Opinion
No. 07-18-00358-CR
07-14-2020
JEFFREY LAMONT POOL, APPELLANT v. STATE OF TEXAS, APPELLEE
On Appeal from the 30th District Court of Wichita County, Texas
Trial Court No. 59-746-A , Honorable Robert P. Brotherton, Presiding
DISSENTING MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
I respectfully dissent from the decision to reverse the trial court's judgment. First, the most recent Court of Criminal Appeals' decision I uncovered indicates that the statutory right granted in article 33.03 of the Texas Code of Criminal Procedure to be present during voir dire may be waived. See Garcia v. State, 919 S.W.2d 370, 394 (Tex. Crim. App. 1996) (regarding absence from jury selection and stating that "Appellant was not denied his right to be present - he waived it"). That earlier Court of Criminal Appeals' decisions and later decisions rendered by intermediate appellate courts say otherwise cannot be ignored. See, e.g., Miller v. State, 692 S.W.2d 88, 91 (Tex. Crim. App. 1985) (stating that while the constitutional right to be present during voir dire may be waived, the statutory right found in article 33.03 "is unwaivable until such a time as the jury 'has been selected'''); Smith v. State, 534 S.W.3d 87, 91 (Tex. App.—Corpus Christi 2017, pet. ref'd) (holding that "Texas law provides that the right to be present during voir dire is specifically 'cannot be waived'"); Ashley v. State, 404 S.W.3d 672, 681 (Tex. App.—El Paso 2013, no pet.) (holding the right to be non-waivable); Tracy v. State, 14 S.W.3d 820, 826 (Tex. App.—Dallas 2000, pet. ref'd) (citing Miller and holding the right to be non-waivable). Garcia being the more recent declaration by the Court of Criminal Appeals on the matter, I feel obligated to abide by it.
Appellant cites Jasper v. State, 61 S.W.3d 413 (Tex. Crim. App. 2001), to support his proposition that "[w]hen present at the beginning of voir dire, but involuntarily absent during the exercise of peremptory challenges, in a holding cell, in the State's custody it is statutory and constitutional error for the trial court to proceed with voir dire in appellant's absence." In Jasper, the defendant and his counsel appeared in court after the trial court proceeded, in the presence of the venire, with 1) a general discussion of the voir dire process, 2) statutory exemptions, and 3) excusing two potential jurors. Id. at 422. Why counsel and client were late went unmentioned, as did the topic of waiver. Thus, Jasper does not purport to address, much less overrule, Garcia.
Second, I also conclude that the doctrine of invited error pretermits complaint about a purported violation of article 33.03 where the appellant absented himself from jury selection. See Ford v. State, No. 10-13-00127-CR, 2014 Tex. App. LEXIS 6941, at *8-11 (Tex. App.—Waco June 26, 2014, pet. ref'd) (mem. op., not designated for publication) (applying the invited error doctrine and rejecting appellant's contention that the trial court erred in removing him from the courtroom during jury selection because it "granted Ford's request that he not be present"); Gore v. State, 332 S.W.3d 669, 671-72 (Tex. App.—Eastland 2010, no pet.) (applying the invited error doctrine in rejecting a like appellate claim where appellant requested the trial court to excuse his presence, was advised of the importance of his presence, and nonetheless preferred to stay in jail since "he had been through the process before and did not see how his presence would help").
To the extent that the Court of Criminal Appeals in Garcia, 919 S.W.2d at 394, held Garcia "waived" his article 33.03 complaint, it also cited authority involving the invited error doctrine to support the decision. That is, it said "[o]ur holdings in Curtis v. State, 519 S.W.2d 883 (Tex. Cr. App. 1975), Beasley v. State, 634 S.W.2d 320 (Tex. Cr. App. 1982) and Kelley v. State, 823 S.W.2d 300 (Tex. Cr. App. 1992) are dispositive." See id. In Kelley, the court observed that "[a] defendant may not create reversible error by his own manipulation," and did so while quoting Beasley. Kelley, 823 S.W.2d at 302 (quoting Beasley, 634 S.W.2d at 321).
It may be that appellant's contumacious conduct initially resulted in his removal from court before jury selection began. Yet, the record clearly reveals that the trial court twice invited him to return; once before selection began and once while it proceeded. Appellant spurned those invitations by either informing counsel that he did not want to return or by refusing to speak with counsel. In my estimation, that exemplifies invited error, if not waiver. Thus, appellant cannot complain of the supposed mistake.
In sum, I agree with the majority that appellant waived his constitutional right to be present during voir dire. So too do I hesitate to fault its decision regarding waiver of the statutory right encompassed within article 33.03 of the Code of Criminal Procedure given that some authority supports it. Yet, as stated earlier, I believe that at least one post-Miller opinion from the Court of Criminal Appeals held the statutory right to be waivable. By dissenting, I invite the Court of Criminal Appeals to resolve questions concerning the application of waiver and the invited error doctrine to factual circumstances like those at bar.
Brian Quinn
Chief Justice Do not publish.