a letter from counsel for the RPI to the AAA summarizing the organization’s position. In view of the AAA’s stance, the RPI requested the trial court to reconsider its decision compelling arbitration and allow the case to proceed to trial in state court. Alternatively, the RPI requested that the trial court reconsider its order in part, allow pre-certification discovery, conduct a class certification hearing, and then refer the case to arbitration.

At the hearing on the motion to reconsider, counsel for the 'RPI stated that the AAA had taken the position that “they have no procedures for [certifying a class]”; “that there is no precedent ... for a class certification hearing inside of arbitration”; and that “[t]heyVe never done it before.” Counsel also represented that “the AAA want this Court to decide that, and they’ve so told us, and that they will take this case from that point forward, only because we’re in unchartered territory.” The trial court granted the motion to reconsider, but referred “all claims and causes of action [pleaded by the RPI in their] Third Amended Petition, specifically including, without limitation, the class action claims.” Further, the order states that the arbitrator has “the full limit of authority to determine the issues related to class action” and that the arbitrator is authorized to “to determine all class action issues.... ”

O’Quinn asserts that the trial court abused its discretion by signing this order because the arbitrator does not have, and cannot be given, the authority to determine class certification issues. Based upon our review of the record, we agree.

Determination of Class Certifícation Issues

The Supreme Court has held that “[j]ust as [parties] may limit by contract the issues which they will arbitrate, ... so too may they specify by contract the rules under which arbitration will be conducted.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 479, 109 S.Ct. 1248, 1256, 103 L.Ed.2d 488 (1989). Preventing the enforcement of agreements to arbitrate where the parties select rules different from those set forth in the FAA would be “quite inimical to the FAA’s primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms.” Id., 489 U.S. at 479, 109 S.Ct. at 1255-56.

Once the parties specify which rules govern arbitration, they are bound by those rules. In re Nat’l Health Ins. Co., 109 S.W.3d 552, 556 (Tex.App.-Tyler 2002, orig. proceeding) (not yet released for publication); see also In re Oakwood Mobile Homes, 987 S.W.2d 571, 574 (Tex.1999). Furthermore, the trial court has no discretion to modify or otherwise contravene the specified rules. See id., 109 S.W.3d at 556. The fee agreements in the case at hand provide that arbitration will be conducted in accordance with the AAA Commercial Arbitration Rules then in effect. As O’Quinn points out, the RPI established at the hearing on their motion to reconsider that (1) the AAA has no procedure for certifying a class and that (2) a class arbitration cannot proceed until the trial court has first certified the class. Therefore, according to the AAA’s procedures for conducting arbitration pursuant to the rules designated by the parties, issues relating to class certification must be determined by the trial court. Consequently, we agree with O’Quinn that, under the facts of the instant case, the arbitrator cannot be authorized to “determine the issues related to class action.” The trial court’s attempt to give the arbitrator that authority contravenes the designated rules, thereby constituting an abuse of discretion. See id., 109 S.W.3d at 556-57. Having determined that the trial court abused its discretion, we now consider whether O’Quinn has an adequate remedy by appeal.

Adequate Remedy By Appeal

A court may vacate an arbitrator’s award under the circumstances set forth in the FAA. See 9 U.S.C.A. § 10 (West 1999). However, the FAA contains no provision allowing review of a trial court’s actions in state court. Cf. 9 U.S.C.A. § 10; see In re Louisiana Pacific Gorp., 972 S.W.2d 63, 65 (Tex.1998). O’Quinn complains that the trial court erred in authorizing the arbitrator to determine issues related to class action. Because Section 10 of the FAA authorizes review of the acts of arbitrators only, O’Quinn’s complaint is outside the scope of permitted review. See id. Consequently, O’Quinn has no adequate remedy by appeal.

The RPI contend, however, that if the class claims are erroneously included in the arbitration, O’Quinn can appeal from the award, allege that the arbitrator exceeded its authority in deciding class issues, and seek to vacate the portion of the award attributable to the class claims. See 9 U.S.C.A. § 10(a)(4) (West 1999); see also Tex. Civ. PRAC. & Rem.Code Ann. § 171.088(a)(3)(A) (Vernon Supp.2003). Such an appeal, according to the RPI, “would make O’Quinn whole because the substantive individual claims against him are going to be arbitrated in any event.” We decline to speculate about whether the result suggested by the RPI would occur, but assume, for purposes of argument, that such is the case. Even so, our conclusion regarding whether O’Quinn has an adequate remedy by appeal does not change.

An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842. Mandamus will issue when the failure to do so would “vitiate and render illusory the subject matter of an appeal.” Tipps, 842 S.W.2d at 272. In the case at hand, AAA policy for administering the rules designated by the parties requires the trial court to determine all class action issues prior to arbitration. An appeal of the arbitrator’s decisions on the issues cannot restore O’Quinn’s right to have those issues resolved by the trial court. Moreover, requiring parties to participate in classwide arbitration when they have not agreed to do so “disrupts the negotiated risk/benefit allocation and directs [the parties] to proceed with a different sort of arbitration.” Champ v. Siegel Trading Co., Inc., 55 F.3d 269, 277 (7th Cir.1995) (citing New England Energy, Inc. v. Keystone Shipping Co., 855 F.2d 1, 10 (1st Cir.1988) (Selya, J., dissenting)). Thus, if O’Quinn is erroneously ordered to participate in classwide arbitration prior to appeal, he has been permanently deprived of the benefit of the arbitration clause and the type of arbitration for which he bargained. See Tipps, 842 S.W.2d at 272-73. This result “vitiate[s] and renderfe] illusory the subject matter of an appeal.” See id.

Conclusion

Based upon our review of the record and the foregoing analysis, we hold that the trial court’s order signed on November 4, 2002 reconsidering its prior order compelling arbitration constitutes an abuse of discretion. Having determined that O’Quinn does not have an adequate remedy by appeal, we conditionally grant mandamus relief. We trust that the trial court will vacate its November 4 order; the writ will issue only if it fails to do so.

      . Our holding on this issue is limited to the particular facts of this case. We do not address whether, as a general proposition, class certification is a matter for the trial court or for the arbitrator. Furthermore, the holding in Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003) is inapplicable here.

      . The threshold inquiry is whether the fee agreements permit class arbitration. See Local 1351 Int’l Longshoremen’s Ass’n v. Sea-Land Serv., Inc., 214 F.3d 566, 570-71 (5th Cir.2000); Del E. Webb Const, v. Richardson Hosp. Auth., 823 F.2d 145, 150 (5th Cir.1987).

      . The record indicates that the AAA declined to address class certification because it has no procedure for doing so and not because it lacked a delegation of authority from the trial court.