By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
No error in proceeding with trial without
juvenile who absented himself after jury selection (99-3-11)
On June 30, 1999, the San Antonio Court of Appeals held that when a juvenile
did not appear for the second day of his trial and there were unobjected to
statements from an attorney that he had been told that the juvenile had fled,
the court was justified in proceeding with trial without a hearing and without
considering whether delay in trial might be preferable to proceeding with it.
99-3-11. In the Matter of C.T.C., ___ S.W.2d ___, No. 04-98-00294-CV, 1999 WL
436196, 1999 Tex.App.Lexis ___ (Tex.App.--San Antonio 6/30/99)[Texas Juvenile
Law (4th Ed. 1996)].
Facts: C.T.C. was adjudicated delinquent and committed to the Texas Youth
Commission for engaging in a robbery. Upon determining that C.T.C. had
voluntarily absented himself after the completion of jury selection, the trial
court conducted the adjudication and disposition phases in C.T.C.'s absence.
C.T.C. now argues the trial court erred in not holding a hearing to determine
whether his absence was voluntary and in not considering whether it would be
appropriate to delay the trial while efforts were made to locate him.
On the first morning of trial, both C.T.C. and his mother appeared, and the
trial court orally admonished them of C.T.C.'s rights, including his right to
confront the witnesses against him. After the jury was selected that afternoon,
the judge announced in open court that the trial would resume at approximately
9:00 the next morning. On the second morning of trial, the judge announced that
an attorney, Cornelius Cox, had told her that he had received a phone call
indicating that C.T.C. would not appear. The bailiff then called C.T.C.'s name
three times in the hallway and received no response. After the judge granted the
State's request for a warrant, the court recessed until 10:37 a.m. At that time,
the judge explained that Attorney Cox had told her that C.T.C. did not intend to
appear and that his mother would appear with a letter demonstrating that C.T.C.
had run away. The judge then announced, "Mr. Cox is present in the court
and an officer of the court is not required to be sworn. Is that accurate Mr.
Cox?" Cox confirmed that the judge's statements were correct and further
explained that he had received this information from an unidentified woman who
told him over the phone that her son's trial was scheduled in that court that
morning. Cox stated that he advised the mother to give the letter to C.T.C.'s
attorney. Although offered the opportunity by the judge, C.T.C.'s attorney did
not question Cox. The judge also stated that she had called the electronic
monitoring unit and was waiting for a return call to confirm whether C.T.C. had
violated his electronic monitoring supervision.
After a recess of unknown length, the judge announced that the supervisor of the
electronic monitoring unit told her that he had contacted C.T.C.'s mother, who
told him that C.T.C. "ran off" at 6:00 that morning. C.T.C.'s family
and the electronic monitoring officer were looking for him. The judge then
stated that she would assume C.T.C. voluntarily absented himself and would
proceed with the trial. At that point, C.T.C.'s counsel objected "to
proceeding forward." The judge overruled the objection.
C.T.C. did not appear for the remainder of the adjudication and disposition
phases, but the record reflects that his mother was present during at least part
of the subsequent proceedings. At the beginning of the disposition phase, which
occurred ten days after C.T.C. had disappeared, C.T.C.'s attorney stated that he
had looked for C.T.C., but had been unable to find him. He also stated that he
had been in contact with C.T.C.'s mother. At no point during the proceedings did
C.T.C.'s attorney attempt to refute what Cox had reported on the second morning
of trial.
Held: Affirmed.
Opinion Text: A criminal defendant who is threatened with loss of liberty has a
constitutional right to be present at all phases of the proceedings against him.
See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Miller v. State, 692
S.W.2d 88, 90 (Tex.Crim.App.1985). However, a defendant may waive this right by
voluntarily absenting himself from trial after the trial has commenced. See
Crosby v. United States, 506 U.S. 255, 259-60, 113 S.Ct. 748, 122 L.Ed.2d 25
(1993); Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500
(1912). A trial judge's decision to proceed with trial after a defendant has
voluntarily absented himself is reviewed for an abuse of discretion. See United
States v. Benavides, 596 F.2d 137, 139 (5th Cir.1979); Moore v. State, 670
S.W.2d 259, 261 (Tex.Crim.App.1984); Heard v. State, 887 S.W.2d 94, 99 (Tex.App.--Texarkana
1994, pet. ref'd).
In Texas, a statute implements the right to be present in state criminal trials
and provides for a waiver of the right consistent with Crosby and Diaz. See
Tex.Code Crim. Proc. Ann. art. 33.03 (Vernon 1989). [FN1] Similarly, a
procedural rule implements the right in federal criminal trials. See
Fed.R.Crim.P. 43. [FN2] There is no statute or rule conferring on juveniles the
right to be present at delinquency proceedings in Texas courts. But because
delinquency proceedings threaten a juvenile respondent with the loss of his
liberty, it is clear the respondent has the same constitutional right to be
present at the proceedings as a criminal defendant has. See U.S. Const. amend.
VI; Tex. Const. art. I, § 10; Miller, 692 S.W.2d at 90; In re J.R., 907 S.W.2d
107, 109 (Tex.App.--Austin 1995, no writ); In re K.P.S., 840 S.W.2d 706, 710 (Tex.App.--Corpus
Christi 1992, no writ). The issue we must resolve in this case is whether the
trial judge abused her discretion by proceeding with the trial in C.T.C.'s
absence without conducting a sufficient hearing to determine whether his absence
was voluntary and without considering whether it would be more appropriate to
delay the trial.
C.T.C. does not dispute that he was present on the first day of trial when the
judge announced that the trial would resume at approximately 9:00 the next
morning. The trial judge was therefore justified in presuming that C.T.C. knew
when to appear. Without prompting from C.T.C.'s counsel, the judge attempted to
determine why he failed to appear. In addition to hearing from Cox, she learned
from the electronic monitoring unit supervisor that C.T.C.'s mother said he had
"ran off." C.T.C.'s counsel did not object to Cox's unsworn testimony,
nor to the judge's consideration of unsworn hearsay from the electronic
monitoring supervisor. Although C.T.C.'s trial counsel announced "not
ready" and objected to proceeding with the trial, he did not request an
opportunity to present evidence that C.T.C.'s absence was involuntary. Indeed,
C.T.C.'s attorneys have never--at trial, in a motion for new trial, or on
appeal--offered any explanation for C.T.C.'s disappearance or anything to
suggest that his absence was involuntary. [FN3]
The trial judge had uncontradicted information indicating that C.T.C.'s absence
was voluntary and she was not presented with any objection to the procedures she
followed in obtaining the information or with any request to present additional
evidence. Under these circumstances, the hearing conducted by the trial court
was sufficient. See State v. Rangel, 980 S.W.2d 840, 845 (Tex.App.--San Antonio
1998, no pet.); Aguirre v. State, 695 S.W.2d 793, 794-95 (Tex.App.--San Antonio
1985, no pet.); see also Benavides, 596 F.2d at 139 (holding that judge's
conclusion that defendants were voluntarily absent was "amply
supported" because defendants were present when the judge announced the
time to return for trial, defense counsel left them a message reminding them of
the time, and the defendants never offered any reason to suggest that their
absence was involuntary). We discern no abuse of discretion.
Several federal appellate courts have held that the trial judge's discretion to
proceed with a trial in the defendant's absence is narrow and that even when a
defendant's absence is voluntary, the judge must not proceed with the trial
without first considering whether it would be appropriate to delay the trial
while efforts are made to locate the defendant. See, e.g., Benavides, 596 F.2d
at 139-40. The judge must consider the likelihood that the trial could soon take
place with the defendant present, the difficulty of rescheduling, the burden on
the government in multiple-defendant cases of having to undertake two trials,
and the inconvenience to jurors of rescheduling. See id. C.T.C. argues that the
trial judge should have considered these factors before deciding to proceed with
his trial.
The requirement that federal courts consider the appropriateness of delaying
trial is a gloss on Rule 43 of the Federal Rules of Criminal Procedure, rather
than a constitutional mandate. See Smith v. Mann, No. 98-2201, 1999 WL 198978,
at * 2-3 (2d Cir. April 12, 1999); Clark v. Scott, 70 F.3d 386, 389-90 (5th
Cir.1995); cf. Moore, 670 S.W.2d at 261 (refusing to follow Benavides because
article 33.03 does not require trial judges to consider the appropriateness of
delaying trial). The Constitution therefore imposed no burden on the trial judge
to consider delaying the trial. Nor have we found any statutory basis in the
Family Code for requiring juvenile courts to consider the factors articulated in
Benavides.
C.T.C. nevertheless argues that we should require juvenile judges to consider
delaying the trial of a voluntarily absent juvenile. At oral argument, counsel
suggested that the statute authorizing discretionary transfer to criminal court
indicates that courts need not proceed to adjudication when the juvenile has
voluntarily absented himself. See Tex. Fam.Code Ann. § 54.02 (Vernon 1996). The
statute allows a juvenile court to transfer a person over eighteen to criminal
court if it was not practicable to proceed in juvenile court before the person's
eighteenth birthday because the person "could not be found." Id. §
54.02(j). Although this statute may provide another method for trying juveniles
who have absconded, it stops far short of forbidding juvenile courts from trying
voluntarily absent juveniles or of requiring courts to consider any particular
factors before proceeding to trial. If the legislature had intended to restrict
the power of juvenile courts to try voluntarily absent juveniles, it would have
done so more explicitly.
Having found no constitutional or statutory basis for requiring juvenile judges
to follow Benavides, we decline to impose such a requirement. The trial judge
did not abuse her discretion.
FN1. The statute provides that the "defendant must be personally present at
the trial ... provided, however, that ... 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."
FN2. The rule provides that a defendant generally "shall be present"
at trial, but "[t]he further progress of the trial ... shall not be
prevented and the defendant shall be considered to have waived the right to be
present whenever a defendant, initially present ... is voluntarily absent after
the trial has commenced."
FN3. C.T.C.'s appellate counsel indicated at oral argument that C.T.C. is still
missing.