COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-014-CR
ANTONIO CUEVAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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Introduction
Antonio Cuevas appeals his conviction and thirteen year sentence for
robbery. In a single point, Cuevas argues that the trial court erred by
conducting voir dire when he was not present, in violation of Article 33 of the
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… See Tex. R. App. P. 47.4.
Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 33.03
(Vernon 2006). We affirm.
Background and Procedural Facts
Because Cuevas does not challenge the sufficiency of the evidence, we
will recite only as much of the record as necessary to put his complaints into
context. We will examine the record in greater detail in connection with
Cuevas’s point of error.
The record shows that Cuevas devised a plan to send two of his friends,
Dustin Shea and Raymond Greenwell, to rob the victim. The victim was Mr.
Tierce, an estranged boyfriend and roommate of one of Cuevas’s female
friends, Sabra Underwood. Cuevas drove Shea and Greenwell to a location
near Tierce’s home. The two men entered the house, one struck Tierce, and
they both tied up Tierce and the estranged girlfriend, Sabra. Shea forced Tierce
to ingest an Ecstasy pill; Cuevas had previously given him the pill and instructed
him to use it on Tierce. Shea and Greenwell proceeded to steal guns and
laptops from the house. Both Shea and Greenwell fled, but the police quickly
caught them. The two men implicated Cuevas in the robbery. Later, Cuevas
was indicted for the crime.
Cuevas’s trial started on December 10, 2007, with jury selection in an
afternoon session. Several of the venire panel members had also participated
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in a morning session of voir dire conducted by the same prosecutor; however,
that session concerned an unrelated case and a different defendant. Cuevas’s
counsel also attended the morning session. At the beginning of the voir dire for
the Cuevas case, Cuevas’s attorney objected and stated that the majority of the
panel had been examined outside the presence of the accused and not on the
record of Cuevas’s case. He added that his client had a right to have the
answers to the previous voir dire on the record. The trial court overruled this
objection and the proceeding continued. Both the State and Cuevas conducted
a complete voir dire on the afternoon panel. The trial proceeded, and the jury
ultimately returned a verdict of guilty of robbery. The trial court sentenced
Cuevas to thirteen years’ imprisonment and a $10,000 fine. Cuevas appeals
this judgment.
Discussion
In his sole point, Cuevas argues that the trial court erred by conducting
voir dire outside his presence, in violation of Article 33.03 of the Texas Code
of Criminal Procedure. Article 33.03 states, “In all prosecutions for felonies,
the defendant must be personally present at the trial . . . .” See Adanandus v.
State, 866 S.W.2d 210, 217 (Tex. Crim. App. 1993), cert. denied, 510 U.S.
1215 (1994) (discussing Tex. Code Crim. Proc. Ann. art. 33.03.) Cuevas
argues both his absence at the voir dire of another defendant and the
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opportunity for the prosecutor to develop a relationship with the jurors outside
the presence of Cuevas constitute harmful error.
This court has rejected the identical argument in Ballard v. State and Lain
v. State. See Ballard v. State, No. 02-07-00027, 2008 WL 204270, at *1
(Tex. App.—Fort. Worth Jan. 24, 2008, no pet. (mem. op, not designated for
publication); Lain v. State, No. 02-06-00325-CR, 2007 WL 2331017 at *3
(Tex. App.—Fort Worth Aug. 16, 2007, no pet. (mem. op., not designated for
publication). This court does not agree with the argument that a previous,
unrelated voir dire involving the same prosecutor and many of the same venire
panel members is the equivalent of a voir dire in Cuevas’s case. Ballard, 2008
WL 204270, at *1; Lain, 2007 WL 2331017, at *3. In both Ballard and Lain,
despite a venire panel composed of several persons from the earlier morning
session, both appellants were able to voir dire the entire panel for their
respective trials. Ballard, 2008 WL 204270, at *1; Lain, 2007 WL 2331017,
at *1. In Cuevas’s trial, he had the opportunity to voir dire the entire panel,
examining both the morning session panel and new panel members.
Cuevas relies on Bledsoe v. State to argue that he suffered similar harm
from his absence from the other case’s voir dire session. The Bledsoe case is
not based on similar facts to this case because it involved a defendant absent
from the entirety of her trial’s voir dire examination. Bledsoe v. State, 936
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S.W.2d 350, 351 (Tex. App.—El Paso 1996, no pet.). The court found harm
in that case because the defendant was never able to have face-to-face
interaction with the potential jurors and could not assist counsel in observing
the venire panel. Id. at 352. In this case, Cuevas was present with his counsel
for the entire voir dire examination for his respective trial, and he was able to
view each panel member face to face.
Even if Cuevas were successful in proving that he was actually absent
from the relevant voir dire, we would nevertheless overrule his point because
any deviation from article 33.03's requirements was remedied. According to
Adanandus, an appellant’s absence can be “undone” by a re-examination in the
appellant’s presence of those venire persons who were examined in his
absence. Adanandus, 866 S.W.2d at 217. In this case, Cuevas was able to
fully voir dire everyone from the morning session: thus, the requirements of
article 33.03 were met. We therefore overrule his sole point.
Conclusion
Having overruled Cuevas’s sole point, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER, HOLMAN, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
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DELIVERED: October 9, 2008
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