









Affirmed and Opinion filed June 27, 2002








Affirmed and Opinion filed June 27, 2002.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO.
14-01-01148-CR
____________
 
CESAR ECHEVARRIA, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On
Appeal from the 209th District Court
Harris County, Texas
Trial
Court Cause No. 863,930
 

 
O
P I N I O N
Cesar
Echevarria appeals his conviction and sixteen-year
sentence for aggravated robbery.  In two
points of error, appellant contends his absence at a pre-trial hearing on his
motion to suppress the complainant=s trial identification (1) violated his Sixth Amendment right
of confrontation and (2) violated section 1 of article 28.01 of the Texas Code
of Criminal Procedure.  We affirm.
Factual
Background




On
November 29, 2000, appellant approached the complainant, Lilia Descamps, as she sat in her car using her cellular
telephone.  After asking the complainant
to roll down her window, appellant uncovered a firearm and robbed her.  During the robbery, the complainant testified
she was calm and had a conversation in Spanish with appellant.  The complainant assisted Officer Paul Reese
in identifying the car in which appellant fled after the robbery.  The car was traced to a man with two sons,
one of which is appellant.  Prior to
trial, the complainant identified appellant in both a photo spread and a live
line-up.  The day before trial, the trial
court denied appellant=s motion to suppress the complainant=s
identification of appellant.  For reasons
set forth below, appellant was not present at the suppression hearing.
Discussion
The
State argues appellant=s Constitutional rights were not violated because (1) the
Confrontation Clause does not apply to pre-trial proceedings; (2) appellant
waived his rights by failing to object to his absence; and (3) appellant
invited the error he now identifies.  The
latter two grounds are also urged by the State in response to appellant=s
statutory error issue.  Because we
overrule both appellant=s issues (Sixth Amendment and article 28.01) on the third
ground, we address both issues together. 

We
do not decide, but assume for the purpose of this appeal, that the
Confrontation Clause applies to this particular pre-trial suppression hearing.[1]  Section 1 of Article 28.01 states, in
pertinent part: AThe defendant must be present at the arraignment, and his
presence is required during any pre-trial proceeding.  The pre-trial hearing shall be to determine
any of the following matters . . . (6) Motions to suppress evidence.@




Invited
Error
At
the commencement of the suppression hearing, the following exchange took place
between the trial judge and appellant=s counsel, Mr. Onken: 
Court:  Also, Mr. Onken,
you have a motion as far as allowing your client to not be present; is that
right?
Onken:  I do, Judge. 
I would like to state on the record that it was my request for the
Court, and that the Court grant it, that Mr. Echevarria
not be present in the courtroom during this hearing.  So, that was totally something I requested
and he is not present at this point in time.
Court:  That has been granted by the Court.
Onken:  Thank you.
This
exchange demonstrates the trial court and appellant=s
counsel were aware of the article 28.01 mandate that appellant be present at
the suppression hearing.  The first
witness to testify was Officer Reese.  It
is clear from Officer Reese=s testimony that the police believed either appellant or his
brother, Luis Echevarria, had committed this crime.[2]  The only evidence available to the police to
aid them in determining which brother was the true culprit was the complainant=s
identification testimony.
On
cross-examination of the complainant, the other witness at the suppression
hearing, the following took place:
Oncken:  Judge, could we have the individual brought
out?
Court:  You may. 
Bring him out.  Someone is going
to be brought out.  They are going to be
standing right here.  Please don=t
say a word.  Just take a good look.  Please don=t
say anything until the person leaves. 
Then a question will be asked. 
(Individual escorted into the courtroom)
Court:  Come right here.  Right over here, please.  A little bit closer.  Please look in my direction if you would,
please.  Thank you.  You may go back. (Individual escorted out of
the courtroom)
Court:  You may proceed.




Oncken:  Ma=am, do you
recognize the individual that was just brought into the courtroom?
A:  No.
The
record from the pretrial hearing does not definitively indicate who was brought
in to stand before the complainant. 
However, the following day, near the conclusion of the trial, both
brothers were called before the jury.  At
that time, the complainant indicated she had seen Luis in person for the first
time Ayesterday.@  She also testified that on that day she had
not seen appellant, nor had he been sitting anywhere in the courtroom.  On appeal, the State submits, and we agree,
that it was Luis who was presented to the complainant during the suppression
hearing on the day prior to appellant=s trial.
The
law is well-settled that a criminal defendant may not create error, whether
statutory or constitutional, and then submit that error as a basis for
appellate relief.  See Garcia v. State,
919 S.W.2d 370, 393B94 (Tex.
Crim. App.
1996).  See also Prystash v. State, 3 S.W.3d
522, 531 (Tex. Crim.
App. 1999) (distinguishing waiver from invited error).  In Garcia, the defendant complained on
appeal that the trial court failed to insist upon his presence during a portion
of jury selection, thus violating mandatory language contained in article 33.03
of the Texas Code of Criminal Procedure. 
See 919 S.W.2d at 393B94.  The Court of
Criminal Appeals observed that the right to be present at trial derives from
the Sixth Amendment right of confrontation. 
Id.  The Court nevertheless
overruled appellant=s issue because both appellant and his counsel requested
that he not be forced to attend.  




Reliance
on Garcia alone is inadequate because the record in this case does not
contain direct evidence that appellant joined counsel in the request to
derogate from statutory and constitutional prescription.  Indirect evidence, however, is
plentiful.  At the hearing, trial counsel
secured the appearance of appellant=s brother, something more likely to occur with appellant=s
knowledge than without his knowledge.  At
trial, both appellant and his brother=s appeared and were presented to the complainant so that she
could, again, choose between them.  Last
and most importantly, nowhere in his brief does appellant allege that his
counsel=s
request to proceed without him at the hearing on the motion to suppress was in
fact ultra vires.  Had he made such an allegation, appellant
could have, in the same manner that an accused rebuts the presumption of his
attorney=s
effectiveness, developed supportive testimony at a hearing on a motion for new
trial.  See
generally Strickland v. Washington, 466 U.S.
668 (1984) (method for demonstrating ineffectiveness).  Appellant=s failure to support his claim with evidence via a motion for
new trial is strong evidence that his absence at the suppression hearing was
voluntary.
Finally,
at least one case suggests we are entitled to presume that appellant=s
attorney=s
actions were his own.  See Ex parte Moneyhun, 161 Tex. Crim. 19, 20, 274 S.W.2d 546, 547 (1955).  Mr. Moneyhun,
through his attorney, requested that he be paroled upon the condition that he
leave Taylor county. 
After his release, Moneyhun returned to the
county and was arrested.  Ruling on Moneyhun=s subsequent complaint that the order of release was invalid,
the court wrote:  AWhen
appellant=s attorney requested his release, he became the moving factor
and cannot now take advantage of a void order on the part of the county judge.@  Id.
Under
these particular facts, we hold appellant invited the error he now
identifies.  We therefore overrule his
two issues.
Accordingly,
the judgment below is affirmed.
 
 
 
/s/        Eva M. Guzman
Justice
 
Judgment rendered and Opinion filed June
27, 2002.
Panel consists of Justices Yates, Seymore,
and Guzman.
Publish C Tex. R.
App. P. 47.3(b).
 
 




[1]  The Supreme
Court has held that pre-trial events may undercut the right of cross‑examination.  United States v. Wade,
388 U.S. 218, 224B26
(1967).  See
also Garza v. State, 633 S.W.2d 508, 511B12 (Tex. Crim. App. 1982)
(discussing Wade).  However, Wade instructs that it is the
Sixth Amendment right to counsel that applies at a pretrial hearing to
suppress a witness=s
identification.  Garza, 633 S.W.2d at 512. 
Here, appellant=s counsel was present at the hearing.  Appellant=s, as
opposed to his counsel=s, absence may more properly raise due process rather
than confrontation clause issues.  See
Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (Aa defendant is guaranteed the [Due Process] right to
be present at any stage of the criminal proceeding that is critical to its
outcome if his presence would contribute to the fairness of the procedure@).


[2]  Luis was
arrested for a similar robbery some time after the filing of appellant=s complaint.


