NUMBERS 13-14-00049-CR and 13-14-00050-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ADRIEN "BULL" SHERMANE THOMAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Adrien "Bull" Shermane Thomas challenges his convictions on two
charges of the manufacture or delivery of a controlled substance. See TEX. HEALTH &
SAFETY CODE ANN. § 481.112(c), (d) (West, Westlaw through 2013 3d C.S.). By one
issue, appellant argues that the trial court abused its discretion at appellant's revocation
hearing when it failed to exclude witnesses after appellant invoked Texas Rule of
Evidence 614. We affirm.
I. Background1
Appellant was indicted in separate trial court cause numbers for two controlled
substance offenses: first, for the second-degree felony offense of the delivery of one
gram or more but less than four grams of cocaine, see id. § 481.112(c) (trial court cause
number 05-04-10,127A, appellate cause number 13-14-00049-CR); and second, for the
first-degree felony offense of the delivery of four grams or more but less than 200 grams
of cocaine, see id. § 481.112(d) (trial court cause number 05-04-10,130, appellate cause
number 13-14-00050-CR). 2 Appellant pleaded guilty to both offenses. In cause
number 05-04-10,127A, the trial court deferred adjudication of appellant's guilt and placed
him on a ten-year term of community supervision. In cause number 05-04-10,130, the
trial court assessed a sentence of ten years' imprisonment and a $10,000 fine, but the
term of imprisonment was suspended and appellant was placed on community
supervision for that offense, as well.
Several years later, the State filed a motion to adjudicate appellant's guilt and
revoke his community supervision. After a two-day hearing on the State's motion, the
trial court adjudicated appellant's guilt in cause number 05-04-10,127A and sentenced
him to fifteen years' incarceration. In cause number 05-04-10,130, the trial court revoked
1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
2 Appellant challenges both cases in one appellate brief; and we will, likewise, consolidate our
disposition of both cases in this single opinion.
2
appellant's community supervision and sentenced him to ten years' incarceration. The
trial court ordered the two sentences to run concurrently. This appeal followed.
II. Discussion
By his sole issue on appeal, appellant argues that the trial court abused its
discretion in failing to exclude witnesses from the courtroom once he invoked rule 614.
See TEX. R. EVID. 614 ("At the request of a party the court shall order witnesses excluded
so that they cannot hear the testimony of other witnesses . . . ."). The State contends
that appellant failed to preserve this issue for our review. We agree with the State.
The record shows that on the first day of appellant's revocation hearing, the State
called four witnesses—a probation officer, two police officers, and a parole officer—who
were questioned on direct and cross examination. The State then rested its case.
Appellant called two witnesses, who were examined by both parties, and the trial court
then recessed the proceedings for the day.
On the second day of the hearing, defense counsel called one of the officers who
had testified for the State on the previous day. At this point, defense counsel attempted
to invoke rule 614, and the following exchange occurred:
[Defense counsel]: Your Honor, at this time I'd like to invoke The
Rule, please.
[Prosecutor]: Your Honor, he can't invoke The Rule now.
[Court]: We're too far into the . . .
[Defense counsel]: Okay.
Defense counsel then proceeded to examine the police officer. No further attempts were
3
made to exclude witnesses from the courtroom, and counsel did not otherwise object to
the testimony of any of the remaining witnesses.
Having reviewed appellant's attempt to invoke rule 614 in the context of the
surrounding record, we cannot conclude that he succeeded in doing so. Rather, he
appears to have acquiesced to the prosecutor and trial court's suggestion that the
proceedings had advanced too far to invoke the Rule when he did.3 In short, we find no
indication in the record that appellant ever complained to the trial court about its failure, if
any, to exclude witnesses under rule 614. Having never made the complaint to the trial
court, he cannot now make it for the first time on appeal. See TEX. R. APP. P. 33.1(a).
We overrule appellant's issue.
III. Conclusion
We affirm the judgments of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 18th
day of September, 2014.
3
We express no opinion as to whether this was a proper basis for the trial court's refusal, if any, to
implement rule 614 at this stage.
4