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CAUSE 13-15-00442-CR

IN THE THIRTEENTH 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

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 11/30/2015 3:52:30 PM DORIAN E. RAMIREZ Clerk
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IDENTITY OF PARTIES AND COUNSEL

Appellant was represented at trial by Mr. James 

Beeler, Attorney at Law, POB 1841, Port Lavaca, TX

77979. Appellant is represented on appeal by Mr. W. A. 

(Bill) White, Attorney at Law, POB 7422, Victoria, TX

77903. During trial, appellant resided in Calhoun

County. Appellant is now incarcerated in IDTDCJ.

The State was represented 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., 3rd Floor, Port Lavaca, TX 77979. The State’s 

reply brief will be prepared by Mr. Salyer.
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TABLE OF CONTENTS

Page

Index of Authorities 4

Appellant’s Brief 5

Statement of the Case and Statement of Facts 5

Issues 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 14
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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 10
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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 APPELLANT, RANDY EUGENE SMITH, through

counsel, W. A. (BILL) WHITE, Attorney at Law, showing:

STATEMENT OF THE CASE AND STATEMENT OF FACTS

Appellant was indicted in August 2013 for a forgery

allegedly committed on 11/03/11. The indictment also 

alleged two prior felony convictions, making the state 

jail felony into a second degree felony, with an 

enhanced punishment range of 2 to 20 years in prison 

and up to a $10,000 fine.

Jury selection began on 3/09/15, with appellant 

entering his plea of “not guilty” before his impaneled 

jury on the same date, and opening statements taking 
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place on the same date. (RR Vol. 2, pp. 44-51). The 

court then recessed for the evening with guilt/ 

innocence testimony to begin the next morning.

The next morning, 3/10/15, when court began, 

appellant was not present. No 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 present. No motion was made by either side that 

the trial judge, court staff, or law enforcement 

inquire of local hospitals, jails, or morgues to learn 

if appellant’s absence might have been involuntary. 

The trial judge made no such inquiry sua sponte,

according to the record. Trial rolled on as if all was 

normal. Obviously, any live, in-court identification 

of appellant at trial was impossible because he was not 
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in the courtroom after he entered his “not guilty” plea 

on 3/09/15.

The trial judge mentioned 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. 40, 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). The 

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. 

50, lines 10-11)

The jury then went on to assess appellant’s 

punishment at 20 years in prison and a $10,000 fine.

(RR Vol. 4, p. 80-81). The jury found the two prior 
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felony convictions in the indictment’s enhancement 

paragraphs to be true.

Appellant was sentenced nearly six months later on 

8/27/15 when located. (RR Vol. 5, pp.4-5). When the 

trial judge asked if there was any 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 

an actual, formal, judicial finding that appellant had 

voluntarily absented himself.

ISSUES PRESENTED

1)THE COURT ERRED BY FAILING TO MAKE A FINDING THAT 

APPELLANT VOLUNTARILY 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 same, 

that his absence was deliberate, and that he 
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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 (automobile 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 voluntarily absented himself

from his trial. The court thus deprived appellant of 

his right to confront his accusers during trial, as 

guaranteed in the U.S. Constitution’s Sixth Amendment.

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 

Procedure states, in part, “In all prosecutions for 

felonies, the defendant must be personally present at 

trial ... provided, however, that in all cases, when the 
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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 criminal 

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 this 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 record is silent as to whether the trial judge 

made any inquiry as to why appellant did not return for 

trial on the morning of its second day. He did not 

order local law enforcement to check the rosters of 

local hospitals, jails, or morgues to see if appellant 

had perhaps been injured, arrested, or killed 
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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, without any inquiry or even 

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 

guided his trial counsel to sharpen his questions 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 in 
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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, 466 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.
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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 prosecutor 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 appellant 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

Appellant prays that conviction be reversed.

Respectfully submitted,
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/s/ W. A. White

W. A. (BILL) WHITE

ATTORNEY FOR APPELLANT

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 

Office, 211 S. Ann St., 3

rd Flr, Port Lavaca, TX 77979

via U.S. mail, fax, electronic delivery, or handdelivery on this the 30th day of November 2015.

/s/ W. A. White

W. A. White

CERTIFICATE OF COMPLIANCE

I certify that this brief contains 1,735 words.

/s/ W. A. White

W. A. White