Joshua Virgil Eason v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-383 CR ____________________

JOSHUA VIRGIL EASON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 17,414

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MEMORANDUM OPINION

Joshua Virgil Eason appeals his conviction for aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). The jury assessed a seventy-five year prison sentence and a $5,000 fine. Eason raises three issues on appeal. We affirm.

Eason argues in his first issue that the trial court improperly proceeded with the trial despite his voluntary absence. After the jury's guilty verdict and just prior to the punishment phase of the trial, the court recessed for about an hour. The trial was to resume at 1:30 p.m., but at 1:30 p.m. Eason had not returned. After waiting another forty minutes, the trial court continued the trial pursuant to article 33.03 of the Texas Code of Criminal Procedure despite Eason's absence and defense counsel's objection. See Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2006). Eason argues the trial court's failure to hold a hearing to determine whether his absence was voluntary constituted an abuse of discretion and, as a result, he was denied his constitutional and statutory right to be present at all phases of his trial.

Article 33.03 provides that a defendant prosecuted for a felony must be personally present at the trial except 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." Id. Eason relies on Moore v. State, 670 S.W.2d 259 (Tex. Crim. App. 1984), in support of his contention that unless the trial court's determination that his absence was voluntary is supported by some facts, it was an abuse of discretion to proceed with his trial without his presence. The defendant in Moore was charged with rape and appeared with counsel in court. Moore, 670 S.W.2d at 260. After the court ruled on preliminary motions, the defendant pleaded not guilty. Id. The court recessed until nine a.m. the following morning. Id. The defendant, who was on bond, failed to appear the next morning. Id. At ten a.m., the court announced its intention to proceed pursuant to article 33.03. Id. Defense counsel objected and presented an oral motion for continuance stating that the defendant suffered from heart problems and defense counsel's staff was calling area hospitals in an attempt to locate him. Id. The court denied the motion for continuance and ruled the trial should proceed. Id. The defendant did not appear for the rest of the trial, and the jury found him guilty and assessed punishment. Id. Months later, the defendant was extradited from Illinois and sentenced by the trial court. Id. The Court of Criminal Appeals held that because the defendant had been in court the afternoon before, had been advised when and where to appear the next morning, disappeared while out on bond, and had not contacted the court nor defense counsel to explain his absence, the trial court could have reasonably determined the defendant voluntarily absented himself. Id. at 261. The Court of Criminal Appeals held the trial court did not abuse its discretion in denying the motion for continuance and proceeding with the trial. Id.

The facts here weigh even more heavily toward presuming Eason's absence was voluntary. Eason was advised to appear a mere hour later, not the next day. Defense counsel offered no information as to Eason's potential whereabouts. The Court of Criminal Appeals in Moore stated that the validity of a trial court's decision that a defendant's absence was voluntary is most often determined in hindsight. Id. The Moore Court also noted the defendant failed to offer any evidence in his motion for new trial to indicate his absence was not voluntary. Id. Here, Eason did not file a motion for new trial and concedes on appeal his absence was voluntary. Eason failed to reappear after the court recessed because he fled the State. He had to be extradited from another state for the trial court to formally sentence him and arraign him on the new charge for fleeing Texas. The trial court did not abuse its discretion in proceeding with the trial pursuant to article 33.03 despite Eason's absence. See Tex. Code Crim. Proc. Ann. art. 33.03. Issue one is overruled.

Eason next contends the trial court improperly denied his request for an alibi charge. Eason had submitted a proposed jury charge submission pertaining to alibi. The trial court denied the request and refused to include it in the charge. Eason objected, and the trial court restated on the record its ruling refusing the request.

Eason concedes on appeal that a defendant is not entitled to an instruction on the defensive issue of alibi because it constitutes no more than a negation of an essential element of the State's burden of proof, and the Legislature has not made alibi a defense or an affirmative defense. See Giesberg v. State, 984 S.W.2d 245, 246-47 (Tex. Crim. App. 1998). Eason claims, however, that under the Supreme Court's decision in Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006), Giesberg's holding is unconstitutional. We disagree.

In Holmes, the defendant attempted to introduce evidence that another person had committed the murder. 126 S. Ct. at 1730. The trial court excluded the evidence based on a Supreme Court of South Carolina holding that evidence of third-party guilt was inadmissible if the evidence only cast a bare suspicion or raised a conjectural inference of another's guilt. Id. at 1731. The United States Supreme Court held that the South Carolina Supreme Court's rule violated defendant's federal constitutional right to have a meaningful opportunity to present a complete defense. Id. 126 S.Ct. at 1735.

In this case, the trial court only refused Eason's requested alibi charge submission, not Eason's alibi evidence. Eason was provided the opportunity to present a complete defense. Eason's cousin, aunt, and friend each testified that Eason was at another location the night of the robbery and therefore, could not have committed the robbery. Therefore, Holmes does not make the trial court's refusal to include Eason's alibi charge unconstitutional. Eason's second issue is overruled.

Eason maintains the trial court improperly admitted pen packets during the punishment phase for two reasons: (1) the State never provided notice that the pen packets would be tendered as self-authenticating and, (2) because the pen packets were not certified by the director, the affidavit authenticating the pen packets was not timely filed in compliance with Rule 902(10) of the Texas Rules of Evidence. See Tex. R. Evid. 902(10).

During the punishment phase, the State offered into evidence two pen packets pertaining to Eason's four prior felony convictions. Defense counsel objected, stating that although he had been put on notice of the State's intention to introduce the pen packets, the State neglected to give notice that it intended to introduce them without a witness to attest to their reliability and truthfulness. Defense counsel argued the pen packets lacked certification as government documents and constituted hearsay without proof of their authenticity. The trial court overruled the objection based on the statement on the face of the documents that they are self-authenticating for purposes of Texas Rules of Evidence 901 and 902. See Tex. R. Evid. 901, 902.

Pen packets may be authenticated under Rule 902(4) via a certification by their custodian that the contents are correct copies of the originals. Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991) (en banc); Cuddy v. State, 107 S.W.3d 92, 96 (Tex. App.--Texarkana 2003, no pet.); see Tex. R. Evid. 902(4) (stating that a copy of an official record may be self-authenticated through certification as to its accuracy by the custodian or other person authorized to so certify). The affidavit attached to the two pen packets in the present case included a certification by their custodian that the documents were "true and correct copies of the original records now on file in my office maintained in the regular course of business within the Bureau of Classification and Records of the Texas Department of Criminal Justice-Correctional Institutions Division." The affidavit sufficiently authenticated the pen packets under Rule 902(4). See Tex. R. Evid. 902(4).

Defense counsel further objected that the pen packets were inadmissible because the affidavit accompanying the pen packets was not on file at least fourteen days before trial as required by Rule 902(10). See Tex. R. Evid. 902(10). However, the pen packets are admissible pursuant to Rule 902(4), which does not contain a notice requirement. See Tex. R. Evid. 902(4). Defense counsel conceded he received notice well in advance of trial that the State intended to introduce the pen packets at trial. The trial court did not abuse its discretion in admitting the pen packets under Rules 901 and 902. See Tex. R. Evid. 901, 902. Issue three is overruled.

Having overruled all of Eason's issues, we affirm the trial court's judgment.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on October 10, 2006

Opinion Delivered April 18, 2007

Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.