Mares v. State, 55778
Decision Date | 20 September 1978 |
Docket Number | No. 55778,No. 2,55778,2 |
Citation | 571 S.W.2d 303 |
Parties | Ricardo MARES, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Phil Harris, Weslaco, for appellant.
Oscar R. McInnis, Dist. Atty. and Robert D. Ralston, Asst. Dist. Atty., Edinburg, for the State.
Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
Appeal is taken from a conviction for delivery of a controlled substance, to-wit: heroin. Art. 4476-15, Sec. 4.03, V.A.C.S. The jury assessed punishment at 36 years.
I. C. Galvan, a Department of Public Safety narcotics agent, testified that he first met the appellant in July of 1975. On August 26, 1975, the appellant offered to sell him 90 ounces of "high grade heroin." They agreed to meet the next day at the appellant's home, where the appellant was to deliver 25 ounces of heroin in exchange of $31,250. According to the witness, on the morning of August 27, 1975, he arrived at the appellant's house and was invited in. The appellant left in a car with an unidentified man and returned after a few minutes carrying a paper sack. The delivery took place and the witness gave a predetermined signal and other officers closed in and made the arrest.
Initially the appellant contends that the trial court erred in conducting a portion of the proceedings in his absence.
The record reflects that on three occasions objections to certain questions were taken up in chambers with both counsel for the appellant and the State present with a court reporter. The first instance involved the State's objection to a question asked the undercover agent on cross-examination. The court sustained the objection and appellant's counsel noted an exception and reurged his objection. The court requested counsel to approach the bench and they then retired to the judge's chambers. The record reflects that while in chambers counsel for the appellant and counsel for the State reargued the objection and the trial court indicated that he would continue to sustain the objection. The matters considered in chambers were strictly questions of law dealing with the scope of the cross-examination.
The second instance cited by the appellant also occurred during the cross-examination of the undercover agent. Appellant's counsel asked to approach the bench and after a brief off-the-record discussion the trial court moved the conference to chambers. It appears that the matter was initiated by appellant's counsel and again the issue discussed was the proper scope of cross-examination.
The third instance cited by the appellant occurred when appellant's counsel asked to make an objection outside the presence of the jury. Counsel retired to chambers with the trial court and made his objection having to do with the admissibility of State's Exhibits Numbers 1 and 2. The objection was overruled by the court.
After the State rested, appellant for the first time moved for a mistrial on the grounds that several motions were taken up and ruled on by the court in chambers without the defendant's presence.
Article 33.03, V.A.C.C.P., "Presence of defendant," provides:
1
In Cartwright v. State, 96 Tex.Cr.R. 230, 259 S.W. 1085 (1924), a rule which has been cited with approval in a number of cases 2 was stated as follows:
Appellant cites a number of cases where a defendant's absence from the trial resulted in reversal.
In Harris v. State, 396 S.W.2d 880 (Tex.Cr.App.), reversal resulted where the defendant was not present at trial when he was convicted of a misdemeanor and assessed punishment which included a jail sentence. The absence of defendant at trial when the punishment or any part thereof is imprisonment in jail was found to be in contravention of Art. 580, V.A.C.C.P.
In Phillips v. State, 163 Tex.Cr.R. 13, 288 S.W.2d 775, it was held that the conviction must be reversed where the defendant was not present at the proceeding when his motion for new trial was overruled.
In Webb v. State, 161 Tex.Cr.App. 442, 278 S.W.2d 158, reversal was required where the court continued with the hearing on a defendant's motion to quash the indictment after the defendant had become ill and was taken to the hospital.
Lastly, appellant cites Padillo v. State, 159 Tex.Cr.R. 435, 264 S.W.2d 715. There it was held error to admit a prior conviction where defendant had been assessed a jail term when conviction had been based upon a guilty plea entered by his attorney in the absence of the defendant.
A number of Federal Circuit Courts have addressed the question of conferences held at the bench and in chambers in the defendant's absence. We find the opinion in Egger v. United States, 509 F.2d 745 (9th Cir.), to be instructive. In Egger, it was stated:
"Appellant complains that his absence during the trial from side-bar conferences between the Court and counsel for both sides constitutes a violation of Rule 43 F.R.Crim.P. and the Sixth Amendment. However, Egger never asked to attend any of these side-bar conferences nor was he prevented from doing so. He was, in fact, physically present throughout the trial, which is all that Rule 43 3 and the Sixth Amendment would seem to require. Any greater 'right to be present' was effectively waived by Egger's failure to request it.
See also United States v. Sinclair, 438 F.2d 50 (5th Cir. 1971); United States v. Allison, 481 F.2d 468 (5th Cir. 1973).
It is difficult to imagine a trial fraught with complex legal problems when there will not be occasions where counsel and the court will confer on questions of law at the bench or in chambers out of the presence of the defendant...
To continue reading
Request your trial-
Callaway v. State
...are facts from which injury can be inferred, to result to appellant from the conference so as to mandate a reversal. Mares v. State, 571 S.W.2d 303, 307 (Tex.Cr.App.1978). In doing so, it is noticed that appellant's right to cross-examine Saragusa about Morton was not curtailed as a result ......
-
Adanandus v. State
...opportunity to defend" no harm is shown by his absence. Cooper v. State, 631 S.W.2d 508, 512 (Tex.Crim.App.1982); Mares v. State, 571 S.W.2d 303, 307 (Tex.Crim.App.1978). 7 This "reasonably substantial relationship" rule derives from the standard recognized as satisfying due process by the ......
-
Guerra v. State
...unless the presence of the defendant bears "a reasonably substantial relationship to the opportunity to defend." Mares v. State, 571 S.W.2d 303 (Tex.Crim.App.1978). As in Mares, the appellant's absence occurred when only questions of law were considered. We find no harm to the appellant. Ap......
-
Davis v. The State Of Tex.
...unless there is a showing of actual injury or a showing of facts from which injury might reasonably be inferred. Mares v. State, 571 S.W.2d 303, 307 (Tex. Crim. App. 1978); see also Carrion v. State, 926 S.W.2d 625, 629 (Tex. App.—Eastland 1996, pet. ref'd); Aguero v. State, 818 S.W.2d 128,......