Casias v. State

• Decision Date: 19 December 1973
• Docket Number: No. 47362,47362
• Citation: 503 S.W.2d 262
• Parties: John Joe CASIAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 262

503 S.W.2d 262

John Joe CASIAS, Appellant, v. The STATE of Texas, Appellee.

No. 47362.

Court of Criminal Appeals of Texas.

Dec. 19, 1973.

None on appeal, for appellant.

Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from a conviction for unlawfully carrying a pistol, wherein the punishment was assessed at a one hundred dollar fine.

No appellate brief has been filed as required by Article 40.09, Sec. 9, Vernon's Ann.C.C.P., and there is no transcription of the court reporter's notes in the record. Nothing is presented for review.

We do note, however, that the appellant was sentenced in absentia after he had executed a written sworn waiver of the right to be present, which was approved by his counsel. Such waiver was filed among the papers of the cause. Thereafter, with his counsel present, sentence was pronounced in open court in absence of the appellant.

The question presented concerns the legality of such procedure.

Article 42.02, V.A.C.C.P., provides:

'A 'sentence' is the order of the court in a felony or misdemeanor case Made in the presence of the defendant, except in misdemeanor cases where the maximum possible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.' (Emphasis supplied.) Article 42.14, V.A.C.C.P., does provide that:

'The judgment and sentence in a misdemeanor case may be rendered in the absence of the defendant.'

The apparent conflict between the two statutes was discussed in Millman v. State, 487 S.W.2d 750 (Tex.Cr.App. 1972), wherein this court held that statutes were in pari materia and should be read together and harmonized. In so doing this court held that Article 42.02, supra, controlled as to all misdemeanor cases where the maximum possible punishment could have been confinement in jail, and that Article 42.14, supra, was applicable to all misdemeanor cases where the maximum possible punishment is by fine only.

The instant misdemeanor case involves a maximum possible punishment of confinement in jail, see Article 483, Vernon's Ann.P.C.; therefore, Article 42.02, supra, is applicable. This provision is a definition of 'sentence' and is not a statement of rights of a defendant. Although many rights may be waived by a defendant (Cf. Article 1.14, V.A.C.C.P.), a statutory definition may not be altered by consent.

Certain early cases hold that a defendant's right to be present at trial may be waived and that his absence, at most, renders the conviction voidable, but not void. After examining these decisions, we conclude that they do not control the instant case.

In Ex parte Cassas, 112 Tex.Cr.R. 100, 13 S.W.2d 869 (1929), petitioner sought release from confinement, contending that the challenged judgment was void because he was absent from the courtroom during part of the trial. The court considered prior cases and then current statutes before reaching its conclusion. As authority for the proposition that a defendant can waive his right to be present, the court cited Benavides v. State, 31 Tex.Cr.R. 173, 20 S.W. 369; Bell v. State, 32 Tex.Cr.R. 436, 24 S.W. 418; and Shipp v. State, 11 Tex.App. 46. In Bell, the complained of absence was during examination of one of the State's witnesses. In Benavides and Shipp, the defendant was not present when the jury, having retired, was returned to the court to receive further instructions.

In Sweat v. State, 4 Tex.App. 617 (1878), also cited in Cassas, it was stated:

'. . . (T)o entitle him to a reversal of a judgment of conviction, it must be made to appear from the record, affirmatively, that he desired to exercise the right of being present, and that this was denied him, in the court which tried the case.' (Emphasis added.)

In Sweat the defendant had complained of the hearing on his motion for new trial having been conducted in his absence. such was also the case in Cordova v. State, 6 Tex.App. 207 (1879), also cited in Cassas.

Thus, in each of these cases cited in Cassas, supra, the presence of defendant stated to be a waivable right was at issue under the provisions of statutes held to establish such rights, and the assertion of the violation of those rights was raised in an effort to secure a reversal of conviction. That such rights may be waived today is clear from the relevant provisions of the Code of Criminal Procedure. See Articles 33.03, 36.27, 37.06, V.A.C.C.P. Indeed, some of these provisions had been so amended prior to the decision in Cassas, supra.

It will be noted, however, that none of the cases thus far discussed has concerned the presence of defendant at sentencing, which presence is required in Article 42.02, V.A.C.C.P., not as a right, but as an element of the definition of sentencing. Furthermore, failure to enter a proper sentence would not render the conviction void. If there is no sentence, it is not too late to call the defendant before the court and pronounce it 'at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment,' Article 42.03, V.A.C.C.P. See also Articles 42.05, 42.06, V.A.C.C.P.

These early cases address the questions of whether a conviction should be reversed because of the defendant's absence during some stage in the proceedings and whether the defendant waived his right to be present. Said questions are now answered by certain amended articles of the Code of Criminal Procedure cited above. In contrast to said questions, the question of a defendant's presence at sentencing was never before the court in those earlier cases; it is not answered by the same statutes which control the previous questions; and the statute which Does control the latter question makes the defendant's presence an element of the definition of sentence rather than a right of the defendant, and has always done so.

In contrast to those cases previoulsy discussed, the cases which concern the presence of defendant at sentencing speak of that requirement as an essential element. If there is no recital that sentence was pronounced in defendant's presence, there was no sentence, and this court is without jurisdiction to entertain an appeal. In Garbs v. State, 155 Tex.Cr.R. 290, 234 S.W.2d 869, this court held:

'There appears no fixed or inflexible form to be used for the sentence. The one mandatory provision is that it 'shall be pronounced in the presence of the defendant * * *.' Art. 768, C.C.P. (...