Opinion issued April 28, 2015




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-14-00715-CR
                             ———————————
                     KEITH WAYNE FRANCES, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Case No. 1406601


                           MEMORANDUM OPINION

      Appellant Keith Wayne Francis pleaded guilty to possession of a controlled

substance and was sentenced to eight months’ confinement in a State Jail Facility.

In a single issue, he argues that he is entitled to a new trial because the trial court
ruled on his motion to set aside the indictment without him being present. We

affirm.

                                  BACKGROUND

      On January 31, 2014, appellant was indicted for possession of less than one

gram of cocaine, with enhancements for two prior felony possession convictions.

On June 25, 2014, appellant and his counsel attended a pretrial hearing and

appellant’s counsel filed several motions. One of those filings was a Motion to Set

Aside Indictment, alleging that “the State has provided insufficient evidence to

show that Mr. Francis possessed a controlled substance, other than the mere

possession of paraphernalia with residue.” The following day, on June 26, 2014,

the trial court signed an order denying the motion to set aside the indictment. On

August 5, 2014, appellant entered a guilty plea.

                     PRESENCE AT PRETRIAL HEARING

      Appellant seeks reversal of his conviction and a new trial, arguing that “the

trial court erred by failing to secure [his] presence at a pretrial hearing based on the

legality of the indictment against him.” He contends that the right to personal

presence at all critical stages of trial is a fundamental right recognized under the

U.S. Constitution, Rushen v. Spain, 464 U.S. 114, 117–18, 104 S. Ct. 453, 455

(1983), and codified by the Texas Legislature. See TEX. CODE CRIM. PRO. ANN. art

28.01, § 1 (West 2006).


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      The State disagrees, arguing that the appellant cannot show a violation of

article 28.01 because “there is no indication that the trial court held any type of

proceeding when it ruled on appellant’s motion.” The State also contends that the

“trial court did not violate appellant’s constitutional right to be present when the

court denied his motion because appellant’s presence was not reasonably related to

his opportunity to defend himself.”

                                      ANALYSIS

      Article 28.01 provides that a defendant must be present during “any pretrial

proceeding.” TEX. CODE CRIM. PRO. ANN. art 28.01. Appellant does not dispute

that he was present with counsel at the pretrial hearing on June 25, 2014. Rather,

he complains that he was not present the next day when the trial court signed the

order denying the motion to dismiss. The question presented here is whether the

trial court’s entering an order denying appellant’s motion to set aside the

indictment was a pretrial proceeding. We agree with the State that it was not.

      If the trial court holds a hearing on a defendant’s pretrial motions, the

defendant is entitled, under the plain language of article 28.01, to be present. The

trial court may, however, take matters under advisement and make pretrial rulings

in the absence of a defendant. This distinction was addressed in Watkins v. State, a

case in which the appellant argued that the trial court’s failure to conduct a hearing

in the defendant’s presence on appellant’s pretrial motion to dismiss his appointed


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counsel violated article 28.01. 333 S.W.3d 771, 775–76 (Tex. App.—Waco 2010,

pet. ref’d). The trial court in that case “entered an order in which it stated that it

had considered [the appellant’s] motion and denied it.” Id. at 775. The Waco

Court of Appeals examined the relevant case law, ultimately concluding this did

not amount to a pretrial proceeding at which the appellant was required to be

present under article 28.01.

              In Riggall v. State, the Court of Criminal Appeals determined
      that the trial court’s actions constituted a “proceeding” under article
      28.01, by noting that the written order overruling Riggall’s motion to
      dismiss recited that the cause “came on to be heard” and contained
      four paragraphs containing findings of fact and conclusions of law,
      indicating that some type of evidence or testimony was heard or
      considered. Riggall v. State, 590 S.W.2d 460 (Tex. Crim. App. 1979).
      Since there was some type of “proceeding” in that case, the Court of
      Criminal Appeals held that Riggall or his appointed counsel should
      have been present. In the present case, there is nothing to indicate that
      there was any kind of “proceeding” with regard to the denial of
      Watkins’s motion. See Jones v. State, No. 14–87–00951–CR, 1989
      WL 31803 at *1–2, 1989 Tex. App. LEXIS 758 at *4 (Tex. App.—
      Houston [14th Dist.] April 6, 1989, no pet.) (not designated for
      publication) (no violation of article 28.01 where there was only a
      handwritten notation on the motion to dismiss court appointed counsel
      which read “Denied,” together with the date and the signature of the
      trial judge). We believe that Riggall is distinguishable since the record
      shows nothing other than the order signed by the trial court that it
      considered Watkins’s motion to indicate that a proceeding was held.
      There are no findings in the order or other indications that evidence or
      testimony was heard or considered.

             We find that a more analogous case to the case at bar is Malcom
      v. State. Malcom v. State, 628 S.W.2d 790 (Tex. Crim. App. 1982).
      In Malcom, there was no formal written order, but there was a
      notation on a docket sheet that a motion to dismiss counsel was
      overruled. The Court of Criminal Appeals held that the trial court’s

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      action of overruling the motion was not a “proceeding” under article
      28.01. Malcom, 628 S.W.2d at 792. By application of the holdings of
      Malcom and Riggall, we find that the trial court in this case did not
      violate article 28.01.

Id. at 775–76. We likewise conclude that the facts of this case are more like

Malcom than Riggall. There is no record of a hearing or any type of proceeding on

June 26, 2014, the date the trial court signed the complained-of order. The order

itself states only that “[t]he foregoing motion is in all things denied.” Because

nothing in the record—including the language of the June 26 order—indicates that

the trial court’s signing the denial order was a proceeding under article 28.01, we

conclude that appellant has not shown that the trial court violated article 28.01.

      To the extent that appellant argues that his due process rights were violated

by the trial court’s ruling on appellant’s motion to dismiss outside appellant’s

presence, we reject that argument as well. A defendant has constitutional right to

be present “whenever [the defendant’s] presence has a relation, reasonably

substantial, to the fullness of his opportunity to defend against the charge.”

Routier v. State, 112 S.W.3d 554, 577 (Tex. Crim. App. 2003) (quoting Snyder v.

Massachusetts, 291 U.S. 97, 105–06, 54 S. Ct. 330, 332 (1934)). The “presence of

a defendant is a condition of due process to the extent that a fair and just hearing

would be thwarted by his absence, and to that extent only.” Id. (quoting Snyder,

291 U.S. at 107–08, 54 S. Ct. at 333)). Given that appellant was present at the

June 25, 2014 pretrial proceeding, and given that there was no proceeding held on

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June 26, 2014 when the trial court signed the order denying appellant’s motion,

appellant has not established that the trial court’s ruling on the motion without his

being present denied his right to due process.

      We overrule appellant’s sole issue.

                                     CONCLUSION

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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