By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Trial did not start in juvenile's absence
because jury had not then been assigned to a particular case (99-3-25)
On July 28, 1999, the San Antonio Court
of Appeals held that a juvenile's trial did not begin in his absence even though
the court talked with the jury panel that eventually heard the case because at
the time of the talk the panel had not been assigned to the juvenile's case.
99-3-25. In the Matter of J.R., UNPUBLISHED, No. 04-98-00480-CV, 1999 WL 542609,
1999 Tex.App.Lexis ___ (Tex.App.--San Antonio 7/28/99)[Texas Juvenile Law (4th
Ed. 1996)].
Facts: A jury found J.R. engaged in delinquent conduct by committing aggravated
sexual assault on his six year-old nephew, and, in accordance with the jury's
verdict, the court imposed a seven-year determinate sentence. On appeal, J.R.
contends that the trial court impermissibly started the trial in his absence and
erred by giving a limiting instruction with respect to one of his witness'
testimony, that his trial counsel provided ineffective assistance, and that he
is entitled to a new trial because some of the proceedings were not recorded.
Held: Affirmed.
Opinion Text: In his first point of error, J.R. contends he is entitled to a new
trial because part of the trial was conducted in his absence and he did not
waive his right to be present. We disagree.
J.R.'s trial was set to begin at 8:30 a.m. on January 13, 1998; however, J.R.
did not appear. The trial judge sent a probation officer to find J.R. and
delayed a decision as to whether J.R.'s case or another would be tried. In the
meantime, a jury panel had been qualified, sent to the juvenile courthouse, and
seated in the courtroom. The judge told the panel the court was having
"administrative problems" that precluded it from starting a trial that
morning and he was not yet sure which case was going to be tried, but one of two
unidentified cases would start after the lunch break. The judge made no
suggestion that any party had failed to appear or that the delay was in any way
caused by the parties. The judge did not call any cases, did not identify the
parties in any case, and did not introduce any of the attorneys. Instead, he
briefly addressed the panel about general matters--the Bexar County system of
sending out jury notices, the role of the courts and jury verdicts in resolving
disputes, jury duty as participation in direct government, and the purposes of
the voir dire process. The judge then excused the panel for lunch and told them
when they returned he would know which one of the cases was going to be tried
and they would get started. J.R.'s attorney did not object at any time to the
fact the judge addressed the panel or to any statement the judge made.
Court reconvened at 1:30 p.m. with J.R. present. The judge called the case for
trial; reprimanded J.R. for his tardiness; admonished him in accordance with
section 54.03 of the Family Code; took his plea; considered and ruled on a
motion in limine; and then called in the jury panel. He instructed the panel,
introduced the parties, and the State began voir dire.
J.R. argues his rights to due process and to confront and cross-examine
witnesses and to assist in one's defense were violated because the trial court
started the trial and conducted voir dire in his absence. However, because J.R.
failed to indicate to the trial court in any manner--by objection, motion for
continuance, motion to dismiss the panel, or otherwise--that he believed his
rights had been violated, he failed to preserve this complaint for review. See
Tex.R.App. P. 33.1. Moreover, we hold as a matter of law that the court did not
start J.R.'s trial in his absence. At the time of the trial court's comments,
the jury had not been assigned to a particular case, J.R.'s case had not been
called, and the trial court did not hear excuses from panel members. See
Chambers v. State, 903 S.W.2d 21, 31 (Tex.Crim.App.1995) (formation of jury
panel is not part of "trial" when panel not yet assigned to particular
case). Finally, J.R. has failed to make any showing of harm. See Bath v. State,
951 S.W.2d 11, 22-23 (Tex.App.--Corpus Christi 1997, pet. ref'd), cert. denied,
119 S.Ct. 80 (1998); Weber v. State, 829 S.W.2d 394, 396 (Tex.App.--Beaumont
1992, no pet.). We overrule J.R.'s first point of error.