      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00720-CR



                                    Terrance Reed, Appellant

                                                 v.

                                  The State of Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
       NO. 3011330, HONORABLE FRANK W. BRYAN, JR., JUDGE PRESIDING



                            MEMORANDUM OPINION


               Terrance Reed appeals from his conviction for assault on a public servant. See Tex.

Pen. Code Ann. § 22.01(a), (b)(1) (West 2003). After a jury found appellant guilty, the court found

an enhancement paragraph true and assessed sentence at sixteen years’ confinement in the Texas

Department of Criminal Justice-Institutional Division. We affirm the trial court’s judgment.


                              Factual and Procedural Background

               Appellant’s issues do not require a detailed recitation of the underlying events leading

to the charge against him. An Austin Police Department officer attempted to stop the car that

appellant was driving for speeding. The car stopped; appellant and the passenger fled. During the

chase, the officer tackled appellant, both ended up on the ground, and appellant attempted to choke
the officer, who was able to activate a panic button on his radio. Assistance arrived, and appellant

was apprehended.

               Appellant was indicted for the offense of assault on a public servant, enhanced by a

prior conviction for felony aggravated assault with a deadly weapon. Although appellant plead guilty

to the charged offense at his arraignment on September 3, 2002, at a pre-trial hearing that same day,

he told the judge that he was not guilty of the alleged crime, so the case went to jury trial. Appellant

appeared in court for a preliminary hearing, for voir dire, and for jury selection. However, he did

not appear for trial. Although his absence from trial on the first morning was excused by a medical

visit, his further absence was found to be voluntary, and he was tried in absentia.

               Joe Gillett, an emergency room nurse at Brackenridge Hospital, testified that on the

morning of trial, September 4, 2002, he treated appellant for abdominal pain, which was diagnosed

as gastroenteritis. The emergency room physician discharged him with a prescription for an antacid.

Gillett testified that appellant was alert, oriented, and ambulatory upon discharge. That afternoon,

the court coordinator found a voicemail message saying that appellant was going to see a “lung

specialist.” After investigation, the court coordinator could not confirm that information, nor could

he find that appellant had been admitted to any hospital. Nothing in appellant’s records from the

emergency room visit showed any treatment for difficulties with breathing or any indication of a

referral to a pulmonologist on an emergency basis. Trial began late that afternoon. Appellant failed

to appear for the trial’s second day as well.

               Five witnesses testified for the State; one for the defense. Counsel for defendant

protested the trial proceeding without appellant present but vigorously cross-examined the witnesses.



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At the close of defense arguments, counsel moved for a directed verdict as to one of the two manner

and means that were alleged in the indictment. The judge ruled that the State had not sufficiently

proved that appellant caused bodily injury by pushing the officer on the torso, and the jury was

limited to deciding whether appellant caused bodily injury by choking the officer. The jury returned

a verdict of guilty on the charged offense. Appellant had not elected for jury sentencing, and the

court determined that the allegations in the enhancement paragraph were true. On September 26,

2002, in appellant’s presence, the court sentenced appellant to sixteen years’ confinement in the

Texas Department of Criminal Justice-Institutional Division.

               Appellant was initially appointed trial counsel. He then opted to retain counsel, who

represented appellant at trial. On September 18, 2002, on a form for declaring indigence and

requesting appointed counsel, appellant filled out and signed the section indicating that he chose to

have retained counsel. On October 18, 2002, in a pro se notice of appeal, appellant requested

appointed counsel. On October 23, 2002, the court appointed counsel, who timely filed a motion

for new trial, which was overruled. Appellant filed an untimely motion to amend the motion for new

trial, which was overruled.

               This appeal followed. Appellant brings eleven points of error, contending: (1) the

appeal should be abated to determine if the presumption appellant was effectively represented by trial

counsel during the time for investigating, preparing, and filing a motion for new trial was rebutted;

(2) the appeal should be abated to give appellant a hearing on an out-of-time motion for new trial;

(3) appellant was denied his right to counsel during a critical stage, violating the Fifth, Sixth and




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Fourteenth Amendments to the United States Constitution; (4) appellant was denied his right to

counsel during a critical stage, violating article I, sections ten and nineteen of the Texas Constitution;

(5) appellant was denied effective assistance of counsel on appeal, violating the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution; (5) appellant was denied effective

assistance of counsel on appeal, violating article I, sections ten and nineteen of the Texas

Constitution; (7) the court erred in its jury charges concerning appellant’s absence from trial; (8) the

court erred in trying appellant in absentia, violating the Sixth and Fourteenth Amendments to the

United States Constitution; (9) the court erred in trying appellant in absentia, violating article I,

sections ten and nineteen of the Texas Constitution; (10) the court erred in trying appellant in

absentia, violating Texas Code of Criminal Procedure article 33.03; and (11) the court erred by

sentencing appellant without a pre-sentence report.


                                              Discussion

Denial of Right to Counsel

                In his first six points of error, appellant complains that he was denied his right to

counsel at a critical stage of the process, violating his rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and Article I, sections ten and nineteen of the Texas

Constitution; that the appeal should be abated to determine if the rebuttable presumption that

appellant was effectively represented by counsel during this critical stage was overcome and so that

appellant may file and have a hearing on an out-of-time motion for new trial; and appellant was

denied effective assistance of counsel on appeal, violating his rights under the Fifth, Sixth and



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Fourteenth Amendments to the United States Constitution and Article I, sections ten and nineteen

of the Texas Constitution.

                In Garcia v. State, 97 S.W.3d 343, 347 (Tex. App.—Austin 2003, no pet.), this Court

held that the time period for filing a motion for new trial was a critical stage. In Garcia, trial counsel

was appointed.     The court told counsel in open court that counsel was released from his

representation of defendant, but there was a delay in appointing new counsel. Id. at 346. The

appellant filed a pro se motion for new trial, which was executed on June 12, but not filed until June

20, past the time limit for filing the motion. Id. This court held that appellant was actually and

constructively denied counsel during a critical stage. Id. at 348.

                In appellant’s case, however, he was represented by retained counsel at trial. On the

form on which he could have declared indigence and asked for appointed counsel, he affirmatively

represented to the court that he was retaining counsel.1 Only on October 15, on a pro se notice of

appeal, did he finally inform the court that he wanted court-appointed counsel. Counsel was

appointed on October 23, 2002; the motion for new trial was due October 28, 2002.2 The motion

for new trial was timely filed.

                Appellant timely filed a pro se notice of appeal. Filing a pro se notice of appeal is

evidence that an appellant was aware of some of his appellate rights, and, under such circumstances,

the court presumes that the appellant was adequately represented unless the record affirmatively



   1
       Appellant signed and dated the form.
   2
    The last day of the filing period was Saturday, October 26, 2002, thus extending the deadline
to Monday. Tex. R. App. P. 4.1(a).

                                                    5
indicates otherwise. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). Here, the

record does not show why appellant waited so long to notify the trial court of his need for an

attorney. Nor does the record show what discussions appellant may have had with retained counsel

or what attempts he made to secure retained counsel. The motion for new trial was timely filed. The

record does not rebut the presumption of adequate representation. Further, accepting appellant’s

argument would create many opportunities for mischief—what if an appellant represented to the

court that he would have retained counsel and only changed his mind the day before the motion for

new trial was due?

               Unlike two cases appellant relies on, Jack v. State, 42 S.W.3d 291, 292-93 (Tex.

App.—Houston [1st Dist.] 2001, pet. granted) and Prudhomme v. State, 28 S.W.3d 114, 120 (Tex.

App.—Texarkana 2002, pet. ref’d), appellant’s counsel filed a timely motion for new trial.

               We hold that appellant was not denied his right to counsel during a critical stage and

overrule issues three and four. Because we hold he was represented by counsel during this critical

stage, there is no need to abate the appeal to determine whether appellant was represented and to

allow an out-of-time motion for new trial based on his lack of representation. We overrule issues

one and two.

               Appellant contends that he was denied effective assistance of counsel on appeal.

Appellant argues that if appointed counsel had more preparation time, counsel could have filed a

more effective motion for new trial and thus, appellant would have had a more effective appeal.3


  3
    For example, appellant lists numerous errors at trial about which he asserts that he could have
developed a record at a hearing on a motion for new trial, presumably to avoid the disposition of an

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As stated earlier, the court promptly appointed counsel after it was notified that appellant had

declared himself indigent. The trial record in this case is not a lengthy one that would require a large

amount of time to analyze to determine whether an ineffective assistance point should be raised in

a motion for new trial. We overrule appellant’s issues five and six.


Trial In Absentia

                In issues eight, nine, and ten, appellant contends that the trial court’s action in trying

him in his absence violated the Sixth and Fourteenth Amendments to the United States Constitution,

article I, sections ten and nineteen of the Texas Constitution, and article 33.03 of the Texas Code of

Criminal Procedure.

                We review a trial court’s findings regarding an appellant’s absence from trial using

an abuse of discretion standard. Moore v. State, 670 S.W.2d 259, 260-61 (Tex. Crim. App. 1984)

(“Absent any evidence from the defendant to refute the trial court’s determination that his absence

was voluntary, we will not disturb the trial court’s finding.”). In this case, the trial court made

findings on the record concerning appellant’s absence. After jury selection, the trial court instructed

the jurors to return the next morning. The judge was told when he arrived the next morning that

appellant was at Brackenridge Hospital in the emergency room. The court confirmed that

information and instructed the jury that a “participant” in the trial had a health emergency and to re-



issue on ineffective assistance at trial by reference to a lack of a record. See Ex parte Duffy, 607
S.W.2d 507, 517-18 (Tex. Crim. App. 1980). Issues concerning ineffective assistance can be
developed in a habeas proceeding as well. See Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.
App. 1997) (writ of habeas corpus usually appropriate vehicle to investigate ineffective-assistance
claims).

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convene at 1:45. Appellant did not appear. He left a voicemail message at the court coordinator’s

telephone number saying that he was going to a “lung specialist” that afternoon.

               The court confirmed that he had been discharged from Brackenridge Hospital. The

court confirmed with the emergency room that appellant was treated for an upset stomach and given

medication. The emergency room nurse testified concerning appellant’s treatment and his condition

upon discharge, stating that appellant was “alert, oriented, and ambulatory” at his discharge.

Medical records in evidence showed treatment for gastroenteritis, with a prescription for an antacid.

There is no indication in the record that appellant was referred for a visit to a pulmonologist or

otherwise had a valid medical reason for failing to attend court. Appellant’s vague assertions about

medical treatment in a message are not enough to show that the trial court abused its discretion in

proceeding in his absence. See Moore, 670 S.W.2d at 260-61. We overrule issues eight, nine, and

ten.


Jury Charge

               In his seventh issue, appellant contends that the trial court incorrectly instructed the

jury on how to treat the evidence regarding appellant’s absence because its instruction improperly

commented on, and gave particular weight to, the evidence of flight. After a preliminary hearing

outside the presence of the jury about whether the prosecution could introduce the evidence

concerning appellant’s absence and possible flight, the judge allowed the evidence to be presented

to the jury. The court determined that the evidence was relevant on the issue of flight and

consciousness of guilt, and its probative value was not outweighed by the danger of prejudice. See



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Tex. R. Evid. 403. The State’s witnesses testified about the lack of any medical reason for

appellant’s non-attendance.

                 The disputed portion of the court’s charge is:


       The defendant is on trial solely on the charge contained in the indictment. In
       reference to evidence, if any, that the defendant participated in recent transactions or
       acts, other than that which is charged in the indictment in this case, you are instructed
       that you cannot consider such other transactions or acts, if any, for any purpose
       unless you find and believe beyond a reasonable doubt that the defendant participated
       in such transactions or committed such acts, if any; and even then you may only
       consider the same for the purpose of determining the defendant’s intent or
       knowledge, or to explain the defendant’s absence from trial, if it does, and for no
       other purpose.


                 The charge allowed the jury to draw a permissible inference concerning appellant’s

intent and knowledge. Evidence of absence or flight can lead to an inference about whether the

appellant has a guilty conscience about his crime. See McWherter v. State, 607 S.W.2d 531, 535

(Tex. Crim. App. 1980); Thames v. State, 453 S.W.2d 495, 501 (Tex. Crim. App. 1970). The

instruction did not comment on or unduly highlight the evidence concerning appellant’s absence; the

reference to his absence came only at the end of a fairly obscure paragraph and referred simply to

using the evidence to explain defendant’s absence from the trial. Cf. Giesberg v. State, 945 S.W.2d

120, 124 (Tex. App.—Houston [1st Dist.] 1996), aff’d on other grounds, 984 S.W.2d 245 (Tex.

Crim. App. 1988) (instruction that evidence of flight “to avoid arrest and prosecution” was “some

evidence of defendant’s guilt” erroneous because impermissibly singled out evidence of flight).

                 Appellant has failed to show error in the jury charge. Accordingly, we overrule his

seventh issue.

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Sentencing

               In his eleventh issue, appellant contends that the trial court failed to order a

mandatory pre-sentence investigation (PSI) report. Appellant did not object to the lack of a PSI. The

court of criminal appeals has outlined three types of rights for defendants:


       (1) absolute requirements and prohibitions; (2) rights of litigants which must be
           implemented by the system unless expressly waived; and (3) rights of litigants
           which are to be implemented upon request. . .[f]orfeit and procedural default are
           synonymous; both refer to the loss of a claim or right for failure to insist on it
           by objection, request, motion, or some other behavior calculated to exercise the
           right in a manner comprehensible to the system’s impartial representative,
           usually the trial judge.


Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Appellant’s right to a PSI report falls

within the third category:


       [T]he article 42.12, section 9 right to have a trial court order preparation of a PSI
       report before sentencing falls within the third category as outlined in Marin and is,
       therefore, forfeitable by inaction. When appellant failed to draw the trial court’s
       attention to the lack of a PSI report after punishment was assessed but before
       sentencing, he waived his right to the use of the report and to complain of its non-
       existence on appeal. We hold, therefore, that appellant failed to preserve his
       complaint for appellate review.


Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—Dallas 1994, pet. ref’d). Appellant did not object

to the absence of a PSI at any point in the trial court proceedings and so cannot complain of its non-

existence on appeal. We overrule appellant’s eleventh issue.




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                                         Conclusion

              We have considered and overruled all of appellant’s issues. We affirm the trial

court’s judgment.




                                            Jan P. Patterson, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: January 8, 2004

Do Not Publish




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