Opinion
No. 07-18-00358-CR
07-14-2020
JEFFERY LAMONT POOL, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 30th District Court Wichita County, Texas
Trial Court No. 59,746-A; Honorable Robert P. Brotherton, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Jeffery Lamont Pool, was charged by indictment with two counts of aggravated robbery, alleged to have been committed in Wichita County, Texas, on or about July 24, 2011. Each count represented a distinct and separate offense. In addition, the State sought to enhance the range of punishment by alleging that Appellant had twice before been convicted of a felony offense. Following a jury trial, Appellant was convicted of each offense as charged in the indictment. After the presentation of additional testimony during the punishment phase of the trial, the jury found the enhancement allegations to be true and assessed his sentence at confinement for a period of ninety-nine years. Appellant timely filed his notice of appeal.
The indictment alleged that while in the course of committing theft of property and with intent to obtain or maintain control of said property, Appellant intentionally or knowingly threatened or placed the complainants in fear of imminent bodily injury or death, and, in the course of committing said theft, did use or exhibit a deadly weapon, to-wit: a handgun. TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2019). An offense under this section is a felony of the first degree. Id. at § 29.03(b).
As applicable to this case, if it is shown on the trial of a felony offense that the defendant was previously finally convicted of two felony offenses, and the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction becoming final, on conviction the defendant shall be punished by imprisonment for life, or for any term of not more than 99 years or less than 25 years. TEX. PENAL CODE ANN. § 12.42(d) (West 2019).
Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Second Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
Appellant challenges his conviction through six issues alleging the trial court erred by (1) making inappropriate comments, prejudicial to him, in the presence of the venire panel prior to the commencement of voir dire, (2) proceeding with voir dire in his absence, (3) denying him a speedy trial, (4) denying his Motion for New Trial based on certain violations of the Interstate Agreement on Detainers Act (herein the "IADA"), (5) failing to timely try him in accordance with the IADA, and (6) not allowing him to offer proof that he had previously been selected from a photographic lineup. By a seventh and final issue, Appellant alleges the Regional Presiding Judge of the Eighth Administrative Judicial District committed reversible error when he denied his motion to recuse the sitting trial judge, without allowing him an opportunity to amend his motion.
Because we find Appellant's second issue to be dispositive, we will address that issue only. Upon consideration of that issue, we reverse and remand for a new trial.
BACKGROUND
As stated above, the offenses in question occurred in July 2011. Although Appellant was not immediately arrested for the robberies, approximately two years later, on July 25, 2013, he was arrested in Seattle, Washington, in connection with five bank robberies. On July 2, 2015, a Wichita County Grand Jury returned an indictment charging Appellant with the two aggravated robberies. At the time, because Appellant was still incarcerated in Washington, authorities in Texas began the process of extraditing him from Washington. The charges were subsequently tried to a jury in August 2018.
On the day scheduled for trial, the case was called and both the State and the defense announced ready. Motions in limine were addressed and a pretrial hearing was held concerning defense counsel's request for leave to present evidence concerning a 1992 aggravated robbery trial in which the charges against Appellant were dismissed due to a defective photographic lineup. The trial court denied the request but allowed counsel to make a bill of exception.
Then, immediately before the jury panel assigned to hear the case was summoned to the courtroom, the trial court again asked counsel if they were ready. Counsel for both sides announced ready. As the venire panel was assembling in the courtroom, Appellant began speaking in a tone that could be heard across the courtroom and was recorded by the court reporter. Speaking to his attorney, Appellant said, "Well, this is - you're not ready. You're not ready. I'm gonna - this is - this is injustice. You're not doing anything to present - to present this stuff." While defense counsel attempted to explain to Appellant that the immediately preceding proceeding was his "pretrial" hearing, Appellant exclaimed, "Well, look, man, you're not my lawyer. You're fired." About this same time, because the venire panel was entering the courtroom, the bailiff instructed Appellant to "stand up." After a verbal exchange ensued, the trial judge instructed the bailiff, "No, let him sit. Let him act however he wants to act." At that point, another exchange occurred between Appellant and his counsel and Appellant was heard saying, "Let me sit. This is bullshit." At that point, the trial judge gave the members of the venire panel some general instructions regarding the jury selection process and then reseated them according to the list provided by the district clerk.
After the venire panel was reseated and before the venire panel was addressed by anyone, defense counsel asked to approach the bench for some guidance from the judge regarding Appellant's desire to "fire" him as his court-appointed attorney. The trial judge admonished counsel that trial had already commenced and that it was too late to substitute counsel. At that point, the venire panel was sworn in as the venire in Appellant's case. As the trial judge attempted to introduce the participants in the courtroom to the jury, Appellant responded, "I don't have an attorney. He's not my attorney." At this point, the trial judge and the bailiff admonished Appellant to be seated. Following another verbal exchange among Appellant, the trial judge, and the bailiff, Appellant insisted numerous times that defense counsel was "not my attorney." Frustrated by Appellant's unwillingness to accept his rulings and admonishments, the trial judge quipped, "If you keep talking, I'm gonna duct tape your mouth." Appellant responded, "You're not gonna duct tape my mouth." Turning to the bailiff, the trial judge replied, "Go ahead [get] the duct tape." The trial judge then turned to the venire panel and said, "Ladies and gentlemen, Mr. Pool is just trying to delay the proceeding. We're not gonna permit that to happen." As the trial judge continued trying to explain the jury selection process to the venire panel, Appellant interrupted several times insisting that he was "receiving injustice . . . in this courtroom." At that point, the trial judge ordered that he be removed from the courtroom. Appellant again exchanged words with the bailiff and the trial judge until the trial judge responded, "And you are playing the system, Mr. Pool, and I understand exactly what you're doing." Appellant was removed from the courtroom and the trial judge completed his instructions to the jury.
Before the State commenced its questioning of the venire panel, the trial judge asked defense counsel to inquire of his client whether he wished to be cooperative and present in the courtroom. Following a short recess, defense counsel returned and advised the trial court that Appellant insisted he was not his trial counsel and that Appellant did not wish to be present during voir dire.
The State's counsel and defense counsel then proceeded to examine the members of the venire panel in the absence of Appellant. At the conclusion of voir dire examination, the trial judge again asked defense counsel to inquire of his client whether he wished to participate with counsel in the jury selection process. Before the exercise of challenges for cause and peremptory challenges were made, defense counsel made inquiry once again before announcing to the trial court that Appellant had again refused to talk to him about the trial proceedings. Without the presence of Appellant, counsel for the State and defense then made their challenges for cause. After the peremptory challenges were made, the petit jury was seated and sworn.
At this point, the petit jury was excused from the courtroom and the trial judge asked a sheriff's deputy to summon Appellant to the courtroom so that the indictment could be presented and his plea entered. The sheriff's deputy reported to the court that when he sought to bring Appellant to the courtroom, Appellant took off all his clothes and threw them out the door. The trial judge then ordered the sheriff to use whatever reasonable force was necessary to compel Appellant's presence for the reading of the indictment and entry of his plea. Outside the presence of the jury, Appellant was returned to the courtroom and admonished by the trial judge. Again, after bantering with the trial judge, Appellant refused to recognize his court-appointed attorney as his counsel for purposes of trial. At this point, the trial judge admonished Appellant that he would be compelled to be present for the reading of the indictment and the entry of a plea. However, after that, the court would not compel his presence if he did not wish to participate.
With the jury present and with counsel ready, the trial judge called on the State's counsel for a reading of the indictment. At the conclusion of the reading of Count One, the trial judge asked Appellant how he wished to plead. Appellant refused to respond, and the trial judge entered a plea of "not guilty" on his behalf as to Count One. The State's counsel then read Count Two of the indictment and, again, the trial judge asked Appellant how he wished to plead. Appellant continued to refuse to respond, and the trial judge entered a plea of "not guilty" on his behalf as to Count Two. Following the reading of the indictment and the entry of Appellant's pleas, the trial judge again asked Appellant if he wished to remain during the remainder of the proceedings. Once again, refusing to accept his court-appointed counsel as his counsel for purposes of trial, Appellant announced that he did not wish to remain in the courtroom.
With Appellant absent from the proceedings, the State began the presentation of its case-in-chief. The State offered the testimony of witnesses and surveillance video recordings showing Appellant committed the two aggravated robberies on consecutive nights in July 2011. Although fingerprint evidence was recovered at both crime scenes, law enforcement officials were unable to match Appellant to any of those fingerprints. As such, the State's case rested on the now seven-year-old eyewitness identification by the crime victims of Appellant as the robber.
The first robbery occurred at a convenience store. During that incident, a man approached the counter, showed the clerk a fifty-dollar bill, and requested cigarettes. When the clerk turned to retrieve the cigarettes, the man pointed a handgun at him and demanded money. The clerk opened the register and complied. The clerk testified he saw the robber's face clearly and he later identified Appellant as the robber through a photographic lineup.
During the second robbery, a man entered a Domino's Pizza establishment, took drinks out of a refrigerator, and brought them to the counter. The employee at the counter asked the man how she could help him and he pointed a gun at her. He told her to "give him all of [her] money." The employee handed the man a plastic tray full of money and he took the money out of it. He handed the tray back to the employee and told her to open the safe for more cash. The employee did so. Eventually, the man left with $488. The employee positively identified Appellant as the robber from a photographic lineup.
At the commencement of proceedings on the second day of trial, the trial judge once again asked Appellant's counsel to make inquiry as to whether Appellant wished to participate. Again, counsel advised the trial judge that Appellant refused to recognize him as his attorney of record and refused to speak to him. At the conclusion of the State's case-in-chief, counsel for Appellant moved for a directed verdict of "not guilty." The motion for directed verdict was denied and the trial judge once again summoned Appellant to the courtroom whereupon he commenced to admonish Appellant concerning his right to participate in the presentation of his defense. Not surprisingly, Appellant repeated that he did not have an attorney and did not wish to make any further statement.
During the defense portion of the trial, counsel for Appellant offered the expert testimony of a witness concerning the reliability of cross-racial identifications, photographic lineups, and eyewitness identifications. After zealously presenting that evidence to the jury, the defense rested and both sides closed. The Charge of the Court was presented to the jury and closing arguments were presented by both sides.
After deliberating the evidence, the jury returned a verdict of guilty as to both counts of aggravated robbery, as set forth in the indictment. After hearing additional evidence at the punishment phase of trial concerning Appellant's prior criminal record, the jury found the enhancement allegations to be true and assessed his sentence at confinement for a period of ninety-nine years. Appellant now challenges each of those convictions through this appeal.
ISSUE TWO—ABSENCE OF DEFENDANT AT VOIR DIRE AND TRIAL
By his second issue, Appellant contends his removal from the courtroom before the commencement of jury selection and his subsequent absence from the remainder of the trial proceedings violated his constitutional and statutory rights. In response, the State contends Appellant has waived those rights by his own conduct. The State argues that because he was removed from the courtroom only after he became disruptive to the proceedings, and he was offered the opportunity to reclaim his right to be present (on more than one occasion), so long as he was willing to conduct himself in a manner consistent with the appropriate decorum and respect inherent in a judicial proceeding, his absence was voluntary. Notwithstanding each of those offers to return to the courtroom, Appellant chose to voluntarily absent himself from the remainder of the proceedings. As such, the State contends Appellant's second issue is meritless.
We disagree with the State's contention. While Appellant's absence after being offered the opportunity to return to the courtroom may be seen as voluntary, his absence during the examination of the venire panel was not. The record is clear, prior to enactment of any part of the jury selection process, save and except the mere summoning of the venire panel to the courtroom, Appellant was involuntarily removed from the courtroom by the trial judge in his effort to maintain what he saw as a violation of appropriate courtroom decorum. If we accept that his removal prior to jury selection was involuntary, we must then review the trial judge's decision to remove him under an abuse of discretion standard. Morrison v. State, 480 S.W.3d 647, 655-56 (Tex. App.—El Paso 2015, no pet.) (citing Kessel v. State, 161 S.W.3d 40, 44 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd)). In determining whether a trial judge has abused his discretion by ordering the removal of a disruptive criminal defendant, we note that it is essential that courts be given sufficient discretion to determine the appropriate manner of handling disruptive courtroom behavior. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L. Ed. 2d 353 (1970). Disruptive courtroom behavior diminishes public confidence in the ability of a judicial tribunal to administer a fair and impartial resolution of the case before it; and, ultimately, it diminishes public confidence in the judicial branch of government. Therefore, a trial judge's decision to remove a disruptive criminal defendant will be upheld so long as the nature and extent of the exclusion is "within the zone of reasonable disagreement." Morrison, 480 S.W.3d 655-56 (citing Kessel, 161 S.W.3d at 44). In determining whether a trial judge's decision to involuntarily remove a disruptive defendant from the courtroom was reasonable, we must evaluate and balance two important legal principles: (1) the constitutional and statutory right of the criminally accused to be physically present at all phases of the proceeding against him and (2) the responsibility of the trial judge to maintain appropriate courtroom decorum. See TEX. CODE OF JUDICIAL CONDUCT, Canon 3 (B)(3) (providing that "[a] judge shall require order and decorum in proceedings before the judge").
The Sixth Amendment to the United States Constitution guarantees that, when faced with a loss of liberty, a criminally accused has the right to be physically present at all phases of the criminal proceeding against him. See U.S. CONST. amend VI. See also Allen, 397 U.S. at 338. The Texas Constitution also guarantees that right. See TEX. CONST. art. I, § 10. See also Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985); Roden v. State, 338 S.W.3d 626, 631 (Tex. App.—Fort Worth 2011, pet. ref'd); Sanchez v. State, 702 S.W.2d 258, 259 (Tex. App.—Dallas 1985, pet. ref'd) (finding a defendant has both a federal and state constitutional right to be present at every stage of his trial).
However, that being said, the right of an accused to be physically present in the courtroom is not an absolute unlimited right because a trial judge may, in his reasonable discretion, find it necessary to remove a defendant from the courtroom when the accused is acting in a "disruptive, obstreperous, or contemptuous manner." Morrison, 480 S.W.3d at 656 (citing Allen, 397 U.S. at 343-44). It is "essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings" and the "flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated." Allen, 397 U.S. at 343. In Allen, the United States Supreme Court recognized that, faced with a disruptive defendant, there were at least three constitutionally permissible ways for a trial judge to handle a defendant like Appellant: (1) bind and gag him, thereby maintaining his presence, (2) cite him for contempt, and (3) remove him from the courtroom until he is willing to conduct himself in an appropriate manner. Id. at 343-44. Therefore, while the right to be physically present in the courtroom during a trial proceeding is an important constitutional right, it is not an absolute, category-three constitutional right, within the Marin rubric, that must be implemented by the system unless expressly waived, i.e., it is a waivable right. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
Under the facts of this case, from a constitutional standpoint, we do not see an abuse of judicial discretion in the trial judge's decision to remove Appellant from the courtroom at the beginning stages of jury selection because a decision that Appellant waived his right to be present through his own misconduct is within the zone of reasonable agreement. As such, because Appellant has waived his constitutional violation claim, that portion of issue two is overruled.
That being said, the Texas Legislature has conferred greater rights than either the Sixth Amendment of the United States Constitution or Section 10 of Article I of the Texas Constitution by providing additional statutory protections, specifically, an absolute, non-waivable right to be present in the courtroom until such time as the jury "has been selected." Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001) (finding statutory error for the trial court to proceed with the excuses and qualifications of prospective jurors in the appellant's absence); Miller, 692 S.W.2d at 91 (finding no statutory violation because the defendant did not voluntarily absent himself until after the petit jury had been selected); TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006).
Article 33.03 reads:
In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the 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. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case.(Emphasis added).
In 1983, the Texas Court of Criminal Appeals had the opportunity to construe article 33.03 and the critical phrase "or after the jury has been selected when trial is before a jury." In Miller, the court noted that this critical phrase was added by Act of May 24, 1979, 66th Leg., R.S., ch. 745, § 1, 1979 Tex. Gen. Laws 1832, effective August 27, 1979, in response to a 1978 decision by the United States Supreme Court holding that, for purposes of determining whether the prohibition of double jeopardy bars a prosecution, jeopardy "attaches" when the jury is impaneled and sworn. Miller, 692 S.W.2d at 89-91. The Court of Criminal Appeals construed the legislative history of article 33.03 as drawing the line for proceeding in abstentia as being separate and distinct from the line drawn for purposes of the attachment of jeopardy. Id. at 92. Having considered the legislative history of the enactment, the Court construed "after the jury has been selected" as being that moment "when the parties handed in their respective jury lists, with the [preemptory] challenges noted thereon[.]" Id. at 93. Because the defendant in Miller did not voluntarily absent himself from the proceedings until after the petit jury had been selected, the Court of Criminal Appeals found no violation of article 33.03.
The dissent, while acknowledging intermediate appellate court authority to the contrary, relies on Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996), a 1996 decision of the Court of Criminal Appeals, to reach the conclusion that the right to be present during jury selection is a waivable right. Although other Court of Criminal Appeals cases seem to indicate otherwise (e.g., Suniga v. State, AP-77,041, 2019 Tex. Crim. Unpub. LEXIS 128, at *14 (Tex. Crim. App. March 6, 2019) (finding "[u]nder art. 33.03 an accused's right to be present at his trial is unwaivable until such a time as the jury 'has been seated.'"); Adandus v. State, 866 S.W.2d 210, 217 (Tex. Crim. App. 1993) (holding that a defendant must be present and may not voluntarily absent himself until after voir dire)) the dissent feels constrained to follow Garcia. In Garcia, a capital murder trial involving individual voir dire, the defendant and his counsel expressly waived their right to be present during the qualification of prospective jurors by the court. The State later moved to quash the venire panel in order to cure the error, but the appellant objected. The Court of Crim inal Appeals found that where the defendant had "objected to the State's motion to quash the venire, the only method by which the effects of the [proceedings where the defendant was not present] could have been eliminated," he could not, by his own actions, create reversible error. Garcia, 919 S.W.2d at 393-94.
Here, it is clear Appellant was involuntarily removed from the courtroom due to his disruptive behavior before the commencement of any juror examination. Only the general assembly of the venire panel had occurred when Appellant was removed from the courtroom. None of the prospective jurors had been seated, sworn, or qualified. After Appellant was removed, the trial judge gave the jury panel some general instructions regarding juror qualifications and jury service; however, before allowing the attorneys to begin their questioning of the panel, the trial judge asked defense counsel to speak with Appellant and determine whether he was "ready to come back and to listen to the Court's instructions." Counsel did so, but later returned to the courtroom and informed the trial judge Appellant did not wish to return to the courtroom. It was at this point that one could say Appellant first voluntarily absented himself from the proceeding. Accordingly, we cannot escape the conclusion that Appellant was not present (whether voluntarily or involuntarily) during a critical stage of his trial—examination of the venire panel—and he was voluntarily absent prior to the seating of the jury. Accordingly, the statutory protections of article 33.03 were violated. We must, therefore, proceed with a harm analysis.
Because we are only faced with statutory error, and not constitutional error, we must apply the standard of harm for non-constitutional error. See TEX. R. APP. P. 44.2(b). In the case of statutory error, an appellate court should disregard such error unless we find the error, defect, irregularity, or variance affected the substantial rights of the accused. Substantial rights are affected when the error, defect, irregularity, or variance has a substantial and injurious effect or influence in determining the jury's verdict. Under this standard, if one cannot say with fair assurance that an appellant's substantial rights were not affected by the trial court's error, it is impossible to conclude that substantial rights were not affected. VanNortrick v. State, 227 S.W.3d 706, 714 (Tex. Crim. App. 2007) (holding that a silent record as to citizenship establishes non-constitutional harm where the trial court failed to admonish a defendant about the immigration consequences of his plea (a statutory requirement)). Therefore, if one is left in grave doubt as to whether the error did not affect substantial rights, the conviction cannot stand. Accordingly, in order to obtain the reversal of a conviction based on the denial of the defendant's right to be present during the jury selection process, an appellant must establish that the trial court's ruling was outside the zone of reasonable disagreement and that the error affected his substantial rights. In considering harm, we review the entire record to determine whether the error had more than a slight influence of the substantial rights of the accused.
Examining the entire record, we note Appellant was effectively absent for his entire trial. The only time he was in the presence of the jury was during the initial assembly of the jury panel and the entry of his plea—or more precisely the absence of his plea. While the trial judge did ask Appellant during voir dire, at the start of the State's case, and at the start of the defense's case if he wished to be in the courtroom, he did not take any steps to compel his appearance (when he could have done so) until after the jury had been selected and seated, and then only for a brief moment. Appellant's absence, although caused by his own misbehavior, impaired his ability to assist his counsel in the jury selection process—a matter guaranteed by article 33.03. Furthermore, because potential jurors were left to speculate as to why Appellant was absent, it is more likely than not that negative inferences would be drawn from his absence. In fact, as Appellant notes in his brief, two of the members of the venire panel told defense counsel they could not follow an instruction from the court to disregard Appellant's behavior or absence from the trial as an indication of guilt.
In addition, in determining whether an error has affected substantial rights, a reviewing court should consider as a factor the weight of the evidence supporting the verdict. See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). Here, the evidence was not "overwhelming." Appellant's responsibility as an actor in each offense was completely dependent on the reliability of eyewitness testimony, a matter defense counsel sought vigorously, but unsuccessfully, to exploit. Furthermore, due to Appellant's absence, the eyewitnesses were not allowed an opportunity to identify him in person. Finally, unattractive as it may seem under the circumstances, the trial judge had the means by which to compel Appellant's attendance—a means he subsequently chose to employ when the indictment was read and Appellant's plea entered.
In light of these various factors, we cannot say with fair assurance that Appellant's substantial rights were not affected by the trial judge's error. In so finding, we hold that, when a trial judge fails to see that the accused is personally present in the courtroom, at least through the selection of the jury, he reversibly errs in proceeding based on a finding that the accused has voluntarily absented himself. Accordingly, Appellant's second issue is sustained.
All other issues are pretermitted. See TEX. R. APP. P. 47.1.
CONCLUSION
The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Patrick A. Pirtle
Justice Do not publish. Quinn, C.J., dissenting.