Opinion
No. 07-18-00358-CR
09-14-2020
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 ON MOTION FOR REHEARING
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
In this Motion for Rehearing, filed by the State, we are asked to decide the appropriate scope of what an appellate court should consider when conducting a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure when the error involved is limited to a violation of the statutory right of an accused to be present during voir dire. In our opinion, dated July 14, 2020, we found the trial judge committed reversable error when he excluded Appellant from voir dire in violation of article 33.03 of the Texas Code of Criminal Procedure. The State, now conceding that the trial judge's involuntary exclusion of Appellant during voir dire was error, apparently contends that our analysis was flawed because it should have been "appropriately tailored to the trial court's error" by reviewing only the voir dire proceeding to determine whether the defendant received a "fair and impartial jury." According to the State's argument, because the record of voir dire does not demonstrate a fair and impartial jury was not seated (it being Appellant's burden to establish a biased or partial juror was seated), Appellant has failed to show that he was actually harmed by the trial judge's error. Conversely, Appellant contends the State's argument is flawed because it is based upon an overly-broad interpretation of prior case law and because the State has taken "a specific rule about a specific type of error and turned it into a general rule about all types of error at voir dire." Appellant further contends that this court's earlier harm analysis correctly considered the entire record when we found that error to be harmful. Remaining convinced that we properly considered the entire record in our harm analysis but being persuaded that we failed to give appropriate emphasis to the nature of the error and the actual harm caused, we withdraw our prior opinion and judgment, dated July 14, 2020, and hereby substitute the following opinion and judgment affirming Appellant's conviction.
Pool v. State, No. 07-18-00358-CR, 2020 Tex. App. LEXIS 5316 (Tex. App.—Amarillo July 14, 2020, no pet. h.) (mem. op., not designated for publication).
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 as to each offense. 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, sitting in Fort Worth, 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 seven issues. By his first six issues, he alleges the trial judge 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 the 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.
Pub. L. 91-538, 84 Stat. 1397, 18 U.S.C. App.1 (1970); TEX. CODE CRIM. PROC. ANN. art. 51.14 (West 2018).
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. The charges were eventually 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 judge 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 judge 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 judge 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 judge 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. He 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 counsel's representation 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 ONE—INAPPROPRIATE COMMENTS BY THE TRIAL JUDGE
By his first issue, Appellant contends the trial judge erred by making inappropriate comments concerning his behavior in the presence of the jury panel prior to the commencement of voir dire. While we agree that some of the comments could have been more judiciously stated, we find no reversible error.
As the jury panel filed into the courtroom, prior to even being seated in the appropriate order for voir dire, Appellant decided to fire his attorney. As the jurors came in, Appellant continued to talk and disrupt the court proceedings. Based on the record before us, it is difficult to ascertain whether the jury panel heard the trial judge tell Appellant, "[i]f you keep talking, I'm gonna duct tape your mouth." In response to that statement, however, Appellant exclaimed, "You're not gonna duct tape my mouth." The trial judge then responded, "Go ahead the duct tape [sic]." At this point, it becomes clear the trial judge was speaking in a volume and tone that everyone could hear saying, "Ladies and gentlemen, Mr. Pool is just trying to delay the proceeding. We're not gonna permit that to happen." Following that statement, Appellant continued to be disruptive and the trial judge admonished him, "And you are playing the system, Mr. Pool, and I understand exactly what you're doing." After some additional disruptions, the trial judge ordered Appellant to be removed from the courtroom. During the defense's voir dire of the jury panel, these events were discussed. Two members of the jury panel indicated they could not follow an instruction from the trial judge to disregard Appellant's behavior and subsequent absence from the courtroom. At the conclusion of voir dire, those two jurors were excused for cause.
Appellant contends that the trial court's comments "conveyed to the jury a criticism" of him, calculated to injure his rights and prejudice the jury's impartiality. The State argues Appellant failed to preserve this issue for our review. While we do not condone the trial judge's statements, we agree these complaints were not properly preserved.
With few exceptions, none of which are applicable here, an appellate complaint must be preserved at trial by a timely request for relief. Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013) (citing TEX. R. APP. P. 33.1; Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993)). Typically, an appellate complaint concerning an improper comment to a jury by a judge is preserved by an objection, made at the earliest possible opportunity, requesting an instruction to disregard the prejudicial comment, followed by a motion for mistrial if the aggrieved party thinks an instruction to disregard that comment would be insufficient. Id. (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)).
Here, the comments made at the beginning of voir dire did reflect the trial judge's irritation with Appellant's disruptive behavior, but the statements did not speak to or criticize his exercise of any constitutional right or privilege. Furthermore, the trial judge's comments did not convey to the panel any information that it did not otherwise have before it because the jury panel was able to see and hear Appellant's disruptive behavior and statements. Furthermore, while stern and authoritative, the trial judge's comments were part of his attempt to maintain appropriate decorum and control of the courtroom. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (stating that "[a] trial judge has broad discretion in maintaining control and expediting the trial"). As such, we find the trial judge's statement did not constitute error warranting reversal. Appellant's first issue is overruled.
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 everything about Appellant's second issue is meritless.
We disagree with that 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. 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 at all times 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, nonwaivable, category-three constitutional right, within the Marin rubric. Marin, 851 S.W.2d at 279. Nor is it a waivable right that must be implemented by the system unless expressly waived. Instead, the right to be present in the courtroom during trial is a waivable right. Id.
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 a matter within the zone of reasonable agreement. As such, because we find Appellant waived his constitutional right to be present, 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, 61 S.W.3d at 423 (finding statutory error for the trial court to proceed with the excuses and qualifications of prospective jurors in the defendant'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 as follows:
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 absentia 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.
Chief Justice Quinn, in his prior dissent, relied 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 was a waivable right, even though later cases from the Court of Criminal Appeals seem to indicate otherwise. See 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'") (quoting Miller, 692 S.W.2d at 91, 93.); Adanandus 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). 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 to cure the error, but the defendant objected. The Court of Criminal 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. As such, the facts in Garcia are clearly distinguishable from the facts of this case.
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 and informed the trial judge Appellant did not wish to return to the courtroom. It was at this point that one could arguably say Appellant first voluntarily absented himself from the proceeding. Accordingly, we cannot escape the conclusion that Appellant was involuntarily absent from a portion of voir dire and was either voluntarily or involuntarily absent for the entire jury selection process—a critical stage of his trial. As such, 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). Under that standard, in assessing harm based on the violation of a non-constitutional right, an appellate court must determine whether the accused's "substantial rights" were affected. Id. The State contends, by its motion for rehearing, that any harm analysis associated with the absence of the accused during voir dire "must be narrowly tailored to the impact of his absence on that stage of the trial—that is, the effect of his absence on selecting a fair and imparial jury." By the State's theory, in a case such as this, an appellate court would be limited to looking at the record of voir dire to specifically determine if a fair and impartial jury was seated. We disagree.
In large part, the State's argument is based upon two factors: (1) an overly broad reading of a decision by the Fifth Court of Appeals in Tracy v. State, 14 S.W.3d 820, 827 (Tex. App.—Dallas 2000, pet. ref'd) and (2) reliance upon subsequent cases that have, in turn, blindly relied on Tracy by taking a specific rule about a specific type of error and incorrectly applying it as a general rule to all types of error occurring during voir dire. In Tracy, a case involving a violation of article 33.03, the Fifth Court of Appeals relied on Ladd v. State, 3 S.W.3d 547, 562 (Tex. Crim. App. 1999), for the proposition that "no violation of substantial rights occurs during the voir dire unless the record shows the defendant was denied a fair and impartial jury." Not only was Ladd not an article 33.03 case, nothing about that statement limits a harmless error review to the record of voir dire. Ladd involved a situation where the Court was reviewing the propriety of the trial court's grant of a State's challenge for cause. In that specialized situation, because the appellant did not allege the error deprived him of a fair and impartial jury, the Court overruled his issue. That holding is a long way from making a categorical statement that an appellate court is limited to the record of voir dire to determine harm in a case involving a violation of article 33.03.
Remaining convinced that we were correct to consider the entire record in our original harm analysis, we are persuaded that our prior analysis failed to give appropriate emphasis to the nature of the error and whether that error affected a substantial right. In the case of statutory error, such as the error in this case, as an appellate court we are required to disregard that error unless we find it affected the "substantial rights" of the accused. See TEX. R. APP. P. 44.2(b). 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 on 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, the judge did not take any steps to compel his appearance until after the jury had been selected and seated, and then only for a brief moment. While Appellant's initial involuntary absence and his subsequent voluntary absence (both caused by his own misbehavior) impaired his ability to assist his counsel in the jury selection process—a right guaranteed by article 33.03—in assessing the harm arising from that error we must determine whether the error (his involuntary absence during voir dire) had an influence on the trial's outcome. If, after reviewing the entire record, we determine the error did not influence, or had only a slight influence on the trial's outcome, then the error was harmless.
In determining whether the error in this case had an influence on the trial's outcome, in addition to considering the voir dire proceedings, we must consider the entire record, including any testimony or physical evidence admitted for the jury's consideration, the trial judge's instructions to the jury, the State's theory, any defensive theories, and closing arguments. See Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). When considering the evidence presented, a reviewing court should even consider the weight of the evidence supporting the verdict as a factor. Id. at 357.
Here, starting with voir dire, as the State has argued in its motion for rehearing, the record reflects that the jurors expressing any reservation in their ability to overlook Appellant's outbursts and subsequent absence were excused for cause. Furthermore, during trial and in the charge to the jury, the trial judge clearly instructed the jurors that they were not to consider Appellant's absence as any evidence of guilt. While the evidence was not "overwhelming," it was at least duplicative on the only contested issue—identity of the perpetrator. Appellant's responsibility as an actor in each offense was dependent on the reliability of eyewitness testimony, a matter defense counsel sought vigorously, but unsuccessfully, to exploit. While, due to Appellant's voluntary absence, the eyewitnesses were not allowed an in-court opportunity to identify him in person, they each reaffirmed their identification of him in a forensic photographic lineup. After reconsideration of the character of the error and how it might have influenced the outcome of the trial, given the circumstances of this case, we can say with fair assurance that Appellant's absence during voir dire did not influence or had only a slight influence on the ultimate outcome of the trial. Because his substantial rights were not affected by the error, we find the error to be harmless. Accordingly, Appellant's second issue is overruled.
ISSUE THREE—SPEEDY TRIAL
By his third issue, Appellant contends his constitutional right to a speedy trial was violated. The State contends Appellant's rights were not violated for at least two reasons: (1) his arguments are premised on pre-indictment delay, a time period that is irrelevant to the speedy-trial analysis and (2) much of the post-indictment delay was directly attributable to him. Based on this record, we find Appellant's right to a speedy trial was not violated.
The Sixth Amendment to the United States Constitution guarantees the accused's right to a speedy trial. Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002) (citations omitted). This right applies to the states through the Fourteenth Amendment. Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014) (citations omitted). In addition, Article I, Section 10 of the Texas Constitution guarantees the accused in all criminal cases the right to a speedy and public trial. Zamorano, 84 S.W.3d at 647. The right to a speedy trial under the Texas Constitution exists separately from that in the Sixth Amendment but our courts have generally analyzed claims of violations of that right under the same analysis as that applied to claims of violations of the Sixth Amendment. Zamorano, 84 S.W.3d at 648 (citations omitted). Finally, article 1.05 of the Texas Code of Criminal Procedure provides that "in all criminal trials the accused shall have a speedy trial by an impartial jury." TEX. CODE CRIM. PROC. ANN. art. 1.05 (West 2005).
In our analysis of an alleged speedy trial violation, we balance four specific factors established in Barker v. Wingo. Zamorano, 84 S.W.3d at 647-648 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). We first consider the length of the delay before trial. Zamorano, 84 S.W.3d at 684. Second, we consider whether the State or the defendant is more to blame for that delay. Id. We then consider the defendant's assertion of his right to a speedy trial. Id. Lastly, we consider the prejudice to the defendant due to the length of the delay. Id.
The first factor, the length of the delay, is a "triggering mechanism" for the analysis under the remaining factors. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999) (citing Barker, 407 U.S. at 531). An appellant must show the delay was "presumptively prejudicial" before consideration of the remaining factors is necessary. Id. (citation omitted). Furthermore, we review a claim of violation of the right to a speedy trial under a bifurcated review such that we give almost total deference to historical findings of fact of the trial court that are supported by the record and we draw reasonable inferences from those facts necessary to support the findings, but we review de novo the application of the law. Gonzales, 435 S.W.3d at 808 (citation omitted).
The plain language of the Sixth Amendment makes it clear the right to a speedy trial applies only to an accused. Id. (citing United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)). As such, a person who has not yet been formally charged cannot assert a claim under the clause. Gonzales, 435 S.W.3d at 809. Further, the State is "not required 'to discover, investigate, and accuse a person within any particular period of time.'" Id. at 811 (citing Marion, 404 U.S. at 313, 320). Instead, the applicable statute of limitations controls when there is a delay between when an offense is committed and an indictment returned. Gonzales, 435 S.W.3d at 808 (citing Kroll v. United States, 433 F.2d 1282, 1286 (5th Cir. 1970)).
Here, the two robberies at issue in this case occurred in July 2011, however, Appellant was not indicted until July 2015, and not tried until August 2018. Appellant argues his right to a speedy trial was violated, in part, by this four-year pre-indictment delay. Because the right to a speedy trial only attaches when a person is arrested or when he is charged, this delay does not figure into our analysis of Appellant's claim, other than to answer the threshold question of whether the delay was presumptively prejudicial.
Appellant further argues that the delay from the time of his indictment in July 2015, to the time of his trial in August 2018, also violated his right to a speedy trial. According to Appellant's brief, this delay was a period of three years and twenty-nine days. The State concedes that this delay is sufficient to trigger an analysis of the four Barker factors and that the delay weighs against the State with regard to the first factor.
The second factor requires us to look at the reason for the delay. Gonzales, 435 S.W.3d at 808 (citation omitted). Following the offenses at issue, Appellant was not immediately arrested. Instead, he fled to Washington where he was arrested on other charges. In July 2015, while he was still incarcerated in Washington, Appellant was indicted for the offenses at issue in this case. In August 2015, he pleaded guilty to the charges pending in Washington and remained incarcerated. In January 2016, the State of Texas attempted to gain Appellant's extradition and transport to Texas. In August of that year, Washington requested additional documentation before it would release Appellant. That information was provided; however, he was not immediately released. Texas authorities continued to contact authorities in Washington and was told that Appellant would not be ready for transport until March 2017. When Appellant was not transported as promised, the State of Texas initiated procedures under the IADA. After a December 2017 hearing, a Washington court signed an order allowing Appellant to be released for purposes of transport to Texas. He arrived in January 2018 and remained incarcerated until the day of trial.
While the interplay between Texas and Washington does not appear to be the fault of either party, it was Appellant's own actions that led him to be incarcerated in Washington in the first place. While it is also possible the State of Texas was, to some extent, responsible for the length of time it took to have him transported to Texas, the second Barker factor seems to fall neither in favor of nor against a finding of undue delay. What is apparent to this court is the fact that prior to January 2018, the State of Texas did not overtly act in a manner intended to prejudice Appellant. Thames v. State, No. 02-17-00295-CR, 2019 Tex. App. LEXIS 343, at *19 (Tex. App.—Fort Worth Jan. 17, 2019, no pet.) (mem. op., not designated for publication).
Finally, Appellant also points to the delay between January 2018 and August 2018, as a basis for his claim of undue delay. In that regard, we note that within days of Appellant's arrival in Texas, the trial court appointed legal counsel to represent him and set the case for a special trial setting on March 19, 2018. On February 28, 2018, less than three weeks prior to that setting, Appellant's court-appointed counsel filed a Motion to Dismiss based on a claimed violation of Appellant's right to a speedy trial. On March 7, following a hearing on that motion, the motion was denied. Then, less than a week before trial, on March 13, Appellant's court-appointed counsel filed a Motion to Withdraw based on an inability to "effectively communicate" with Appellant. A hearing on that motion was held on March 15, where Appellant filed a request to represent himself. After being admonished by the trial judge concerning the dangers of self-representation, counsel's motion to withdraw was granted and Appellant was permitted to proceed pro se. At that time, the trial court reset the matter for a jury trial on April 30. At a pretrial proceeding on April 20, Appellant withdrew his request to represent himself and renewed his request for the appointment of counsel. New counsel was appointed on April 25 and the case was reset for a pretrial hearing on June 8, with trial to commence on July 9. On June 28, Appellant's newly appointed counsel informed the judge of Appellant's pro se motion to recuse the presiding trial judge. The trial judge declined to recuse, and the matter was immediately referred to the Honorable David Evans, Presiding Judge of the Eighth Administrative Judicial Region, for a ruling. On July 6, a telephonic hearing was held on Appellant's motion to recuse. At the conclusion of that hearing, Judge Evans denied the motion to recuse. That same day, Appellant's counsel filed an Application for Writ of Habeas Corpus, and on July 9, he filed a motion for continuance. Over the State's objection, the trial judge granted Appellant's motion for continuance and reset the case for trial on August 20—when it was finally tried. Based on this abbreviated history, it is apparent to this court that the delay between January 2018 and August 2018 was not attributable to the State, but was, instead, due to the actions of Appellant. Thus, this factor weighs against a finding that his right to a speedy trial was violated. See Christmas v. State, No. 02-08-004-CR, 2009 Tex. App. LEXIS 1500, at *17-18 (Tex. App.—Fort Worth March 5, 2009, pet. ref'd) (mem. op., not designated for publication) ("delay which is attributable in whole or in part to the defendant can weigh against the defendant and may even constitute a waiver of a speedy trial claim") (citing Barker, 407 U.S. at 529)).
Because the delay from the date of indictment to the date of trial is partially attributed to both parties (more so to Appellant than to the State) we do not weigh this factor against either party. Thames, 2019 Tex. App. LEXIS 343, at *22-23 (citing Hopper v. State, 520 S.W.3d 915, 928 (Tex. Crim. App. 2017) (stating that "[b]ecause the parties are equally blameworthy for that period of delay, the reasons-for-delay factor is essentially neutral")).
The third factor considers the accused's assertion of his right to a speedy trial. The longer one delays the assertion of the right to a speedy trial, the more such inaction is weighed against a speedy trial violation. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). And, while a request for dismissal of the charges rather than for an actual trial is sufficient to assert the right, "filing for dismissal instead of a speedy trial generally weakens a speedy trial claim because it shows a desire to have no trial rather than a speedy one." Murphy v. State, 280 S.W.3d 445, 454 (Tex. App.—Fort Worth 2009, pet. ref'd) (citing Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008)). Accordingly, when an appellant has failed to ask for a speedy trial before moving for dismissal of the charges against him, he should provide "cogent reasons for this failure." Id. (citation omitted).
Here, Appellant was indicted in July 2015, but he was not in Texas custody until January 2018. He filed a motion for dismissal based on his claim of a violation of his right to a speedy trial just three weeks prior to the trial setting in March 2018. While Appellant re-urged his motion in June 2018, it was his acts that caused the delay of his trial for several more months. Furthermore, Appellant has failed to explain why he requested dismissal of the charges against him rather than requesting an actual trial. All of these considerations weigh against a finding that Appellant's right to a speedy trial was violated.
The last Barker factor considers whether and to what extent the delay has actually prejudiced the accused. Harper v. State, 567 S.W.3d 450, 460 (Tex. App.—Fort Worth 2019, no pet.). There are three interests generally considered in determining prejudice: "(1) preventing oppressive pretrial incarceration; (2) minimizing the accused's anxiety and concern; and (3) limiting the possibility that the defense will be impaired." Id. (citing Barker, 407 U.S. at 532). However, proof of actual prejudice is "not required when the delay is excessive, because such a delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify." Id. (citation omitted). If prejudice is shown, the burden shifts to the State to prove that the accused suffered no serious prejudice "beyond that which ensued from ordinary and inevitable delay." Id.
Appellant argues that the delay has prejudiced his defense. He contends the delay hindered his ability to locate witnesses, hindered the ability of those witnesses to recall the events, and caused the degradation of evidence. While each of these arguments may be true, those same issues also hindered the State in its prosecution of Appellant. See e.g., Rivera v. State, 990 S.W.2d 882, 892 (Tex. App.—Austin 1999, pet. ref'd) (noting that "[t]ime can damage either side's case, and it is often impossible to determine which side has been prejudiced more severely"). Where the critical contested issue was identity, because memories tend to fade with the passage of time, it stands to reason that the prosecution would be hindered more than the defense by any delay. Therefore, we cannot say that the fourth factor weighs heavily towards a finding of prejudice against Appellant.
Furthermore, Appellant failed to show that the delay caused him to be unable to locate witnesses or caused their unavailability at trial. See State v. Davis, 549 S.W.3d 688, 708-09 (Tex. App.—Austin 2017, no pet.) (citing cases discussing lack of prejudice shown when no evidence that witnesses unavailable due to delay) (citations omitted). Appellant states in his brief that the investigator found three witnesses in the Houston area and defense counsel spoke with one. However, for reasons unknown, "the witnesses can't be located." Another witness was located in Wichita Falls but was not responding to any requests and the defense was unable to subpoena him. While all of this may be true, Appellant has not identified the witnesses, nor has he explained how they became unavailable as a result of the delay or how those witnesses would have supported his defense.
Appellant also contends he was prejudiced by the delay because several witnesses were unable to "testify regarding important details." For example, Appellant says the store clerk was unable to remember if the officers read the photographic lineup instructions to him or if he read them himself when the record indicated that the instructions were supposed to be read to the witnesses. Also, a sergeant was unable to recall whether he changed photographs after the computer selected them and could not recall whether he read the instructions to the witnesses. The sergeant also could not recall any witness saying the robber had a gold tooth, when one witness had apparently made a statement that the robber in her case "had a gold tooth or a gold grill." While some of the witnesses certainly had fading memories of the events, in order to show prejudice, Appellant was required to show that the lapses of memory were in some way "significant to the outcome of the case." Porter v. State, 540 S.W.3d 178, 184 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Even if we were to assume that these lapses in memory were attributable to the delay in proceeding to trial, Appellant has not demonstrated how these lapses prejudiced him or were significant to the outcome of his case. Id. (citations omitted).
Appellant also seems to argue that the delay led to a degradation of evidence. He specifically discusses fingerprints, pointing out there was no fingerprint evidence linking him to either robbery. In support of his argument, he notes that the crime scene technician testified that fingerprints from the convenience store and the restaurant did not match those of Appellant—a fact favorable to Appellant's defensive theory. What Appellant does not do is show how the delay had any effect on the fingerprint evidence or how the lack of fingerprint evidence was prejudicial to his theory of the case.
Balancing the four Barker factors, we find Appellant has not shown he was prejudiced by any delay, whether of his own making or otherwise, nor has shown that his right to a speedy trial was violated. According, Appellant's third issue is overruled.
ISSUE FOUR—DENIAL OF MOTION FOR NEW TRIAL
By his fourth issue, Appellant contends the trial court abused its discretion when it denied his motion for new trial regarding alleged violations of the IADA by the State of Washington. The State responds by arguing that Appellant did not establish any violations occurred, and if they had, he failed to cite any authority for his contention that the proper remedy is reversal of his Texas conviction and dismissal of the pending charges.
The IADA is a "congressionally sanctioned compact between the United States and the states, including Texas, that have adopted it." See Kirvin v. State, 394 S.W.3d 550, 555 (Tex. App.—Dallas 2011, no pet.) (citation omitted). See also In re Dacus, 337 S.W.3d 501, 502-503 (Tex. App.—Fort Worth 2011, orig. proceeding). The act has been codified in Texas in the Code of Criminal Procedure article 51.14 and "outlines the cooperative procedure between the states to be used when one state is seeking to try a prisoner who is currently imprisoned in a penal or correctional institution of another state." State v. Votta, 299 S.W.3d 130, 134-35 (Tex. Crim. App. 2009) (citing TEX. CODE CRIM. PROC. ANN. art. 51.14). The statute's purpose is "to provide for the speedy disposition of charges filed in one jurisdiction against prisoners who are serving sentences in another jurisdiction." Kirvin, 394 S.W.3d at 555 (citing Morganfield v. State, 919 S.W.2d 731, 733 (Tex. App.—San Antonio 1996, no pet.)).
As relevant to this issue, we review a trial court's denial of a motion for new trial under an abuse of discretion standard, reversing only when the decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Freeman v. State, 340 S.W.3d 717, 732 (Tex. Crim. App. 2011) (citing Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010)).
Appellant complains of several ways in which the district court in Washington failed to follow the IADA. Appellant does not, however, explain or cite to any authority explaining how those alleged violations could have been remedied by the trial judge in Texas or how the failure of the trial judge in Texas to grant his motion for new trial on the basis of those alleged violations was an abuse of discretion entitling him to the relief he requests. Further, Appellant fails to show how Washington violated the IADA.
Appellant says this court "should set aside the conviction and grant a new trial and remand the case to the trial court for dismissal of the hold and return of the defendant to Washington state custody, free of the detainer."
Irrespective of our opinion on the matter, Appellant has the duty to provide us with a "clear and concise argument for the contentions made," supported by appropriate citation to legal authority and to the record. TEX. R. APP. P. 38.1(i). A brief that fails to explain how the trial court erred or point to any authority authorizing the relief requested as a result of an alleged error is inadequately briefed and presents nothing for review. Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim. App. 2011). Since Appellant has provided us with neither substantive argument regarding how the trial judge erred by denying his motion for new trial, nor cited us to any legal authority supporting his arguments, he has inadequately briefed this issue. Accordingly, we resolve Appellant's fourth issue against him.
ISSUE FIVE—VIOLATION OF THE IADA
By his fifth issue, Appellant contends the trial judge erred in not timely bringing this matter to trial, thereby violating the IADA. The State responds that the only reason the trial did not occur within the requisite 120-day period was because Appellant requested multiple continuances.
In any proceeding made possible by the IADA, Article IV(c) of the act provides, "trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." TEX. CODE CRIM. PROC. ANN. art. 51.14, art. IV(c) (West 2018). Subject to a "reasonable continuance," courts interpreting this provision have held that when a case is not brought to trial within the applicable time period, the court where the indictment is pending "shall enter an order dismissing the same with prejudice . . . ." Lasker v. State, 577 S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd) (citing TEX. CODE CRIM. PROC. ANN. art. 51.14, art. V(c); State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997) (stating IADA "requires a dismissal of the prosecution from the docket, with prejudice, if the Act's time limits are not met")). See In re Dacus, 337 S.W.3d at 506 (noting same).
Article IV(c) provides five requirements for obtaining a continuance: (1) the court must have competent jurisdiction; (2) the continuance must be granted in open court; (3) the defendant or his attorney must be present; (4) the movant must demonstrate good cause; and (5) the length of the continuance must be reasonable or necessary. Morganfield, 919 S.W.2d at 735.
Appellant arrived in Texas in January 2018. The trial judge ordered a special setting for his trial in March 2018, within the 120-day period. At that time, the judge acknowledged that this case would have to be tried on or before May 5, 2018, absent good cause. The case was not tried until August 20, 2018, a date 107 days beyond the deadline. Appellant concedes he filed two motions to continue the matter, accounting for forty-two of the 107 days, but he asserts there is no good cause for the remaining thirty-one days. However, when the judge granted those continuances, in particular the second continuance in which Appellant sought the appointment of new counsel, after "firing" his first appointed counsel and then realizing that he did not want to pursue self-representation, the judge made it clear to him that granting his request would result in his trial being delayed past the May 5, 2018 deadline. At that time, the judge specifically noted on the record that granting of the motion was based on good cause and that by doing so, there would be no concern with the May 5 date. Appellant acquiesced to that delay. He cannot now be heard to argue that the trial judge failed to timely begin his trial under the IADA mandate. Kirvin, 394 S.W.3d at 557 ("[b]ecause appellant assented to the trial date, he is precluded from complaining that the trial date was outside the 120-day period") (citations omitted).
We further note that the IADA provides for discretionary continuances that are "necessary and reasonable, for good cause shown." Id. at 558. Those discretionary continuances include time to hear and resolve pretrial motions. Id. (citation omitted). The record shows the trial judge was made aware of the 120-day deadline and was careful to ensure the parties were aware of the consequences of any continuances. As such, we cannot find the trial judge erred here. We overrule Appellant's fifth issue.
ISSUE SIX—DENIAL OF MOTION TO RECUSE
By his sixth issue, Appellant contends the Presiding Judge of the Eighth Administrative Judicial Region abused his discretion when he denied Appellant's motion to recuse the trial judge without permitting him to amend his motion to provide greater detail. The State responds to this issue by contending Appellant forfeited this complaint by failing to file a second, more specific motion, despite the judge's invitation to do so.
On April 23, 2018, during the period of time when Appellant was not represented by counsel, Appellant filed a pleading that was construed to be a motion to recuse the sitting trial judge. At that time, the trial judge declined to recuse himself and the matter was referred to the administrative judge in accordance with the provisions of Rule 18b of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 18b. The administrative judge held a hearing during which Appellant argued the trial judge should be removed from his case due to a conflict of interest. Appellant had past and pending complaints against the trial judge and he believed the trial judge had a "vendetta" against him because of these complaints. As evidence of that bias, Appellant told the administrative judge he had filed several motions and requests with the trial judge that were either not addressed or were, in Appellant's opinion, not addressed in a timely fashion. After listening to Appellant's testimony at the hearing and reviewing the motion, the administrative judge determined that a "motion which just globally describes past affairs doesn't fully inform the judge who's being asked to recuse themselves of which past affairs would give rise to a conflict." Further, the administrative presiding judge noted that complaints filed with the Judicial Conduct Commission, without more, are not considered to be a basis for recusal. After some additional comments, the administrative judge denied "this motion." Before adjourning the hearing, he then said the "denial of the motion does not prevent a party from seeking a second recusal . . . ." Thereafter, Appellant did not seek to amend his motion or file a new motion to recuse.
The procedures for recusal of a judge set out in Rule 18b also apply in criminal cases. DeLeon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004); Arnold v. State, 853 S.W.3d 543, 544 (Tex. Crim. App. 1993).
Appellant's complaint is not that his motion to recuse was denied but that it was denied without the opportunity to amend. To preserve a complaint for appeal, the record must demonstrate the defendant raised the complaint to the trial court through a timely request, objection, or motion and that the trial court ruled, either expressly or implicitly, on the request, objection, or motion. TEX. R. APP. P. 33.1(a). Because Appellant never asked the trial judge to permit him to amend his motion or file a new motion to recuse, he cannot now complain of the trial judge's failure to provide him with such an opportunity. See TEX. R. APP. P. 33.1(a); Burg v. State, 592 S.W.3d 444, 448-49 (Tex. Crim. App. 2020). Accordingly, we overrule Appellant's sixth issue.
ISSUE SEVEN—EXCLUSION OF EVIDENCE OF PRIOR DISMISSAL
Via his seventh issue, Appellant contends the trial judge erred by excluding evidence that he had previously been erroneously selected from a police photographic lineup. Again, the State contends Appellant failed to preserve this issue for our review because he only addressed the issue in relation to the State's motion in limine and did not attempt to introduce the evidence at trial. Further, even assuming his complaint is preserved for our review, the State contends the trial judge did not err because the evidence was irrelevant to any issue at trial and was, in any event, harmless.
At a pretrial hearing addressing the parties' respective motions in limine, Appellant's counsel told the judge he intended to present evidence that Appellant had been a suspect in an aggravated robbery case that was dismissed in 1992 as a result of a defective photographic lineup. Counsel explained to the judge he wanted to introduce this evidence to show the jury "that bad photo lineups happen, and it's happened more specifically to Mr. Pool." The State objected to the admission of that evidence based on relevance. The State argued that because none of the same people were involved, such evidence was not relevant to any issue in this case. The trial judge agreed and sustained the State's objection.
An appellate court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (citation omitted). Under that standard, a trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. Id. (citation omitted). Evidence must be relevant to be admissible. TEX. R. EVID. 402. Relevant evidence is evidence that "has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence." Martinez, 327 S.W.3d at 736 (citing TEX. R. EVID. 401). While the identification of the perpetrator of the robberies was the critical issue, and was, in both cases, made through photographic lineups, nothing in the record demonstrates that the lineups in this case were similar to that involved in the prior robbery that was dismissed. The only evidence proffered showed that in that particular case, Appellant was not identified as the robber. Nothing about the prior photographic lineup had any effect on the State's evidence showing Appellant was the person who committed the robberies for which he was on trial. Thus, the evidence concerning the prior lineup did not have any tendency to make the existence of any fact of consequence more or less probable than it would be without that evidence. See, e.g., Scott v. State, No. 07-10-00193-CR, 2011 Tex. App. LEXIS 4474, at *22 (Tex. App.—Amarillo June 14, 2011, pet. ref'd) (mem. op., not designated for publication) (Pirtle, J., concurring) ("Whether the prosecution did or did not meet its burden in a previous trial does not make the existence of any fact that is of consequence in this case more or less probable."). We cannot, therefore, find the trial judge abused his discretion in excluding that evidence. We resolve Appellant's last issue against him.
CONCLUSION
The judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice Chief Justice Quinn joins in the opinion as to all matters except Issue Two, where he concurs in the result only. Do not publish.