NO. 12-87-00071-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
6R0VER DANIEL WEST, APPELLANT § APPEAL FROM THE 86TH
s JUDICIAL DISTRICT COURT
VS.
THE STATE OF TEXAS, APPELLEE § OF KAUFMAN COUNTY, TEXAS
Grover Daniel West was convicted of burglary of a habitation by a jury
who assessed his punishment at ninety-nine years and a$9,044 fine.
West presents three points of error contending the trial court erred In
overruling his pretrial motion to suppress his written confession, in overrul
ing his motion for Instructed verdict, and in conducting ahearing on his
motion for new trial in his absence. We affirm the judgment.
It 1s undisputed that the home of John Allen Manning and his wife,
Ralaine Manning, located near Mabank in Kaufman County, was burglarized during
the daylight hours of November 12, 1986. The record reveals that the Manning
family departed their home at about 7:30 a.m. on that date and returned home
in the late afternoon. The Manning's seventeen-year-old daughter, Keefa, was
the first to return home. She arrived at about 3:45 p.m. and discovered the
burglary. She testified that some of her parent's guns, clothing, and jewelry
were missing. John Manning testified that when he arrived home at about 4:00
p.m. he noticed that awindow on the west side of the garage had been broken.
He testified that various knives, guns, VCR tapes, clothing, and jewelry had
been taken in the burglary. At trial he identified aColt Trooper .357 magnum
revolver with afour-inch barrel, Introduced into evidence as State's Exhibit
No. 1, as one of the weapons stolen by the burglar. Ralaine Manning
catalogued anumber of articles stolen from the home, Including aGE VCR with
remote control, ten VCR tapes, compound hunting bow, th1rty-f1ve cassette
tapes, and various fInarms. Including the Colt revolver, a Frencia .22
caliber automatic rifle, aMarlin 30-30 rifle, aRemington bolt action .243
rifle, aWinchester MK II 12 gauge automatic shotgun, an H&R 20 gauge single
shotgun, and a Mossberg 22 caliber rifle.
Jessie Van Horn, a Dallas resident and acquaintance of West, testified
for the State that West sold him the .357 Colt Revolver shortly before Thanks-
giving in 1986.
Neal Morgan, aKaufman County deputy sheriff, testified without objection
that West orally informed him that the Colt revolver could be found at the
home of Jessie Van Horn in Dallas, and that he went to Van Horn's home and
recovered the pistol.
West gave awritten statement on November 28, 1986, confessing to the
burglary. Omitting the warnings and formal parts, the confession reads as
follows:
Mr. Morgan is typing this statement as Itell 1t to him.
On November 12, 1986, Willie Baird and Bobby Linley and Iwere
in Mahank tfsee my old girlfriend Connie Hartline. About 9:30 a.m.
w2 went to a brick house down the road from my girlfriend's house
going toward Kaufman and away from Mabank I went through the
window on the west side of the garage and took a Remington Bolt
Sat! ?243 rifle with ascope, Colt 357 -*£ J"*1* *{] n2
30-30 rifle, with scope, Frencia .22 rifle, Winf^ter-m, u(
nannp aH in nart- "In all prosecutions for felonies, the
Imprisonment in Jail .•."" (Emphasis ours.)
jail for sixty days. The record shows that following her conviction she
employed counsel who filed amotion for new trial, alleging that the guilty
plea was coerced by the sheriff. Our reading of Henderson is that the harm to
Henderson was obvious. She was prevented from presenting her testimony in
support of her allegation that her plea of guilty was coerced.
In PMIlios v. State, 288 S.W.2d 775, the court 1n a brief opinion
written by Judge Morrison, reversed the defendant's conviction of assault with
attempt to rape, tersely stating that the record shows that the defendant "was
not present when his motion for new trial was overruled, that he was in jail,
and that he did not waive his right [under article 580] to be present." An
insight into the significance of Phillips is gained by noting that the court
cites Henderson v. State, 127 S.W.2d 902, and as has already been observed in
Henderson, the harm or injury to the defendant there was clearly demonstrated
by the record. In our view, Phillips and Henderson are "two peas in apod."
In any event, the question whether aviolation of an accused's right
under article 33.03 to be present at trial requires reversal in the absence of
ashowing of harm or prejudice to the defendant, was settled by the Court of
Criminal Appeals by its 1978 decision- in Mares v. State, 571 S.W.2d 303. The
Mares case, following the lead of Cartwright, held that where adefendant is
absent during atrial proceeding, reversal is not required by article 33.03
unless "injury 1s shown to the defendant or [unless] there are facts [shown by
the record] from which injury [to the defendant] can be inferred." (Citation
omitted.) Mares was reaffirmed in Cooper v. State,8 631 S.W.2d at 511-512.
8Tt u noteworthy that the court in both Mares and Cooper seems to place
the burden'ofSTSuSdto establish prejud^Tto his3 cause resulting fnj
SI absence in spite of the requirement of article ^'^^
We conclude that West sustained no harm or Injury by the violation of the
statute. No evidence was heard by the court; Indeed, no evidence other than
that already before the court was admissible under the ground alleged in
West's motion.
The court under the circumstances here erred in hearing and overruling
West's motion for new trial in his absence, but we hold the error to be
harmless beyond areasonable doubt. We apply that standard because it appears
that Tex. R. App. P. 81(b)(2) is inapplicable to a post-trial proceeding,
since under that rule of reversible error in criminal cases the presence of an
error requires reversal "unless the appellate court determines beyond a
reasonable doubt that, the error mad* no contribution to the conviction or to
the punishment." (Emphasis ours.) Errors contemplated by Rule 81(b)(2)9 are
errors necessarily committed during the course of the trial itself.
West contends that his rights under the Sixth and Fourteenth Amendments
and Tex. Const, art. 1, §10, were violated by the court's action 1n hearing
and overruling his motion for new trial in his absence.
Under the present circumstances, we hold that West's rights under these
state and federal constitutional provisions are not implicated. Mares v.
State, 571 S.W.2d 303. However, assuming, without deciding, that the court's
action did violate both state and federal constitutional protection afforded
West, we conclude that the error was harmless beyond a reasonable doubt,
r.hapman v. California, 386 U.S. 18 (1967).
SSSSSy^lSt!5 Additionally, both decisions seem to confuse the concept
Sf-harmless error" as applied by Cartwright with no error.
9As modified by current Tex. Code Crim. Proc.Ann art 44 29 Act of May
26, 1987, ch. 179, § 1, 1987 Tex. Sess. Law Serv. 2711, 2712 tVernon;.
10
West's first point of error 1s overruled
The judgment of the trial court is affirmed \
i^iUlUv-
PAUL §. COLLfcV
Justice
Opinion delivered November 24, 1987.
(PUBLISH)
11