                                                                                      ACCEPTED
                                                                                 01-14-00715-CR
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            2/13/2015 2:42:38 PM
                                                                             CHRISTOPHER PRINE
                                                                                          CLERK




                     No. 01-14-00715-CR
                                                               FILED IN
                              In the                    1st COURT OF APPEALS
                                                            HOUSTON, TEXAS
                       Court of Appeals                 2/13/2015 2:42:38 PM
                             For the
                                                        CHRISTOPHER A. PRINE
                 First Judicial District of Texas               Clerk
                           At Houston

                  
                         No. 1406601
                 In the 178th District Court of
                     Harris County, Texas
                  
                 KEITH WAYNE FRANCES
                            Appellant
                              v.
                  THE STATE OF TEXAS
                             Appellee
                  
                STATE’S APPELLATE BRIEF
                  
                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas
                                                CARLY DESSAUER
                                                Assistant District Attorney

                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                Tel.: 713/755-5826
                                                Fax No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
                 STATEMENT REGARDING ORAL ARGUMENT
      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State requests oral argument only if appellant requests

oral argument.

                     IDENTIFICATION OF THE PARTIES
      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of

the names of all interested parties is provided below.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Carly Dessauer  Assistant District Attorney on appeal

             Erik Locascio  Assistant District Attorney at trial

             Jessica Vu  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Keith Wayne Frances

      Counsel for Appellant:

             Casey Garrett  Attorney on appeal

             Crystal D. Henderson  Attorney at trial

      Trial Judge:

             Hon. Lee Duggan

             Hon. David Mendoza


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                                             TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .................................................... ii

IDENTIFICATION OF THE PARTIES ......................................................................... ii

TABLE OF AUTHORITIES ............................................................................................. iv

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................................. 1

REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 2

I. As the trial court did not hold any type of proceeding to decide appellant’s
   motion to set aside the judgment, the court did not violate appellant’s right
   to be present. ..................................................................................................................... 2
     a. The trial court did not violate appellant’s right to be present under article
        28.01, section 1 when it denied appellant’s motion to set aside the
        indictment outside of appellant’s presence. ............................................................. 2
     b. The trial court did not violate appellant’s constitutional right to be
        present when the court denied his motion because appellant’s presence
        was not reasonably related to his opportunity to defend himself. ........................ 6
CONCLUSION ..................................................................................................................... 8

CERTIFICATE OF COMPLIANCE ................................................................................ 9

CERTIFICATE OF SERVICE ......................................................................................... 10




                                                                  iii
                                          TABLE OF AUTHORITIES
CASES
Adanandus v. State,
  866 S.W.2d 210 (Tex. Crim. App. 1993) ................................................................. 4, 6, 7
Jones v. State,
   No. 14-87-00951-CR, 1989 WL 31803
   (Tex. App.—Houston [14th Dist.] Apr. 6, 1989, no pet.)
   (not designated for publication) ....................................................................................... 5
Lawrence v. State,
  240 S.W.3d 912 (Tex. Crim. App. 2007) ......................................................................... 7
Riggall v. State,
  590 S.W.2d 460 (Tex. Crim. App. 1979) ......................................................................... 3
Snyder v. Massachusetts,
  291 U.S. 97 (1934), overruled on other grounds,
  Mallory v. Hogan, 378 U.S. 1 (1964) ................................................................................... 6
State v. Rogers,
   138 S.W.3d 524 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............................. 7
State v. Rosenbaum,
   910 S.W.2d 934 (Tex. Crim. App. 1994) ......................................................................... 7
Watkins v. State,
 333 S.W.3d 771 (Tex. App.—Waco 2010, pet. ref’d) ................................................ 3, 5
Whittington v. State,
 680 S.W.2d 505 (Tex. App.—Tyler 1984, pet. ref’d) ..................................................... 3

STATUTES
TEX. CODE CRIM. PROC. ANN. art. 28.01, §1 (West 2006) ................................................ 2

RULES
TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ............................................................................................................. 9
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii



                                                                  iv
TO THE HONORABLE COURT OF APPEALS:
                          STATEMENT OF THE CASE
      Appellant was charged with possession of a controlled substance (CR at 12).

After the trial court denied his motion to set aside the indictment, appellant entered a

guilty plea, and the court sentenced him to eight months confinement in the State Jail

Division of the Texas Department of Criminal Justice (CR at 106). Appellant filed a

timely notice of appeal, and the court amended its certification of appellant’s right to

appeal (CR at 111-12; Supp. CR at 8).

                             STATEMENT OF FACTS
      Appellant was set for trial on the offense of possession of a controlled

substances (CR at 12, 17). Among other motions, appellant filed a motion to set aside

the indictment in his case on June 25, 2014, during a pretrial conference (CR at 18-20,

117). The trial court denied the motion the next day (CR at 21, 117). On August 5,

2014, appellant entered a guilty plea (CR at 95-96, 106).

                       SUMMARY OF THE ARGUMENT
      The trial court did not violate appellant’s statutory and constitutional rights to

be present at pretrial proceedings when it denied appellant’s motion to set aside his

indictment outside of appellant’s presence. The trial court did not violate appellant’s

statutory right to be present under Code of Criminal Procedure article 28.01 because

there is no indication that the trial court held any type of proceeding when it ruled on

appellant’s motion. Further, appellant’s presence when the trial court denied his




                                           1
     motion was not reasonably and substantial related to his opportunity to defend

     himself; thus, the trial court also did not violate his constitutional right to be present.

                     REPLY TO APPELLANT’S POINT OF ERROR
I.      As the trial court did not hold any type of proceeding to decide appellant’s
        motion to set aside the judgment, the court did not violate appellant’s right
        to be present.

            In his sole point of error, appellant alleges that the trial court infringed upon

     both his statutory and constitutional rights because it failed to secure his presence

     when denying his motion to set aside the indictment. However, the trial court did not

     violate either of these rights to be present. As the record is void of any indication that

     the trial court held any type of proceeding when it ruled on appellant’s motion, the

     court did not infringe upon appellant’s statutory right, and because there is no

     reasonably substantial relationship between appellant’s presence and his opportunity

     to present a defense, the court did not violate appellant’s constitutional right. Thus,

     this Court should overrule appellant’s point of error.

        a. The trial court did not violate appellant’s right to be present under article
           28.01, section 1 when it denied appellant’s motion to set aside the
           indictment outside of appellant’s presence.

            Under Texas Code of Criminal Procedure article 28.01, section 1, a defendant

     must be present during “any pre-trial proceeding.” TEX. CODE CRIM. PROC. ANN. art.

     28.01, §1 (West 2006).       Thus, appellant’s presence was required at any pretrial

     proceeding.    However, not all pretrial motions are handled by way of pretrial



                                                  2
proceedings as trial courts may take matters under advisement and make rulings in

absence of the defendant. Whittington v. State, 680 S.W.2d 505, 510 (Tex. App.—Tyler

1984, pet. ref’d). Thus, the question pertinent for appellant’s point of error is whether

the trial court ruled on his motion to set aside the indictment at a pretrial proceeding

in which appellant’s presence was required. See Watkins v. State, 333 S.W.3d 771, 775

(Tex. App.—Waco 2010, pet. ref’d) (stating that the question central to Watkins’

argument that the trial court violated article 28.01 was whether the trial court

conducted a proceeding when it entered an order on a motion).

      As the Court of Criminal Appeals first discussed in Riggall v. State, a trial court

holds a “pre-trial proceeding” on a motion when the record shows that the motion

“came to be heard” and indicates some type of evidence, testimony, or argument was

heard or considered. Riggall v. State, 590 S.W.2d 460, 461 (Tex. Crim. App. 1979); see

Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim. App. 1982) (discussing the holding of

Riggall). In Riggall, the trial court’s actions constituted a “proceeding” under article

28.01 when the order overruling Riggall’s motion to dismiss stated that the cause

“came to be heard” and the order contained four paragraphs of findings of fact and

conclusions of law that indicated that the court considered evidence or testimony.

Riggall, 590 S.W.2d at 461. In appellant’s case, the record does not provide any

indication that the trial court held a “proceeding” when denying his motion to set

aside the indictment.




                                           3
       As the clerk’s record reveals, appellant’s case was set for a pretrial conference

proceeding on June 25, 2014, and for trial on August 5, 2014 (CR at 17, 117). At the

pretrial conference, appellant appeared with his counsel and filed numerous motions,

including his motion to set aside the indictment (CR at 18-19, 117). The trial court

did not rule on any of appellant’s pretrial motions at the conference (CR at 117). The

next day—June 26th—the trial court denied appellant’s motion to set aside the

indictment (CR at 21, 117). The record contains no indication that the trial court held

any type of proceeding when it denied appellant’s motion (CR at 21, 117). See Malcom,

628 S.W.2d at 792 (holding that there was no “proceeding” requiring Malcom’s

presence when the record only included a docket sheet notation stating that a motion

was overruled). The record does not contain any reporter’s record of a proceeding,

any statement of facts, or any indication that arguments were made, objections lodged

or discussions had before the trial court denied the motion. See Adanandus v. State, 866

S.W.2d 210, 219 (Tex. Crim. App. 1993) (holding that a pretrial meeting was a

“proceeding” under article 28.01 when the court reporter transcribed the meeting, a

statement of facts was made, the trial court overruled a defense motion, Adanandus’s

counsel made a Bill of Exception, and the court issued instructions regarding trial

procedures). Additionally, appellant does not include any citation to the record in his

brief indicating that a pretrial proceeding requiring his presence was held.1 As such,


1
 Appellant generally cites to the video recording of his abatement hearing in which the trial court
amended its certification of appellant’s right to appeal. Appellant’s Br. 7. While appellant claimed in


                                                  4
the trial court did not violate appellant’s right to be at the pretrial proceeding because

no proceeding occurred.

       Indeed, appellant’s case is analogous to Watkins v. State in which the Tenth

Court of Appeals held that the trial court did not hold any kind of “proceeding” when

it denied Watkin’s motion because the record showed nothing other than the signed

order. Watkins, 333 S.W.3d at 776. In reaching this holding, the Court noted that the

record contained “nothing to indicate that there was any kind of ‘proceeding’ with

regards to the denial of Watkin’s motion” as there were no findings in the order or

other indication that the trial court heard or considered testimony or evidence.

Watkins, 333 S.W.3d at 775-76. As the Tenth Court held that no “proceeding” had

occurred when the trial court dismissed Watkin’s motion by signing an order, so too

should this Court hold that the trial court did not hold a “pre-trial proceeding”

requiring appellant’s presence under article 28.01 when it denied his motion by written

order. TEX. CODE CRIM. PROC. ANN. art. 28.01, §1 (West 2006); see also Jones v. State,

No. 14-87-00951-CR, 1989 WL 31803, at *1 (Tex. App.—Houston [14th Dist.] Apr.

6, 1989, no pet.) (not designated for publication) (holding that the record failed to

establish that any “proceeding” was held when the trial court denied Jones’ motion by

only handwriting “Denied” on the motion with the date and signature of the court).



the hearing that he was not present when the trial court denied his motion, as discussed above, the
record contains no indication that the trial court held a pretrial proceeding requiring appellant’s
presence (1 RR at 6-7).


                                                5
       As the record is void of any indication that the trial court conducted a pretrial

proceeding outside appellant’s presence when it denied his motion to set aside the

indictment, appellant’s right under article 28.01 was not violated. Thus, this Court

should overrule appellant’s statutory argument.

   b. The trial court did not violate appellant’s constitutional right to be
      present when the court denied his motion because appellant’s presence
      was not reasonably related to his opportunity to defend himself.

       In addition to the right to be present under article 28.01, appellant also asserts

that his constitutional right to be present was violated. As the Supreme Court has

held, a defendant has a right “to be present in his own person whenever his presence

has a relation, reasonably substantial, to the fullness of his opportunity to defend

against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934), overruled on other

grounds, Mallory v. Hogan, 378 U.S. 1 (1964); see Adanandus, 866 S.W.2d at 219 (adopting

the “reasonably substantial relationship test”).     However, this right is not violated

unless “a fair and just hearing would be thwarted by [the defendant’s] absence, and to

that extent only.” Snyder, 291 U.S. at 108. In this case, appellant’s presence was not

needed to ensure a fair and just hearing when the trial denied his motion to set aside

the indictment because the trial court did not hold a proceeding on the motion (CR at

117). Thus, appellant had no right to be present.

       As the record shows, the trial court ruled on appellant’s motion—which argued

that the trial court should set aside the indictment because the evidence was



                                             6
insufficient to support its charge—on its face without entertaining any arguments or

evidence from either party (CR at 18-19, 21, 117). Appellant’s presence was thus not

necessary to further his defense and did not bear a reasonably substantial relationship

to his opportunity to defend himself. Adanandus, 866 S.W.2d at 219. Indeed, the trial

court did not need to hold a hearing or proceeding on the motion as the Court of

Criminal Appeals has long recognized that a defendant may not make a pretrial attack

on the sufficiency of the evidence presented to a grand jury to support the allegations

in the indictment. See Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007)

(holding that a motion to quash an indictment could not be used to attack the

sufficiency of the State’s evidence); State v. Rosenbaum, 910 S.W.2d 934, 937 (Tex.

Crim. App. 1994) (agreeing with the State that a defendant may not make a pretrial

attack upon the sufficiency of the evidence presented to the grand jury to support the

allegations in the indictment); see also State v. Rogers, 138 S.W.3d 524, 527 (Tex. App.—

Houston [14th Dist.] 2004, no pet.) (discussing how one court of appeals has allowed

the State to willingly participate in a pretrial sufficiency hearing on the indictment but

stating that the court’s holding had not been followed by any other court and was

strongly criticized).   Because the trial court did not need to hold a hearing on

appellant’s motion, appellant’s presence was not necessary, and his constitutional right

to be present not violated.

       As there is no reasonably substantial relationship between appellant’s presence

and his opportunity to present his pretrial motion attacking the sufficiency of the

                                            7
evidence for the indictment, appellant cannot show that a fair and just hearing was

thwarted by his absence. Additionally, since no proceeding occurred, appellant’s

rights to be present were not violated. As such, this Court should also overrule the

statutory and constitutional claims appellant raises in his point of error and uphold his

conviction.

                                   CONCLUSION
      The State of Texas respectfully urges the Court to overrule appellant’s point of

error and affirm his conviction.

                                                      DEVON ANDERSON
                                                      District Attorney
                                                      Harris County, Texas

                                                      /s/                   Carly Dessauer
                                                      ____________________________________________________________________________________________________________________________________________________________________________________




                                                      CARLY DESSAUER
                                                      Assistant District Attorney
                                                      Harris County, Texas
                                                       1201 Franklin, Suite 600
                                                      Houston, Texas 77002
                                                      (713) 755-5826
                                                      State Bar No. 24069083
                                                      dessauer_carly@dao.hctx.net
                                                      curry_alan@dao.hctx.net




                                           8
                      CERTIFICATE OF COMPLIANCE
      The undersigned attorney certifies that this computer-generated document has

a word count of 1,883 words, based upon the representation provided by the word

processing program that was used to create the document. TEX. R. APP. P. 9.4(i).




                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083




                                         9
                          CERTIFICATE OF SERVICE
      The State will serve a copy of the foregoing instrument to appellant’s attorney

though TexFile:

Casey Garrett
Attorney at Law
1214 Heights Boulevard
Houston, Texas 77008
casey.garrett@sbcglobal.net

                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083




Date: February 13, 2015




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