ACCEPTED
06-14-00210-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/3/2015 5:10:27 PM
DEBBIE AUTREY
CLERK
No. 06-14-0210-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 3/4/2015 9:27:00 AM
DEBBIE AUTREY
at TEXARKANA Clerk
________________________________________________
ZACKERY SUMMAGE,
Appellant
vs.
STATE OF TEXAS,
Appellee
________________________________________________
Appeal from the District Court of Harrison County, Texas
71st Judicial District
________________________________________________
APPELLANT’S BRIEF
_________________________________________________
Troy Hornsby
Miller, James, Miller & Hornsby, L.L.P.
1725 Galleria Oaks Drive
Texarkana, Texas 75503
troy.hornsby@gmail.com
903.794.2711, f. 903.792.1276
Attorney for Appellant
Zackery Summage
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a
complete list of all parties to the trial court’s judgment and the names and
addresses of all trial and appellate counsel:
Appellant Appellant’s appellate counsel
Zackery Summage Troy Hornsby
Miller, James, Miller, & Hornsby, LLP
1725 Galleria Oaks Drive
Texarkana, Texas 75503
Appellant’s trial counsel
Ms. Cheryl Cooper-Sammons
P.O. Box 8517
Marshall, Texas 75671
Appellee Appellee's appellate/trial counsel
State of Texas Shawn Connally
Harrison County District Attorney
P. O. Box 776
Marshall, Texas 75671-0776
2
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Issue 1: It was a violation of Texas Code of Criminal Procedure
Article 33.03 to swear in the jury without Summage
present, when the appellate record did not establish if
and/or when the parties exercised their peremptory
strikes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Issue 2: The appellate record does not establish that Summage
voluntarily absented himself from the start of the trial.. 24
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3
Issue 3: The appellate record does not contain the parties’
peremptory strikes. Accordingly, the Clerk does not
appear to have seated the first twelve eligible panelists
from the jury panel list which is fundamental error . . . 32
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4
INDEX OF AUTHORITIES
CASES: PAGE
Acosta v. State,
522 S.W.2d 528 (Tex. Crim. App. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . 33
Aldrick v. State,
104 S.W.3d 890 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . 16,25,33
Ashley v. State,
404 S.W.3d 672 (Tex. App.—El Paso 2013, no pet.) . . . . . . . . . . . . . . . 27
Bagwell v. State,
657 S.W.2d 526 (Tex. App.—Corpus Christi 1983, pet. ref'd) . . . 34,36
Bath v. State,
951 S.W.2d 11 (Tex. App.—Corpus Christi 1997, pet. ref'd) . . . . 22,31
Bird v. State,
527 S.W.2d 891 (Tex. Crim. App. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . 39
Bledsoe v. State,
936 S.W.2d 350 (Tex. App.—El Paso 1996, no writ) . . . . . . . . . . . 23,31
Brumit v. State,
206 S.W.3d 639 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . 16,25,33
Cooper v. State,
144 S.W. 937 (Tex. Crim. App. 1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Crist v. Bretz,
437 U.S. 28 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Garcia v. State,
149 S.W.3d 135 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . 16,24,33
Granger v. State,
31 S.W. 671 (Tex. Crim. App. 1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Griffin v. State,
481 S.W.2d 838 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . 36
5
Hodges v. State,
116 S.W.3d 289 (Tex. App.—Corpus Christi 2003,
pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,22,25,30
Hudson v. State,
128 S.W.3d 367 (Tex. App.—Texarkana 2004, no pet.) . . . . . . . . . 17,26
In re Commitment of Young,
410 S.W.3d 542 (Tex. App.—Beaumont 2013, no pet.) . . . . . . . . . 22,30
Jackson v. Golden Eagle Archery, Inc.,
974 S.W.2d 952 (Tex. App.—Beaumont 1998),
rev’d, 24 S.W.3d 362 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Jasper v. State,
61 S.W.3d 413 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . 22,30
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . 22,30,38
Johnson v. State,
43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . 22,30,38
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . 22,30,38
Lewis v. United States,
146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892) . . . . . . . . . . . . . . . . . . 18
Macias v. State,
189 S.W. 953 (Tex. Crim. App. 1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Marin v. State,
851 S.W.2d 275 (Tex. Crim. App.1993) . . . . . . . . . . . . . . . . . . . . 16,24,32
Miller v. State,
692 S.W.2d 88 (Tex. Crim. App. 1985)
(en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,18,19,21,25,26,27,33
Miller v. State,
623 S.W.2d 491 (Tex. App.—Beaumont 1981),
aff'd, 692 S.W.2d 88 (Tex. Crim. App. 1985)) . . . . . . . . . . . . . . . . . 18,21
6
Moore v. State,
670 S.W.2d 259 (Tex. Crim. App. 1984) (en banc) . . . . . . . . . . . . . 17,26
Papakostas v. State,
145 S.W.3d 723 (Tex. App.—Corpus Christi 2004, no pet.) . . . . . . . . 25
Pittman v. State,
34 S.W.2d 352 (Tex. Crim. App. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Ramsey v. Dunlop,
146 Tex. 196, 205 S.W.2d 979 (Tex. 1947) . . . . . . . . . . . . . . . . . . 16,25,33
Rodriguez v. State,
71 S.W.3d 800 (Tex. App.—Texarkana 2002, no pet.) . . . . . . . . 16,25,33
Rushing v. State,
50 S.W.3d 715 (Tex. App.—Waco 2001),
aff'd, 85 S.W.3d 283 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . 16,25,33
Saldano v. State,
70 S.W.3d 873 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Schutz v. State,
63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . 22,30,38
Sumrell v. State,
326 S.W.3d 621 (Tex. App.—Dallas 2009), pet. dism'd improvidently
granted, 320 S.W.3d 338 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . 23,31
Taylor v. United States,
414 U.S. 17 (1973) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,26
Tracy v. State,
14 S.W.3d 820 (Tex. App.—Dallas 2000, pet. ref'd) . . . . . . . . . . . . 16,25
Villarreal v. State,
935 S.W.2d 134 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 34
Weber v. State,
829 S.W.2d 394 (Tex. App.—Beaumont 1992, no pet.) . . . . . . . . . 23,31
West v. State,
114 S.W. 142 (Tex. Crim. App. 1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7
White v. White,
108 Tex. 570, 196 S.W. 508 (Tex. 1917) . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CONSTITUTIONS:
Tex. Const. art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Tex. Const. art. I, § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Tex. Const. art. V, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Tex. Const. art. V, § 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
STATUTES/RULES:
Tex. Code Crim. Proc. Ann. art. 33.01 (West 2006) . . . . . . . . . . . . . . . . . . . . 35
Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006) 13,15,16,17,18,21,25,26,27
Tex. Code Crim. Proc. Ann. art. 35.26(a) (West 2006) . . . 14,32,33,34,35,36,38
Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,24,32
Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,30,38
8
STATEMENT OF THE CASE
Nature of case: This is an appeal from a conviction for assault (of a public
servant), pursuant to Texas Penal Code section 22.01.
(C.R. pg. 45).
Judge/Court: Judge Brad Morin of the 71st District Court of Harrison
County, Texas. (C.R. pg. 28).
Plea: Zackery Summage (Summage) entered a plea of “not
guilty” to the allegation against him. (R.R. vol. 3 pg. 4).
Trial disposition: The case was tried to a jury which found Summage guilty
of assault (of a public servant) and recommended a
sentence of 8 years (C.R. pg. 366) which was imposed by
the trial court. (C.R. pg. 366)
9
ISSUES PRESENTED
Issue 1: It was a violation of Texas Code of Criminal Procedure Article
33.03 to swear in the jury without Summage present, when the
appellate record did not establish if and/or when the parties
exercised their peremptory strikes.
Issue 2: The appellate record does not establish that Summage
voluntarily absented himself from the start of the trial.
Issue 3: The appellate record does not contain the parties’ peremptory
strikes. Accordingly, the Clerk does not appear to have seated
the first twelve eligible panelists from the jury panel list which
is fundamental error.
10
STATEMENT OF ORAL ARGUMENT
Oral argument might assist the court in considering (1) the absence of
Summage from trial and the reasons therefor as well as (2) the absence of
the peremptory strikes in the appellate record and its effects.
11
STATEMENT OF FACTS
The State alleges that Zachery Summage’s automobile was broken
down on the side of the interstate. (R.R. vol. 3 pg. 24). A tow-truck driver,
who was attempting to assist Summage, smelled marijuana and contacted
police. (R.R. vol. 3 pg. 26-29). A sheriff’s deputy obtained Summage’s
permission to search Summage’s automobile. (R.R. vol. 3 pg. 56). The
deputy located a small amount of marijuana and $8,000 - $10,000 in cash.
(R.R. vol. 3 pg. 62). Summage grabbed the cash from a deputy, struck the
deputy in the face with his first and fled into nearby woods with the cash.
(R.R. vol. 3 pg. 67).
12
SUMMARY OF THE ARGUMENT
Issue 1: It was a violation of Texas Code of Criminal Procedure Article
33.03 to swear in the jury without Summage present, when the
appellate record did not establish if and/or when the parties
exercised their peremptory strikes.
Smith was not present at trial when the jury was initially sworn.
Texas Code of Criminal Procedure Article 33.03 requires a defendant to be
present until the jury has been "selected," which case law tells us occurs
when the parties submit their peremptory strikes. Here, the appellate
record does not contain the parties’ peremptory strike lists. Therefore,
Smith should have been present until the jury was sworn.
Issue 2: The appellate record does not establish that Summage
voluntarily absented himself from the start of the trial.
Smith was not present at trial when the jury was initially sworn and
the trial began. The evidence at trial as to the reason for Summage’s
absence is too sketchy to conclude that Summage voluntarily absented
himself from the trial.
Issue 3: The appellate record does not contain the parties’ peremptory
strikes. Accordingly, the Clerk does not appear to have seated
the first twelve eligible panelists from the jury panel list which
is fundamental error.
The Clerk did not appear to seat the first twelve eligible panelists
13
from the jury panel as required by Texas Code of Criminal Procedure
35.26. Presumably, this is because the Clerk was skipping the jury panel
members who had been peremptorily striken by the parties. However,
because those peremptory strikes do not appear in the appellate record, it
was fundamental error.
14
ARGUMENT
Issue 1: It was a violation of Texas Code of Criminal Procedure Article
33.03 to swear in the jury without Summage present, when the
appellate record did not establish if and/or when the parties
exercised their peremptory strikes.
Smith was not present at trial when the jury was initially sworn.
Texas Code of criminal Procedure Article 33.03 requires a defendant to be
present until the jury has been "selected," which case law tells us occurs
when the parties submit their peremptory strikes. Here, the appellate
record does not contain the parties’ peremptory strike lists. Therefore,
Smith should have been present until the jury was sworn.
Preservation of Error
To preserve a complaint for appellate review, a party must generally
have presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling, if they are not apparent
from the context of the request, objection, or motion. See Tex. R. App. P.
33.1(a). Here, when trial began on the morning of trial, the Judge asked if
the parties were ready. Summage’s attorney did not say yes, rather, she
explained Summage’s absence. (R.R. vol. 3 pg. 9). This should be
interpreted as a request for a continuance, which was denied by the Judge
when the Judge immediately stated "I am ready to proceed." (R.R. vol. 3 pg.
9). Accordingly, this issue was preserved for appellate review.
15
Additionally, error which is based upon an absolute right or
prohibition need not be preserved. Marin v. State, 851 S.W.2d 275 (Tex.
Crim. App.1993) (discussing three types of rights); see also Garcia v. State,
149 S.W.3d 135, 144 (Tex. Crim. App. 2004). Such error is often called
fundamental error. See e.g. Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App.
2006). An error is considered fundamental when it "directly and adversely
affects the interest of the public generally, as that interest is declared in the
statutes or Constitution of this state." Ramsey v. Dunlop, 146 Tex. 196, 202,
205 S.W.2d 979, 983 (1947). A denial of absolute systemic requirements
does not require a timely and specific objection to raise for the first time on
appeal. See Aldrick v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003);
Rodriguez v. State, 71 S.W.3d 800, 802 (Tex. App.—Texarkana 2002, no pet.);
Rushing v. State, 50 S.W.3d 715, 723 (Tex. App.—Waco 2001), aff'd, 85
S.W.3d 283 (Tex. Crim. App. 2002).
In Hodges v. State, the Corpus Christi Court of Appeals found that a
violation of Texas Code of Criminal Procedure Article 33.03 need not be
preserved, but was fundamental. 116 S.W.3d 289, 296 (Tex. App.—Corpus
Christi 2003, pet. ref’d)( citing Miller v. State, 692 S.W.2d 88, 91 (Tex. Crim.
App. 1985); Tracy v. State, 14 S.W.3d 820, 826 (Tex. App.—Dallas 2000, pet.
ref'd)). Stated another way, an accused’s right to be present at trial is
unwaivable until such time as the jury "has been selected." Miller v. State,
692 S.W.2d 88, 91 (Tex. Crim. App. 1985).
16
Standard of Review
Whether the trial court erred in proceeding with the trial is reviewed
under an abuse of discretion standard. Moore v. State, 670 S.W.2d 259, 261
(Tex. Crim. App. 1984) (en banc). The defendant must provide evidence to
refute the trial court's determination, or we will not disturb the trial court's
finding. Hudson v. State, 128 S.W.3d 367, 375-6 (Tex. App.—Texarkana 2004,
no pet.). 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).
Law and Application
Smith was not present at trial when the jury was initially sworn.
Texas Code of Criminal Procedure Article 33.03 requires a defendant to be
present until the jury has been "selected," which case law tells us occurs
when the parties submit their peremptory strikes. Here, the appellate
record does not contain the parties’ peremptory strike lists. Therefore,
17
Smith should have been present until the jury was sworn.
This Court has held, under the Sixth Amendment to the United
States Constitution and Article I, § 10 of the Bill of Rights in the
Constitution of Texas, that "within the scope of the right of confrontation is
the absolute requirement that a criminal defendant who is threatened with
loss of liberty be physically present at all phases of proceedings against
him, Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892),
Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985) (en banc) (citing
Taylor v. United States, 414 U.S. 17, 20 (1973) (per curiam)). However, the
Texas Supreme Court has concluded that greater protection is afforded a
defendant under Article 33.03 of the Texas Code of Criminal Procedure.
Miller v. State, 692 S.W.2d 88, 91 (Tex. Crim. App. 1985) (en banc).
Article 33.03 of the Texas Code of Criminal Procedure provides that when
a case is to be tried to a jury, the defendant must be present, at least until
the jury has been "selected". Tex. Code Crim. Proc. Ann. art. 33.03 (West
2006).
In Miller v. State, the Beaumont Court of Appeals had to determine
when the jury "has been selected", as provided in Texas Code of Criminal
Procedure article 33.03, to mean impaneled and sworn. Miller v. State, 623
S.W.2d 491 (Tex. App.—Beaumont 1981), aff'd, 692 S.W.2d 88 (Tex. Crim.
App. 1985). However, the Texas Court of Criminal Appeals reviewed the
case and construed the term "has been selected" not to mean "impaneled
18
and sworn." Miller v. State, 692 S.W.2d 88 (Tex. Crim. App. 1985). Rather,
the Texas Court of Criminal Appeals specifically concluded that the jury
was "selected" once "the parties handed in their respective jury lists, with
the [peremptory] challenges noted thereon." Miller v. State, 692 S.W.2d 88,
93 (Tex. Crim. App. 1985).
Here, jury selection had generally taken place on November 3, 2014,
where challenges for cause had been made. (R.R. vol. 2 pg. 1). At the end
of jury selection was a single entry in the Reporter’s Record: "(Recess for
strikes.)". (R.R. vol. 2 pg. 117). There is no indication if and/when any
peremptory strikes had been made by either party. Additionally, the jury
was not sworn that day. (R.R. vol. 2 pg. 1). The guilt innocence phase of
the trial began on the morning of November 6, 2014. (R.R. vol. 3 pg. 1). At
that time, Summage was not present. (R.R. vol. 3 pg. 9). The Reporter’s
Record reflects the following:
MS. 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 his trial. If you would allow me that courtesy to text
him that information.
19
THE COURT: I will.
. . .
MS. COOPER-SAMMONS: If I can just have
a moment to call him to 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, Zachary 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 with us the rest of
the day. I can do that.
MS. COOPER-SAMMONS: Okay. Your Honor, he did also let
me know that something came up with his mother 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's 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 Zachary
Summage?
THE BAILIFF: No response, Your Honor.
THE COURT: Bond forfeiture will be issued. Bring in the jury,
20
please.
THE BAILIFF: Yes, sir.
(Jury enters the courtroom.)
(Open court, no defendant, jury present.)
THE COURT: I need for the jury to please remain standing.
If you'll raise your right hands.
(Jury sworn.)
(R.R. vol. 3 pg. 9-11). Thus, although Summage was generally present for
the jury selection process involving the challenges for cause, we don’t
know if he was present for any challenges for cause, if any, and he was not
present when the jury was actually sworn or to enter his plea to the
charges against him.
The problem here is that the appellate record does not establish if
and/or when either party submitted peremptory strikes. Accordingly, the
specific test provided in Miller cannot be applied here. This presents the
question: what test should we fall back on? The only other potential test
discussed in Miller was to conclude that the magic point was when the jury
was "impaneled and sworn," 623 S.W.2d 491 (Tex. App.—Beaumont 1981),
aff'd, 692 S.W.2d 88 (Tex. Crim. App. 1985), which is when jeopardy
attaches. Crist v. Bretz, 437 U.S. 28 (1978).
Applying the fall back test, Summage was not present when the jury
was sworn, in violation of Texas Code of Criminal Procedure article 33.03.
21
Harmful Error
An error must affect the substantial rights of the accused to be
harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when
the error had a substantial and injurious effect or influence in determining
the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)
(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error
"did not influence the jury, or had but a slight effect." Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the
burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444
(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.
2001). Rather, it is the responsibility of the appellate court to assess harm
after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.
App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
Some courts have interpreted the harmful error requirement to mean
that a defendant must establish that presence at the missed portion of the
trial bears a reasonably substantial relationship to the opportunity to
defend the case. See e.g. In re Commitment of Young, 410 S.W.3d 542, 553
(Tex. App.—Beaumont 2013, no pet.)(citing Jasper v. State, 61 S.W.3d 413,
422-24 (Tex. Crim. App. 2001)) (defendant's absence when jurors' excuses
heard was harmless); Hodges v. State, 116 S.W.3d 289, 296-97 (Tex.
App.—Corpus Christi 2003, pet. ref'd) (defendant's absence during
peremptory strikes harmless where defendant later waived jury); Bath v.
22
State, 951 S.W.2d 11, 22-23 (Tex. App.—Corpus Christi 1997, pet. ref'd)
(defendant's absence when venire member qualified and juror exemptions
heard was harmless); Weber v. State, 829 S.W.2d 394, 395-97 (Tex.
App.—Beaumont 1992, no pet.) (defendant's absence when juror excuses
heard was harmless); Sumrell v. State, 326 S.W.3d 621, 624-27 (Tex.
App.—Dallas 2009), pet. dism'd improvidently granted, 320 S.W.3d 338 (Tex.
Crim. App. 2010) (defendant's absence during individual questioning of
jurors who expressed bias was harmful); Bledsoe v. State, 936 S.W.2d 350,
351 (Tex. App.—El Paso 1996, no writ) (defendant's absence during
individual voir dire was harmful).
Here, Summage was not present when the jury was sworn and was
not present to enter his plea to the charges against him. In fact, the
appellate record does not affirmatively establish that Summage was
present at trial until sometime before 10:15 that morning, when a witness
identified Summage as "sitting right there." (R.R. vol. 3 pg. 69,71). Thus,
Summage completely missed the testimony of witness Joe Castillo, and the
majority of the testimony of witness Sam Lavender. This portion of the trial
bears a reasonably substantial relationship to the opportunity to defend the
case.
23
Issue 2: The appellate record does not establish that Summage
voluntarily absented himself from the start of the trial.
Smith was not present at trial when the jury was initially sworn and
the trial began. The evidence at trial as to the reason for Summage’s
absence is too sketchy to conclude that Summage voluntarily absented
himself from the trial.
Preservation of Error
To preserve a complaint for appellate review, a party must generally
have presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling, if they are not apparent
from the context of the request, objection, or motion. See Tex. R. App. P.
33.1(a). Here, when trial began on the morning of trial, the Judge asked if
the parties were ready. Summage’s attorney did not say yes, rather, she
explained Summage’s absence. (R.R. vol. 3 pg. 9). This should be
interpreted as a request for a continuance, which was denied by the Judge
when the Judge immediately stated "I am ready to proceed." (R.R. vol. 3 pg.
9). Accordingly, this issue was preserved for appellate review.
Additionally, error which is based upon an absolute right or
prohibition need not be preserved. Marin v. State, 851 S.W.2d 275 (Tex.
Crim. App.1993) (discussing three types of rights); see also Garcia v. State,
149 S.W.3d 135, 144 (Tex. Crim. App. 2004). Such error is often called
24
fundamental error. See e.g. Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App.
2006). An error is considered fundamental when it "directly and adversely
affects the interest of the public generally, as that interest is declared in the
statutes or Constitution of this state." Ramsey v. Dunlop, 146 Tex. 196, 202,
205 S.W.2d 979, 983 (1947). A denial of absolute systemic requirements
does not require a timely and specific objection to raise for the first time on
appeal. See Aldrick v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003);
Rodriguez v. State, 71 S.W.3d 800, 802 (Tex. App.—Texarkana 2002, no pet.);
Rushing v. State, 50 S.W.3d 715, 723 (Tex. App.—Waco 2001), aff'd, 85
S.W.3d 283 (Tex. Crim. App. 2002).
In Hodges v. State, the Corpus Christi Court of Appeals found that a
violation of Texas Code of Criminal Procedure Article 33.03 need not be
preserved, but was fundamental. 116 S.W.3d 289, 296 (Tex. App.—Corpus
Christi 2003, pet. ref’d)( citing Miller v. State, 692 S.W.2d 88, 91 (Tex. Crim.
App. 1985) and Tracy v. State, 14 S.W.3d 820, 826 (Tex. App.—Dallas 2000,
pet. ref'd)). Stated another way, an accused’s right to be present at trial is
unwaivable until such time as the jury "has been selected." Miller v. State,
692 S.W.2d 88, 91 (Tex. Crim. App. 1985).
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,
25
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).
Law and Application
Smith was not present at trial when the jury was initially sworn and
the trial began. The evidence at trial as to the reason for Summage’s
absence is too sketchy to conclude that Summage voluntarily absented
himself from the trial.
A criminal defendant has a right under the state and federal
constitutions to be present during all phases of the trial. Miller v. State,
692 S.W.2d 88, 90 (Tex. Crim. App. 1985) (en banc) (citing Taylor v. United
States, 414 U.S. 17, 20 (1973) (per curiam)). Article 33.03 of the Texas Code
of Criminal Procedure provides that when a case is to be tried to a jury, the
26
defendant must be present, at least until the jury has been empaneled and
sworn. Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006). However, the
defendant can forfeit his right to be present by voluntarily absenting
himself after the jury is sworn. Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim.
App. 1985) (en banc); see Ashley v. State, 404 S.W.3d 672, 681 (Tex. App.—El
Paso 2013, no pet.) (observing that "the right to be present until the
selection of the jury cannot be waived," but that it does not violate the
defendant's rights to proceed with the trial if the defendant voluntarily
absents himself after the jury is selected).
Here, jury selection had taken place on November 3, 2014. (R.R. vol.
2 pg. 1). The guilt innocence phase of the trial began on the morning of
November 6, 2014. (R.R. vol. 3 pg. 1). At that time, Summage was not
present. (R.R. vol. 3 pg. 9). The Reporter’s Record reflects the following:
MS. 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 his trial. If you would allow me that courtesy to text
him that information.
THE COURT: I will.
27
. . .
MS. COOPER-SAMMONS: If I can just have
a moment to call him to 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,
Zachary 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 with us the rest of
the day. I can do that.
MS. COOPER-SAMMONS: Okay. Your Honor, he did also let
me know that something came up with his mother 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's 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 Zachary
Summage?
THE BAILIFF: No response, Your Honor.
THE COURT: Bond forfeiture will be issued. Bring in the jury,
please.
28
THE BAILIFF: Yes, sir.
(Jury enters the courtroom.)
(Open court, no defendant, jury present.)
THE COURT: I need for the jury to please remain standing.
If you'll raise your right hands.
(Jury sworn.)
(R.R. vol. 3 pg. 9-11).
Thus, the sole indicate of why Summage was not present was
Summage’s attorney’s statement to the judge:
he did also let me know that something came up with his mother 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's late. That's all I can tell
you, Your Honor.
(R.R. vol. 3 pg. 9-11). Additionally, we know that Summage appeared at
trial just a little while later sometime before 10:15 that morning, when a
witness identified Summage as "sitting right there." (R.R. vol. 3 pg. 69,71).
The appellate record does not contain any other indication of the length or
basis of Summage’s absence. Thus, a fair interpretation of the appellate
record is that Summage was approximately one hour late due to
"extenuation circumstance" relating to a "medical condition" of his mother.
(R.R. vol. 3 pg. 9-11,69,71). This is insufficient evidence to support a
conclusion that Summage "voluntarily absented" himself from the trial.
Accordingly, there is evidence in the appellate record that
Summage’s absence was brief and involuntary and no evidence it was
29
voluntary.
Harmful Error
An error must affect the substantial rights of the accused to be
harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when
the error had a substantial and injurious effect or influence in determining
the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)
(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error
"did not influence the jury, or had but a slight effect." Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the
burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444
(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.
2001). Rather, it is the responsibility of the appellate court to assess harm
after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.
App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
Some courts have interpreted the harmful error requirement to mean
that a defendant must establish that presence at the missed portion of the
trial bears a reasonably substantial relationship to the opportunity to
defend the case. See e.g. In re Commitment of Young, 410 S.W.3d 542, 553
(Tex. App.—Beaumont 2013, no pet.)(citing Jasper v. State, 61 S.W.3d 413,
422-24 (Tex. Crim. App.2001) (defendant's absence when jurors' excuses
heard was harmless); Hodges v. State, 116 S.W.3d 289, 296-97 (Tex.
30
App.—Corpus Christi 2003, pet. ref'd) (defendant's absence during
peremptory strikes harmless where defendant later waived jury); Bath v.
State, 951 S.W.2d 11, 22-23 (Tex. App.—Corpus Christi 1997, pet. ref'd)
(defendant's absence when venire member qualified and juror exemptions
heard was harmless); Weber v. State, 829 S.W.2d 394, 395-97 (Tex.
App.—Beaumont 1992, no pet.) (defendant's absence when juror excuses
heard was harmless); Sumrell v. State, 326 S.W.3d 621, 624-27 (Tex.
App.—Dallas 2009), pet. dism'd improvidently granted, 320 S.W.3d 338 (Tex.
Crim. App. 2010) (defendant's absence during individual questioning of
jurors who expressed bias was harmful); Bledsoe v. State, 936 S.W.2d 350,
351 (Tex. App.—El Paso 1996, no writ) (defendant's absence during
individual voir dire was harmful).
Here, Summage was not present when the jury was sworn and was
not present to enter his plea to the charges against him. In fact, the
appellate record does not affirmatively establish that Summage was
present at trial until sometime before 10:15 that morning, when a witness
identified Summage as "sitting right there." (R.R. vol. 3 pg. 69,71). Thus,
Summage completely missed the testimony of witness Joe Castillo, and the
majority of the testimony of witness Sam Lavender. This portion of the trial
bears a reasonably substantial relationship to the opportunity to defend the
case.
31
Issue 3: The appellate record does not contain the parties’ peremptory
strikes. Accordingly, the Clerk does not appear to have seated
the first twelve eligible panelists from the jury panel list which
is fundamental error.
The Clerk did not appear to seat the first twelve eligible panelists
from the jury panel as required by Texas Code of Criminal Procedure
35.26. Presumably, this is because the Clerk was skipping the jury panel
members who had been peremptorily striken by the parties. However,
because those peremptory strikes do not appear in the appellate record, it
was fundamental error.
Preservation of Error
To preserve a complaint for our review, a party must generally have
presented to the trial court a timely request, objection, or motion stating the
specific grounds for the desired ruling, if they are not apparent from the
context of the request, objection, or motion. See Tex. R. App. P. 33.1(a). A
complaint at the trial court level informs the trial judge of the nature of the
issue and affords him the opportunity to rule. See Saldano v. State, 70
S.W.3d 873, 887 (Tex. Crim. App. 2002).
This court should find the fact that the trial court did not seat the first
twelve eligible panelists from the jury panel list was fundamental error.
Error which is based upon an absolute right or prohibition need not be
preserved. Marin v. State, 851 S.W.2d 275 (Tex. Crim. App.1993)
32
(discussing three types of rights); see also Garcia v. State, 149 S.W.3d 135, 144
(Tex. Crim. App. 2004). Such error is often called fundamental error. See
e.g. Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). An error is
considered fundamental when it "directly and adversely affects the interest
of the public generally, as that interest is declared in the statutes or
Constitution of this state." Ramsey v. Dunlop, 146 Tex. 196, 202, 205 S.W.2d
979, 983 (Tex. 1947). A denial of absolute systemic requirements does not
require a timely and specific objection to raise for the first time on appeal.
See Aldrick v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003); Rodriguez v.
State, 71 S.W.3d 800, 802 (Tex. App.—Texarkana 2002, no pet.); Rushing v.
State, 50 S.W.3d 715, 723 (Tex. App.—Waco 2001), aff'd, 85 S.W.3d 283 (Tex.
Crim. App. 2002).
Texas Courts have generally recognized violations of Texas Code of
Criminal Procedure article 35.26(a) as requiring timely objection by the
Defendant or the error is waived. See e.g. Miller v. State, 692 S.W.2d 88, 93,
n. 10 (Tex. Crim. App. 1985); Acosta v. State, 522 S.W.2d 528 (Tex. Crim.
App. 1975); Macias v. State, 189 S.W. 953 (Tex. Crim. App. 1916); Cooper v.
State, 144 S.W. 937 (Tex. Crim. App. 1912); West v. State, 114 S.W. 142
(Tex. Crim. App. 1908); Granger v. State, 31 S.W. 671 (Tex. Crim. App. 1895).
However, these cases generally involved the erroneous seating of single
jurors and a defendant’s failure to object.
Here, had the clerk seated the first 12 eligible jury panel members, it
33
would have seated jurors 1, 6, 8, 9, 11, 12, 13, 15, 16, 17, 18 and 22. (C.R. pg.
25). Only four of these jurors sat on the actual jury in this case. (C.R. pg.
25). Thus, eight erroneous jurors sat on the jury. (C.R. pg. 25).
Accordingly, the error in this case was on a dramatically higher scale than
that of the cases cited above requiring preservation of error. Thus, the
error was systemic and deprived Summage of the right to a jury trial
guaranteed by the United States and Texas constitutions and this court
should find the error in this case fundamental.
Standard of Review
Counsel for Appellant is unable to locate a specific rendition of the
standard of review applicable to this issue. However, issues concerning
the proper seating of a jury pursuant to Texas Code of Criminal Procedure
35.26 appear to be issues of law. See e.g. Bagwell v. State, 657 S.W.2d 526
(Tex. App.—Corpus Christi 1983, pet. ref'd). Such legal issues would be
reviewed de novo by the court of appeals. See Villarreal v. State, 935 S.W.2d
134, 138 (Tex. Crim. App. 1996).
Law and Application
The Clerk did not appear to seat the first twelve eligible panelists
from the jury panel as required by Texas Code of Criminal Procedure
35.26. Presumably, this is because the Clerk was skipping the jury panel
34
members who had been peremptorily striken by the parties. However,
because those peremptory strikes do not appear in the appellate record, it
was fundamental error.
A criminal Defendant is entitled to a trial by jury under the United
States and Texas Constitutions. Tex. Const. art. I, § 15; see also Tex. Const.
art. V, § 10. The right to a jury trial has a widely acknowledged "sacred
place in English and American history." White v. White, 108 Tex. 570, 196
S.W. 508, 512 (1917). This right extends to the right to a fair and impartial
jury that has been selected in accord with the procedural rules and
safeguards imposed by the legislature. Jackson v. Golden Eagle Archery, Inc.,
974 S.W.2d 952, 958 (Tex. App.—Beaumont 1998), rev’d, 24 S.W.3d 362
(Tex. 2000). Procedurally, the first twelve names on the jury list that have
not been struck constitute the jury. See Tex. Const. Art. V, § 13; Tex. Code
Crim. Proc. Art. 33.01, 35.26(a)(West 2006). Specifically, Texas Code of
Criminal Procedure article 35.26(a) provides as follows:
Lists Returned to Clerk
(a) When the parties have made or declined to make their
peremptory challenges, they shall deliver their lists to the
clerk. Except as provided in Subsection (b) of this section,
the clerk shall, if the case be in the district court, call off
the first twelve names on the lists that have not been
stricken. If the case be in the county court, he shall call
off the first six names on the lists that have not been
stricken. Those whose names are called shall be the jury.
Tex. Code Crim. Proc. Art. 33.01, 35.26(a)(West 2006).
However, a violation of article 35.26 does not per se constitute
35
reversible error. See Griffin v. State, 481 S.W.2d 838, 840 (Tex. Crim. App.
1972). Rather, the Court should consider the spirit and intent of the article
under the facts of the case. See Griffin v. State, 481 S.W.2d 838, 840 (Tex.
Crim. App. 1972). For example, in Bagwell v. State, the appellate court
concluded that "there was no violation of the spirit nor intent in Article
35.26(a)." 657 S.W.2d 526 (Tex. App.—Corpus Christi 1983, pet. ref'd).
However, there a single juror was incorrectly seated. Id.
Here, this provision was substantially violated interfering with the
spirit and intent of Texas Code of Criminal Procedure 35.26. The Clerk’s
Record contains a cumulative jury panel list with the names of the 72 panel
members. (C.R. pg. 25-27). This list was hand marked with a line through
the names of those panel members striken for cause. (C.R. pg. 25-27).
Although it was not signed by the judge, the notes were presumably made
by him. (C.R. pg. 25-27). This list also contains the number of the seated
jurors circled. (C.R. pg. 25-27). The first 12 eligible jury panel members,
who should have been seated, were 1, 6, 8, 9, 11, 12, 13, 15, 16, 17, 18 and
22. (C.R. pg. 25). Only four of these jurors sat on the actual jury in this
case. (C.R. pg. 25). Thus, eight erroneous jurors sat on the jury. (C.R. pg.
25). Here the spirit and intent of the provision was violated under the facts
of this case.
The State will presumably argue that the correct jury was actually
seated in this case. More specifically, the State could argue that the State
36
and/or Defense peremptory strikes against the jury panel and that once
those peremptory strikes were made, the clerk correctly called the names of
the first twelve eligible jury panel members. The problem with this
argument is that neither the State’s nor the Defense’s peremptory strike
lists was included in the appellate record in any way.
Further, in Pittman v. State, the Texas Court of Criminal Appeals
wrote as follows:
It will certainly be advisable in the future for the court, whether
requested by either party or not,7 to have the court reporter
record the voir dire examination of the jury panel, (see Evans v.
State, Tex. Crim. App., 430 S.W.2d 502*, this day decided) and
to include in every appellate record the jury list indicating the
jurors chosen, the ones excused and the reasons therefor, etc.
7
See Tex. Code Crim. Pro. Art. 40.09 §4.
* Evans v. State, 430 S.W.2d 502 (Tex. Crim. App. 1968).
434 S.W.2d 352, 357-358 (Tex. Crim. App. 1968)(emphasis added). Thus,
the Texas Court of Criminal Appeals has declared the appellate record
should contain the names of the panel members who are peremptorily
striken.
Here, the jury list does not reflect the peremptory strikes, if any,
exercised by either the State or the Defense. (C.R. pg. 25-27). Although the
Clerk’s Record does contain a single "peremptory challenges" form, no
strikes appear to have been made on that document. (C.R. pg. 28). Finally,
the Reporter’s Record does not contain any record of peremptory
challenges exercised by either the State or the Defense. (R.R. vol. 2, pg.
37
117). Rather, the Reporter’s Record simply contains a summary statement:
"Recess for Strikes". (R.R. vol. 2, pg. 117). Thus, the appellate record does
not reflect any peremptory strikes were exercised by either the State or the
Defense.
Accordingly, the appellate record establishes that the clerk did not
seat the first twelve eligible panelists from the jury panel as required by
Texas Code of Criminal Procedure 35.26, which was fundamental error.
Harmful Error
An error must affect the substantial rights of the accused to be
harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when
the error had a substantial and injurious effect or influence in determining
the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)
(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error
"did not influence the jury, or had but a slight effect." Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the
burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444
(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.
2001). Rather, it is the responsibility of the appellate court to assess harm
after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.
App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
However, a harmless error analysis is not necessary if the error was
38
fundamental. See, e.g., Bird v. State, 527 S.W.2d 891, 894 (Tex. Crim. App.
1975). Here, as argued above under “Preservation of Error”, Summage
contends this issue is fundamental error.
PRAYER
WHEREFORE, premises considered, Zackery Summage respectfully
requests that this conviction be reversed and judgment rendered in his
favor, that the conviction be reversed and a new trial granted, or for such
other and further relief to which Appellant may be entitled.
Respectfully Submitted,
Miller, James, Miller & Hornsby, L.L.P.
By:______________________________
Troy Hornsby
Texas Bar Number 00790919
1725 Galleria Oaks Drive
Texarkana, Texas 75503
troy.hornsby@gmail.com
903.794.2711, f. 903.792.1276
Attorney for Appellant Zackery
Summage
39
CERTIFICATE OF SERVICE
This is to certify that on March 3, 2015, a true and correct copy of the above
and foregoing Appellant’s Brief has been forwarded by U.S. mail on all
counsel of record and interested party listed below:
Appellant Trial Court Judge
Zackery Summage Honorable Brad Morin
3157 Woodlawn Avenue 71st Judicial District Court
Shreveport, Louisiana 71104 Harrison County Courthouse
200 West Houston, Suite 219
Defendant's Trial Attorney Marshall, Texas 75670
Ms. Cheryl Cooper-Sammons
P.O. Box 8517 State's Attorney
Marshall, Texas 75671 Coke Solomon
Shawn Connally
Harrison County District Attorney
P. O. Box 776
Marshall, Texas 75671-0776
__________________________
Troy Hornsby
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CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned
counsel certifies that, exclusive of the exempted portions in Texas Rule of
Appellate Procedure 9.4(i)(1), this brief contains 6,400 words (less than
15,000), based upon the word count of the WordPerfect program used to
prepare the document.
_______________________________
Troy Hornsby
41