                                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 <thntaun H&R 20 gauge shotgun, Mossburg Lsicj lc caliper
      ??fle 2boxes\f 22 long rifle shells, 2boxes of 20 gauge shells,
      7boxes of 12 gauge shells, 1box of 30-30 shells, Compound bow with
       quiver o? arrows/VCR, Camera equipment, 30 cassette tapes, and some
       jewelry.
       West alleges 1n his third point of error that his written confession
  taken by Deputy Sheriff Neal Morgan was involuntary because it was "induced by
  [promises] of abenefit to [him]." West argues that on the day he gave his
  confession, Kaufman County Sheriff Robert Harris, told him, in effect, that if
he would confess to the burglary, he would not be prosecuted for the offense,
and the only consequence thereof would be that his parole1 would be revoked.
     At the suppression hearing West testified that during the evening of
November 27, 1986, he was brought to the Kaufman County Sheriff's Office.
West stated that Sheriff Robert Harris and Deputy Neal Morgan were present,
and that Sheriff Harris asked him "if Iwas going to clean my business up."
He replied, "I told him, Iask him what was he going to give me." West then
related that Harris asked him if he "was on parole" and stated that he told
the sheriff he was on parole for five years. West then testified that Sheriff
 Harris told him "that he could see to it that Iwouldn't get no more than my
 parole revocation. If Iwould clean up my business." West then stated that
 he asked the sheriff, "How do Iknow you're not going back on your deal." To
 which question, according to West's testimony, the sheriff remarked, "That he
 was the sheriff, and that most of the time what he said went."
      West also testified that both Sheriff Harris and Deputy Neal Morgan were
 present at the county sheriff's office when this conversation took place.
 Harris denied that he was present either before, during, or after the
 statement was signed at 2:35 a.m. on November 28, 1987.
       Mesquite Police Officer Donny E. James2 testified that while West was in
  the custody of the Mesquite Police Department in the "early morning hours of
  November 28," that West told him, in the presence of Morgan, "that they had
  agreed to try to get his sentence concurrent with his parole revocation."
  (Emphasis ours.) James testified that Morgan was "standing there. Idon't


       W     was on parole at the time from the Texas Department of Corrections.
       2Produced as a witness by West.
recall M. saying anyth1n9 In particular." James, when asked. "Mas he
[Morgan] close enough to hear the statement that [West] ...made?," replied.
"Yes. ma'am." On cross-examination by the State, James testified, In effect,
that he never heard "any law enforcement official ...offer [West] ... any
 reward, promise, probation, parole, 1n order to obtain astatement from him."
 On redirect examination, James stated that "1n [his] presence Mr. West made
 the statement that he had made adeal with Kaufman County that he was only
r,n ,„ r, M« oarole revoked." (Emphasis ours.) James also testified that
the foregoing statement by West was made In the presence of Morgan.
     Sheriff Harris, testifying for the State, denied that he ever made any
 promise of any benefits to West, and specifically denied on cross-examination
 that he told West "If he cleared up some burglaries or 1f he cleared up his
 business that [he] would see that [West] would only get his parole revoked."
      Following the suppression hearing, the trial court signed an order
 finding beyond areasonable doubt that the confession was voluntarily made by
 West and thus admissible In evidence. In addition, the court found that no
 promises had been made to Induce the confession.
      The evidence before the trial judge was conflicting respecting the
 voluntariness Issue and In other respects, but the trial judge, as the sole
 trier of the facts and judge of the credibility of the witnesses, concluded
 that West's confession was not the product of any Improper promise of
 favorable treatment. We find that the evidence before the judge supports his
  ruling. The point 1s overruled.
        West by his second point claims that the evidence 1s Insufficient to
  support his conviction. West specifically asserts "that the evidence was
  I,, urrirlrnt T       *ru*"1 »"h the r°urqlary]." (Emphasis ours.)
    It is true, as West argues, that the only property placed In West's
possession3 following the burglary was the .357 magnum Colt Trooper revolver
recovered by Deputy Neal Morgan from Van Horn. John Manning did identify the
weapon as the one taken in the burglary; however, his identification thereof
was not positive. When asked on cross-examination whether he was "absolutely
sure" that the pistol recovered from Van Horn and introduced into evidence was
Ms pistol, he replied, "[w]ell, I'm almost sure, yes." Standing alone, the
testimonies of Van Horn, John and Ralaine Manning, and Neal Morgan regarding
the pistol are insufficient to prove beyond a reasonable doubt that West
burglarized Manning's home on December 12, 1986. Furthermore, we agree that
while West's confession, standing alone, likewise would not constitute
sufficient evidence to establish West's guilt beyond areasonable doubt, when
all of the evidence is considered in a light most favorable to the
 prosecution, we do conclude that reasonable jurors could have found each
 essential element of the burglary to be established beyond areasonable doubt.
 Although the confession does not Identify the burglarized house as belonging
 to Manning, it does contain admissions of West that he entered a home near
 Mabank on November 12, 1986, through a"window on the west side of the garage"
 and stole firearms, including aColt revolver which was taken in the burglary
 according to the testimony of John and Ralaine Manning.
      Our analysis of the evidence leads us to conclude that no other reason
 able hypothesis arises out of that evidence other than the guilt of West.
  Point two is likewise overruled.




       30ther than by West's confession.
    We turn finally to West's first point of error by which he claims his
rights under the Sixth and Fourteenth Amendments and Tex. Const, art. I, §10,
and Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon Supp. 1987)4 were violated
when the trial court conducted ahearing on his motion for new trial in his
absence.

     We first address West's contention that his conviction must be reversed
because his motion for new trial was heard, considered and overruled 1n his
absence in violation of article 33.03.
     The record affirmatively shows that West was incarcerated in the Depart
ment of Corrections when the motion was filed, heard, and overruled by the
trial judge. It is undisputed that West's counsel filed asworn application
for the issuance of bench warrant on April 9, 1987, so that West could be
brought to the hearing scheduled to be conducted on his motion on April 13,
 1987. The bench warrant was not issued. On April 13, 1987, the court called
 the motion for hearing and conducted the hearing in the absence of West. His
 counsel objected to proceeding on the motion for new trial in the absence of
 West and called the court's attention to her application for bench warrant.
 The trial court denied the application for bench warrant and instructed
 counsel to proceed. Counsel then argued the motion which was promptly
 overruled.
      The sole ground alleged in the motion for new trial was that the evidence
 was insufficient to support the jury's verdict. Therefore, the only evidence
 relevant for consideration by the trial court in determining that motion was
 the evidence introduced at trial.




       hereinafter referred to as article 33.03,
    Article 33.03 reads 1n pertinent part: "In all prosecutions for fel
onies, the defendant must be personally present at the trial ...." Article
33.03 and its precursors5 have been examined 1n anumber of cases by the 1887
Court of Appeals and the Court of Criminal Appeals, Including Powers v. State,
23 Tex. Cr. R. 42, 5S.W. 153 (1887); Cartwrioht v. State, 97 Tex. Cr. R. 230,
 259 S.W. 1085 (1924); Henderson v. State, 137 Tex. Cr. R. 18, 127 S.W.2d 902
(1939); Phillios v. State, 163 Tex. Cr. R. 13, 288 S.W.2d 775 (1956); Mares^
State, 571 S.W.2d 303 (Tex. Cr. App. 1978); and Cooper v. State, 631 S.W.2d
508 (Tex. Cr. App. 1982).
      In Powers, 5 S.W. 153, a murder case, the facts were that 1n the
 defendant's absence a venireman was examined, peremptorily challenged by the
 State and was excused by the court. In addressing Powers' claim that these
 facts required reversal of his conviction, Presiding Judge White wrote:
           Aselection of the jury 1s beyond doubt one[°\^\™s^Zlu
      +=„+ foatiir** of a trial for a capital felony, and we can wen
      Sm'eh^lmpomnt        Uis ordinarily for adefendant to be presen
      during such proceedings. But 1n any case, when a rule Is invoked
      for non-observance, there should at least appear some slight reason
      3C ££? ^^XT?^™.^ r^'ceases^oe
        HSdV^star tKW Injury £,*«£
             Under the circumstances disclosed, if error was committed it
      was manifestly harmless error, for which no just ground of complaint
      can lie.

  Powers, 5 S.W. at 156.




       5The 1907 version was article 646, and the 1925 version was article 580.
  Both of these versus contain the identical language quoted above.
    In Cartwright v. State, 259 S.W. 1085, asignificant decision, the record
reveals that after the state rested in abootleg6 case, the defendant and his
counsel retired from the courtroom into an anteroom to discuss the case. The
jury was apparently still seated in the jury box. During the defendant's
absence, the prosecutor exhibited a"glass jug containing aquantity of the
liquor found at [defendant's] still." The jug was earlier Introduced into
evidence. Whereupon, several jurors smelled the jug. The court, construing
fonner article 646 of "Vernon's Code of Criminal Procedure," concluded that
Cartwright sustained "no injury" utilizing the ratio of Judge White in Powers
v. state, 5S.W. at 156, quoted above. Cartwright, 259 S.W. at 1086.
      In Henderson v. State, 127 S.W.2d 902, the defendant was absent when his
motion for new trial in amisdemeanor case was heard and overruled by the
trial court. The court reversed the judgment, concluding that under former
 article 5807 "it was error, for the court, in the absence of appellant, to
 hear, consider and overrule the motion." (Citation omitted.)
      The Henderson court pretermitted any discussion of the "harmless error-
 doctrine espoused in Cartwright, but carefully noted that the defendant was
 charged with misdemeanor theft on December 5, 1938, she was arrested and
 jailed on the same day, and that on the morning of the following day she was
 brought before the county court where she pleaded guilty before the judge
 after waiving ajury trial (presumably without the assistance of counsel). The
 trial court assessed her punishment at afine and imprisonment in the county


       6Illegal manufacture of whiskey.
       7. ... -,„ con ™>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)




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