                                                                                                ACCEPTED
                                                                                            06-14-00210-CR
                                                                                 SIXTH COURT OF APPEALS
                                                                                       TEXARKANA, TEXAS
                                                                                       4/23/2015 5:19:28 PM
                                                                                           DEBBIE AUTREY
                                                                                                     CLERK




                              No. 06-14-00210-CR
                                                                 FILED IN
______________________________________________________________________________
                                                           6th COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                     IN THE SIXTH COURT OF APPEALS                4/24/2015 9:00:00 AM
                           TEXARKANA, TEXAS                          DEBBIE AUTREY
                                                                          Clerk
______________________________________________________________________________

                      ZACKERY JAMARCIER SUMMAGE

                                   Appellant,

                                        v.

                            THE STATE OF TEXAS

                                   Appellee.
______________________________________________________________________________

                     Appealed from the 71st District Court of
                            Harrison County, Texas
                           Trial Cause No. 14-0058X

______________________________________________________________________________

                             APPELLEE’S BRIEF

______________________________________________________________________________

                                             Timothy J. Cariker
                                             Assistant District Attorney
                                             State Bar No. 24009942
                                             Harrison County District Attorney’s Office
                                             200 West Houston Street
                                             Marshall, Texas 75670
                                             Telephone: 903-935-8408

                                             ATTORNEY FOR APPELLEE
                                             STATE OF TEXAS
                          IDENTITY OF PARTIES AND COUNSEL

      Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.

1.     Presiding Judge:        Honorable Brad Morin
                               71st Judicial District
                               Marshall, Texas 75670

2.     Appellant:      Zackery Jamarcier Summage

3.     Appellant’s Counsel (at trial):         Cheryl Cooper-Sammons
                                               Attorney at Law
                                               P.O. Box 8517
                                               Marshall, TX 75671

4.     Appellant’s Counsel (on appeal)         Troy Hornsby
                                               Miller, James, Miller & Hornsby
                                               1725 Galleria Oaks Drive
                                               Texarkana, TX 75503

5.     State’s Counsel (at trial):             Shaun Connally & Johnathan Hyatt
                                               Harrison County District Attorney
                                               200 West Houston Street
                                               Marshall, Texas 75670


6.     State’s Counsel (on appeal):            Timothy J. Cariker
                                               Assistant District Attorney
                                               Coke Solomon
                                               District Attorney
                                               Harrison County District Attorney
                                               200 West Houston Street
                                               Marshall, Texas 75670




                                                   i
                                                    TABLE OF CONTENTS

Identity of Parties and Counsel ........................................................................................................i

Table of Contents ............................................................................................................................ii

Index of Authorities ........................................................................................................................1

Issues Presented………………………………………………………………………………….…2

Statement of the Case .....................................................................................................................3

Statement of Facts............................................................................................................................4

Summary of Argument....................................................................................................................7

Argument and Authorities

           I).        BASED ON THE SUPPLEMENTAL RECORD FILED BY THE DISTRICT
                      CLERK, ISSUES ONE AND THREE ARE MOOT BECAUSE IT CONTAINS
                      BOTH THE APPELLANT’S AND THE STATES’ JURY LISTS WITH
                      ACCOMPANYING STRIKES ………………………………..……………….8


           II).       THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
                      COMMENCING THE TRIAL AFTER THE APPELLANT HAD
                      VOLUNTARILY    ABSENTED                     THE                    PROCEEDINGS
                      ………………………………...................................................................................9

                      A). Standard of Review ..........................................................................................9

                      B). Argument and Authorities……..........................................................................9

Prayer for Relief.............................................................................................................................13

Certificate of Compliance..............................................................................................................13


Certificate of Service.....................................................................................................................14




                                                                       ii
INDEX OF AUTHORITIES


Texas Court of Criminal Appeals

Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984)……………………. …...………..9


Texas Court of Appeals

Hudson v. State, 128 S.W.3d 367, 375 (Tex. App.—Texarkana 2004, no pet.)…………………9

Nauls v. State, 762 S.W. 2d 336 (Tex. App. – San Antonio 1988) ……………...…………..9, 11

Papakostas v. State, 26 145 S.W.3d 723, 725 n.2 (Tex. App.—Corpus Christi 2004, no pet.)…9

Sanchez v. State, 842 S.W. 2d 732 (Tex. App. – San Antonio 1992) ………………...…….10, 11

Vasquez Mata v. State, 2002 WL 1765582 (Tex. App. – Corpus Christi 2002)…….………10, 12




                                             1
                       ISSUES PRESENTED



I.    BASED ON THE SUPPLEMENTAL RECORD FILED BY THE DISTRICT
      CLERK, ISSUES ONE AND THREE ARE MOOT BECAUSE IT CONTAINS
      BOTH THE APPELLANT’S AND THE STATES’ JURY LISTS WITH
      ACCOMPANYING STRIKES


II.   THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN COMMENCING
      THE TRIAL AFTER THE APPELLANT HAD VOLUNTARILY ABSENTED
      THE PROCEEDINGS




                              2
                                STATEMENT OF THE CASE


The Appellant was charged by indictment with the offense of Assault of a Public Servant alleged to

have occurred on October 15, 2013. (CC-2). Voir Dire commenced on November 3, 2014. (RR2).

Trial on the merits commenced on November 6, 2014. (RR3). At the conclusion of the trial the

Appellant was sentenced to 8 years incarceration. (RR3 – 207).




                                                3
                                    STATEMENT OF FACTS


Since one of the Appellant’s issues involves the court’s decision to start trial while the Appellant was

absent, it is important to look at the Appellant’s actions at both voir dire and trial on the merits.



At voir dire, the court called the case and discovered the Appellant was not present. (RR 2-4). The

state moved for a bond forfeiture. (RR 2-4). The court informed counsel that if the Appellant was

not present by 9:00a.m. that the bond forfeiture would issue. (RR 2-5). Later counsel for the

Appellant informed the court that the Appellant had appeared.



At trial on the merits the following discussion occurred before the jury panel was brought in:



       MRS COOPER-SAMMONS: Your Honor, I haven’t seen my client. I can check my
       phone. I was on the third floor looking at a video that was just recently presented to
       me as the edited tape on this case. My client did text me earlier to say he was on his
       way. I know he’s coming from the Shreveport area, Your Honor.

       THE COURT: I’m ready to proceed. And I have – I mean, this showing up late
       every single time is getting really tiring, Ms. Cooper-Sammons. And I know that he
       was like this the other day, so…..

       MS. COOPER-SAMMONS: I will just go ahead – if you would give me a moment
       just to text him and let him know that we’re starting the trial. If you would allow me
       that courtesy to text him that information.

       THE COURT: I will.

       MS. COOPER-SAMMONS: Thank you.

       THE COURT: His other option is he can be bond forfeited and he can sit in jail until
       we get another jury.


                                                   4
MR. CONNALLY: Well, I’m moving for a bond forfeiture at this time judge.

MS. COOPER-SAMMONS: If I can just have a moment to call him and see where
he is, Your Honor.

THE COURT: You can do that. I’m still going to issue a bond forfeiture. Mr.
Denny, I need you to call for the defendant, Zachery Summage.

THE BAILIFF: Yes, sir.

THE COURT: You can – if you wish to call him Ms. Cooper-Sammons.

(Pause in Proceedings)

MS. COOPER-SAMMONS: I was able to speak to my client. He says he’s ten
minutes away.

THE COURT: You know, his liberty’s at stake, Ms. COOPER-Sammons, and I
instructed him to be here at 8:30. So when Mr. Denny comes back, a bond forfeiture
will issue if he does not appear. I will make sure that he’s give us the rest of the day.
I can do that.

MS. COOPER-SAMMONS: Okay. Your Honor, he did also let me know something
came up with his mother and as an extenuating circumstance, that he had to assist her
in some issue. She’s got a medical condition, and he had to assist her to do
something this morning, and that’s why he is late. That’s all I can tell you, Your
Honor.

MR. CONNALLY: And did not deem it worthy to contact either his lawyer or the
Court to inform anyone of said situation.

THE COURT: Mr. Denny, was there any response for Zachery Summage?

THE BAILIFF: No response, Your Honor.

THE COURT: Bond Forfeiture will be issued. Bring in the jury please.

THE BAILIFF: Yes, sir.

(Jury enters the courtroom)

(Open court, no defendant, jury present).


                                           5
       THE COURT: I need for the jury to please remain standing. If your raise your right
       hands.

       (Jury sworn.)

Once the jury was sworn they heard the following facts:



The State proved that Zachery Summage’s automobile was broken down on the side of the

interstate. (RR3, 24). A tow truck driver, who was attempting to assist Summage, smelled

marijuana and contacted the police. (RR 3, 26-29). A sheriff’s deputy obtained Summage’s

permission to search Summage’s automobile. (RR 3, 56). The deputy located a small

amount of marijuana and $8,000 - $10, 000 in cash. (RR 3, 62). Summage grabbed the cash

from the deputy, struck the deputy in the face with his fist and fled to nearby wood with the

cash. (RR 3, 67).




                                                 6
                                  SUMMARY OF ARGUMENT



Having been convicted of Assault of a Public Servant and sentenced to 8 years incarceration, the

Appellant raises three issues on appeal. Issues one and three deal with jury selection. Issue two

deals with the Appellant’s absence at the start of the trial on the merits.



In Issues one and three Appellant submits error may have occurred because the record did not reflect

whether peremptory strikes had been made and whether the first twelve eligible panelists had been

seated. The supplemental clerk’s record shows that the peremptory strikes were used and the first

twelve eligible jurors were seated. As such these points are moot.



In Issue two, Appellant claims error occurred because the court started trial on the merits without the

Appellant being present. The record reflects that the Appellant through counsel was given a choice

and elected on behalf of the Appellant to proceed on the merits. As such this point should be

overruled.




                                                  7
                                     ISSUE NUMBER ONE


   I.      BASED ON THE SUPPLEMENTAL RECORD FILED BY THE DISTRICT CLERK,
           ISSUES ONE AND THREE ARE MOOT BECAUSE IT CONTAINS BOTH THE
           APPELLANT’S AND THE STATES’ JURY LISTS WITH ACCOMPANYING
           STRIKES


In Issue one the Appellant raises potential error based on the record not reflecting the exercise of

peremptory challenges. On Issue three the Appellant raises potential error over whether the record

reflects the first twelve eligible panelists were seated. The supplemental clerk’s record addresses

Issue one at pages 10 – 11 and Issue three at pages 4 – 6. Based on this these the two issues are

moot, and should be overruled.




                                                 8
                                    ISSUE NUMBER TWO


   I.      THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN COMMENCING THE
           TRIAL AFTER THE APPELLANT HAD VOLUNTARILY ABSENTED THE
           PROCEEDINGS


   A)       Standard of Review

   An appellate court should review the trial court's determination that a defendant is voluntarily

   absent for abuse of discretion. Papakostas v. State, 26 145 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) (en banc)). In most cases, appellate courts must determine from hindsight the validity of

   the trial court's voluntariness determination. Hudson v. State, 128 S.W.3d 367, 375 (Tex.

   App.—Texarkana 2004, no pet.). In this review, courts are not limited only to the record before

   the trial court at the time of its ruling. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App.

   1984). As long as there is "some evidence" supporting the trial court's determination, the

   appellate court should not disturb the ruling absent evidence from the defendant showing that his

   absence was involuntary. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984).



   B)        Argument and Authorities



The Appellant properly raises whether this issue has been preserved for review. The general rule is

that when a trial court proceeds without the presence of the accused then counsel must preserve the

potential error. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984) (oral motion for 24

hour continuance); Nauls v. State, 762 S.W. 2d 336 (Tex. App. – San Antonio 1988) (oral motion

                                                9
for continuance); Sanchez v. State, 842 S.W. 2d 732 (Tex. App. – San Antonio 1992) (oral motion

for continuance); Vasquez Mata v. State, 2002 WL 1765582 (Tex. App. – Corpus Christi 2002)

(Request for continuance). In the Appellant’s case the Appellant claims the following was a request

for a continuance:

               “Your Honor, I haven’t seen my client. I can check my phone. I was on the

       third floor looking at a video that was just recently presented to me as the edited tape

       on this case. My client did text me earlier to say he was on his way. I know he’s

       coming from the Shreveport area, Your Honor.”



A review of this statement never reveals a sentence ending in a question mark which would denote a

request. In fact counsel is not making a request, but instead is making statements providing

information. In fact it is in the next statement to the court where counsel seems to make a request,

and it is not for a continuance which is as follows:

               “I will just go ahead – if you would give me a moment just to text him and let

       him know that we’re starting the trial. If you would allow me that courtesy to text

       him that information.”

Reading the two statements by counsel reveals that no request for a continuance was made

nor was an objection made with regards to proceeding with the trial on the merits. As such

mothing has been preserved for review and this point of error should be overruled.



Assuming the Court disagrees and finds error was preserved, Appellee submits the court did

not abuse its discretion based on the following:

                                                   10
1.     The court presented counsel with an alternative which was rejected;

2.     The Appellant by prior conduct had expressed an ambivalent attitude to proceedings;

3.     Cases where Appellant’s developed a plausible excuse have not been reversed on appeal.



In the Appellant’s case the court stated to counsel the following:

       “His other option is he can be bond forfeited and he can sit in jail until we get another

       jury.”

To this option counsel responded that they would try to contact their client which means counsel had

rejected the option for a mistrial which at that moment was a viable alternative. Based on this

rejection, it cannot be held that the court abused its discretion by proceeding.



Prior to the trial on the merits, the Appellant was not on time for voir dire proceedings. This taken in

to account with the inability to appear timely for the trial on the merits shows that the Appellant was

ambivalent towards the case.       As stated in Sanchez, at some point the accused has some

responsibility when the Court said “The busy trial courts of our state cannot stop the wheels of an

already burdened criminal justice system because the defendant chooses to be absent…..In a day of

modern communication systems an absent defendant has some responsibility…” Sanchez 842 S.W.

2d at 733. In the Appellant’s case, the Appellant did nothing to take a responsible approach, so it

cannot be held the court abused its discretion by proceeding.

In Nauls, the record from the motion for new trial showed that the Appellant’s girlfriend had to be

taken to hospital on the morning of the trial, and an emergency procedure on the morning of the trial,

and that it was what caused the Appellant’s absence. Nauls, 762 S.W. 2d at 388. The Court held it

                                                  11
was not an abuse of discretion, and the Court would not disturb the trial court’s ruling. In Vasquez

Mata, similar facts involving a hospital visit occurred; yet, again it was not an abuse of discretion to

proceed. In the Appellant’s case there is a vague allusion to a family member and a medical

condition, but as discussed above this did not make Appellant’s absence involuntary.




                                                  12
                                    PRAYER FOR RELIEF



Based on the foregoing, the Appellee prays that the Appellant’s conviction and sentence be affirmed.

                                              Respectfully Submitted,

                                              Timothy J. Cariker, Assistant District Attorney
                                              Harrison County District Attorney
                                              200 West Houston Street
                                              Marshall, Texas 75670



                                              By: /S/ Timothy J. Cariker
                                              _______________________________
                                              Timothy J. Cariker
                                              State Bar No. 24009942




                              CERTIFCATE OF COMPLIANCE


I certify that this brief contains 2462 words according to the computer program used to prepare this
document.


                                                     /S/ Timothy J. Cariker
                                              By: _________________________________
                                              Timothy J. Cariker




                                                13
                                   CERTIFICATE OF SERVICE



A true and correct copy of the foregoing document has been delivered to all counsel of record, on

this the 23rd day of July, 2015.



                                                    /S/ Timothy J. Cariker
                                                    ____________________________________
                                                    Timothy J. Cariker




                                               14
