Opinion
03-22-00787-CR
08-09-2024
Benjamin Haskell Copeland, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 82890, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
Before Justices Baker, Kelly, and Smith
MEMORANDUM OPINION
Chari L. Kelly, Justice
A jury convicted Benjamin Haskell Copeland of one count of aggravated bodily-injury assault with a deadly weapon and one count of aggravated assault by threat with a deadly weapon. See Tex. Penal Code §§ 22.01(a)(1), (2), 22.02(a)(2). The trial court rendered judgments of conviction on the two verdicts. Before trial, it held an oral hearing on the State's motion to amend the indictment. Copeland in his sole appellate issue argues that he was not present for this pre-trial proceeding, though his appointed attorney was there, because he was not in the courtroom and the audio-visual equipment he was using to participate was not working correctly. He thus asserts a violation of his statutory right to "his presence . . . during any pre-trial proceeding." See Tex. Code Crim. Proc. art. 28.01, § 1.
We do not reach Copeland's issue because he did not preserve it by timely request, objection, or motion. The Article 28.01 right to presence at pre-trial proceedings is subject to error-preservation. See Gilley v. State, 383 S.W.3d 301, 304-05 (Tex. App.-Fort Worth 2012), aff'd, 418 S.W.3d 114 (Tex. Crim. App. 2014). Under the preservation rules, a prerequisite to presenting a complaint for appellate review is that the appellant made the complaint to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). A complaint is timely, with exceptions not relevant here, only if made at the earliest chance once the basis for the complaint is apparent. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997).
We have a reporter's record of the pre-trial proceeding, and it shows Copeland personally participating in the proceeding in addition to his appointed counsel's participation. At the proceeding's conclusion, the trial court said that the proceeding was ending and wished Copeland good luck, to which Copeland responded: "Okay. Thank you." At no time during the proceeding did anyone mention that Copeland was having any problem hearing what was happening or participating if he wished to. A month after the proceeding, a pro se letter from Copeland was filed in the case. (Copeland was still represented by appointed counsel at the time.) Copeland's letter says that the audio-visual equipment that he was using for the proceeding was not working correctly.
We hold that Copeland did not preserve his Article 28.01 presence complaint by timely request, objection, or motion because he could have presented the complaint to the trial court earlier than the letter that was filed a month later. Copeland could have said on the record during the proceeding that he was having trouble participating, but he did not. We know that he could have said so at some point because he did in fact respond to the court's well wishes. His post-proceeding letter was too late. See Lovill v. State, 319 S.W.3d 687, 693 (Tex. Crim. App. 2009) (because basis for complaint was apparent at hearing, later-filed motion for new trial did not preserve complaint for appeal because appellant had not objected during hearing itself).
Even if the complaint were preserved, we would not reverse because the requisite harm is lacking. To support reversal for an Article 28.01 violation of the defendant's right to be present at a pre-trial proceeding, there must be a reasonably substantial relationship between the defendant's absence and the opportunity to defend against the charged offense. See Adanandus v. State, 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993). The proceeding here concerned the State's request to add a party allegation to each of the indictment's counts. But even had this allegation not been in the indictment by the time of trial, the State still could have received a party charge so long as there was evidence to support one. See Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978). In this way, the proceeding over amending the indictment to add party allegations had no effect on Copeland's opportunity to defend against the charged offenses-the evidence at trial would control whether any party charge would go to the jury, and Copeland was present at trial. Thus, the pre-trial proceeding involved no "matters of substance," "[w]e cannot envision how appellant's presence could have furthered his defense," and "[t]he personal insight of appellant was not required" for the court to rule on the issue raised. See Adanandus, 866 S.W.2d at 220. Any Article 28.01 presence violation here thus was harmless.
We affirm the trial court's judgments of conviction.
Affirmed.