No. 06 -14 -00210- CR

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IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS

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ZACKERY JAMARCIER SUMMAGE

Appellant,

v.

THE STATE OF TEXAS

Appellee.

______________________________________________________________________________

Appealed from the 71 st District Court of

Harrison County, Texas

Trial Cause No. 14 -0058 X

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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 ACCEPTED

06-14-00210-CR

SIXTH COURT OF APPEALS TEXARKANA, TEXAS

4/23/2015 5:19:28 PM

DEBBIE AUTREY

CLERKi IDENTITY OF PARTIES AND COUNSEL

Appellant certifies that the following is a complete list of all parties to the trial court’s judgmen t and the names and addresses of their trial and appellate counsel.

1. Presiding Judge: Honorable Brad Morin

71 st Judicial District
Marshall, Texas 75670

2. Appellant: Zackery Jamarcier Summage

3. Appellant’s Counsel (at trial): Cheryl Cooper

- Sammons Attorney a t 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

Harris on County District Attorney

200 West Houston Street
Marshall, Texas 75670

6. State’s Counsel (o n appeal): Timothy J. Cariker Assistant District Attorney

Coke Solomon District Attorney Harrison County District Attorney

200 West Houston Street
Marshall, Texas 75670ii 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 REC ORD 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 TRIA L 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..........................

......... ..... .. ....................... .......... ..... ... ......... .................. ..... ..141

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.

— T exarkana 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, 122 ISSUES PRESENTED

I. BASED ON THE SUPPLEMENTAL RECORD FILED BY THE DISTRICT CLERK, ISSUES ONE AND THREE ARE MO OT 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 PROCEEDINGS3 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 N ovember 6, 2014. (RR3). At the conclusion of the trial the

Appellant was sentenced to 8 years incarceration. (RR3

– 207).4 STATEMENT OF FACTS

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

abse nt, 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 cour t 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 occu rred 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 di d text me earlier to say he was o n 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 C OURT: 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.5

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 ca n

– 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 he re 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 h is 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 issue d. Bring in the jury please.

THE BAILIFF: Yes, sir.

(Jury enters the courtroom)

(Open court, no defendant, jury present).6

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

hands.

(Jury sworn.)

Once the jury was sw orn 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 deput y in the face with his fist and fled to nearby wood with the

cash. (RR 3, 67).7 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 strik es 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.8 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 I ssue 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.9 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 7 23, 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 th ere 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) A rgument 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. Sta te , 670 S.W.2d 259, 261 (Tex. Crim. App. 1984) (oral motion for 24

hour continuance); Nauls v. Sta t e , 762 S.W. 2d 336 (Tex. App.

– San Antonio 1988) (oral motion10

for continuance); Sanchez v. State , 842 S.W. 2d 732 (Tex. App.

– San Antonio 1992) (oral moti on

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 o n 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 wh ere 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

h im 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:11

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

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

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

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

“His other option is he can be b ond 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 o n 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 tria l 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 crimina l 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 appro ach, 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 mo rning of the trial,

and that it was what caused the Appellant’s absence. Nauls , 762 S.W. 2d at 388. The Court held it12

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

Mata , similar facts involving a ho spital 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.13 PRAYER FOR RELIEF

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

Respectfully Submitted,

Timothy J. Cariker, Assistant District Attorney Harrison County District Attorney

200 W est 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 24 62 words according to the computer pro gram used to prepare this

document.

/S/ Timothy J. Cariker By: _________________________________ Timothy J. Cariker14 CERTIFICATE OF SERVICE

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

this the 23 rd d ay of July , 2015

.

/S/ Timothy J. Cariker

____________________________________ Timothy J. Cariker