PD-0347-26 BERMUDEZ, BRIAN ALEX FROM HARRIS COUNTY - 14-24-00749-CR — DISSENTING STATEMENT FILED PRESIDING JUDGE SCHENCK [ PDF/212 KB ]

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0347-26
BRIAN ALEX BERMUDEZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
S CHENCK, P.J., filed a dissenting statement in which RICHARDSON and
M C CLURE, JJ., joined.
DISSENTING STATEMENT
The decision below upheld the exclusion of testimony from the sole victim
who had been proffered by the defense for the purpose of testifying that there was
in fact no crime. Putting aside the obvious importance of that testimony to the

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jury’s determination of guilt in this case, the decision poses basic and important
questions surrounding the proper application of the rule governing exclusion of
victims from the courtroom and the proper scope of remedy in the event of its
violation. Either is serious enough to warrant review.
I therefore dissent from our decision refusing the petition in this case and
write separately to explain how I believe the rule should be applied in future cases.
BACKGROUND
Brian Alex Bermudez was indicted for assault family violence with a prior
conviction, a second-degree felony. TEX. P ENAL CODE § 22.01(b-3)(2).
Bermudez’s wife was identified by name as the victim in the indictment and on the
record throughout the course of the proceedings. She was not cooperative with the
prosecution from the outset and planned to testify that he never assaulted her. As
the prosecution rightly concluded, the putative victim’s decision not to seek or
assist with a prosecution does not control the determination of whether a crime
occurred. It does, however, make the jury’s credibility assessment critical, if not
dispositive of the resulting verdict.
Before voir dire began, the State invoked the rule (Rule 614 of the Texas
Rules of Evidence) to exclude witnesses from the courtroom.
The rule provides, in relevant part,

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At a party’s request, the court must order witnesses excluded so that
they cannot hear other witnesses’ testimony. Or the court may do so
on its own. But this rule does not authorize excluding:
. . .
(d) the victim in a criminal case, unless the court determines that
the victim’s testimony would be materially affected by hearing
other testimony at the trial.
TEX. R. EVID . 614 (emphasis added).
During the course of his trial, Bermudez called his wife from jail on a
recorded line. During their conversation, they talked about the testimony of one of
the State’s witnesses. The State learned of the phone call and moved the following
morning to exclude her from testifying during the defense’s case-in-chief.
Bermudez’s wife was questioned outside the presence of the jury, and she
denied discussing specific testimony but conceded that she had “asked him, but he
don’t tell me like too much.” The trial judge ruled that she would not be allowed
to testify. The judge said that “[t]he problem occurs when [Bermudez] starts
telling witnesses about other testimony. That becomes a problem. That’s what
happened here. And for that reason, that witness is excluded.” The State never
urged that the wife could be subject to the rule and did not seek or obtain a finding
necessary to support that result. Unsurprisingly, the trial court did not make any
findings about those issues prior to either the State’s motion to exclude her

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testimony or its decision excluding her from testifying.
Bermudez was convicted and filed a motion for new trial. In the motion, one
of his allegations was that the trial court abused its discretion by excluding the
victim’s testimony under the rule. The court of appeals held that the trial court did
not abuse its discretion. Bermudez v. State, No. 14-24-00749-CR, 2026 WL
1099496, at *10 (Tex. App.—Houston [14th Dist.] Apr. 23, 2026, pet. filed) (mem.
op., not designated for publication).
I. 	DISCUSSION
A. The Plain Language
To be sure, the State asked the trial court to order her excluded so that she
could not hear other witnesses’ testimony. Id. The trial court granted that request.
So far so good. But, while subsection (a) of the rule applies to all witnesses,
subsection (d) specifically deals with victims in a criminal case. TEX. R. EVID.
614(d). There was no doubt that she was the alleged victim1 and that, therefore,
subsection (d) applied. Under that provision, the trial court was required to determine
1 As noted, Bermudez’s wife was identified in the indictment and in open court on the
record as such.

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whether “the victim’s testimony would be materially affected by hearing other
testimony at the trial” before she could be excluded. Id. This did not happen.
As noted, the trial judge later excluded her testimony because Bermudez
telling her about another witness’ testimony was “a problem.” No doubt, but that
is no application of subsection (d). The trial court was required to determine
whether her testimony would have been “materially affected by hearing other
testimony at the trial” before she could even become subject to the rule in the first
instance. Id. Absent such a determination or some order sealing the proceedings
for cause,2 she was as free as any other member of the public to attend the trial,
take notes, create artistic renditions of the participants, and share them on the
evening news or social media. See Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555 (1980) (public and press share same right of access to criminal proceedings).
B. Preservation of Error
2 There will be rare cases where the courtroom may be closed or observers may be barred
from sharing details for purposes of protecting national security, trade secrets, or the identity of
certain witnesses. See Stamicarbon, N.V. v. Am. Cyanamid Co., 506 F.2d 532, 540 n.11 (2d Cir.
1974); In re Samsung Telecommunications of Am., Inc., Nos. 05-99-01949-CV & 05-99-01960-CV,
1999 WL 1081387, at *1–2 (Tex. App.—Dallas Dec. 2, 1999, no pet.) (mem. op., not designated
for publication) (reviewing an order by Judge David Evans requiring observers of trade-secret
proceedings to leave or sign a confidentiality agreement sustained on appeal and in collateral
federal proceedings). This was not such a rare case and was thus subject to the general rule of
access. See Globe Newspaper Co. v. Superior Court of Massachusetts for Norfolk Cnty., 457 U.S. 596,
607 (1982); Press-Enter. Co. v. Superior Court of California, Riverside Cnty., 464 U.S. 501, 503
(1984).

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There is no authority supporting the proposition that a defendant in
Bermudez’s posture must object at trial to preserve his “complaint” for appellate
review or suggesting that the text of the rule does not govern its own application.
On the contrary, the rule’s application and objection requirements have tracked the
text, though some loose language in one of our past applications may have given
rise to confusion here.
In Kelley v. State, 817 S.W.2d 168, 172 (Tex. App.—Austin 1991, pet. ref’d),
the Austin Court of Appeals dealt with a witness who was not a victim. Id.
Subsection (c) of the rule provides a further exception from its sequestration effect
for “a person whose presence a party shows to be essential to presenting the party’s
claim or defense.” TEX. R. EVID . 614(c) (emphasis added). The argument in Kelley
was whether the trial court had abused its discretion in accepting as sufficient the
State’s contention that the lead investigator’s presence to assist in the presentation
of other evidence was necessary to permit the presentation of the State’s case.
Kelley, 817 S.W.2d at 847. Because the State was required to pursue a ruling
supporting the exception and, evidently, did make such an adequate showing, the
Austin Court of Appeals unsurprisingly affirmed in keeping with the plain text.
This Court cited Kelley with approval in our opinion in Moore v. State, 882 S.W.2d
844 (Tex. Crim. App. 1994), another case involving the sequestration of a witness

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who was not the victim but was a testifying State expert and thus subject to the
opposite default of exclusion once the rule was invoked. Instead of showing that
the expert’s presence was “essential” to the State’s presentation of the case, the
State urged (and the trial court found) only that the expert’s presence would be
“expedient.” Id. at 848. After noting, critically, that the rule was no longer
discretionary with the trial court, we cited Kelley for the proposition that “the party
seeking an exception under Rule [614] has the burden of showing that one of the
enumerated sections is met.” Id. at 848 (emphasis added). Obviously, the
“exception” at issue in Kelley and Moore would be to the default rule exclusion of
the witness at issue from the courtroom. As “expediency” was not sufficient to
allege, much less prove, that the State’s witness was “necessary to a proper
presentation of the State’s case,” we found error but, notably, no abuse of
discretion in allowing the jury to nevertheless hear from the witness.
In Russell v. State, 155 S.W.3d 176, 180 (Tex. Crim. App. 2005), the case
cited by the court of appeals in this case, we applied Moore. Bermudez, 2026 WL
1099496, at *7. And again, as in Moore, it was the State urging an exception to the
operation of the rule to permit a police sergeant who was the primary homicide
investigator to remain under subparagraph (c). Russell, 155 S.W.3d at 180. The
party seeking the exception under that paragraph is hoping to permit the witness to

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remain, as the result otherwise directed under the text is exclusion. As I noted, the
rule is exactly opposite as to victims. The rule properly invoked does not apply to
bar a victim from the courtroom at all “unless the court determines that the
victim’s testimony would be materially affected by hearing other testimony.” TEX.
R. EVID . 614(d). If a party wishes to move the rule from its default position—of
permitting a victim’s presence in the courtroom and preserving her right to later
testify despite that presence—that party must so urge, so justify, and obtain the
necessary finding. This is plain under the rule’s text and by operation of the statute
governing its application. TEX. CODE C RIM. P ROC . art. 36.03(b) (creating a rule
requiring an offer of proof to explain why a victim should be excluded).
Here, the State did not urge—and in all events the trial court did not find—
that the victim’s testimony would be materially affected by hearing other
testimony. That is, the trial court did not find before or even after the supposed
“violation” that any subsequent contact the victim had relative to the other
witness’ testimony would “materially affect her testimony” as would be necessary
to bar her access. This would be true, regardless of whether the offending contact
came from her observation in person in the courtroom or, as here, by conversation
about testimony of another witness.

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Bermudez was obliged as the proponent of the evidence to establish the
relevance of his wife’s testimony. See TEX. R. EVID . 402. It seems painfully
obvious that he cleared that hurdle given that her status as the “victim” elevates
her testimony as a matter of law to presumptively forbid application of the rule
to her and assure her access to the live proceedings. Having thus established the
testimony’s threshold relevance, that evidence by plain text of the rules of
evidence is “admissible unless” by timely and specific objection, the opponent,
shows that the evidence is inadmissible under “the United States or Texas
Constitution, a statute, the[] rules [of evidence], or other rules prescribed under
statutory authority.” See id. (citation modified) (emphasis added). While a
witness called to provide relevant testimony might be excluded under the rule
for this purpose, the burden would first fall on the party making the objection to
show that the rule applied. That did not happen here.
Accepting the fact that a judge’s ruling prohibiting testimony might be
nevertheless affirmed for an exercise of discretion regardless of the reasoning
offered during the objection, to do so here would require accepting that the judge
both silently and retroactively found the witness properly subject to the rule of
exclusion from the courtroom and properly selected a remedy to redress the
“violation.”

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That is seriously problematic given (1) the text requiring the judge to
determine that the victim is covered by the rule at the time it is invoked (or
certainly ever), (2) the impact on the party’s right to a fair trial before a jury
equipped to render a verdict on the basis of the relevant evidence, (3)
Bermudez’s other constitutional rights to the compulsory attendance of
witnesses and to present a defense, and perhaps (4) his wife’s constitutional
rights as well. See Roberts v. Mentzer, 382 Fed. Appx. 158, 164 (3d Cir. 2010)
(recognizing right to appear and give true testimony as witness in legal
proceeding is guaranteed by Free Speech Clause of the First Amendment);
Bonner v. Beto, 373 F.2d 301 (5th Cir. 1967) (holding Texas statute prohibiting
co-principal from appearing as witness violates due process).
To me, all of this suggests that no objection from Bermudez was required to
preserve “error” as none of this was Bermudez’s burden in the first instance. On
the contrary it was the State’s (or the judge’s) burden to urge (or “determine”)
that the victim was subject to exclusion from the trial proceedings.3
3 As noted, in Moore, 882 S.W.2d at 848, we cited the Austin Court of Appeals for the
assertion that the burden lies with the opponent of the exclusion of a witness from the courtroom
to show that a witness should not be excluded. Id. (citing Kelley, 817 S.W.3d at 172). We
repeated that conclusion in Russell, 155 S.W.3d at 180. But none of those cases involved
exclusion of the testimony of a victim (or anyone else) who would be excluded from the reach of
the rule by operation of its own text, or at least absent affirmative findings by the judge.

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Further, I do not think defendants must present separate objections and
separate arguments relative to each part of the analysis that ultimately turns on
only the issue of whether the exclusion of a key witness like this—the victim who
would have testified that she was not assaulted, the crime Bermudez was accused of
committing—was an abuse of discretion. The rule in practice and reason is well
grounded, but it pales alongside the right to the compulsory presence of witnesses
and to present a defense.
II. 	THE MERITS-PRECLUSIVE REMEDY
Putting aside for the moment the questions of whether the victim was subject
to the rule at the time of the supposed illicit conversation and who was required to
determine (or urge the determination) of the default position that she should not be
excluded from the courtroom under the rule, we would still face the question of the
remedy for any actual or claimed violation and resulting harm.
The rule, of course, “does not [even] mention what, if any, sanctions a trial
court should impose for violations of the rule.” Bell v. State, 938 S.W.2d 35, 50
(Tex. Crim. App. 1996) (emphasis added). Here, the trial court selected a remedy
that operates to the opposite effect of the presumption of the text of the rule it
applied and, in my view, numerous constitutional rights of Bermudez and, perhaps,
his wife. This alone would be sufficient to warrant a reversal for abuse of discretion

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as a trial court has no discretion to ignore the governing law. See Cameron v. State,
241 S.W.3d 15, 20 (Tex. Crim. App. 2007) (a trial court abuses its discretion when
it misapplies the law); see also State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim.
App. 2007). And, regardless of the effect of the legal error, the remedy chosen
here would require reversal in any case in view of the effect on Bermudez’s
constitutional right to present a meaningful defense.
In Webb v. State, 766 S.W.2d 236 (Tex. Crim. App. 1989), we followed the
approach set out by the United States Supreme Court in Holder v. United States,
150 U.S. 91 (1893), and explained the appellate framework we would use to analyze
these claims:
A reviewing court will determine: (1) if the rule was violated and the
witness disqualified, were there particular circumstances, other than
the mere fact of the violation, which would tend to show the defendant
or his counsel consented, procured or otherwise had knowledge of the
witness’s presence in the courtroom, together with knowledge of the
content of that witness’s testimony; and (2) if no particular
circumstances existed to justify disqualification, was the excluded
testimony crucial to the defense.
In applying the test to the facts of this case, we are guided by balancing
the benefit of upholding the ruling against the detriment or cost to
appellant arising from that ruling, with particular concern as to the
circumstances surrounding the trial court’s decision to disqualify the
witness.
Webb, 766 S.W.2d at 245 (citation modified).

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A. Error
First, despite our comprehensive addressing of how to analyze these claims, I
do not believe the Webb standard fully addresses the issue in this case because
Bermudez’s wife was the victim, and as I previously noted, that means, as the rules
drafters acknowledged in the text, the trial court must “determine[] that the victim’s
testimony would be materially affected by hearing other testimony at the trial.”
TEX. R. EVID . 614(d). Ignoring the prospective tense (would be) and its obvious
implication that the determination has to be made by the judge and before the
supposed violation, see supra, surely it would be incumbent on the “the trial court
to make that determination” at some point prior to excluding the witness’
testimony.
It does not appear that Bermudez’s wife’s testimony would have been
materially affected by hearing about some of the testimony of a State’s witness.
She had always planned to testify for the defense and to say that Bermudez never
assaulted her. This is sufficient to show error.
Also, before invoking exclusion as a remedy as part of its discretion, a trial
court must consider alternative sanctions. Webb, 766 S.W.2d at 244. For example,
allowing the State to cross-examine the witness about the rule violation, giving the
jury a cautionary instruction, or initiating contempt proceedings, but none of those

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were considered here. Id. (contempt); id. at 241 (cross-examination). The trial
court thus failed to “consider both the benefit and detriment flowing from the
order of disqualification” and likely abused its discretion for that reason. Id. at 244.
Here, I think lesser measures should have been employed and that exclusion
of her testimony was too extreme to justify regardless of any other concerns.
Specifically, I believe the State should have been allowed to impeach her about the
violation and/or instruct the jury to evaluate her credibility relative to any
testimony she gave that might have been shaded by her learning of other testimony.
B. Harm
The trial court also failed to “weigh[] or balance[] the interests of both the
State and the accused in a fair proceeding” because it did not weigh Bermudez’s
right to the compulsory attendance of witnesses and right to put on a defense. Id.
That weighing process requires “considering the relative strength of the testimony,
the importance or ‘crucial’ nature of the issue upon which it is offered, and the
extent to which it is cumulative of other evidence in the case.” Id. On the other
hand, “the benefits of disqualification include avoiding the risk that the party
proferring the testimony either intentionally or negligently violated the rule
through the actions of accused, counsel or witness; or that the witness’s testimony
will be tainted by exposure to other testimony or discussion.” Id.

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Here, Bermudez’s wife’s testimony was crucial and not cumulative. In fact,
it would have been some of the only evidence that Bermudez did not assault his
wife. But I concede that the strength of her testimony would have been limited
given the other evidence that the assault took place and that the rule was at least
negligently, if not intentionally, violated through Bermudez’s conduct, but as I
already concluded, I do not believe the victim’s testimony would have been tainted
by exposure to the State’s witness’ testimony, and that she should have been
allowed to testify while the trial court employed other sanctions.4
CONCLUSION
With these comments, I dissent from the Court’s refusal of Bermudez’s
petition for discretionary review.
Filed: October 15, 2026
Publish
4 As an aside, I will ask if closing a criminal trial to the general public amounts to
structural error pretermitting any need of conducting harm analysis, and I wonder how it might
be that closing it to the accused’s own spouse (see Rule 614(a) governing civil proceedings) in a
criminal case when she is the “victim” (Rule 614(d)) could be any less serious.