Miller v. State

• Decision Date: 19 June 1985
• Docket Number: No. 046-84,046-84
• Citation: 692 S.W.2d 88
• Parties: John Glenn MILLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 88

692 S.W.2d 88

John Glenn MILLER, Appellant, v. The STATE of Texas, Appellee.

No. 046-84.

Court of Criminal Appeals of Texas En Banc.

June 19, 1985.

Danny Doyle, Stephen M. Rienstra, on appeal only, Beaumont, for appellant.

James S. McGrath, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

In his absence appellant was tried and convicted by a jury of the offense of burglary of a building, and his punishment was assessed at thirty five years confinement, enhanced. We granted appellant's petition to review the contention that the Beaumont Court of Appeals erred in holding that the jury had been "selected" at the time appellant absented himself from the proceedings, and that reversal of his conviction was therefore unnecessary under Article 33.03, V.A.C.C.P. Miller v. State, 623 S.W.2d 491 (Tex.App.--Beaumont 1981). ¹

Article 33.03, supra, reads:

"In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, ² 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."

The underscored clause above was added by Acts 1979, 66th Leg., p. 1832, ch. 745 § 1, eff. August 27, 1979, and is the subject of our analysis in this cause.

The pertinent procedural setting was laid out in the court of appeals' opinion as follows:

"Appellant was at liberty upon bond when the case was called for announcements upon the guilt-innocence stage of the trial and was present in court with his retained attorney. He assisted his counsel in the striking of the jury list. At the conclusion of the voir dire examination, a short recess was called while the parties exercised their peremptory challenges. After the deputy clerk had prepared the jury list, it was noticed that the appellant had not returned to the courtroom. At a hearing conducted by the Court, it was shown that after appellant had assisted his attorney in striking the jury list, he told his lawyer that he 'was going to get a match' but never returned. The Court found that 'prior to the voluntary absence of the defendant a jury was selected by the clerk as per the list tendered by the prosecution and defense counsel.'

Appellant's absence was discovered before the jury was seated and sworn and, since he was still absent after the indictment was read, the Court entered a plea of not guilty before any testimony was heard."

The court of appeals held, in effect, that the jury in this case had been "selected" within the meaning of Article 33.03, supra, at the point at which counsel for appellant and the State delivered their jury lists to the clerk pursuant to Article 35.26, V.A.C.C.P., the actual calling off of unstricken names having been deemed "purely a ministerial act." 623 S.W.2d at 494. The court further found an analogue to Article 33.03, supra, in Fed.R.Crim.P. 43, whereby a defendant's voluntary absence after trial has "commenced" in his presence will not prevent continuation of the trial. Accordingly appellant's conviction was affirmed.

Although we ultimately agree with the conclusion of the court of appeals, and will affirm its judgment herein, we take a somewhat different tack.

I.

This Court has held, under the Sixth Amendment to the United States Constitution and Article I, § 10 of the Bill of Rights in the Constitution of Texas, that "within the scope of the right of confrontation 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, Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), absent a waiver of that right through defendant's own conduct as in, e.g., Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)." Baltierra v. State, 586 S.W.2d 553 (Tex.Cr.App.1979).

One form of conduct the Supreme Court has recognized by which an accused may accomplish a waiver of the Sixth Amendment right to be present throughout his trial is voluntarily to absent himself after trial has "commenced" with him in attendance. Thus by per curiam opinion in Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) the Supreme Court upheld Fed.R.Crim.P. 43, which currently reads in relevant part:

"(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

(b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present,

(1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial), ..." ³

The federal courts of appeals have determined that a trial "commences," under contemplation of R. 43, "at least" from the time that "the work of impaneling jurors begins," see United States v. Miller, 463 F.2d 600 (CA1 1972), and this is true regardless of the fact that for purposes of double jeopardy analysis, jeopardy only attaches once the jury has been impaneled and sworn, Government of the Virgin Islands v. George, 680 F.2d 13 (CA3 1982).

Under R. 43, then, an accused who is present at the time voir dire begins, but who thereafter voluntarily ⁴ removes himself for any length of time forfeits his Sixth Amendment right to be present for that period of time during which he was absent. ⁵ Under Article 33.03, supra, by contrast, an accused's right to be present at his trial is unwaivable until such a time as the jury "has been selected." Hence, whether bottomed on Article I, § 10 of the Texas Constitution or upon the Sixth Amendment, Article 33.03, supra, is a more protective provision than its federal counterpart. How much more protective depends upon how this Court chooses to construe the phrase "has been selected," and to such construction we now turn.

II.

The 1965 Code of Criminal Procedure carried over art. 580 (1925) into present Article 33.03, supra, but added for the first time the proviso "that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, the trial may proceed to its conclusion." See Acts 1965, 59th Leg., Vol. 2, p. 317, ch. 722, eff. January 1, 1966. In his Special Commentary, Judge Onion observed that "[t]he added language incorporates the existing case law into the statute...."

That case law held that:

"[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present."

Whitehead v. State, 66 Tex.Cr.R. 482, 486, 147 S.W. 583, 585 (1912), quoting from Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). See also Ex parte Cassas, 13 S.W.2d 869 (Tex.Cr.App.1929) ; Reed v. State, 172 Tex.Cr.R. 122, 353 S.W.2d 850, 851 (1962).

In codifying existing case law the Legislature apparently determined that "the trial has begun" once the accused has joined issue by pleading to the charging instrument, whether before judge or jury. ⁶ See Article 36.01, §§ 1 and 2, V.A.C.C.P. At least that was the understanding under which the 1965 proviso was amended in 1979, as shall be seen.

The 1979 amendment to Article 33.03, supra, originated as House Bill 1135. Sponsored by Representative Rudd, it sailed through both houses of the 66th Legislature without a dissenting vote. The bill analysis for H.B. 1135 identifies the impetus behind the amendment, viz:

"BACKGROUND INFORMATION

* * *

* * *

The proviso relating to when a trial may proceed in the absence of the defendant was added in 1965, apparently in response to a line of Court of Criminal Appeals decisions which began in 1897 ⁷ and which have held that, for purposes of determining whether the prohibition of double jeopardy bars a prosecution, jeopardy 'attaches' when the defendant pleads to the indictment or information in his first prosecution.

A 1978 decision of the United States Supreme Court ⁸ has held, however, that jeopardy attaches when the jury is impaneled and sworn.

WHAT THE BILL PROPOSES TO DO

The bill proposes to amend Art. 33.03, Code of Criminal Procedure, to provide that a trial may proceed to its conclusion in the absence of the defendant after a jury has been selected.

BILL SYNOPSIS

The bill would amend Art. 33.03 so as to have the proviso relating to trial proceedings in the defendant's absence reflect the change in case law on the issue of double jeopardy...."

The bill analysis makes clear that, for whatever reason, the 1965 proviso had apparently drawn the line after which an accused's voluntary absence will not forestall his...