ACCEPTED
13-15-00442-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
11/30/2015 3:52:30 PM
Dorian E. Ramirez
CLERK
CAUSE 13-15-00442-CR
IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI
11/30/2015 3:52:30 PM
DORIAN E. RAMIREZ
Clerk
RANDY EUGENE SMITH, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF
Trial Cause 2013-08-7364
Calhoun County District Court
Submitted by
W. A. (BILL) WHITE
Attorney for Appellant
POB 7422, Victoria, TX 77903
(361) 575-1774 voice & fax
TBN 00788659
ORAL ARGUMENT NOT REQUESTED
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IDENTITY OF PARTIES AND COUNSEL
Appellant was represented at trial by Mr. James
Beeler, Attorney at Law, POB 1841, Port Lavaca, TX
77979. Appellant is represented on appeal by Mr. W. A.
(Bill) White, Attorney at Law, POB 7422, Victoria, TX
77903. During trial, appellant resided in Calhoun
County. Appellant is now incarcerated in IDTDCJ.
The State was represented at trial by Mr. Shannon
Salyer, ADA, and Ms. Sara Rodriguez, ADA, both of the
Calhoun County District Attorney’s Office, 211 S. Ann
St., 3rd Floor, Port Lavaca, TX 77979. The State’s
reply brief will be prepared by Mr. Salyer.
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TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of the Case and Statement of Facts 5
Issues Presented
1) THE COURT ERRED BY FAILING TO MAKE A FINDING THAT
APPELLANT VOLUNTARILY ABSENTED HIMSELF 8
2) DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO APPELLANT’S TRIAL IN ABSENTIA 8
Summary of Argument 8
Issue 1 Argument 9
Issue 2 Argument 12
Prayer 13
Certificate of Service 14
Certificate of Compliance 14
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INDEX OF AUTHORITIES
Cases Page
Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App.1996) 10
Strickland v. Washington, 466 U.S. 668 (1984) 12
Statutes
Tex.Code Crim.Proc.Ann., art. 33.03 (Vernon 2014) 9-10
Constitutional Provisions
U.S. Const., amend. VI 10
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CAUSE 13-15-00442-CR
Trial Cause 2013-08-7364
RANDY EUGENE SMITH, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS CORPUS CHRISTI, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, RANDY EUGENE SMITH, through
counsel, W. A. (BILL) WHITE, Attorney at Law, showing:
STATEMENT OF THE CASE AND STATEMENT OF FACTS
Appellant was indicted in August 2013 for a forgery
allegedly committed on 11/03/11. The indictment also
alleged two prior felony convictions, making the state
jail felony into a second degree felony, with an
enhanced punishment range of 2 to 20 years in prison
and up to a $10,000 fine.
Jury selection began on 3/09/15, with appellant
entering his plea of “not guilty” before his impaneled
jury on the same date, and opening statements taking
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place on the same date. (RR Vol. 2, pp. 44-51). The
court then recessed for the evening with guilt/
innocence testimony to begin the next morning.
The next morning, 3/10/15, when court began,
appellant was not present. No one (prosecutor, defense
attorney, or the trial judge) made any mention of this
fact on the record that morning. (RR Vol. 3, p. 6,
extreme top: “defendant not present”)
No finding was made on the record by the judge that
defendant voluntarily absented himself from trial. No
objection was lodged by defense counsel or the State’s
prosecutor that trial was proceeding without appellant
being present. No motion was made by either side that
the trial judge, court staff, or law enforcement
inquire of local hospitals, jails, or morgues to learn
if appellant’s absence might have been involuntary.
The trial judge made no such inquiry sua sponte,
according to the record. Trial rolled on as if all was
normal. Obviously, any live, in-court identification
of appellant at trial was impossible because he was not
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in the courtroom after he entered his “not guilty” plea
on 3/09/15.
The trial judge mentioned for the first time on the
record on 3/10/15 that appellant was not present in
court after both sides had rested and closed in the
guilt/innocence phase. (RR Vol. 3, p. 40, lines 8-12)
During closing argument on guilt/innocence, the
prosecutor made mention of appellant’s absence to the
jury, remarking twice that appellant had “voluntarily
absented himself” from trial, without a judicial
finding supporting same. (RR Vol. 3, pp. 44-45). The
jury convicted appellant as charged on 3/10/15. (RR
Vol. 3, p. 50, lines 1-3). The trial judge then
commented to the jury that it is “really unusual” not
to have the defendant present at trial. (RR Vol. 3, p.
50, lines 10-11)
The jury then went on to assess appellant’s
punishment at 20 years in prison and a $10,000 fine.
(RR Vol. 4, p. 80-81). The jury found the two prior
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felony convictions in the indictment’s enhancement
paragraphs to be true.
Appellant was sentenced nearly six months later on
8/27/15 when located. (RR Vol. 5, pp.4-5). When the
trial judge asked if there was any legal reason why
sentence should not be imposed, defense counsel
answered in the negative. (RR Vol. 5, p. 5, lines 6-9).
Again, no objection to appellant having been tried in
absentia was made, nor to the fact that there was never
an actual, formal, judicial finding that appellant had
voluntarily absented himself.
ISSUES PRESENTED
1) THE COURT ERRED BY FAILING TO MAKE A FINDING THAT
APPELLANT VOLUNTARILY ABSENTED HIMSELF
2) DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO APPELLANT’S TRIAL IN ABSENTIA
SUMMARY OF ARGUMENT
The trial court simply assumed, when appellant did
not return to his trial on the second morning of same,
that his absence was deliberate, and that he
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voluntarily absented himself from trial. The judge
made no inquiries about whether something unforeseen
and beyond appellant’s control may have happened to him
overnight (automobile accident, health issue, unrelated
arrest, etc.) during the trial’s recess. The court
simply proceeded with trial without first making a
finding that appellant had voluntarily absented himself
from his trial. The court thus deprived appellant of
his right to confront his accusers during trial, as
guaranteed in the U.S. Constitution’s Sixth Amendment.
Appellant’s trial counsel, in failing to object to
trial without his client present, was ineffective.
Issue 1
THE COURT ERRED BY FAILING TO MAKE A FINDING THAT
APPELLANT VOLUNTARILY ABSENTED HIMSELF
ARGUMENT
Article 33.03 of the Texas Code of Criminal
Procedure states, in part, “In all prosecutions for
felonies, the defendant must be personally present at
trial … provided, however, that in all cases, when the
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defendant voluntarily absents himself after pleading to
the indictment or information, or after the jury has
been selected when trial is before a jury, the trial
may proceed to its conclusion.” Tex.Code Crim.Proc.
Ann., art. 33.03 (Vernon 2014). In all criminal
prosecutions, the accused shall enjoy the right … to be
confronted with the witnesses against him … U.S.
Const., amend. VI. However, like nearly all rights,
including most constitutional rights, Texas courts have
held that this right granted in article 33.03, even if
denied, is subject to harmless error analysis. See
Garcia v. State, 919 S.W.2d 370, 393-394 (Tex.Crim.App.
1996). Thus, the right may be violated as long as it
does not make a difference in the trial’s outcome.
The record is silent as to whether the trial judge
made any inquiry as to why appellant did not return for
trial on the morning of its second day. He did not
order local law enforcement to check the rosters of
local hospitals, jails, or morgues to see if appellant
had perhaps been injured, arrested, or killed
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overnight. He resumed trial without making a finding
first that appellant had voluntarily absented himself
from the proceedings. He in effect presumed the
absence to be voluntary, without any inquiry or even
cursory investigation reflected in the reporter’s
record. By doing so, the trial judge violated
appellant’s right to confront his accusers at his trial
under the Sixth Amendment to the U.S. Constitution.
By way of harm analysis, appellant could have
guided his trial counsel to sharpen his questions of
State’s witnesses if he had been present at trial to
hear their testimony against him. Defendants in
criminal cases frequently tell their counsel things at
trial such as, “This witness is lying” or “That’s not
what I told him!”
However, because appellant was not present, and
because trial proceeded anyway, he was unable to do
this, although there was no finding that he was absent
voluntarily. In fact, no reason appears anywhere in
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the record as to why appellant did not return to his
trial at the beginning of its second day on 3/10/15.
ISSUE 2
DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT
TO APPELLANT’S TRIAL IN ABSENTIA
ARGUMENT
An appellant’s claim that his trial counsel’s
assistance was so defective as to require reversal of
his conviction requires that he show 1) that his
counsel’s performance was deficient and 2) that this
deficient performance prejudiced his defense so as to
deprive him of a fair trial. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). The appellant
must show that his counsel’s representation fell below
an objective standard of reasonableness. Id. With
regard to the required showing of prejudice, the proper
standard requires the appellant to show that there is a
reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different.
Id. at 691.
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In the case at bar, defense counsel at trial did
not object to his client’s trial proceeding without
him, although the trial judge failed to make a finding
that appellant had voluntarily absented himself. He
further did not object to remarks by the prosecutor and
judge during trial that appellant was indeed absent
from trial voluntarily, adding additional evidence of
“guilt” to the State’s case-in-chief on guilt/innocence
and at punishment, rather than requiring the State to
present its evidence against appellant without the de
facto “bonus” of alluding that he had run away rather
than face his music.
While the jury would have undeniably noticed
appellant’s absence on day two of trial, it was
improper for the State and the judge to refer to it as
evidence of guilt.
PRAYER
Appellant prays that conviction be reversed.
Respectfully submitted,
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/s/ W. A. White
W. A. (BILL) WHITE
ATTORNEY FOR APPELLANT
POB 7422, Vict., TX 77903
(361) 575-1774 voice/fax
TBN 00788659
CERTIFICATE OF SERVICE
I certify that a true and correct copy or duplicate
original of the foregoing has been provided to Mr.
Shannon Salyer, ADA, Calhoun County District Attorney’s
Office, 211 S. Ann St., 3rd Flr, Port Lavaca, TX 77979
via U.S. mail, fax, electronic delivery, or hand-
delivery on this the 30th day of November 2015.
/s/ W. A. White
W. A. White
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 1,735 words.
/s/ W. A. White
W. A. White
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