No. 04-04-00230-CR
Delivered and Filed: April 20, 2005. DO NOT PUBLISH.
Appeal from the 81st Judicial District Court, Karnes County, Texas, Trial Court No. 02-12-00139-Crk, Honorable Donna S. Rayes, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice
Rodriguez appeals his conviction for aggravated assault with a deadly weapon and the resulting sentence of thirty years imprisonment. We affirm the trial court's judgment.
Background
On June 9, 2002, Pablo "Paul" Rodriguez and Jesse Gonzales were both present at the home of a third party when a confrontation occurred between them. During the incident, Gonzales was cut on his face, head, and neck. His girlfriend, Lori Rodriguez, transported him to the hospital where he underwent surgery to repair the injuries. Paul Rodriguez was indicted for aggravated assault with a deadly weapon which was enhanced due to his repeat offender status. The case was tried to a jury in November 2003, resulting in a conviction and sentence of thirty years incarceration, plus a fine of $1,000. This appeal followed. Analysis
Right to Public Trial In his first three issues, Rodriguez contends that the trial court violated his constitutional and statutory right to a public trial by excluding spectators from the courtroom after allegations that the rule requiring sequestration of witnesses had been violated. See U.S. Const. amend. VI, XIV; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. §§ 1.05, 1.24 (Vernon 1977). Texas Rule of Evidence 614 requires the trial judge, at the request of either party, to exclude witnesses from the court room so that they can not hear the testimony of other witnesses. Tex. R. Evid. 614. A witness under the rule is prohibited from discussing the case with anyone other than the attorneys involved in the case. Drilex Sys., Inc. v. Flores, 1 S.W.3d 112, 117 (Tex. 1999). The purpose of the rule is to minimize the possibility that a witness will tailor his testimony to that of other witnesses and to prevent collusion among witnesses testifying for the same side. Id. at 116. The rule is violated when an excluded witness remains in the courtroom during the testimony of another witness, or learns about the testimony of another witness through discussion with someone other than an attorney in the case or through reading accounts of another witness's testimony. Id. at 117. In this case, the State alleged that Rodriguez's sister, who was not a witness and had been allowed to remain in the courtroom during the proceedings, relayed information about witness testimony to excluded witnesses outside the courtroom. In response, the trial judge questioned several witnesses who had been waiting outside the courtroom, and then ordered all spectators excluded from the courtroom for the remainder of the guilt/innocence portion of the trial. The judge stated on the record that her reason for the exclusion was, "to avoid allegations whether they be true or false about persons inside the courtroom communicating with persons outside the courtroom." The defendant did not object to the trial judge's exclusion of spectators at any time during the trial. The State contends that Rodriguez waived his complaint regarding the exclusion of spectators by failing to object at the time of the trial judge's order. See Tex.R.App.P. 33.1(a) (requiring a specific objection and a ruling from the trial judge to preserve error for appellate purposes). Certainly, constitutional guarantees can be waived by failure to object at trial. See Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App. 2002); Gibson v. State, 516 S.W.2d 406, 409 (Tex.Crim.App. 1974); Bardwell v. State, 489 S.W.2d 627, 628 (Tex.Crim.App. 1973) (illegal arrest); Sullivan v. State, 564 S.W.2d 698, 704-05 (Tex.Crim.App. 1978) (admission of fruits of an illegal search); Robinson v. State, 502 S.W.2d 819, 820 (Tex.Crim.App. 1973) (improperly conducted line-up or tainted identification); Taylor v. State, 489 S.W.2d 890, 892 (Tex.Crim.App. 1973) (voluntariness of a confession); Fletcher v. State, No. 14-96-01158-CR, 1998 WL 651616, at *3 (Tex.App.-Houston [14th Dist.] Sept. 24, 1998, pet. ref'd) (not designated for publication) (right to public trial). In addition, we do not consider the defendant's right to a public trial to be one of the few "systemic requirements" that a trial court must follow even if the parties wish otherwise, nor do we consider it a "waiveable" right which must be implemented unless expressly waived. See Mendez v. State, 138 S.W.3d 334, 340 (Tex.Crim.App. 2004); see also Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App. 1993). Accordingly, we hold that by failing to object at the time the trial judge excluded all spectators, Rodriguez forfeited his right to present this complaint on appeal. Mendez, 138 S.W.3d at 342; see also Levine v. United States, 362 U.S. 610, 619-20 (1960) (concluding that general objection to the nature of the proceedings was insufficient to alert the trial court to public trial objection, thus appellant did not preserve error for review). Rodriguez's first three issues are overruled. Sufficiency of the Evidence In his fourth and fifth issues, Rodriguez complains that the evidence is legally and factually insufficient to prove that he used or exhibited a deadly weapon. Rodriguez's indictment alleged that he had "intentionally or knowingly caused bodily injury to Jesse Gonzales by cutting him with a knife," and that he had "use[d] or exhibit[ed] a deadly weapon during the commission of said assault." Proof of the use or exhibition of a deadly weapon is an essential element of the offense of aggravated assault as it was charged in the indictment. See Tex. Pen. Code Ann. § 22.02 (a)(2) (Vernon Supp. 2004-05). Based on the indictment, the State had the burden of proving beyond a reasonable doubt that Rodriguez intentionally or knowingly caused serious bodily injury to Gonzales by cutting him with a knife. See id.; Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2004-05). To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). For a factual sufficiency review, we look at all the evidence to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust, or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex.Crim.App. 2003). Appropriate deference must be given to the jury's decision to "prevent an appellate court from substituting its judgment for that of the fact finder." Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). "[A]ny evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony." Id. A review of the record shows that Gonzales testified that he heard a knife being opened early in his confrontation with Rodriguez, that he saw a glare from what he thought was a knife in Rodriguez's hand, and that he felt himself being cut with a knife during the fight. Lori Rodriguez, Gonzales' girlfriend and an ex-girlfriend of Rodriguez, testified that she also saw "a glare of metal" in Rodriguez's hand, and that based upon her prior relationship with Rodriguez she knew him to regularly carry a pocket knife. There was no knife admitted into evidence and there were no other witnesses who testified they saw Rodriguez, or anyone else, with either a knife or other sharp object during the confrontation. Dr. Roberto Ramirez, a physician who reviewed the medical records and photographs of Gonzales taken after the incident, testified that his wound was made by a sharp object, but was unable to say conclusively that it was or was not made by a knife. Given the testimony of Gonzales, Lori Rodriguez and Dr. Ramirez, we conclude that a rational jury could have found all of the essential elements of aggravated assault beyond a reasonable doubt. Further, we can not say that the jury's verdict is clearly wrong or so against the great weight and preponderance of the evidence as to be manifestly unjust. We therefore hold that the evidence is legally and factually sufficient to support the jury's finding that Rodriguez used a knife during the assault. Rodriguez's fourth and fifth issues are overruled. Right to Be Present In his sixth and final issue, Rodriguez contends that he was denied his constitutional right to be present during the punishment phase of his trial. U.S. Const. amend. VI, XIV. The record indicates that Rodriguez was not present during the punishment phase of his trial at his own request. His counsel was present and represented to the trial court on his behalf that Rodriguez did not wish to be present, had been advised of his rights, and had chosen not to participate voluntarily and of his own free will. Counsel further testified that Rodriguez had stated that he would have to be brought into court in chains if the judge required him to be present, and that he feared that he would be disrespectful to the court if he were forced to participate. Rodriguez now contends that the court was required to have Rodriguez himself state on the record his desire to be absent, outside the presence of the jury. We disagree. Article 33.03 of the Texas Code of Criminal Procedure provides a criminal defendant with a statutory right to be present during his trial, but also allows a defendant to be absent, if he chooses, after the jury has been selected in a jury trial. Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989); see also Routier v. State, 112 S.W.3d 554, 575 (Tex.Crim.App. 2003), cert. denied, 124 S.Ct. 2157 (2004). If a defendant voluntarily absents himself from his trial, the trial may proceed to its conclusion. Tex. Code Crim. Proc. Ann. art. 33.03. Here, the record shows Rodriguez, through his attorney, clearly requested that the trial court proceed with the punishment phase in his absence, thereby waiving his right to be present. "The `presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" Routier, 112 S.W.3d at 577 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934). Rodriguez has failed to show that the punishment phase of his trial was not conducted in a fair and just manner because of his absence, particularly in light of the circumstances that he chose not to be present and that his counsel was present on his behalf. Id. Because Rodriguez requested that the trial court proceed without him, and absent any showing that a just hearing was thwarted by his absence, we can not say that the trial court violated Rodriguez's constitutional right to be present during the punishment phase of his trial. Id. Rodriguez's sixth issue is overruled. Finding no error, we affirm the trial court's judgment.