Tydarrian Tershodd Baul v. the State of Texas ( 2024 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00106-CR
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TYDARRIAN TERSHODD BAUL, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 21-03-03599-CR
__________________________________________________________________
MEMORANDUM OPINION
Appellant Tydarrian Tershodd Baul appeals his conviction for possession with
intent to deliver/manufacture a controlled substance. See Tex. Health & Safety Code
Ann. § 481.112(a), (d). In his sole issue, Baul complains the trial court erred by
finding he voluntarily absented himself from trial and proceeding with the guilt-
innocence phase without his presence. For the reasons explained herein, we affirm
the trial court’s judgment.
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PROCEDURAL BACKGROUND
A grand jury indicted Baul for possession with intent to deliver/manufacture
a controlled substance, and the indictment included an enhancement paragraph
alleging Baul had a prior felony conviction. See id.; Tex. Penal Code Ann. §
12.42(c)(1). Prior to trial, Baul signed a Scheduling Order stating the defendant
“SHALL be present at ALL settings” and “this case is set on February 6, 2023 at
9:00 a.m. for JURY TRIAL.” The Scheduling Order also notes “VOIR DIRE ON
02.03.23 @ 9:00AM.” Baul was present on February 3 for voir dire, and defense
counsel informed the trial court that Baul had rejected the State’s plea offers and
wanted to avoid a “full-blown, jury trial[,]” enter an open plea to the court on a
punishment range of less than ten years, and have the State waive its right to a jury
trial. The State explained that it had offered to proceed on a lesser charge, which
would have provided the trial court the opportunity to place Baul on community
supervision, but at that point, Baul was facing fifteen to life, the jury panel was
present, and it would not waive its right to a jury. The State informed the trial court
that it was willing to discuss a plea offer for a certain term of years. Baul explained
that he rejected the State’s five-year plea offer, which he understood was below the
minimum punishment he was facing for the charged offense, and he wanted to plead
open to the court.
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The trial court allowed the parties to discuss a plea bargain, and Baul rejected
the State’s plea offer. Defense counsel explained that against his advice, Baul would
only accept an offer that included probation. Following voir dire and swearing of the
jury, defense counsel entered a plea of “not guilty[]” on Baul’s behalf, and the trial
court twice informed the jury it would proceed with trial on “Monday morning at
9:00 a.m.” After excusing the jury, the trial court arraigned Baul and explained his
punishment range, and Baul entered a plea of “[n]ot guilty.”
When trial resumed the following Monday, February 6, Baul failed to appear,
and defense counsel informed the trial court that Baul had not responded to his
telephone calls or text messages. Defense counsel stated that he did not know where
Baul was and requested a continuance to locate him. The State objected to a
continuance and moved for bond forfeiture, stating the trial court properly arraigned
Baul on Friday, it was ready to proceed with trial, and the bailiff had called Baul’s
name three times. The bailiff informed the trial court there had been “[n]o response
for Baul.” The trial court denied defense counsel’s motion for continuance, forfeited
Baul’s bond, and found:
[O]n Friday, Mr. Baul was present in the courtroom. He was properly
arraigned outside the presence of the jury, also in front of the jury, after
the jury being sworn, his counsel entered a plea of not guilty and the
trial started and that was in response to the reading of the indictment,
So, I’m finding that the defendant has voluntarily absented himself after
pleading to the indictment; and therefore, the trial can proceed, denying
your motion for continuance based on those grounds. Just for purposes
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of the record, referring to Article 33.03 of the Code of Criminal
Procedure.
See Tex. Code Crim. Proc. Ann. art. 33.03. The trial court also noted, outside the
jury’s presence, that a search “did not find any new, active warrants or cases and
checked our local Montgomery jail roster along with Harris County jail roster and
could not find . . . Baul, finding he has still voluntarily absented himself from the
proceedings, which he has a right to do.” The trial court proceeded with trial.
After the State rested, the trial court conducted a charging conference, during
which the State advised the trial court he was unsuccessful in reaching Baul’s
girlfriend, who was listed on his bond paperwork, and Baul’s bond person and the
Department of Public Safety were actively searching for him. Defense counsel
moved for a continuance, asking the trial court to allow him to secure Baul’s
presence at trial. The State objected, and the trial court denied the continuance.
The jury found Baul guilty of possession with the intent to deliver a controlled
substance, and after the trial court released the jury, defense counsel made a third
motion for continuance. The trial court denied the motion and proceeded with
punishment. Defense counsel pleaded “not true” to the enhancement paragraph on
Baul’s behalf, and the State presented punishment evidence. Defense counsel made
a fourth request for a continuance, asking the trial court to allow him to secure Baul’s
presence for punishment so he could provide testimony and an excuse for not being
present at trial. The trial court granted a “short” four-day continuance.
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When the trial court resumed the punishment phase on Friday, February 10,
Baul failed to appear, and defense counsel explained he had tried to reach Baul.
Defense counsel rested his punishment case, and the trial court found the
enhancement to be true and assessed Baul’s punishment at twenty-five years of
confinement. After his arrest, Baul appeared at his sentencing hearing on April 4,
2023, and pleaded true to the enhancement paragraph, and the trial court sentenced
Baul to twenty-five years of confinement. Baul failed to present any evidence
explaining his absence from trial.
ANALYSIS
In his sole issue, Baul complains the trial court erred by ruling that he
voluntarily absented himself from trial and proceeding with the guilt-innocence
phase without him. Baul argues there was no evidence of voluntariness presented
during trial and that the trial court prevented him from confronting the witnesses
against him. See U.S. CONST. amend. VI. The State argues Baul waived any
confrontation argument and that the trial court did not abuse its discretion by finding
Baul voluntarily absented himself from trial because there is no evidence
contradicting the trial court’s finding.
A defendant has a constitutional and statutory right to be present throughout
his trial. Illinois v. Allen, 397 U.S. 337, 338 (1970); Tex. Code Crim. Proc. Ann. art.
33.03. That said, a trial court may proceed with trial to its conclusion when the
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defendant “voluntarily absents himself after pleading to the indictment or
information, or after the jury has been selected when trial is before a jury . . . .” Tex.
Code Crim. Proc. Ann. art. 33.03; see also Taylor v. U.S., 414 U.S. 17, 18–19 (1973).
A defendant may waive his constitutionally guaranteed confrontation right when he
voluntarily absents himself from trial. See Miller v. State, 692 S.W.2d 88, 90 (Tex.
Crim. App. 1985); Staten v. State, 328 S.W.3d 901, 905 (Tex. App.—Beaumont
2010, no pet.); Wortham v. State, 750 S.W.2d 326, 327 (Tex. App.—Beaumont
1988, no pet.); see also Taylor, 414 U.S. at 19–20. A trial court has discretion to
determine whether a defendant voluntarily absented himself from proceedings. See
Moore v. State, 670 S.W.2d 259, 260–61 (Tex. Crim. App. 1984). While article
33.03 does not require the trial court to weigh specific factors, it may consider “the
likelihood that the trial can soon take place with the defendant present; the difficulty
of rescheduling the trial; the burden on the Government in having to undertake two
trials; and the inconvenience to the jurors.” Id. “Absent evidence to the contrary, an
appellate court will uphold a trial court’s determination that a defendant voluntarily
absented himself from the proceedings.” Venegas v. State, 560 S.W.3d 337, 355
(Tex. App.—San Antonio 2018, no pet.). In reviewing the trial court’s decision, we
review the supporting evidence presented before and after the trial court’s ruling.
See Moore, 670 S.W.2d at 261 (explaining trial court’s decision is most often
determined in hindsight); Eason v. State, No. 09-05-383-CR, 2007 WL 1151818, at
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*2 (Tex. App.—Beaumont Apr. 18, 2007, no pet.) (mem. op., not designated for
pub.).
To preserve error regarding his Confrontation Clause claim, a defendant must
obtain a ruling on an objection, or absent a ruling, object to the trial court’s refusal
to rule. Scott v. State, 555 S.W.3d 116, 126–27 (Tex. App.—Houston [1st Dist.]
2018, pet. ref’d) (citing Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App.
2010)); see also Tex. R. App. P. 33.1(a)(1)(A). Additionally, “[a] defendant’s issue
on appeal must comport with the specific objection made at trial.” Millican v. State,
No. 09-08-103-CR, 2008 WL 5263383, at *2 (Tex. App.—Beaumont Dec. 17, 2008,
no pet.) (mem. op., not designated for pub.) (citing Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002)). The record shows that on the four occasions defense
counsel moved for a continuance, he never argued the trial court’s ruling violated
Baul’s right to confrontation. We hold Baul waived his constitutional confrontation
clause complaint by failing to object on that basis. See Tex. R. App. P. 33.1(a)(1)(A);
Davis, 313 S.W.3d at 347 (noting Confrontation Clause claims require a timely and
specific objection to preserve error); Scott, 555 S.W.3d at 126–27 (holding that
where defense counsel failed to object, defendant who voluntarily absented himself
from trial forfeited his Confrontation Clause claim); Millican, 2008 WL 5263383, at
*2.
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We note the trial court cited article 33.03 as the statutory basis for its initial
ruling that Baul voluntarily absented himself from trial, despite Baul’s counsel never
citing article 33.03 as a basis for any of the motions for continuance. That said, there
is no evidence contradicting the trial court’s determination that Baul voluntarily
absented himself from trial. See Venegas, 560 S.W.3d at 355; Eason, 2007 WL
1151818, at *2. The record shows Baul signed a scheduling order indicating his trial
was set for February 6, and Baul rejected the State’s plea bargain offers and
expressed a desire to not have a jury trial. He was present during voir dire, and after
voir dire, the trial court informed the jury in Baul’s presence, that trial would resume
on February 6. When Baul failed to appear for trial on February 6, his counsel stated
he could not locate Baul, and Baul failed to appear for the remainder of trial. When
the trial court sentenced Baul, he failed to explain his absence, and Baul did not file
a Motion for New Trial or supplement the record with any evidence explaining his
absence.
Without any contrary evidence, we defer to the trial court’s voluntariness
determination in hindsight. See Moore, 670 S.W.2d at 261; Venegas, 560 S.W.3d at
355. Accordingly, based on this record, we conclude the trial court did not err by
determining Baul voluntarily absented himself from trial. See Gittens v. State, 560
S.W.3d 725, 737–38 (Tex. App.—San Antonio 2018, pet. ref’d) (holding trial court
did not err in determining defendant voluntarily absented himself from trial); Simon
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v. State, 554 S.W.3d 257, 266 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(same); see also Hooks v. State, No.09-22-00139-CR, 2024 WL 351424, at *4 (Tex.
App.—Beaumont 2024, no pet.) (mem. op., not designated for pub.). We overrule
Baul’s sole issue and affirm the trial court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON
Chief Justice
Submitted on February 16, 2024
Opinion Delivered February 21, 2024
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
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