                             NUMBER 13-15-00442-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

RANDY EUGENE SMITH,                                                          Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 24th District Court of
                          Calhoun County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
               Memorandum Opinion by Justice Garza
      A jury found appellant, Randy Eugene Smith, guilty of forgery, a state-jail felony

enhanced to a second-degree felony by two prior felony convictions. See TEX. PENAL

CODE ANN. § 32.21(b), (d) (West, Westlaw through 2015 R.S.); id. § 12.425(b) (West,

Westlaw through 2015 R.S.). The jury sentenced appellant to twenty years' imprisonment

and a $10,000 fine. By two issues, appellant contends: (1) the trial court erred by failing
to make a finding that he voluntarily absented himself from trial; and (2) defense counsel

was ineffective for failing to object to appellant’s trial in absentia. We affirm.

                                       I.   BACKGROUND

       In August of 2013, Smith was indicted for forgery. On March 9, 2015, a jury was

chosen, seated, and sworn. Appellant entered a plea of “not guilty” and the attorney for

the State of Texas and appellant’s counsel presented opening statements. The court

then recessed for the evening.

       The next morning, March 10, 2015, appellant was not present. No objection was

made by defense counsel or the State’s prosecutor that trial was proceeding without

appellant being present. After both sides had rested and closed, in open court and

outside the presence of the jury, the trial judge noted that appellant was not present in

the courtroom because he had failed to appear for the first day of the presentation of

evidence in his trial.

       In closing arguments, both the attorney for the State and defense counsel

acknowledged that, when a defendant voluntarily absents himself from trial, the trial may

proceed to a conclusion through the punishment phase as long as the defendant was

present for jury selection and entering a plea. The trial court instructed the jury during the

guilt-innocence phase and in the punishment phase against drawing a negative inference

of guilt from appellant’s choice not to testify. The jury found appellant guilty.

       That same day, the trial court held a hearing to determine appellant’s punishment.

The jury found the allegations in the State’s two enhancement paragraphs “true,” and

assessed punishment at twenty years’ imprisonment and a $10,000 fine.




                                               2
        Because appellant remained absent, his sentencing hearing was not held until six

months later on August 27, 2015. See TEX. CODE CRIM. PROC. ANN. art. 42.03, §1 (West,

Westlaw through 2015 R.S.) (stating generally that sentence must be pronounced in

defendant’s presence). In accordance with the jury’s verdict, appellant was sentenced to

twenty years in prison and was fined $10,000. At this hearing, the court asked appellant

if there was any legal reason why the punishment should not be imposed. Appellant and

his defense counsel both answered in the negative.1

                           II.    FORMAL FINDING OF VOLUNTARY ABSENCE

        By his first issue, appellant contends the trial court abused its discretion by

continuing the trial without making a formal finding that he was voluntarily absent.

    A. Standard of Review and Applicable Law

        A trial court’s determination that a defendant is voluntarily absent from a trial is

generally reviewed for an abuse of discretion. Papkostas v. State, 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)). As long as there is “some evidence” to support the trial

court’s determination that a defendant is voluntarily absent from trial, then that

determination will be upheld. Moore, 670 S.W.2d at 261.

         Generally, a defendant must be present at trial. See TEX. CODE CRIM. PROC. ANN.

art. 33.03 (West, Westlaw through 2015 R.S.). However, in the trial of a felony, the trial

court can continue a trial if the defendant voluntarily absents himself from the courtroom

after the entry of a plea or after the selection of a jury. See id. Although the trial court



        1 On the same day as the sentencing hearing, appellant pleaded guilty to felony bond-jumping, a
third-degree felony offense. At the plea hearing on that offense, appellant stated that he left because he
learned that there was a contract out on his life, he was in fear for his life, and was not “thinking straight.”

                                                       3
must make a decision as to whether an absence was voluntary or not, the court of criminal

appeals has noted that appellate review of that decision is essentially a review, in

hindsight, of the validity of the trial court's determination that the defendant's absence

was voluntary. See Moore, 670 S.W.2d at 261. The court of criminal appeals has held

that an appellate court will not disturb the trial court's finding of voluntary absence unless

the defendant provides evidence to refute the trial court's determination. Id.

       While a defendant has a right to be present during all phases of the trial and “to be

confronted with the witnesses against him,” a defendant who voluntarily absents himself

from the trial after its commencement does so without a violation of his Sixth Amendment

right to be present during all phases of the trial and to confront his witnesses. Miller v.

State, 692 S.W.2d 88, 90–91 (Tex. Crim. App. 1985); Ashley v. State, 404 S.W.3d 672,

680 (Tex. App.—El Paso 2013, no pet.). Stated another way, the right to be present

during a trial is a right that can be forfeited or waived by a defendant. Miller, 692 S.W.2d

at 90; Ashley, 404 S.W.3d at 680. Reviewing courts are not limited only to the record

before the trial court at the time of the ruling, but may also use subsequent knowledge of

the circumstances surrounding a defendant’s failure to attend his trial. Moore, 670

S.W.2d at 261.

   B. Analysis

       First, appellant argues that his Sixth Amendment confrontation clause rights were

violated because he was deprived of his right to confront his accusers during trial.

Second, appellant argues that the trial court erred by failing to make a finding that he

voluntarily absented himself. However, appellant fails to provide any authority, and we




                                              4
find none, requiring the trial court to make a formal finding that appellant voluntarily

absented himself from trial.

       Appellant attended his first day of trial, which consisted of choosing, seating, and

swearing in the jury. Appellant also entered a plea of “not guilty,” and the State’s attorney

and defense counsel presented opening statements. Appellant was present when the

trial court informed the jury that the proceedings would begin the next morning, March 10,

2015, at nine o’clock. On the day of his sentencing hearing, in a plea hearing on a related

offense, appellant stated that he left because he learned of a contract on his life; however,

he made no assertion that his absence was involuntary.

       Neither article 33.03 of the Texas Code of Criminal Procedure nor case law

requires a trial court to make an express formal finding that a defendant’s absence from

trial is voluntary. See TEX. CODE CRIM. PROC. ANN. art. 33.03. Article 33.03 provides in

part that, “[i]n all prosecutions for felonies, the defendant must be personally present at

the trial . . . provided, however, that in all cases, when the 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.” See id; see Moore,

670 S.W.2d at 261 (finding that trial court could have reasonably inferred that defendant

voluntarily absented himself where defendant was informed of when and where to appear

and neither court nor defendant’s counsel received any communication from defendant

explaining his absence). Here, by continuing the trial even though appellant was absent,

the trial court impliedly found that appellant voluntarily absented himself from trial.

       Because the trial court met the requirements of article 33.03, we conclude that

appellant’s Sixth Amendment confrontation clause rights were not violated. See TEX.



                                              5
CODE CRIM. PROC. ANN. art. 33.03. Accordingly, there was no abuse of discretion in the

trial court’s decision to continue the trial despite appellant’s voluntary absence.

                              III.   INEFFECTIVE ASSISTANCE

       By his second issue, appellant contends that defense counsel was ineffective by

not objecting to the continuation of trial without appellant being present and by not

objecting to the State’s remarks during the trial that appellant was absent voluntarily.

Appellant argues these remarks helped the State suggest that appellant had run away

rather than face his trial.

       We note that, as appellant acknowledges, no remarks were made regarding

appellant’s absence during the trial. During his closing remarks, defense counsel stated:

       Ladies and gentlemen, you also learned one of the facts in a criminal
       proceeding is that you can proceed in a criminal proceeding when the
       defendant is not present. He’s not here today with me so I’m left to argue
       on his behalf. And that’s part of my job. I have to speak on his behalf and
       give you what I can in regard to his defense.

       Then, during his closing remarks, the prosecutor stated:

       When you voluntarily absent yourself from the trial, the trial proceeds, and
       he was here yesterday and entered his plea of not guilty so we can finish
       up the trial, we can go all the way through punishment. The only thing that
       can’t be done is the sentencing if we get to that point.

        “To obtain a reversal of a conviction under the Strickland test, a defendant must

show that: (1) counsel’s performance fell below an objective standard of reasonableness

and (2) counsel’s deficient performance prejudiced the defense, resulting in an unreliable

or fundamentally unfair outcome of the proceeding.” Davis v. State, 278 S.W.3d 346, 352

(Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

“Deficient performance means that ‘counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Ex

                                             6
parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.

at 687). “The prejudice prong of Strickland requires showing ‘a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different.’” Id. at 248 (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability is

a probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland,

466 U.S. at 694). “[E]ach case must be judged on its own unique facts.” Davis, 278

S.W.3d at 353.

       The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Appellant must overcome the strong presumption that counsel's conduct fell within

the wide range of reasonable professional assistance and that his actions could be

considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing court will not

second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253

S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record sufficient to

demonstrate that counsel’s conduct was not the product of a strategic or tactical decision,

a reviewing court should presume that trial counsel's performance was constitutionally

adequate . . . .”). Counsel’s effectiveness is judged by the totality of the representation,

not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes, 216 S.W.3d at

851. An allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d

828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6.




                                             7
        The State argues that appellant failed to show that his counsel’s performance was

deficient and that the alleged deficiency prejudiced appellant, and thus deprived appellant

of a fair trial. The State further argues appellant has not presented a record which

supports his contention that counsel’s performance was unreasonable, unprofessional,

or without plausible tactical reasoning. Therefore, the State argues appellant failed to

overcome the presumption that defense counsel’s performance was reasonable.

Moreover, while appellant argues that defense counsel’s performance was deficient

because he did not object to the State’s references regarding his absence from his trial,

the State argues that all references were made in a matter-of-fact manner without any

prejudice directed toward appellant.2

        We have already found there was no abuse of discretion when the trial court

allowed the continuation of the trial after the defendant voluntarily absented himself after

the swearing of the jury. Accordingly, defense counsel was not ineffective when he failed

to object to the trial in absentia and to the references to appellant’s absence. See

Varughese v. State, 892 S.W.2d 186, 192 (Tex. App.—Fort Worth 1994, pet. ref'd)

(holding counsel is not ineffective for not objecting to State's proper argument). The

record is clear in this case that appellant was present for jury selection and for the entry

of his plea of “not guilty.” After entering his plea, appellant did not communicate to the

trial court or his attorney that he would not return to court on March 10, 2015. Moreover,

the trial record is silent as to why defense counsel did not object to the continuation of the

trial without appellant being present or to the references to appellant’s absence.



        2According to the record, there were no references to appellant’s absence during the presentation
of evidence at trial. Defense counsel first mentioned appellant’s absence during closing argument. The
prosecutor then briefly mentioned appellant’s absence in closing.

                                                   8
Accordingly, appellant has not shown that his counsel was ineffective for failing to object

to the trial in absentia and to the references to his absence. We overrule appellants’

second issue.

       We conclude that: (1) the trial court did not err in failing to make a formal finding

that appellant voluntarily absented himself, and (2) appellant‘s counsel was not ineffective

for failing to object to appellant’s trial in absentia or the State’s comments regarding his

absence.

                                       IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                   DORI CONTRERAS GARZA,
                                                   Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of July, 2016.




                                               9
