




 



NUMBER 13-02-428-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG




LOUIS PAPAKOSTAS,                                                                 Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.




On appeal from the 28th District Court of Nueces County, Texas.




O P I N I O N

Before Justices Hinojosa, Castillo, and Baird

                                                                                                                      Opinion by Justice Baird
          Appellant was charged by indictment with the offense of burglary of a habitation. 
A jury convicted appellant of the charged offense, and the trial judge assessed punishment
at eight years confinement in the Texas Department of Criminal Justice–Institutional
Division and a fine of $2,500.  We affirm.
I.  Factual Summary.
          Prior to trial, appellant elected to have the trial judge assess punishment in the event
he was convicted.  That conviction occurred on September 11, 1987, and the jury was
excused.  On October 9, 1987, the scheduled date for the punishment hearing, appellant
failed to appear.  The trial judge proceeded with the punishment phase of appellant’s trial.
At the conclusion of that hearing, the trial judge assessed appellant’s punishment, and
stated:  “”Now, I understand that sentence cannot be imposed in absentia, so we cannot
have formal imposition of sentence, at this time.”  Fifteen years later, on May 30, 2002,
appellant was formally sentenced.
II.  Assessment of Punishment, In Absentia, by Trial Judge.
          Appellant’s first point of error contends the trial judge erred in assessing punishment
in appellant’s absence.  At first blush, this case seems to be controlled by Gonzales v.
State, 515 S.W.2d 920 (Tex. Crim. App. 1974), wherein the Court considered a similar
factual situation.  See id. at 920.  In that case, after the defendant voluntary absented
himself:  “The court proceeded with the trial.  The jury found appellant guilty.  A punishment
hearing was held, and the court assessed punishment.”  Id.  (emphasis added).  The plain
language of this opinion supports the trial judge’s actions in the instant case – he
proceeded to assess punishment after the jury found appellant guilty.
          Appellant contends Gonzales is not controlling because the governing statute, article
33.03 of the Texas Code of Criminal Procedure was amended after Gonzales was decided. 
Article 33.03 provides:
In all prosecutions for felonies, the defendant must be personally present at
the trial, and he must likewise be present in all cases of misdemeanor when
the punishment or any part thereof is imprisonment in jail; provided, however,
that in all cases, when the defendant voluntarily absents himself after
pleading to the indictment or information, or after the jury has been selected
when trial is before a jury, the trial may proceed to its conclusion.  When the
record in the appellate court shows that the defendant was present at the
commencement, or any portion of the trial, it shall be presumed in the
absence of all evidence in the record to the contrary that he was present
during the whole trial.  Provided, however, that the presence of the defendant
shall not be required at the hearing on the motion for new trial in any
misdemeanor case.

Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989) (emphasis added).


 

          Appellant argues the italicized phrase in this article permits the trial judge to
continue with the trial in absentia only when the trial is before a jury.  Based on this
premise, appellant asserts the trial judge lacked authority to proceed with the punishment
hearing in appellant’s case because the issue of punishment was to be determined by the
judge, not the jury.
          We decline to adopt appellant’s premise.  Instead, we read this phrase as modifying
the preceeding phrase, which deals with bench trials.  Under this reading, in a bench trial,
“the trial may proceed to its conclusion” if the defendant voluntarily absents himself “after
pleading to the indictment or information.”  However, in a jury trial, “the trial may proceed
to its conclusion” only if “the defendant voluntarily absents himself after the jury has been
selected.”  This reading is consistent with Miller v. State, 692 S.W.2d 88 (Tex. Crim. App.
1985), which discussed the history of article 33.03 and explained that the article was
revised to “incorporate existing case law into the statute.”  Id. at 92.  Accordingly, the
revision incorporated the holding of Gonzales.  Consequently, Gonzales is controlling.



          Further, we note that appellant’s interpretation would potentially permit him to
benefit from his misconduct.  If the trial judge was not permitted to proceed to the
assessment of punishment, the State could possibly lose relevant evidence in the interim
between the defendant’s voluntary absence and his return to court.  Also, the judge
responsible for assessing punishment may not be available.  For example, in the instant
case the trial judge had retired in the intervening fifteen years since appellant voluntarily
absented himself. 
          Accordingly, we hold article 33.03 authorizes a defendant’s punishment to be
assessed in absentia regardless of whether the punishment is to be assessed by the trial
judge or the jury.


  Accordingly, appellant’s first point of error is overruled.
III.  Voluntary Absence and Due Process.
          The second point of error contends the trial judge denied appellant due process of
law by assessing punishment in absentia.  “[N]otice and hearing . . . together with a legally
competent tribunal having jurisdiction of the case, constitute basic elements of the
constitutional requirement of due process of law.  Powell v. Alabama, 287 U.S. 45, 68
(1932).  
          The State contends this point of error is not preserved because appellant did not
raise this argument either on October 9, 1987, or on May 30, 2002.  As a general rule, to
preserve a complaint for appellate review, a party must present to the trial court a timely
request, objection or motion, stating the specific grounds for the requested ruling if the
specific grounds are not apparent from the context and obtain a ruling.  Tex. R. App. P.
33.1(a).  Some errors of a constitutional magnitude, such as alleged denials of due
process, are waived absent a timely objection in the trial court.  Rogers v. State, 640
S.W.2d 248, 263-65 (Tex. Crim. App. 1981) (op. on reh'g); Ramirez v. State, 89 S.W.3d
222, 231 (Tex. App.–Corpus Christi 2002, no pet.).
          In the instant case, on October 7, 1987, when the trial judge denied appellant’s
motion for continuance and made clear his intent to assess punishment in absentia,
defense counsel complained that appellant had no notice of the hearing.  Because notice
is an essential component of due process, we hold defense’s counsel’s remarks were
sufficient to make the trial judge aware of appellant’s complaint and preserve the due
process claim for our review.



          We now turn to the merits of appellant’s due process claim.  The due process
requirement of notice includes "full and complete notification" of the charges alleged with
a reasonable opportunity to meet the charges by defense or explanation.  Ex parte Gordon,
584 S.W.2d 686, 688 (Tex. 1979); Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969). 
The right to presence is rooted to a large extent in the Confrontation Clause of the Sixth
Amendment, but the United States Supreme Court has recognized that this right is also
protected by the Due Process Clause.  United States v. Gagnon, 470 U.S. 522, 526
(1985).  The defendant’s absence from a trial proceeding should be considered in light of
the whole record.  Snyder v. Massachusetts, 291 U.S. 97, 115 (1934).  We, therefore, will
consider appellant’s due process argument in light of the record before us.
          At the conclusion of the guilt phase of appellant’s trial, the State asked the trial
judge to order that appellant be taken into custody or, in the alternative, that the amount
of his bond be increased.  The trial judge refused these requests and engaged in the
following exchange with appellant:
THE COURT: Well, we’ll find out what kind of a man you are, [appellant]. 
You have heard the request from the State.  You know what they think you
are apt to do.
 
APPELLANT: Yes, sir.
 
THE COURT: I’ll give you a chance to prove that you are man enough to stay
and take the punishment that’s going to be given to you, whatever it might
be. . . I will permit you to remain at large on your present bond, in view of the
fact that you have appeared each time up to this point.  But I’m the person
to set punishment, and I’m sure that you’re intelligent enough to know that
there’s nothing that would make a worse impression on the person that’s
going to set punishment than for you to not be here or make any effort to - -

APPELLANT:   I know, sir.
 
THE COURT:  - - to escape.  You understand that?
 
APPELLANT: Yes.

Subsequently, appellant, his father, and defense counsel met to discuss the possibility of
an appeal.  Thereafter, defense counsel was notified of the date of the punishment
hearing.  Both defense counsel and appellant’s father made numerous attempts to notify
appellant of the date.  However, appellant was never notified.
          As we view this record, the question is not whether appellant was notified of the
punishment hearing.  The record is clear that appellant did not receive notice.  Rather, the
question is why appellant did not receive notice.  The answer is clear – appellant was not
notified of the hearing by either his father, with whom he had been living, or his attorney
because appellant had fled, choosing to make himself unavailable to receive notice.  In
other words, appellant did not receive notice as a result of his conduct, which made notice
impossible.
          Appellant’s conduct precludes us from finding a denial of due process.  A defendant
who does not receive notice of a hearing because of his own misconduct will not be heard
to complain of a lack of notice on appeal.  Taylor v. United States, 414 U.S. 17, 18 (1973);
Sanchez v. State, 842 S.W.2d 732, 733 (Tex. App.–San Antonio 1992, no pet.). 
Accordingly, the second point of error is  overruled.
          The judgment of the trial court is affirmed.
                                                                                                            CHARLES BAIRD,
                                                                        Justice

Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this the 26th day of August, 2004.
