IN THE

TENTH COURT OF APPEALS

No. 10-19-00354-CR

JUSTIN SHANE KING,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Freestone County, Texas

Trial Court No. 19-036-CR

OPINION

In one issue, appellant, Justin King, challenges his conviction for evading arrest or 

detention with a motor vehicle.1 See TEX. PENAL CODE ANN. § 38.04. Specifically, King 

1 The State states in its brief that King has asserted two issues—the one noted above and an 

ineffective-assistance-of-counsel claim. A review of King’s brief does not support this position, as King has 

not clearly identified a second issue involving ineffective assistance of counsel. We therefore analyze the 

sole issue King has briefed on appeal—whether the trial court erred by conducting a pre-trial proceeding 

in his absence. 
King v. State Page 2

contends that the trial court erred by conducting a pre-trial proceeding in his absence. 

We affirm.

I. BACKGROUND

In the instant case, King was charged by indictment with evading arrest or 

detention with a motor vehicle. See id. The indictment also included an enhancement 

paragraph referencing King’s prior conviction for aggravated robbery.

On the morning of trial, the trial court qualified the venire panel. After doing so, 

the trial court directed defense counsel to present the defense motion in limine pertaining 

to punishment evidence.2 King was not present in the courtroom for the hearing.3 The 

attorneys briefly discussed the motion with the trial court. The State did not oppose the 

motion in limine. The trial court then granted the motion.

While King remained outside of the courtroom, a discussion was had between 

defense counsel and the trial court wherein defense counsel questioned whether King 

would stipulate to each paragraph in the indictment, whether King would “want to agree 

to anything,” and whether King might possibly be disruptive in the courtroom. Defense 

counsel also mentioned that King “believes he can fire me and get another attorney and 

2 King’s motion in limine only applied to the punishment phase of trial and requested that the State 

and its witnesses refrain from making any direct or indirect reference before the jury to matters not within 

their personal knowledge. The motion also requested a pre-trial determination of the relevancy and 

reliability of any expert testimony.

3 It is not clear from this record as to the reason why King was not present for the hearing on his 

motion in limine.
King v. State Page 3

delay this trial.” The trial court advised that the proceedings would not be delayed any 

further.

The trial court and the attorneys then discussed how to handle voir dire, assuming 

that King would plead “guilty” to the charge. At the conclusion of this discussion, King 

was brought into the courtroom.4

The trial court discussed with King whether he intended to plead “guilty” or “not 

guilty,” because defense counsel had indicated earlier in the morning that King intended 

to plead “not guilty” and insist on a jury trial. Allegedly without an opportunity to 

consult with counsel, King informed the trial court that he intended to plead “guilty” to 

the charged offense and that he desired to have a punishment hearing before the jury. 

Before the venire panel returned to the courtroom, the trial court again asked whether it 

was King’s intention to plead “guilty.” King confirmed that he intended to plead 

“guilty.”

It was not until the next morning that King formally entered his plea of “guilty” 

to the charged offense and “true” to the enhancement allegation contained in the 

indictment. The jury ultimately found King guilty and assessed punishment at twenty 

years’ confinement in the Institutional Division of the Texas Department of Criminal 

4 The entirety of the discussions during the hearing comprise four pages of the Reporter’s Record.
King v. State Page 4

Justice with a $10,000 fine. The trial court certified King’s right of appeal, and this appeal 

followed.

II. ANALYSIS

Article 28.01, section 1 of the Code of Criminal Procedure provides that a 

defendant must be present during “any pretrial proceeding.” TEX. CODE CRIM. PROC.

ANN. art. 28.01 § 1. It is undisputed that the hearing in question constituted a pre-trial 

proceeding within the meaning on article 28.01. See id. (“The defendant must be present 

at the arraignment, and his presence is required during any pre-trial proceeding. The 

pre-trial hearing shall be to determine any of the following matters . . . (2) Pleadings of 

the defendant . . . .”); see also Sanchez v. State, 122 S.W.3d 347, 351-52 (Tex. App.—

Texarkana 2003, pet. ref’d) (noting that a pre-trial hearing is a proceeding under article 

28.01 of the Code of Criminal Procedure if it is adversarial in nature, recorded or resulted 

in a written order, included evidence or argument, and resulted in a conclusion by the 

court (citing Adanandus v. State, 866 S.W.2d 210, 218 (Tex. Crim. App. 1993))). Because 

King had a statutory right to be present at the pre-trial proceeding, it was error for the 

trial court to conduct the hearing without him. See TEX. CODE CRIM. PROC. ANN. art. 28.01 

§ 1. 

In addition to his statutory right to be present at any pre-trial proceeding, King 

has a constitutional right, under the Sixth Amendment, to be present at all phases of 

proceedings against him when threatened with a loss of liberty. See Fulmer v. State, 401 
King v. State Page 5

S.W.3d 305, 314 (Tex. App.—San Antonio 2013, pet. ref’d) (citing Baltierra v. State, 586 

S.W.2d 553, 556 (Tex. Crim. App. 1979)). This right guarantees the right to consult with 

counsel and to give advice or suggestions to counsel. See Snyder v. Massachusetts, 291 U.S. 

87, 106, 54 S. Ct. 330, 335, 78 L. Ed. 674 (1934); see also Baltierra, 586 S.W.2d at 556. Again, 

it was error under the Sixth Amendment for the trial court to conduct the hearing without 

King. Therefore, we must now determine whether this error resulted in harm.

When reviewing non-constitutional error, we disregard errors, defects, 

irregularities, or variances that do not affect the substantial rights of the accused. TEX. R.

APP. P. 44.2(b). A substantial right is affected when the error had a substantial and 

injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 

266, 271 (Tex. Crim. App. 1997). If, on the record as a whole, it appears the error did not 

influence the jury, or had but a slight effect, the court must conclude the error was not 

harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. 

Crim. App. 1998).

In addition to the foregoing harm analysis, the Court of Criminal Appeals has also 

adopted the “reasonably substantial relationship” test to use when conducting a harm 

analysis for an article 28.01 violation. Adanandus, 866 S.W.2d at 219. The “reasonably 

substantial relationship” test focuses on the effect of the error on the advancement of the 

defendant’s defense. Id. In applying this test, we must determine whether the 
King v. State Page 6

defendant’s presence bears a reasonably substantial relationship to the opportunity to 

defend. Id.

This test is also used to determine if a defendant’s right to be present under the 

Sixth Amendment to the United States Constitution has been violated. Routier v. State, 

112 S.W.3d 554, 576 (Tex. Crim. App. 2003). If a constitutional violation has occurred, the 

case must be reversed unless the court determine beyond a reasonable doubt that the 

error did not contribute to the conviction or punishment. See TEX. R. APP. P. 44.2(a).

The federal courts have stated:

A defendant’s constitutional right to be present during certain stages of 

criminal proceedings is rooted in the Confrontation Clause of the Sixth 

Amendment and in the Due Process Clause. United States v. Gagnon, 470 

U.S. 522, 526, 84 L. Ed. 2d 486, 105 S. Ct. 1482 (1985) (per curiam). The Due 

Process Clause applies in lieu of the Sixth Amendment in situations where 

the defendant is not specifically confronting witnesses or evidence against 

him. Id. It requires a criminal defendant’s presence “to the extent that a fair 

and just hearing would be thwarted by his absence, and to that extent only.” 

Snyder v. Massachusetts, 291 U.S. 97, 108, 78 L. Ed. 674, 54 S. Ct. 330 (1934) 

(Cardozo, J.); United States v. Rosario, 111 F.3d 293, 298 (2d Cir. 1997).

United States v. Jones, 381 F.3d 112, 121-22 (2d Cir. 2004).

The Court of Criminal Appeals has also noted that a defendant’s absence at a pretrial proceeding does not bear a reasonably substantial relationship to the opportunity to 

defend where defendant’s insight is not needed for the trial court to rule on the issues 

presented and where the defendant does not have any information, not available to the 

attorneys or the court, regarding any of the matters discussed at the proceeding. 

Adanandus, 866 S.W.2d at 220.
King v. State Page 7

Similar to Adanandus, we cannot “envision how [the defendant’s] presence [at the 

hearing on the motion in limine] could have furthered his defense,” because there is “no 

evidence that appellant had any information, not available to the attorneys or the court, 

regarding any of the matters discussed at the meeting.” Id. Indeed, King was represented 

during the hearing on the motion in limine, and defense counsel informed the trial court 

that King agreed to everything in the motion in limine. Further, the motion was granted 

without any objection from the State. Because King’s presence could not have furthered 

his defense, his presence did not bear a reasonably substantial relationship to his 

opportunity to defend. See id.; see also Lawton v. State, 913 S.W.2d 542, 550 n.4 (Tex. Crim. 

App. 1995); Sanchez, 122 S.W.3d at 352-53. Therefore, although King’s absence violated 

article 28.10 of the Code of Criminal Procedure and the Fourteenth Amendment to the 

United States Constitution, we conclude that the error did not have any more than a slight 

effect. See TEX. CODE CRIM. PROC. ANN. art. 28.10; see also TEX. R. APP. P. 44.2(b); Johnson, 

967 S.W.2d at 417. 

Because King’s absence was also constitutional error, we must also conduct a 

constitutional-error harm analysis. We hold the error was harmless because we conclude, 

beyond a reasonable doubt, that it did not affect the outcome of the trial. Although there 

was discussion of whether King would plead guilty on the same day as the hearing on 

his motion in limine, it was not until the next day that King formally entered his plea. He 

had sufficient time to discuss the potential ramifications of such a plea with his attorney. 
King v. State Page 8

The record further demonstrates that King voluntarily, knowingly, and intelligently 

pleaded “guilty” to the charged offense, was given the opportunity to confirm his plea, 

and it appears that he was properly sentenced based on the evidence presented and the 

applicable sentencing range. See Adanandus, 866 S.W.2d at 219-220; Lawton, 913 S.W.2d 

at 550 n.4; see also TEX. R. APP. P. 44.2(a); Routier, 112 S.W.3d at 576. Accordingly, we 

overrule King’s sole issue on appeal.

III. CONCLUSION

We affirm the judgment of the trial court.

JOHN E. NEILL

Justice

Before Chief Justice Gray

Justice Davis, and

Justice Neill

(Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed September 23, 2020

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