1 CAUSE 13

- 15

- 00442

- CR
IN THE TH IR TEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT

CORPUS CHRISTI

RANDY EUGENE SMITH, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

APPELLANT’S BRIEF

Trial Cause 2013

- 08

- 7364

Calhoun County District Court

Submitted by

W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575

- 1774 voice & fax TBN 00788659

ORAL ARGUMENT NOT REQUESTED ACCEPTED 13-15-00442-CR THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 11/30/2015 3:52:30 PM Dorian E. Ramirez

CLERK2 IDENTITY OF PARTIES AND COUNSEL Appellant was repre sented at trial by Mr. James Beeler, Attorney at L aw, POB 1841, Port Lavaca, TX 77979

. Appellant is represented on appeal by Mr. W. A. (Bill) White, Attorney at Law, P OB 7422, Victoria, TX 77903

. During trial , app ellant resided in Calhoun County . Appellant is now incarcerated in IDTDCJ.
The State was repre sented at trial by Mr. Shannon Salyer, ADA, and Ms. Sara Rodriguez, ADA, both of the Calhoun County District Attorney’s Office, 211 S. Ann St., 3 rd Floor, Port Lavaca, TX 77979. The State’s reply brief will be prepared by Mr. Salyer

.3 TABLE OF CONTENTS Page
Index of Authorities 4 Appellant’s Brief 5
Statement of the Case and Statement of Facts 5

Issue s Presented 1) THE COURT ERRED BY FAILING TO MAKE A FINDING THAT APPELLANT VOLUNTARILY ABSENTED HIMSELF 8 2) DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO APPELLANT’S TRIAL IN ABSENTIA 8 Summary of Argument 8
Issue 1 Argument 9 Issue 2 Argument 12
Prayer 13
Certificate of Service 14
Certificate of Compliance 144 INDEX OF AUTHORITIES

Cases Page Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App.1996) 10 Strickland v. Washington, 466 U.S. 668 (1984) 12

Statutes Tex.Code Crim.Proc.Ann., art. 33.03 (Vernon 2014) 9

- 10

Constitutional Provisions
U.S. Const., amend. VI 105 CAUSE 13

- 15

- 00442

- CR Trial Cause 2013

- 08

- 7364

RANDY EUGENE SMITH , Appellant IN THE THIRTEENTH

VS. COURT OF APPEALS AT

THE STATE OF TEXAS CORPUS CHRISTI, TEXAS

APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW A PPELLANT, RANDY EUGENE SMITH , through counsel, W. A. (BILL) WHITE, Attorn ey at Law, show ing :

STATEMENT OF THE CASE AND STATEMENT OF FACTS Appe llant was indicted in August 2013 for a forgery alleged ly committed on 11/03/11. The indictment also alleged two prior felon y convictions, making t he state jail felony into a second degree felo ny, with a n
enhanced punishment range of 2 to 20 years in prison and up to a $10,000 fine. Jury selec tion began on 3/09/15, with appellant entering his plea of “ not guilty ” before his impaneled jury on the same date , and opening statements taking6

place on the same date. (RR Vol. 2, pp. 44

- 51). The
court then rece ssed for the evening with guilt/
innocence testimony to begin the next morning

. The next morning , 3/10/15, when court b egan,
app ellant was not present

. N o one (prosecutor, defense attorney, or the trial judge) made any mention of this
fact on the record that morning . (RR Vol. 3, p. 6,

extreme top: “defendant not present”)

No finding was made on the record by the judge that
defendant voluntarily absented himself from trial. No objection was lodged by defense counsel or the State’s prosecutor that trial was proceeding without appellant being pre sent. No motion was made by either side that the trial judge , court staff, or law enforcement inquire of local hospitals, jails, or mor gues to learn if appellant ’s absence might have been involuntar y. The trial judge made no such inquiry sua sponte,

ac cor ding to the record. Trial rolled on as if all was
normal. Obviously, any live , in

- court ide ntification of appellant at trial was impossible because he was not7

in the courtroom after he entered his “ not guilty ” plea on 3/09/15. The trial judge mentione d for the first time on the
record on 3/10/15 that appellant was not present in

court after both sides had rested and closed in the guilt/innocence phase . (RR Vol. 3, p. 4 0, lines 8

- 12) During closing argument on guilt/innocence, the prosecutor made mention of appellant’s absence to the jury, remarking twice that appellant had “voluntarily
absented himself” from trial , without a judicial finding supporting same . (RR Vol. 3, pp. 44

- 45 ) . T he jury convicted appellant as charged on 3/10/15 . (RR Vol. 3, p. 50, lines 1

- 3) . The trial judge then commented to the jury that it is “really unusual” not to have the defendant present at trial. (RR Vol. 3, p.
5 0 , lines 10

- 11 ) The jury then went on to a ssess appellant’s punishment at 20 years in prison and a $10,000 fine. (RR Vol. 4, p. 80

- 81). The jury found the two prio r8

felony convictions in the indictmen t’s enhancement paragraphs to be true.

A ppellant was sentenced nearly six mont hs later on 8/27/15 when located. (RR Vol. 5, pp.4

- 5 ). When the trial judge asked i f there was a ny legal reason why sentence should not be imposed, defense counsel answered in the negative. (RR Vol. 5, p. 5, lines 6

- 9). Again, no objection to appellant having been tried in
absentia was made, nor to the fact that there was never

a n actual, formal, judicial finding that appellant had voluntarily absented himself.

ISSUE S PRESENTED 1) THE COURT ERRED BY FAILING TO MAKE A FINDING THAT APPELLANT VOLUNTA RILY ABSENTED HIMSELF 2) DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO APPELLANT’S TRIAL IN ABSENTIA

SUMMARY OF ARGUMENT The trial court simply assumed, when appellant did

not return to his trial on the second morning of s ame,
that his absence was deliberate, and that he9

voluntarily absented himself from trial. The judge made no inquiries about whether something unforeseen and beyond appellant’s control may have happened to him overnight (auto mobile accident, health issue, unrelated arrest, etc.) during the trial’s recess . The court simply proceeded with trial without first making a finding that appellant had volunta rily absented himself
from his trial. The court thus deprived appellant of his right to confront his accuse rs during tr ial, as guaranteed in the U.S. Constitution’s Sixth A mendment. Appellant’s trial counsel, in failing to object to trial without his client present, was ineffective.

Issue 1

THE COURT ERRED BY FAILING TO MAKE A FINDING THAT APPELLANT VOLUNTARILY ABSENTED HIMSELF

ARGUMENT
Article 33.03 of the Texas Code of Criminal

Pr o cedure states, in part, “In all prosecutions for felonies, the defendant must be personally present at trial ... provided, however, that in all cases, when the10

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.” Tex.Code Crim.Proc.
Ann., art. 33.03 (Vernon 2014). In all cr iminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ... U.S.

Const. , amend. VI. However, like nearly all rights, including most constitutional rights, Texas courts have
held that th is right granted in article 33.03 , even if denied, is subject to harmless error analysis. See
Garcia v. State, 919 S.W.2d 370, 393

- 394 (Tex.Crim.App. 1996). Thus, the right may be violated as long as it
does not make a difference in the trial’s outcome.
The reco rd is silent as to whether the trial judge made any inquiry as to why a ppellant did not return for trial on the morning of its second day. He did not
order local law enforcement to check the roster s of local hospitals , jails, or morgues to see if appellan t had perhaps been injured, arrested, or killed11

overnight. He resumed trial without making a finding first that appellant had voluntarily absented himself from the proceedings. He in effect presumed the absence to be voluntary, wit hout any inquiry or eve n cursory investigation reflected in the reporter’s record. By doing so, the trial judge violated appellant’s right to confront his accusers at his trial
under the Sixth Amendment to the U.S. Constitution.
By way of harm analysis, appellant could have gui ded his trial counsel to sharpen his que stions of
State’s witnesses if he had been present at trial to hear their testimony against him. Defendants in criminal cases frequently tell their counsel things at trial such as, “This witness is lying” or “ That’s not
what I told him!” However, because appellant was not present, and
because trial proceeded anyway, he was unable to do this, although there was no finding that he was absent voluntarily. In fact, no reason appears anywhere in12

the record as to why appellant did not return to his trial at the beginning of its second day on 3/10/15.

ISSUE 2

DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT

TO APPELLANT’S TRIAL IN ABSENTIA

ARGUMENT An appellant’s claim that his trial counsel’s
assistance was so defective as to require reversal of his conviction requires that he show 1) that his counsel’s performance was deficient and 2) that this deficient performance prejudiced his defense so as to deprive him of a fair trial. See Strickland v. Washington, 4 66 U.S. 668, 687 (1984). The appellant must show that his counsel’s representation fell below an objective standard of reasonableness. Id. With regard to the required showing of prejudice, the proper standard requires the appellant to show that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different

. Id. at 691.13

In the case at bar, defense counsel at trial did not object to his client’s trial proceeding without him, although the trial judge failed to make a finding that appellant had voluntarily absented himself. He further did not object to remarks by the prosec utor and judge during trial that appellant was indeed absent from trial voluntarily, adding additional evidence of “guilt” to the State’s case

- in

- chief on guilt/innocence and at punishment, rather than requiring the State to present its evidence against ap pellant without the de
facto “bonus” of alluding that he had run away rather
than face his music. While the jury would have undeniably noticed appellant’s absence on day two of trial, it was improper for the State and the judge to refer to it as
evidence of guilt.

PRAYER Ap pellant prays that conviction be revers ed

. Respectfully submitted,14 /s/ W. A. White W. A. (BILL) WHITE ATTORNEY FOR APPELL ANT POB 7422, Vict., TX 77903 (361) 575

- 1774 voice/ fax TBN 00788659

CERTIFICATE OF SERVICE I certify that a true and correct copy or duplicate original of the foregoing has been provided to Mr. Shannon Salyer, ADA, Calhoun County District Attorney’s
Off ice, 211 S. Ann St. , 3 rd Flr, Port Lavaca, TX 77979 via U.S. mail, fax , electronic delivery , o r hand

delivery on this the 30 th day of November 2015

. /s/ W. A. White W. A. White

CERTIFICATE OF COMPLIANCE
I certif y that this brief contains 1,7 3 5 words. /s/ W. A. White W. A. White