ACCEPTED
06-14-00210-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/23/2015 5:19:28 PM
DEBBIE AUTREY
CLERK
No. 06-14-00210-CR
FILED IN
______________________________________________________________________________
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 4/24/2015 9:00:00 AM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
______________________________________________________________________________
ZACKERY JAMARCIER SUMMAGE
Appellant,
v.
THE STATE OF TEXAS
Appellee.
______________________________________________________________________________
Appealed from the 71st District Court of
Harrison County, Texas
Trial Cause No. 14-0058X
______________________________________________________________________________
APPELLEE’S BRIEF
______________________________________________________________________________
Timothy J. Cariker
Assistant District Attorney
State Bar No. 24009942
Harrison County District Attorney’s Office
200 West Houston Street
Marshall, Texas 75670
Telephone: 903-935-8408
ATTORNEY FOR APPELLEE
STATE OF TEXAS
IDENTITY OF PARTIES AND COUNSEL
Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.
1. Presiding Judge: Honorable Brad Morin
71st Judicial District
Marshall, Texas 75670
2. Appellant: Zackery Jamarcier Summage
3. Appellant’s Counsel (at trial): Cheryl Cooper-Sammons
Attorney at Law
P.O. Box 8517
Marshall, TX 75671
4. Appellant’s Counsel (on appeal) Troy Hornsby
Miller, James, Miller & Hornsby
1725 Galleria Oaks Drive
Texarkana, TX 75503
5. State’s Counsel (at trial): Shaun Connally & Johnathan Hyatt
Harrison County District Attorney
200 West Houston Street
Marshall, Texas 75670
6. State’s Counsel (on appeal): Timothy J. Cariker
Assistant District Attorney
Coke Solomon
District Attorney
Harrison County District Attorney
200 West Houston Street
Marshall, Texas 75670
i
TABLE OF CONTENTS
Identity of Parties and Counsel ........................................................................................................i
Table of Contents ............................................................................................................................ii
Index of Authorities ........................................................................................................................1
Issues Presented………………………………………………………………………………….…2
Statement of the Case .....................................................................................................................3
Statement of Facts............................................................................................................................4
Summary of Argument....................................................................................................................7
Argument and Authorities
I). BASED ON THE SUPPLEMENTAL RECORD FILED BY THE DISTRICT
CLERK, ISSUES ONE AND THREE ARE MOOT BECAUSE IT CONTAINS
BOTH THE APPELLANT’S AND THE STATES’ JURY LISTS WITH
ACCOMPANYING STRIKES ………………………………..……………….8
II). THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
COMMENCING THE TRIAL AFTER THE APPELLANT HAD
VOLUNTARILY ABSENTED THE PROCEEDINGS
………………………………...................................................................................9
A). Standard of Review ..........................................................................................9
B). Argument and Authorities……..........................................................................9
Prayer for Relief.............................................................................................................................13
Certificate of Compliance..............................................................................................................13
Certificate of Service.....................................................................................................................14
ii
INDEX OF AUTHORITIES
Texas Court of Criminal Appeals
Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984)……………………. …...………..9
Texas Court of Appeals
Hudson v. State, 128 S.W.3d 367, 375 (Tex. App.—Texarkana 2004, no pet.)…………………9
Nauls v. State, 762 S.W. 2d 336 (Tex. App. – San Antonio 1988) ……………...…………..9, 11
Papakostas v. State, 26 145 S.W.3d 723, 725 n.2 (Tex. App.—Corpus Christi 2004, no pet.)…9
Sanchez v. State, 842 S.W. 2d 732 (Tex. App. – San Antonio 1992) ………………...…….10, 11
Vasquez Mata v. State, 2002 WL 1765582 (Tex. App. – Corpus Christi 2002)…….………10, 12
1
ISSUES PRESENTED
I. BASED ON THE SUPPLEMENTAL RECORD FILED BY THE DISTRICT
CLERK, ISSUES ONE AND THREE ARE MOOT BECAUSE IT CONTAINS
BOTH THE APPELLANT’S AND THE STATES’ JURY LISTS WITH
ACCOMPANYING STRIKES
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN COMMENCING
THE TRIAL AFTER THE APPELLANT HAD VOLUNTARILY ABSENTED
THE PROCEEDINGS
2
STATEMENT OF THE CASE
The Appellant was charged by indictment with the offense of Assault of a Public Servant alleged to
have occurred on October 15, 2013. (CC-2). Voir Dire commenced on November 3, 2014. (RR2).
Trial on the merits commenced on November 6, 2014. (RR3). At the conclusion of the trial the
Appellant was sentenced to 8 years incarceration. (RR3 – 207).
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STATEMENT OF FACTS
Since one of the Appellant’s issues involves the court’s decision to start trial while the Appellant was
absent, it is important to look at the Appellant’s actions at both voir dire and trial on the merits.
At voir dire, the court called the case and discovered the Appellant was not present. (RR 2-4). The
state moved for a bond forfeiture. (RR 2-4). The court informed counsel that if the Appellant was
not present by 9:00a.m. that the bond forfeiture would issue. (RR 2-5). Later counsel for the
Appellant informed the court that the Appellant had appeared.
At trial on the merits the following discussion occurred before the jury panel was brought in:
MRS COOPER-SAMMONS: Your Honor, I haven’t seen my client. I can check my
phone. I was on the third floor looking at a video that was just recently presented to
me as the edited tape on this case. My client did text me earlier to say he was on his
way. I know he’s coming from the Shreveport area, Your Honor.
THE COURT: I’m ready to proceed. And I have – I mean, this showing up late
every single time is getting really tiring, Ms. Cooper-Sammons. And I know that he
was like this the other day, so…..
MS. COOPER-SAMMONS: I will just go ahead – if you would give me a moment
just to text him and let him know that we’re starting the trial. If you would allow me
that courtesy to text him that information.
THE COURT: I will.
MS. COOPER-SAMMONS: Thank you.
THE COURT: His other option is he can be bond forfeited and he can sit in jail until
we get another jury.
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MR. CONNALLY: Well, I’m moving for a bond forfeiture at this time judge.
MS. COOPER-SAMMONS: If I can just have a moment to call him and see where
he is, Your Honor.
THE COURT: You can do that. I’m still going to issue a bond forfeiture. Mr.
Denny, I need you to call for the defendant, Zachery Summage.
THE BAILIFF: Yes, sir.
THE COURT: You can – if you wish to call him Ms. Cooper-Sammons.
(Pause in Proceedings)
MS. COOPER-SAMMONS: I was able to speak to my client. He says he’s ten
minutes away.
THE COURT: You know, his liberty’s at stake, Ms. COOPER-Sammons, and I
instructed him to be here at 8:30. So when Mr. Denny comes back, a bond forfeiture
will issue if he does not appear. I will make sure that he’s give us the rest of the day.
I can do that.
MS. COOPER-SAMMONS: Okay. Your Honor, he did also let me know something
came up with his mother and as an extenuating circumstance, that he had to assist her
in some issue. She’s got a medical condition, and he had to assist her to do
something this morning, and that’s why he is late. That’s all I can tell you, Your
Honor.
MR. CONNALLY: And did not deem it worthy to contact either his lawyer or the
Court to inform anyone of said situation.
THE COURT: Mr. Denny, was there any response for Zachery Summage?
THE BAILIFF: No response, Your Honor.
THE COURT: Bond Forfeiture will be issued. Bring in the jury please.
THE BAILIFF: Yes, sir.
(Jury enters the courtroom)
(Open court, no defendant, jury present).
5
THE COURT: I need for the jury to please remain standing. If your raise your right
hands.
(Jury sworn.)
Once the jury was sworn they heard the following facts:
The State proved that Zachery Summage’s automobile was broken down on the side of the
interstate. (RR3, 24). A tow truck driver, who was attempting to assist Summage, smelled
marijuana and contacted the police. (RR 3, 26-29). A sheriff’s deputy obtained Summage’s
permission to search Summage’s automobile. (RR 3, 56). The deputy located a small
amount of marijuana and $8,000 - $10, 000 in cash. (RR 3, 62). Summage grabbed the cash
from the deputy, struck the deputy in the face with his fist and fled to nearby wood with the
cash. (RR 3, 67).
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SUMMARY OF ARGUMENT
Having been convicted of Assault of a Public Servant and sentenced to 8 years incarceration, the
Appellant raises three issues on appeal. Issues one and three deal with jury selection. Issue two
deals with the Appellant’s absence at the start of the trial on the merits.
In Issues one and three Appellant submits error may have occurred because the record did not reflect
whether peremptory strikes had been made and whether the first twelve eligible panelists had been
seated. The supplemental clerk’s record shows that the peremptory strikes were used and the first
twelve eligible jurors were seated. As such these points are moot.
In Issue two, Appellant claims error occurred because the court started trial on the merits without the
Appellant being present. The record reflects that the Appellant through counsel was given a choice
and elected on behalf of the Appellant to proceed on the merits. As such this point should be
overruled.
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ISSUE NUMBER ONE
I. BASED ON THE SUPPLEMENTAL RECORD FILED BY THE DISTRICT CLERK,
ISSUES ONE AND THREE ARE MOOT BECAUSE IT CONTAINS BOTH THE
APPELLANT’S AND THE STATES’ JURY LISTS WITH ACCOMPANYING
STRIKES
In Issue one the Appellant raises potential error based on the record not reflecting the exercise of
peremptory challenges. On Issue three the Appellant raises potential error over whether the record
reflects the first twelve eligible panelists were seated. The supplemental clerk’s record addresses
Issue one at pages 10 – 11 and Issue three at pages 4 – 6. Based on this these the two issues are
moot, and should be overruled.
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ISSUE NUMBER TWO
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN COMMENCING THE
TRIAL AFTER THE APPELLANT HAD VOLUNTARILY ABSENTED THE
PROCEEDINGS
A) Standard of Review
An appellate court should review the trial court's determination that a defendant is voluntarily
absent for abuse of discretion. Papakostas v. State, 26 145 S.W.3d 723, 725 n.2 (Tex. App.—
Corpus Christi 2004, no pet.) (citing Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App.
1984) (en banc)). In most cases, appellate courts must determine from hindsight the validity of
the trial court's voluntariness determination. Hudson v. State, 128 S.W.3d 367, 375 (Tex.
App.—Texarkana 2004, no pet.). In this review, courts are not limited only to the record before
the trial court at the time of its ruling. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App.
1984). As long as there is "some evidence" supporting the trial court's determination, the
appellate court should not disturb the ruling absent evidence from the defendant showing that his
absence was involuntary. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984).
B) Argument and Authorities
The Appellant properly raises whether this issue has been preserved for review. The general rule is
that when a trial court proceeds without the presence of the accused then counsel must preserve the
potential error. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984) (oral motion for 24
hour continuance); Nauls v. State, 762 S.W. 2d 336 (Tex. App. – San Antonio 1988) (oral motion
9
for continuance); Sanchez v. State, 842 S.W. 2d 732 (Tex. App. – San Antonio 1992) (oral motion
for continuance); Vasquez Mata v. State, 2002 WL 1765582 (Tex. App. – Corpus Christi 2002)
(Request for continuance). In the Appellant’s case the Appellant claims the following was a request
for a continuance:
“Your Honor, I haven’t seen my client. I can check my phone. I was on the
third floor looking at a video that was just recently presented to me as the edited tape
on this case. My client did text me earlier to say he was on his way. I know he’s
coming from the Shreveport area, Your Honor.”
A review of this statement never reveals a sentence ending in a question mark which would denote a
request. In fact counsel is not making a request, but instead is making statements providing
information. In fact it is in the next statement to the court where counsel seems to make a request,
and it is not for a continuance which is as follows:
“I will just go ahead – if you would give me a moment just to text him and let
him know that we’re starting the trial. If you would allow me that courtesy to text
him that information.”
Reading the two statements by counsel reveals that no request for a continuance was made
nor was an objection made with regards to proceeding with the trial on the merits. As such
mothing has been preserved for review and this point of error should be overruled.
Assuming the Court disagrees and finds error was preserved, Appellee submits the court did
not abuse its discretion based on the following:
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1. The court presented counsel with an alternative which was rejected;
2. The Appellant by prior conduct had expressed an ambivalent attitude to proceedings;
3. Cases where Appellant’s developed a plausible excuse have not been reversed on appeal.
In the Appellant’s case the court stated to counsel the following:
“His other option is he can be bond forfeited and he can sit in jail until we get another
jury.”
To this option counsel responded that they would try to contact their client which means counsel had
rejected the option for a mistrial which at that moment was a viable alternative. Based on this
rejection, it cannot be held that the court abused its discretion by proceeding.
Prior to the trial on the merits, the Appellant was not on time for voir dire proceedings. This taken in
to account with the inability to appear timely for the trial on the merits shows that the Appellant was
ambivalent towards the case. As stated in Sanchez, at some point the accused has some
responsibility when the Court said “The busy trial courts of our state cannot stop the wheels of an
already burdened criminal justice system because the defendant chooses to be absent…..In a day of
modern communication systems an absent defendant has some responsibility…” Sanchez 842 S.W.
2d at 733. In the Appellant’s case, the Appellant did nothing to take a responsible approach, so it
cannot be held the court abused its discretion by proceeding.
In Nauls, the record from the motion for new trial showed that the Appellant’s girlfriend had to be
taken to hospital on the morning of the trial, and an emergency procedure on the morning of the trial,
and that it was what caused the Appellant’s absence. Nauls, 762 S.W. 2d at 388. The Court held it
11
was not an abuse of discretion, and the Court would not disturb the trial court’s ruling. In Vasquez
Mata, similar facts involving a hospital visit occurred; yet, again it was not an abuse of discretion to
proceed. In the Appellant’s case there is a vague allusion to a family member and a medical
condition, but as discussed above this did not make Appellant’s absence involuntary.
12
PRAYER FOR RELIEF
Based on the foregoing, the Appellee prays that the Appellant’s conviction and sentence be affirmed.
Respectfully Submitted,
Timothy J. Cariker, Assistant District Attorney
Harrison County District Attorney
200 West Houston Street
Marshall, Texas 75670
By: /S/ Timothy J. Cariker
_______________________________
Timothy J. Cariker
State Bar No. 24009942
CERTIFCATE OF COMPLIANCE
I certify that this brief contains 2462 words according to the computer program used to prepare this
document.
/S/ Timothy J. Cariker
By: _________________________________
Timothy J. Cariker
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CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been delivered to all counsel of record, on
this the 23rd day of July, 2015.
/S/ Timothy J. Cariker
____________________________________
Timothy J. Cariker
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Zackery Jamarcier Summage v. State
Combined Opinion