                                                                             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




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                          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




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