                                                                             ACCEPTED
                                                                        13-15-00442-CR
                                                        THIRTEENTH COURT OF APPEALS
                                                               CORPUS CHRISTI, TEXAS
                                                                  11/30/2015 3:52:30 PM
                                                                       Dorian E. Ramirez
                                                                                  CLERK

                 CAUSE 13-15-00442-CR

IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT  OF TEXAS AT
                                          FILED IN
                                        13th COURT OF APPEALS
                                     CORPUS CHRISTI/EDINBURG, TEXAS
                    CORPUS   CHRISTI
                                        11/30/2015 3:52:30 PM
                                          DORIAN E. RAMIREZ
                                                 Clerk



             RANDY EUGENE SMITH, APPELLANT

                          VS.

             THE STATE OF TEXAS, APPELLEE




                   APPELLANT’S BRIEF

               Trial Cause 2013-08-7364

             Calhoun County District Court




                     Submitted by

                  W. A. (BILL) WHITE
                Attorney for Appellant
             POB 7422, Victoria, TX 77903
              (361) 575-1774 voice & fax
                     TBN 00788659


              ORAL ARGUMENT NOT REQUESTED
                             1
            IDENTITY OF PARTIES AND COUNSEL

    Appellant was represented at trial by Mr. James
Beeler, Attorney at Law, POB 1841, Port Lavaca, TX
77979. Appellant is represented on appeal by Mr. W. A.
(Bill) White, Attorney at Law, POB 7422, Victoria, TX
77903. During trial, appellant resided in Calhoun
County. Appellant is now incarcerated in IDTDCJ.

    The State was represented at trial by Mr. Shannon
Salyer, ADA, and Ms. Sara Rodriguez, ADA, both of the
Calhoun County District Attorney’s Office, 211 S. Ann
St., 3rd Floor, Port Lavaca, TX 77979. The State’s
reply brief will be prepared by Mr. Salyer.




                           2
                      TABLE OF CONTENTS

                                               Page

Index of Authorities                            4

Appellant’s Brief                               5

Statement of the Case and Statement of Facts    5

Issues Presented

  1) THE COURT ERRED BY FAILING TO MAKE A FINDING THAT
     APPELLANT VOLUNTARILY ABSENTED HIMSELF     8

  2) DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO
     OBJECT TO APPELLANT’S TRIAL IN ABSENTIA    8

Summary of Argument                             8

Issue 1 Argument                                9

Issue 2 Argument                                12

Prayer                                          13

Certificate of Service                          14

Certificate of Compliance                       14




                              3
                  INDEX OF AUTHORITIES

Cases                                               Page

Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App.1996) 10

Strickland v. Washington, 466 U.S. 668 (1984)       12



Statutes

Tex.Code Crim.Proc.Ann., art. 33.03 (Vernon 2014)   9-10



Constitutional Provisions

U.S. Const., amend. VI                              10




                            4
                   CAUSE 13-15-00442-CR
                 Trial Cause 2013-08-7364


RANDY EUGENE SMITH, Appellant       IN THE THIRTEENTH

VS.                                 COURT OF APPEALS AT

THE STATE OF TEXAS                  CORPUS CHRISTI, TEXAS


                     APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW APPELLANT, RANDY EUGENE SMITH, through

counsel, W. A. (BILL) WHITE, Attorney at Law, showing:



       STATEMENT OF THE CASE AND STATEMENT OF FACTS

      Appellant was indicted in August 2013 for a forgery

allegedly committed on 11/03/11.   The indictment also

alleged two prior felony convictions, making the state

jail felony into a second degree felony, with an

enhanced punishment range of 2 to 20 years in prison

and up to a $10,000 fine.

      Jury selection began on 3/09/15, with appellant

entering his plea of “not guilty” before his impaneled

jury on the same date, and opening statements taking

                             5
place on the same date. (RR Vol. 2, pp. 44-51).    The

court then recessed for the evening with guilt/

innocence testimony to begin the next morning.

    The next morning, 3/10/15, when court began,

appellant was not present.   No one (prosecutor, defense

attorney, or the trial judge) made any mention of this

fact on the record that morning. (RR Vol. 3, p. 6,

extreme top: “defendant not present”)

    No finding was made on the record by the judge that

defendant voluntarily absented himself from trial.       No

objection was lodged by defense counsel or the State’s

prosecutor that trial was proceeding without appellant

being present.   No motion was made by either side that

the trial judge, court staff, or law enforcement

inquire of local hospitals, jails, or morgues to learn

if appellant’s absence might have been involuntary.

The trial judge made no such inquiry sua sponte,

according to the record.   Trial rolled on as if all was

normal.   Obviously, any live, in-court identification

of appellant at trial was impossible because he was not


                             6
in the courtroom after he entered his “not guilty” plea

on 3/09/15.

    The trial judge mentioned for the first time on the

record on 3/10/15 that appellant was not present in

court after both sides had rested and closed in the

guilt/innocence phase. (RR Vol. 3, p. 40, lines 8-12)

    During closing argument on guilt/innocence, the

prosecutor made mention of appellant’s absence to the

jury, remarking twice that appellant had “voluntarily

absented himself” from trial, without a judicial

finding supporting same. (RR Vol. 3, pp. 44-45).    The

jury convicted appellant as charged on 3/10/15. (RR

Vol. 3, p. 50, lines 1-3).   The trial judge then

commented to the jury that it is “really unusual” not

to have the defendant present at trial. (RR Vol. 3, p.

50, lines 10-11)

    The jury then went on to assess appellant’s

punishment at 20 years in prison and a $10,000 fine.

(RR Vol. 4, p. 80-81).   The jury found the two prior




                             7
felony convictions in the indictment’s enhancement

paragraphs to be true.

    Appellant was sentenced nearly six months later on

8/27/15 when located. (RR Vol. 5, pp.4-5).   When the

trial judge asked if there was any legal reason why

sentence should not be imposed, defense counsel

answered in the negative. (RR Vol. 5, p. 5, lines 6-9).

Again, no objection to appellant having been tried in

absentia was made, nor to the fact that there was never

an actual, formal, judicial finding that appellant had

voluntarily absented himself.



                    ISSUES PRESENTED

  1) THE COURT ERRED BY FAILING TO MAKE A FINDING THAT
     APPELLANT VOLUNTARILY ABSENTED HIMSELF

  2) DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO
     OBJECT TO APPELLANT’S TRIAL IN ABSENTIA


                  SUMMARY OF ARGUMENT

    The trial court simply assumed, when appellant did

not return to his trial on the second morning of same,

that his absence was deliberate, and that he

                           8
voluntarily absented himself from trial.   The judge

made no inquiries about whether something unforeseen

and beyond appellant’s control may have happened to him

overnight (automobile accident, health issue, unrelated

arrest, etc.) during the trial’s recess.   The court

simply proceeded with trial without first making a

finding that appellant had voluntarily absented himself

from his trial.   The court thus deprived appellant of

his right to confront his accusers during trial, as

guaranteed in the U.S. Constitution’s Sixth Amendment.

    Appellant’s trial counsel, in failing to object to

trial without his client present, was ineffective.



                         Issue 1

   THE COURT ERRED BY FAILING TO MAKE A FINDING THAT
         APPELLANT VOLUNTARILY ABSENTED HIMSELF

                        ARGUMENT

    Article 33.03 of the Texas Code of Criminal

Procedure states, in part, “In all prosecutions for

felonies, the defendant must be personally present at

trial … provided, however, that in all cases, when the

                            9
defendant voluntarily absents himself after pleading to

the indictment or information, or after the jury has

been selected when trial is before a jury, the trial

may proceed to its conclusion.” Tex.Code Crim.Proc.

Ann., art. 33.03 (Vernon 2014).   In all criminal

prosecutions, the accused shall enjoy the right … to be

confronted with the witnesses against him … U.S.

Const., amend. VI.   However, like nearly all rights,

including most constitutional rights, Texas courts have

held that this right granted in article 33.03, even if

denied, is subject to harmless error analysis. See

Garcia v. State, 919 S.W.2d 370, 393-394 (Tex.Crim.App.

1996).   Thus, the right may be violated as long as it

does not make a difference in the trial’s outcome.

    The record is silent as to whether the trial judge

made any inquiry as to why appellant did not return for

trial on the morning of its second day.   He did not

order local law enforcement to check the rosters of

local hospitals, jails, or morgues to see if appellant

had perhaps been injured, arrested, or killed


                            10
overnight.   He resumed trial without making a finding

first that appellant had voluntarily absented himself

from the proceedings.   He in effect presumed the

absence to be voluntary, without any inquiry or even

cursory investigation reflected in the reporter’s

record.   By doing so, the trial judge violated

appellant’s right to confront his accusers at his trial

under the Sixth Amendment to the U.S. Constitution.

    By way of harm analysis, appellant could have

guided his trial counsel to sharpen his questions of

State’s witnesses if he had been present at trial to

hear their testimony against him.   Defendants in

criminal cases frequently tell their counsel things at

trial such as, “This witness is lying” or “That’s not

what I told him!”

    However, because appellant was not present, and

because trial proceeded anyway, he was unable to do

this, although there was no finding that he was absent

voluntarily.   In fact, no reason appears anywhere in




                            11
the record as to why appellant did not return to his

trial at the beginning of its second day on 3/10/15.



                        ISSUE 2

 DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT
           TO APPELLANT’S TRIAL IN ABSENTIA

                       ARGUMENT

    An appellant’s claim that his trial counsel’s

assistance was so defective as to require reversal of

his conviction requires that he show 1) that his

counsel’s performance was deficient and 2) that this

deficient performance prejudiced his defense so as to

deprive him of a fair trial. See Strickland v.

Washington, 466 U.S. 668, 687 (1984).   The appellant

must show that his counsel’s representation fell below

an objective standard of reasonableness. Id.   With

regard to the required showing of prejudice, the proper

standard requires the appellant to show that there is a

reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different.

Id. at 691.

                           12
    In the case at bar, defense counsel at trial did

not object to his client’s trial proceeding without

him, although the trial judge failed to make a finding

that appellant had voluntarily absented himself.   He

further did not object to remarks by the prosecutor and

judge during trial that appellant was indeed absent

from trial voluntarily, adding additional evidence of

“guilt” to the State’s case-in-chief on guilt/innocence

and at punishment, rather than requiring the State to

present its evidence against appellant without the de

facto “bonus” of alluding that he had run away rather

than face his music.

    While the jury would have undeniably noticed

appellant’s absence on day two of trial, it was

improper for the State and the judge to refer to it as

evidence of guilt.



                        PRAYER

    Appellant prays that conviction be reversed.

                                Respectfully submitted,


                           13
                                /s/ W. A. White
                                W. A. (BILL) WHITE
                                ATTORNEY FOR APPELLANT
                                POB 7422, Vict., TX 77903
                                (361) 575-1774 voice/fax
                                TBN 00788659



                 CERTIFICATE OF SERVICE

    I certify that a true and correct copy or duplicate

original of the foregoing has been provided to Mr.

Shannon Salyer, ADA, Calhoun County District Attorney’s

Office, 211 S. Ann St., 3rd Flr, Port Lavaca, TX 77979

via U.S. mail, fax, electronic delivery, or hand-

delivery on this the 30th day of November 2015.

                                /s/ W. A. White
                                W. A. White



               CERTIFICATE OF COMPLIANCE

    I certify that this brief contains 1,735 words.

                                /s/ W. A. White
                                W. A. White




                           14
