Opinion
No. 07-15-00114-CR
01-07-2015
JERRY JOE GARZA, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 78th District Court Wichita County, Texas
Trial Court No. 55 ,182-B, Honorable W. Bernard Fudge, Presiding
Pursuant to the Texas Supreme Court's docket equalization efforts, this case was transferred to this Court from the Second Court of Appeals. See TEX. GOV'T CODE ANN. § 73.001 (West 2013).
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Jerry Joe Garza, was indicted for the offense of capital murder. The State waived its right to seek the death penalty. Appellant was found guilty of capital murder and sentenced to life imprisonment in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). Through a single issue appellant contends that the trial court committed reversible error by conducting the trial proceedings before the jury in the absence of appellant. We will affirm.
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2015).
See id. § 12.31(a)(2) (West Supp. 2015).
Factual and Procedural Background
Appellant does not contest the sufficiency of the evidence to sustain the jury's verdict; therefore, we only address the factual background that is germane to appellant's issue on appeal.
Throughout the proceedings against appellant, appellant refused to cooperate with his appointed attorneys. On August 7, 2012, the Wichita County Public Defender's office was appointed to represent appellant. Within a matter of two months or so, on October 1, 2012, the attorney for the Public Defender's Office filed a motion to withdraw. The motion stated that appellant refused to meet and discuss his case with the attorney and that appellant refused to attend court. Appellant was present in court the day the motion to withdraw was considered; however, the record reveals appellant refused to participate in the hearing. During the hearing, the trial court addressed two questions to appellant, which he refused to answer. Eventually, when asked if he was going to address the court, appellant answered, "No, I'm not." Appellant then became agitated at the presence of the press at the hearing, and this resulted in a profanity-laced tirade that ended up with appellant being held in contempt. The trial court denied the motion to withdraw.
At the next pretrial hearing, on January 17, 2013, appellant was present; however, he continually disrupted the proceedings with outbursts and threats and eventually had to be removed from the courtroom. At this time, appellant signed a written waiver that he not be forced to attend any further pretrial hearings and settings.
Subsequently, on April 4, 2013, the Wichita County Public Defender's Office was allowed to withdraw from representation of appellant. On April 24, 2013, appellant was appointed new trial counsel. On June 6, 2013, appellant's new trial counsel notified the trial court that his client had requested that counsel guarantee appellant would not have to be brought before the trial court to attend any pretrial matters. Thereafter, on July 9, 2013, appellant petitioned the trial court to dismiss his appointed counsel. The trial court denied the request. Appellant again filed a handwritten waiver of his right to attend pretrial hearings.
Because the case was pending as a capital murder, the trial court appointed a second attorney to assist trial counsel on October 8, 2013. On February 27, 2014, appellant again petitioned the trial court to dismiss his attorneys. The trial court held a hearing on appellant's motion to dismiss his counsel on March 13, 2014, and appellant personally appeared for that hearing. After hearing appellant's arguments, the trial court denied the motion and admonished appellant to work with and communicate to his attorneys.
As the case proceeded toward a trial date, trial counsel were faced with the refusal of appellant to review the evidence against him. According to the record, trial counsel began keeping a log of every time they attempted to visit with appellant about his case. Appellant continued to refuse to visit with his trial counsel during this period.
Appellant filed yet another motion to dismiss his trial counsel. The trial court conducted a hearing on appellant's motion to dismiss trial counsel on October 2, 2014. Appellant refused to attend the hearing. The trial court denied the request.
On December 1, 2014, the trial court held a hearing regarding appellant's desire to appear for trial in jail clothes. The trial court explained at length to appellant that it would be detrimental to appellant to appear for trial in jail clothes. When examined by the trial court about this matter, appellant refused to answer or acknowledge the trial court.
Trial commenced on December 2, 2014, with the voir dire of the jury panel. Prior to commencing voir dire, appellant was again admonished regarding wearing jail clothes at his trial. Once again, appellant refused to answer the trial court regarding wearing of jail clothes during his trial.
Prior to beginning voir dire and while appellant was personally present, he was arraigned outside the presence of the jury panel. Appellant entered a plea of not guilty at the arraignment. The trial court proceeded with the voir dire of the jury panel. Appellant was personally present throughout the voir dire process. The jury was selected, sworn, and instructed by the trial court in the presence of appellant. Trial on the merits was scheduled to start the next day on December 3, 2014.
On December 3rd, trial was set to commence and appellant was personally present in court. However, one of the jurors selected was incapacitated by illness and not able to be present. The trial court recessed until the following day. The following day, the ill juror was still not able to return to his jury duties, and the trial court again recessed until December 5th. Appellant had refused to come to court on December 4th.
On December 5, 2014, the trial on the merits commenced. Prior to beginning the court session, trial counsel visited with appellant in an attempt to get him to come to court. Appellant refused to attend the trial. Once the trial commenced, based upon appellant's voluntary absence from court, a plea of not guilty was entered for appellant by trial counsel and the trial court. Such was the pattern of appellant's behavior throughout the remainder of the trial. Each day he was requested to appear personally in court, and each day appellant refused to appear.
After hearing the evidence, the jury found appellant guilty of capital murder. Because the State waived the death penalty, appellant was sentenced to imprisonment in the ID-TDCJ for life, without the possibility of parole. Appellant was personally present for sentencing.
Appellant now appeals his conviction contending that the trial court erred in conducting the trial proceedings before the jury in the absence of appellant. We find the contention without merit and affirm appellant's conviction.
Standard of Review
We review a trial court's decision that a defendant voluntarily absented himself from trial for an abuse of discretion. See Papakostas v. State, 145 S.W.3d 723, 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)). Further, the appellate court must determine, from hindsight, the validity of the trial court's determination that the appellant's absence was voluntary. See Hudson v. State, 128 S.W.3d 367, 375 (Tex. App.—Texarkana 2004, no pet.). The appellant must provide evidence to refute the trial court's determination, or we will not disturb the trial court's finding. Id. at 375-76 (citing Moore, 670 S.W.2d at 261).
Absence of Appellant
Appellant contends that the trial court's action in continuing the trial after he had refused to go to the courtroom was error that requires that we reverse his conviction. This matter is controlled by the Texas Code of Criminal Procedure. Article 33.03 of the code provides, as pertinent to this case, the following:
In all prosecutions for felonies, the defendant must be personally present at the trial . . . . provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment . . . 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 (West 2006).
Further reference to the Texas Code of Criminal Procedure will be by reference to "art. ___." --------
The record before this Court reflects that appellant was present during jury selection. See art. 33.03. Appellant refused to attend his trial thereafter. The trial court subsequently found that appellant voluntarily absented himself from the trial. There is nothing in the record before this Court that would lead to a different conclusion. Appellant refused to participate in the trial. In fact, this entire record demonstrates that, from the outset, it was appellant's intent to disrupt and frustrate his trial. On the face of this record, we must conclude that appellant voluntarily absented himself from the trial after the jury had been selected. See Moore, 670 S.W.2d at 261, Bottom v. State, 860 S.W.2d 266, 267 (Tex. App.—Fort Worth 1993, no pet.). We therefore find that the trial court did not abuse its discretion in continuing the trial when appellant voluntarily absented himself from the proceedings. We overrule appellant's issue to the contrary.
Conclusion
Having overruled appellant's single issue, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice Do not publish.