Opinion
No. 04-16-00354-CR
04-12-2017
Tiffany Nicole CANTU, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR9814
Honorable Steve Hilbig, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
A jury convicted Tiffany Nicole Cantu of felony possession of a controlled substance. The trial court sentenced Cantu to five years in prison, then suspended the sentence and placed her on community supervision for a period of seven years. On appeal, Cantu argues the trial court erred by conducting part of the trial in her absence. We affirm.
DISCUSSION
In a single issue, Cantu complains that the trial court erred by conducting part of the trial in her absence in violation of Article 33.03 of the Texas Code of Criminal Procedure, the Sixth and Fourteenth Amendments of the United States Constitution and Article 1, sections 10 and 19 of the Texas Constitution. Specifically, Cantu asserts that when she did not appear in court on the second day of trial, the trial court erred by not inquiring about her whereabouts and, when the trial court did inquire about her whereabouts, failed to inquire about the reason for her absence. In response, the State argues that Cantu has waived her complaint by failing to preserve it for appellate review by a timely objection. The State further argues that even if this court considers the merits of Cantu's complaint, the trial court acted within its discretion in deciding to proceed with the trial when Cantu voluntarily absented herself after jury selection.
The Texas Court of Criminal Appeals has held that within the scope of the right of confrontation in both the federal and state constitutions is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, absent a waiver of that right through the defendant's own conduct. Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985). One way in which the defendant may accomplish a waiver of the right to be present throughout his trial is to absent himself voluntarily after trial has commenced with him in attendance. Id. Article 33.03 of the Texas Code of Criminal Procedure codifies a defendant's right to be present at trial, providing:
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....TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006). Therefore, in Texas, a defendant's right to be present at trial is unwaivable until a jury has been selected; however, after a jury has been selected a defendant may choose to be absent. Miller, 692 S.W.2d at 91.
Here, the record shows that Cantu was present on the first day of trial for jury selection, opening statements, and the presentation of the State's first witness. At the end of the first day, the trial court informed everyone to be present at 8:25 the next morning to resume the trial. On the second day of trial, during the testimony of one of the State's witnesses, the trial court called the prosecutor and defense counsel to the bench and inquired about Cantu's absence. Defense counsel told the trial court that Cantu was on the highway and headed toward the courthouse and that he would "have to continue without her until she gets here." Then, after the State had called two witnesses to testify, the trial court called Cantu up to the bench and asked her where she had been earlier that morning. Cantu indicated that she had had trouble getting a ride to the courthouse and she had ultimately taken a cab.
The State then called another witness and rested its case. After the State rested, defense counsel moved for a mistrial, arguing that Cantu had been denied her Sixth Amendment right to cross-examine witnesses and her right to be present at trial. The trial court denied the motion for mistrial, stating: "[Cantu] was here for the jury selection. She was here for the first witness. She was supposed to be here at 8:30. She was not here. She voluntarily absented herself from trial."
As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a). We agree with the State that Cantu's complaint was not preserved for appellate review by a timely objection. See id.; Routier v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003) (holding the appellant failed to preserve error under article 33.03 when she failed to object at the earliest opportunity). When Cantu did not appear in court on the second day of trial, defense counsel did not immediately object to proceeding with the presentation of evidence, nor did he request a recess or continuance. Instead, defense counsel stated he would have to proceed without Cantu. Even though the grounds for objection were apparent much earlier, while the State was still presenting its case, defense counsel did not raise a complaint about proceeding in Cantu's absence until after the State had rested its case, when he moved for a mistrial. To be timely, a motion for mistrial must be made as soon as the grounds for it become apparent. Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). Defense counsel's motion for mistrial was untimely and, therefore, failed to preserve Cantu's complaint.
But even if Cantu's complaint had been properly preserved by a timely objection, we would still overrule her issue. We review a trial court's ruling that the defendant has voluntarily absented herself from trial under an abuse of discretion standard. Moore v. State, 670 S.W.2d 259, 260-61 (Tex. Crim. App. 1984). In reviewing the validity of a court's decision to proceed with trial under article 33.03, an appellate court is not limited to the evidence before the trial court at the time it made its ruling. Id. at 261. The appellate court may consider evidence that develops subsequent to the trial court's ruling. Id. In fact, in most cases, the validity of the trial court's decision that a defendant's absence was voluntary will have to be determined in hindsight. Id. A reviewing court will not disturb a trial court's finding that the defendant's absence from trial was voluntary without any evidence from the defendant to refute the finding. Id.
The record shows that Cantu appeared in court on the first day of trial and was there when the trial court informed everyone to be present at 8:25 the next morning to resume the trial. Cantu did not appear in court on time the following morning. During the presentation of the State's first witness of the day, the trial court inquired about Cantu's absence, and defense counsel said that Cantu was on her way and he was going to have to proceed without her. When Cantu eventually appeared in court, the trial court asked her about her absence. Cantu responded by saying, "My ride didn't show up. I was—my boyfriend wasn't there all night long, so I don't know what happened. He didn't answer the phone today, so I had to get another ride." Cantu further informed the trial court that she lived in Atascosa County, "so that's why it was kind of hard to get here. But I got here, with a cab." Thus, Cantu's explanation for her absence was that her boyfriend had failed to show up to give her a ride to the courthouse.
Cantu argues that because her explanation was reasonable, the trial court was required to find that her absence was involuntary. We disagree. In explaining her absence, Cantu focused on her boyfriend's unavailability, but she did not say that she had prearranged for her boyfriend to give her a ride to the courthouse that morning. The fact that Cantu had to find another way to get to the courthouse for trial did not necessarily render her absence involuntary. The trial court could have reasonably concluded that obtaining transportation to the courthouse so she could appear at trial was ultimately Cantu's responsibility and, as a result, Cantu's absence from the trial was voluntary.
Cantu also faults the trial court for not asking about her absence and the reason for it. However, the record shows that the trial court did ask about Cantu's absence—albeit not until after the State had started presenting one of its witnesses on the second day of trial. Further, the record shows that the trial court did inquire about the reason for Cantu's absence and Cantu provided a reason. The crux of Cantu's argument appears to be that the trial court was required to inquire about Cantu's absence and ascertain the reason for it earlier than it did. However, Cantu does not cite us to any authority to support the proposition that the timing of the trial court's inquiry was erroneous.
In addition to hearing and evaluating Cantu's explanation for her absence, the trial court was aware that Cantu had failed to appear at a pretrial setting, resulting in the temporary revocation of her bond. Furthermore, in reviewing the trial court's determination, we are not limited to the evidence before the trial court at the time it made its ruling. See Moore, 670 S.W.2d at 261. The record shows that Cantu had expressed a desire to have the trial postponed because she was not "ready for trial," and that she had appeared in court late for her sentencing hearing. Based on this record, we cannot say that the trial court abused its discretion in finding that Cantu had voluntarily absented herself from trial.
CONCLUSION
Cantu's sole issue is overruled. The judgment of the trial court is affirmed.
Karen Angelini, Justice Do not publish