AFFIRM and Opinion Filed October 25, 2019




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-18-00422-CR

                               ARACELY MEZA, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 291st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F16-00230-U

                            MEMORANDUM OPINION
               Before Chief Justice Burns, Justice Whitehill, and Justice Schenck
                                Opinion by Chief Justice Burns
       Following a jury trial, Aracely Meza appeals her conviction for injury to a child causing

serious bodily injury. The jury assessed punishment at ninety-nine years’ confinement and a

$10,000 fine. Appellant contends the trial court erred by conducting a pretrial hearing in her

absence. We affirm.

       A two-year-old child died after a period of time in appellant’s care. Appellant was indicted

for injury to a child on March 21, 2016. The indictment alleged she intentionally and knowingly

by omission caused serious bodily injury to a child younger than fourteen by failing to provide

adequate nutrition and adequate hydration and by failing to seek adequate medical care.

       In her sole point of error, appellant complains about not being present at a May 12, 2016

pretrial hearing. At the time of the hearing, the case was set for a jury trial on May 31, 2016.

Appellant was out on bond. Her trial was eventually held almost two years later, in March 2018.
Appellant argues it was error under both the Confrontation Clause and article 28.01 of the Texas

Code of Criminal Procedure to proceed with the hearing in her absence. She maintains that her

right to be present at the hearing was “unwaivable” and that the error defies a harm analysis

because there is insufficient data upon which to make such an analysis.

           The code of criminal procedure requires a defendant’s presence at any pretrial proceeding.

TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1. In addition, the right to confrontation under the Sixth

Amendment includes the absolute requirement that a criminal defendant who is threatened with

loss of liberty be physically present at all phases of proceedings against her, absent a waiver of

that right through the defendant’s own conduct. 1 Miller, 692 S.W.2d at 90; see Illinois v. Allen,

398 U.S. 337, 338 (1970). A defendant in a criminal prosecution for a non-capital offense may

waive any rights secured her by law. TEX. CODE CRIM. PROC. ANN. art. 1.14.

           When a defendant’s statutory or constitutional right to be present during trial has been

violated, an appellate court considers whether the defendant’s presence bore a reasonably

substantial relationship to her opportunity to defend herself. Adanandus v. State, 866 S.W.2d 210,

219–20 (Tex. Crim. App. 1993). This test seeks to determine the effect of the defendant’s absence

on the advancement of her defense. Id. If there is no reasonably substantial relationship, any error

is harmless. Id.; see also Suniga v. State, No. AP-77,041, 2019 WL 1051548, at *10–11 (Tex.

Crim. App. Mar. 6, 2019) (per curiam, not designated for publication).

           At the start of the May 12 hearing, the judge asked if appellant was present. Her attorney

responded that appellant was not in court and understood her attorney was “going to handle it.”

The judge asked if appellant was okay with counsel waiving her appearance. Counsel answered

affirmatively.



     1
       A defendant also has a due process right to be present at a proceeding to the extent that a fair and just hearing would be thwarted by her
absence. U.S. v. Gagnon, 470 U.S. 522, 526 (1985). Appellant does not make a due process argument in this case.

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       The judge stated her understanding that the State had some “additional issues” it wanted to

put on the record. The prosecutor said she had turned over everything in her file to defense counsel.

The prosecutor and defense counsel went through various evidentiary items and counsel confirmed

he was in possession of them. Defense counsel was not in possession of several forensic interviews,

but had watched them. The prosecutor had previously provided defense counsel with a list of

experts and was going to supplement the information with the curriculum vitae of one expert.

       Defense counsel was then given the opportunity to address the judge. Counsel voiced his

concern that a translator and a certain witness would be present at trial. He then asked for later

hearings on a motion to suppress appellant’s video and written statements to police and a motion

in limine regarding “resurrection attempts” on the dead child. The judge asked the parties to tender

a copy of the videos ahead of time.

       Next the parties discussed their difficulties obtaining a copy of the child’s death certificate

and autopsy from Mexico. (After the child’s death, his parents took his body to Mexico.) The

prosecutor said the State had been diligent in trying to get the information but had “hit wall after

wall.” Defense counsel said the information was crucial and urged the State to be aggressive in its

attempts to get it. The judge indicated that if the information did not come through, it would be

cause for resetting the case. The recorded portion of the hearing then concluded.

       On May 31, 2016, when the case was called for trial, defense counsel moved for a

continuance. The parties confirmed the existence of an autopsy, but were still working on getting

it from “some legal entity in Mexico.” Appellant asked the court to continue the case in the interest

of justice so the autopsy could be obtained and translated into English. The court granted the

motion.

       When the case eventually went to trial in 2018, no autopsy or death certificate was admitted

into evidence. Appellant sought to introduce a copy of a Mexican death certificate, but the trial

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court admitted it for record purposes only, ruling that it was inadmissible because it could not be

authenticated. During closing argument, defense counsel acknowledged that the jury should find

appellant guilty, but urged jurors to find her guilty of recklessly, rather than intentionally or

knowingly, causing serious bodily injury to a child. The jury found appellant guilty as charged.

        The record reflects that appellant, through her counsel, waived her right to be present at the

May 12 pretrial hearing. Appellant asserts that her right to be present was “unwaivable,” citing

Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985). The defendant in Miller left the

courtroom during voir dire and did not return. The applicable statute was article 33.03 of the code

of criminal procedure, which provides that an accused’s right to be present at trial is unwaivable

until the jury has been selected. TEX. CODE CRIM. PROC. ANN. art. 33.03; Miller, 692 S.W.2d at

91. The issue before the court of criminal appeals was whether the jury had been selected before

the defendant absented himself from the proceedings. This case involves appellant’s right to be

present at a pretrial hearing. Appellant has not demonstrated that the trial court erred in accepting

defense counsel’s waiver of appellant’s right to be present. See TEX. CODE CRIM. PROC. ANN. art.

1.14.

        Even if there was error, there was no harm. We disagree with appellant’s contention that it

is impossible to determine if she was harmed. Appellant was zealously represented by counsel at

the hearing. No motions were presented or argued, nor did the trial court make any rulings at that

time. Appellant’s presence did not bear a reasonably substantial relationship to the opportunity to

defend. No harm or prejudice was shown as a result of her absence. See Adanandus, 866 S.W.2d

at 220. We overrule appellant’s sole issue.




                                                 –4–
       We affirm the trial court’s judgment.




                                                 /Robert D. Burns, III/
                                                 ROBERT D. BURNS, III
                                                 CHIEF JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
180422F.U05




                                               –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 ARACELY MEZA, Appellant                           On Appeal from the 291st Judicial District
                                                   Court, Dallas County, Texas
 No. 05-18-00422-CR        V.                      Trial Court Cause No. F16-00230-U.
                                                   Opinion delivered by Chief Justice Burns.
 THE STATE OF TEXAS, Appellee                      Justices Whitehill and Schenck
                                                   participating.

       Based on this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 25, 2019.




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