Vasquez v. State, 13-83-332-CR

• Decision Date: 01 November 1984
• Docket Number: No. 13-83-332-CR,13-83-332-CR
• Citation: 680 S.W.2d 626
• Parties: Alejandro Robles VASQUEZ, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 626

680 S.W.2d 626

Alejandro Robles VASQUEZ, Appellant, v. STATE of Texas, Appellee.

No. 13-83-332-CR.

Court of Appeals of Texas Corpus Christi.

Nov. 1, 1984.

A.G. Betancourt, Brownsville, for appellant.

Reynaldo Cantu, Jr., Dist. Atty., Brownsville, for appellee.

Before NYE, C.J., and KENNEDY and SEERDEN, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a conviction for aggravated robbery. Trial was to a jury, which assessed punishment at fifteen years in the Texas Department of Corrections.

In the first of two points of error appellant raises on appeal, he asserts that it was reversible error on the part of the trial court not to charge the jury on the law applicable to his failure to testify.

First, we note that the appellant was not present during the last part of the trial of his case. The record reflects that the case was set for trial on November 9, 1981, and the jury selected. The appellant was present and pled not guilty at that time. The case was reset on the State's motion for continuance to November 23, 1981, at which time the appellant did not appear. The case was reset until December 1, 1981. Appellant did not appear on this date. The trial court, at this time, found that appellant had voluntarily absented himself, and the case was tried in his absence. When a defendant voluntarily absents himself after pleading to the indictment, or after the jury has been selected, the trial may proceed to its conclusion. TEX.CODE CRIM.PROC.ANN. art. 33.03 (Vernon Supp.1984); Gonzales v. State, 515 S.W.2d 920 (Tex.Crim.App.1974). No argument is raised on appeal regarding whether the appellant's absence was voluntary. The trial court acted properly in proceeding to trial.

Appellant's counsel requested instructions on appellant's failure to testify at both the guilt/innocence and penalty stages of trial.

At the guilt stage, the following discourse between appellant's attorney and the trial court took place:

THE COURT: Okay. Your requested charge on accomplice will be denied. You want failure to testify?

MR. BETANCOURT: Yes.

THE COURT: Well, I'll give it to you.

The trial judge indicated that he was going to give the jury the charge on failure to testify. He later denied the requested charges. It is unclear from the record if the charge on appellant's failure to testify is one of the charges the trial court denied. However, no instruction appears in the charge to the jury before us. We presume that the trial court denied the requested charge.

At the penalty stage of the trial, the appellant's attorney again objected to the charge and requested the court to instruct the jury not to consider the appellant's failure to testify and not to consider the absence of the defendant during their deliberations. The court denied the request. We find that appellant preserved, by request and objection, any error on the part of the trial court in refusing to submit an instruction on appellant's failure to testify.

Here, we are faced with the dilemma of whether a voluntarily absent appellant is entitled to an instruction on his failure to testify. Where a request is made to the trial court to add to its charge at the punishment stage of the trial an instruction on the failure of the defendant to testify, or an objection is made to the omission of such charge, such error is reversible. Moss v. State, 632 S.W.2d 344 (Tex.Crim.App.1982); Brown v. State, 617 S.W.2d 234 (Tex.Crim.App.1981); Blevins v. State, 672 S.W.2d 828 (Tex.App.--Corpus Christi 1984, no pet.) (opinion on motion for rehearing). The same is true when a proper request is made by the appellant at the guilt stage of trial and such request is refused by the trial court. See Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). A seemingly conflicting consideration arises in this case because the appellant was absent voluntarily, and the voluntary absence of a defendant at trial may be commented upon to the jury by the trial court in certain circumstances. See Zambrano v. State, 478 S.W.2d 500 (Tex.Crim.App.1972). However, the jury may not infer guilt on account of a defendant's voluntary absence. ¹

The inclusion of the privilege against compulsory self-incrimination in the fifth amendment reflects the aspirations of the unwillingness of courts to subject those accused of crimes to self-accusation, perjury and contempt. Carter v. Kentucky, 450 U.S. 288, 298, 101 S.Ct. 1112, 1118, 67 L.Ed.2d 241, 250 (1981). Absent an instruction on the failure to testify, a jury will likely notice that a defendant does not testify and possibly speculate guilt from his silence. The underlying philosophy of requiring such an instruction when requested appears to be to reduce speculation as to why a defendant sits mute before the jury in the face of accusation.

We believe that, in this case, the trial court was at liberty to make its finding that the defendant was voluntarily absent and proceed to trial without him. Otherwise, the processes of law become paralyzed, and a defendant is allowed to benefit from his own wrongdoing. However, we also believe that where a defendant voluntarily absents himself, the court should proceed with the trial in like manner and with like effect as if he were present. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). In the case at bar, the appellant, if he had been present, would have been entitled to an instruction on his failure to testify both at the guilt/innocence and penalty stages of trial. Carter v. Kentucky, Moss v. State, Brown v. State. We find that he was similarly entitled to these instruction in his absence, and it was reversible error on the part of the trial court not to give them. Carter v. Kentucky, 450 U.S. at 303, 101 S.Ct. at 1120, 67 L.Ed.2d at 253; Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). See People v. Morales, 83 A.D.2d 804, 441 N.Y.S.2d 686 (1981). Appellant's first ground of error is sustained.

In appellant's second ground...