Opinion filed December 9, 2010



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 09

- 00 245

- CR

__________ ROGER WOODROW GORE , JR., Appellant

V

.
STATE OF TEXAS , Appellee

On Appeal from the 104 th District Court

Taylor County, Texas Trial Court Cause No. 16688B

O P I N I O N The jury found Roger Woodrow Gore, Jr. guilty of aggravated kidnapping and assessed his punishment at confinement for life and a fine of $10,000. We affirm.
I. Background Facts Immediately before voir dire began , Gore requested permission to leave the courtroom
because he did not want to attend his trial unless absolutely necessary. The trial court granted his request , and the trial commenced in his absence

. K.S. testifi ed that she was a student at McMurry University and that she work ed nights at
Blue Cross Blue Shield. On e night
, she got off work at 11:30 p.m. and drove to her apartment at the Las Brisas apartment complex in Abilene. As she pulled into the parking lot, she saw two2

men walking around. Not overly concerned, she parked her car in her usual spot. As she was walking away, she felt as though someone was nearby. She turned and saw one of the two men pointing a gun at her face.
K.S. screamed. The two men t old he r to stop screaming or they would shoot. They demanded that she hand over her car keys. She did so
, and the gun man told her to get in the
backseat. He got in the backseat with her and put his shirt over her he ad so that she could not

see. As the other man drove, the gun man told her to take her pants off. He attempted to have vaginal sex with her but was unsuccessful. He then held a gun to her head and fo rced her to give
him oral sex. They drove for a long time. Eventually, they turned off the m ain road and onto a dirt
road. When they stopped, the gun man pulled K.S. out of the car. He took the blindfold off and

warn ed her not to turn around or he would shoot. He then ordered her to walk away

. The two
men drove off. It was still dark
, and K.S. had no idea where she was. She walked back to the main road, which she discovered was Interstate 10, and hitched a ride with a truck driver to a gas station near Sonora. There, she asked the clerk to call the police. Gore was brought into court. K .S. identified him as the man who threatened her with a gun and who sexually assaulted her.
II. Issues In his first two issues on appeal
, Gore argues that the trial court denied him the right to be present at his trial as guaranteed by both the Sixth Ame ndment 1 and T EX

. C ODE C RIM

. P ROC

. A NN

. art. 33.03 (Vernon 2006). In his third issue, Gore arg ues that the trial court erred by submitting a jury charge that expanded or enlarge d upon his indictment.

III. Did the Trial Court err by Granting Gore’s Request to not Attend Trial ?
The Sixth Amendment’s right of confrontation re quires a defendant threatened with the loss of liberty to be physically present at all phases of the criminal proceedings against him absent a waiver of that right through the defendant’s own conduct. Illinois v. Allen , 397 U.S. 337, 338, 343

- 44 (1970) . For example, a defendant m ay waive the right to be present through his disruptive conduct during pro ceedings. Id. at 346. A defendant also waives this right if he voluntarily absents himself from proceedings after trial has commenced in his presence

. Taylor v . U.S. , 414 U.S. 17, 18 (1973).

1 U.S. C ONST

. amend. VI.3

A rticle 33.03 re quires a defendant in a felony prosecution to be personally present at trial. A defendant’s right to be present is unwaivable until after the jury has been selected. Miller v. State , 692 S.W.2d 88, 91 (Tex. Crim. App. 1985)

. After jury selection, the trial court can
continue a trial to conclusi on if the defendant voluntarily absents himself. Article 33.03. Immediately before voir dire beg a n, Gore requested the trial court to excuse him from being present at trial. Gore’s trial counsel reported that he had advised his client about the importance of a defendant’s presence but that Gore preferred to stay in jail rather than attend. Gore stated that he had been through the process before and did not see how his presence would help. The trial court reiterated to Gore the importance of be ing present at trial and informed him
that it would be in hi s best interest to attend. Gore repeated his request to return to jail

. Gore’s trial counsel expressed his fear that forcing Gore to attend trial might lead his client to act out and disrupt the proceedings. Throughout this discussion, the State pointed out that A rticle 33.03 prohibited the trial cou rt from granting Gore’s request

. Gore’s trial counsel countered that a
defendant could waive th is requirement

. T he trial court granted Gore’s request , and the trial
continued in his absence

. Even assuming that the trial court erred by selecting a jury in Gore’s absence , a defendant may not invite error, whether statutory or constitutional, and then submit that error as a basis for appellate rel ief. See Garcia v. State , 919 S.W.2d 370, 393

- 94 (Tex. Crim. App. 1996); see also Prystash v. State , 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (distinguishing the doctrines of invited error and waiver). Garcia was a death penalty case. The trial court no tified defense counsel that it was qualifying ten prospective jurors

. Counsel advised the trial court that he could not be present
, and both Garcia and his counsel stated on the record that they had no objection to the proceedings occurring without their presence. Garcia , 919 S.W.2d at 393. But

on appeal, Garcia maintained that the trial court deprived him of his right to be present under
A rticle 33.03

. Id . The Court of Criminal Appeals found that Garcia was not denied this right

– he waived it

. Id . a t 394. Furthermore , because Garcia created the error, he could not raise it as a
basis for reversal

. Id . at 393. Gore created any error that the trial court may have committed b y granting his request to
conduct the trial in his absence

. H e may not now use this error to secure a reversal . Gore’s first
and second i ssues are overruled.4

IV. Did the T

rial Court E rr by S ubmitting a J ury C harge that Varied from the I ndictment? In his third issue, Gore argues that the trial court erred by submitting a jury charge that expanded upon his indictment. During the jury charge conference, the trial court noticed that the
number used for the complainant’s pseudonym varied throughout the indictment. For instance, the second paragraph read:

AND T HE GRAND JURORS AFORESAID, upon their oath aforesaid, in the said County and S t ate, at said term, do further present in and to said Court that on or about the 2 nd day of August, 2007 and anterior to the presentment of this indictment, in the County and Sta te aforesaid, ROGER WOODROW GORE, JR. did then and there abduct another person, namely 07

- 14965, with intent to violate and abuse sexually the said 07

- 14695

. And further, the said abduction was accomplished by restraining the said 07

- 14965 with intent t o prevent her liberation by using and threatening to use deadly force, and the restraint of the said 07

- 14965 restricted her movements without consent so as to interfere substantially with her liberty by moving her from one place to another and by confin in g her, and the said restraint was accomplished by the use of force and intimidation against the said 07

- 14965 (emphasis added)

. The State confirmed that the complainant’s pseudonym was 07

- 14965. The trial court found that
the variation in the indictmen t was a typographical error and , over Gore’s objection, changed the jury charge to use the same pseudonym throughout. Gore does not appear to argue that the evidence was insufficient to prove the offen se alleged in the indictment. Rather, Gore contends that th e jury charge impermissibly permitted his conviction for an offense other than that alleged . Kidnapping is committed when a person “intentionally or knowingly abducts another person.” T EX

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. § 20.03 (Vernon 2003). Aggravated kidnap ping is committed when a person “intentionally and knowingly abducts another person with the intent to

. . . violate or abuse him sexually.” Id . § 20.04(a)(4).
Gore argues that the indictment alleged that he kidnapped 07

- 14965 with the intent to sexually
abuse another person, 07

- 14695. Thus, the indictment only alleged the kidnapping of 07

- 14965

. By causing the pseudonym to read the same throughout the jury charge, he claims the trial court enlarged upon the a llegations in the indictment.
A defendant ma y be tried only on the offense s alleged in the indictment. Abdnor v. State
, 871 S.W.2d 726, 728 (Tex. Crim. App. 1994). An indictment must provide sufficient notice of
the offenses alleged to allow the defendant to prepare a defense. Curry v. State , 30 S.W.3d 394, 398 (Tex. Crim. App. 2000). A jury charge may not authorize the convict ion of the defendant on5

a theory permitted by the jury charge b ut not alleged in the indictment. Reed v. State , 117 S.W.3d 260, 265 (Tex. Crim. App. 2003).
When re viewing jury charge error, we initially determine whether error exists. Ngo v.
State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If so , we then determine whether the error
caused harm. Middleton v. State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Wh e n the defendant properly object s to the charge, an error causing some harm requires reversal. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The harm , however, must be actual and not merely theoretical. Arline v. State , 721 S.W.2d 348
, 351 (Tex. Crim. App. 1986).
We need not determine if the trial court erred because Gore cannot show that he was
harmed

. T here is no indication that the indictment was insufficient to put Gore on notice that he was charged with the aggravated kidnapping of 07

- 14965 . The charge in the indictment read “Aggravated Kidnapping.” The language in each paragraph of the indictment tracked the
elements of that offense. While the complainant’s pseudonym varied
, each paragraph began with the correct pseudonym, “0 7

- 14965.” S ubsequent pseudonym s in each paragraph w ere preceded by the adjective “said,” as in, “the said 07

- 14695.” This indicates that the pseudonyms in each paragraph referred to the same individual

. Thus, the variation in the number used for a pseud onym was a typographical error. The trial court’s decision to correct that variance is not
reversible error. See McNeal v. State , 600 S.W.2d 807, 808 (Tex. Crim. App. 1980) (a typographical error in the indictment in the spelling of the victim’s name doe s not constitute reversible error)

. Moreover , there is no indication of surprise. K. S

. testified that she was 07

- 14965 and that Gore kidnapped and sexually assaulted her. No o t her victim was ever mentioned. Gor e’s
second issue is overruled.
V. Concl usion The judgment of the trial court is affirmed.

RICK STRANGE December 9, 2010 JUSTICE
Publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.