Keith Wayne Frances v. State

ACCEPTED
01-14-00715-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/13/2015 2:42:38 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00715-CR
FILED IN
In the 1st COURT OF APPEALS
HOUSTON, TEXAS
Court of Appeals 2/13/2015 2:42:38 PM
For the
CHRISTOPHER A. PRINE
First Judicial District of Texas Clerk
At Houston

No. 1406601
In the 178th District Court of
Harris County, Texas

KEITH WAYNE FRANCES
Appellant
v.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
Appellate Procedure 39.1, the State requests oral argument only if appellant requests
oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Carly Dessauer  Assistant District Attorney on appeal
Erik Locascio  Assistant District Attorney at trial
Jessica Vu  Assistant District Attorney at trial
Appellant or criminal defendant:
Keith Wayne Frances
Counsel for Appellant:
Casey Garrett  Attorney on appeal
Crystal D. Henderson  Attorney at trial
Trial Judge:
Hon. Lee Duggan
Hon. David Mendoza
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TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .................................................... ii
IDENTIFICATION OF THE PARTIES ......................................................................... ii
TABLE OF AUTHORITIES ............................................................................................. iv
STATEMENT OF THE CASE .......................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENT ................................................................................. 1
REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 2
I. As the trial court did not hold any type of proceeding to decide appellant’s
motion to set aside the judgment, the court did not violate appellant’s right
to be present. ..................................................................................................................... 2
a. The trial court did not violate appellant’s right to be present under article
28.01, section 1 when it denied appellant’s motion to set aside the
indictment outside of appellant’s presence. ............................................................. 2
b. The trial court did not violate appellant’s constitutional right to be
present when the court denied his motion because appellant’s presence
was not reasonably related to his opportunity to defend himself. ........................ 6
CONCLUSION ..................................................................................................................... 8
CERTIFICATE OF COMPLIANCE ................................................................................ 9
CERTIFICATE OF SERVICE ......................................................................................... 10
iii
TABLE OF AUTHORITIES
CASES
Adanandus v. State,
866 S.W.2d 210 (Tex. Crim. App. 1993) ................................................................. 4, 6, 7
Jones v. State,
No. 14-87-00951-CR, 1989 WL 31803
(Tex. App.—Houston [14th Dist.] Apr. 6, 1989, no pet.)
(not designated for publication) ....................................................................................... 5
Lawrence v. State,
240 S.W.3d 912 (Tex. Crim. App. 2007) ......................................................................... 7
Riggall v. State,
590 S.W.2d 460 (Tex. Crim. App. 1979) ......................................................................... 3
Snyder v. Massachusetts,
291 U.S. 97 (1934), overruled on other grounds,
Mallory v. Hogan, 378 U.S. 1 (1964) ................................................................................... 6
State v. Rogers,
138 S.W.3d 524 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............................. 7
State v. Rosenbaum,
910 S.W.2d 934 (Tex. Crim. App. 1994) ......................................................................... 7
Watkins v. State,
333 S.W.3d 771 (Tex. App.—Waco 2010, pet. ref’d) ................................................ 3, 5
Whittington v. State,
680 S.W.2d 505 (Tex. App.—Tyler 1984, pet. ref’d) ..................................................... 3
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 28.01, §1 (West 2006) ................................................ 2
RULES
TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ............................................................................................................. 9
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with possession of a controlled substance (CR at 12).
After the trial court denied his motion to set aside the indictment, appellant entered a
guilty plea, and the court sentenced him to eight months confinement in the State Jail
Division of the Texas Department of Criminal Justice (CR at 106). Appellant filed a
timely notice of appeal, and the court amended its certification of appellant’s right to
appeal (CR at 111-12; Supp. CR at 8).
STATEMENT OF FACTS
Appellant was set for trial on the offense of possession of a controlled
substances (CR at 12, 17). Among other motions, appellant filed a motion to set aside
the indictment in his case on June 25, 2014, during a pretrial conference (CR at 18-20,
117). The trial court denied the motion the next day (CR at 21, 117). On August 5,
2014, appellant entered a guilty plea (CR at 95-96, 106).
SUMMARY OF THE ARGUMENT
The trial court did not violate appellant’s statutory and constitutional rights to
be present at pretrial proceedings when it denied appellant’s motion to set aside his
indictment outside of appellant’s presence. The trial court did not violate appellant’s
statutory right to be present under Code of Criminal Procedure article 28.01 because
there is no indication that the trial court held any type of proceeding when it ruled on
appellant’s motion. Further, appellant’s presence when the trial court denied his
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motion was not reasonably and substantial related to his opportunity to defend
himself; thus, the trial court also did not violate his constitutional right to be present.
REPLY TO APPELLANT’S POINT OF ERROR
I. As the trial court did not hold any type of proceeding to decide appellant’s
motion to set aside the judgment, the court did not violate appellant’s right
to be present.
In his sole point of error, appellant alleges that the trial court infringed upon
both his statutory and constitutional rights because it failed to secure his presence
when denying his motion to set aside the indictment. However, the trial court did not
violate either of these rights to be present. As the record is void of any indication that
the trial court held any type of proceeding when it ruled on appellant’s motion, the
court did not infringe upon appellant’s statutory right, and because there is no
reasonably substantial relationship between appellant’s presence and his opportunity
to present a defense, the court did not violate appellant’s constitutional right. Thus,
this Court should overrule appellant’s point of error.
a. The trial court did not violate appellant’s right to be present under article
28.01, section 1 when it denied appellant’s motion to set aside the
indictment outside of appellant’s presence.
Under Texas Code of Criminal Procedure article 28.01, section 1, a defendant
must be present during “any pre-trial proceeding.” TEX. CODE CRIM. PROC. ANN. art.
28.01, §1 (West 2006). Thus, appellant’s presence was required at any pretrial
proceeding. However, not all pretrial motions are handled by way of pretrial
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proceedings as trial courts may take matters under advisement and make rulings in
absence of the defendant. Whittington v. State, 680 S.W.2d 505, 510 (Tex. App.—Tyler
1984, pet. ref’d). Thus, the question pertinent for appellant’s point of error is whether
the trial court ruled on his motion to set aside the indictment at a pretrial proceeding
in which appellant’s presence was required. See Watkins v. State, 333 S.W.3d 771, 775
(Tex. App.—Waco 2010, pet. ref’d) (stating that the question central to Watkins’
argument that the trial court violated article 28.01 was whether the trial court
conducted a proceeding when it entered an order on a motion).
As the Court of Criminal Appeals first discussed in Riggall v. State, a trial court
holds a “pre-trial proceeding” on a motion when the record shows that the motion
“came to be heard” and indicates some type of evidence, testimony, or argument was
heard or considered. Riggall v. State, 590 S.W.2d 460, 461 (Tex. Crim. App. 1979); see
Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim. App. 1982) (discussing the holding of
Riggall). In Riggall, the trial court’s actions constituted a “proceeding” under article
28.01 when the order overruling Riggall’s motion to dismiss stated that the cause
“came to be heard” and the order contained four paragraphs of findings of fact and
conclusions of law that indicated that the court considered evidence or testimony.
Riggall, 590 S.W.2d at 461. In appellant’s case, the record does not provide any
indication that the trial court held a “proceeding” when denying his motion to set
aside the indictment.
3
As the clerk’s record reveals, appellant’s case was set for a pretrial conference
proceeding on June 25, 2014, and for trial on August 5, 2014 (CR at 17, 117). At the
pretrial conference, appellant appeared with his counsel and filed numerous motions,
including his motion to set aside the indictment (CR at 18-19, 117). The trial court
did not rule on any of appellant’s pretrial motions at the conference (CR at 117). The
next day—June 26th—the trial court denied appellant’s motion to set aside the
indictment (CR at 21, 117). The record contains no indication that the trial court held
any type of proceeding when it denied appellant’s motion (CR at 21, 117). See Malcom,
628 S.W.2d at 792 (holding that there was no “proceeding” requiring Malcom’s
presence when the record only included a docket sheet notation stating that a motion
was overruled). The record does not contain any reporter’s record of a proceeding,
any statement of facts, or any indication that arguments were made, objections lodged
or discussions had before the trial court denied the motion. See Adanandus v. State, 866
S.W.2d 210, 219 (Tex. Crim. App. 1993) (holding that a pretrial meeting was a
“proceeding” under article 28.01 when the court reporter transcribed the meeting, a
statement of facts was made, the trial court overruled a defense motion, Adanandus’s
counsel made a Bill of Exception, and the court issued instructions regarding trial
procedures). Additionally, appellant does not include any citation to the record in his
brief indicating that a pretrial proceeding requiring his presence was held.1 As such,
1
Appellant generally cites to the video recording of his abatement hearing in which the trial court
amended its certification of appellant’s right to appeal. Appellant’s Br. 7. While appellant claimed in
4
the trial court did not violate appellant’s right to be at the pretrial proceeding because
no proceeding occurred.
Indeed, appellant’s case is analogous to Watkins v. State in which the Tenth
Court of Appeals held that the trial court did not hold any kind of “proceeding” when
it denied Watkin’s motion because the record showed nothing other than the signed
order. Watkins, 333 S.W.3d at 776. In reaching this holding, the Court noted that the
record contained “nothing to indicate that there was any kind of ‘proceeding’ with
regards to the denial of Watkin’s motion” as there were no findings in the order or
other indication that the trial court heard or considered testimony or evidence.
Watkins, 333 S.W.3d at 775-76. As the Tenth Court held that no “proceeding” had
occurred when the trial court dismissed Watkin’s motion by signing an order, so too
should this Court hold that the trial court did not hold a “pre-trial proceeding”
requiring appellant’s presence under article 28.01 when it denied his motion by written
order. TEX. CODE CRIM. PROC. ANN. art. 28.01, §1 (West 2006); see also Jones v. State,
No. 14-87-00951-CR, 1989 WL 31803, at *1 (Tex. App.—Houston [14th Dist.] Apr.
6, 1989, no pet.) (not designated for publication) (holding that the record failed to
establish that any “proceeding” was held when the trial court denied Jones’ motion by
only handwriting “Denied” on the motion with the date and signature of the court).
the hearing that he was not present when the trial court denied his motion, as discussed above, the
record contains no indication that the trial court held a pretrial proceeding requiring appellant’s
presence (1 RR at 6-7).
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As the record is void of any indication that the trial court conducted a pretrial
proceeding outside appellant’s presence when it denied his motion to set aside the
indictment, appellant’s right under article 28.01 was not violated. Thus, this Court
should overrule appellant’s statutory argument.
b. The trial court did not violate appellant’s constitutional right to be
present when the court denied his motion because appellant’s presence
was not reasonably related to his opportunity to defend himself.
In addition to the right to be present under article 28.01, appellant also asserts
that his constitutional right to be present was violated. As the Supreme Court has
held, a defendant has a right “to be present in his own person whenever his presence
has a relation, reasonably substantial, to the fullness of his opportunity to defend
against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934), overruled on other
grounds, Mallory v. Hogan, 378 U.S. 1 (1964); see Adanandus, 866 S.W.2d at 219 (adopting
the “reasonably substantial relationship test”). However, this right is not violated
unless “a fair and just hearing would be thwarted by [the defendant’s] absence, and to
that extent only.” Snyder, 291 U.S. at 108. In this case, appellant’s presence was not
needed to ensure a fair and just hearing when the trial denied his motion to set aside
the indictment because the trial court did not hold a proceeding on the motion (CR at
117). Thus, appellant had no right to be present.
As the record shows, the trial court ruled on appellant’s motion—which argued
that the trial court should set aside the indictment because the evidence was
6
insufficient to support its charge—on its face without entertaining any arguments or
evidence from either party (CR at 18-19, 21, 117). Appellant’s presence was thus not
necessary to further his defense and did not bear a reasonably substantial relationship
to his opportunity to defend himself. Adanandus, 866 S.W.2d at 219. Indeed, the trial
court did not need to hold a hearing or proceeding on the motion as the Court of
Criminal Appeals has long recognized that a defendant may not make a pretrial attack
on the sufficiency of the evidence presented to a grand jury to support the allegations
in the indictment. See Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007)
(holding that a motion to quash an indictment could not be used to attack the
sufficiency of the State’s evidence); State v. Rosenbaum, 910 S.W.2d 934, 937 (Tex.
Crim. App. 1994) (agreeing with the State that a defendant may not make a pretrial
attack upon the sufficiency of the evidence presented to the grand jury to support the
allegations in the indictment); see also State v. Rogers, 138 S.W.3d 524, 527 (Tex. App.—
Houston [14th Dist.] 2004, no pet.) (discussing how one court of appeals has allowed
the State to willingly participate in a pretrial sufficiency hearing on the indictment but
stating that the court’s holding had not been followed by any other court and was
strongly criticized). Because the trial court did not need to hold a hearing on
appellant’s motion, appellant’s presence was not necessary, and his constitutional right
to be present not violated.
As there is no reasonably substantial relationship between appellant’s presence
and his opportunity to present his pretrial motion attacking the sufficiency of the
7
evidence for the indictment, appellant cannot show that a fair and just hearing was
thwarted by his absence. Additionally, since no proceeding occurred, appellant’s
rights to be present were not violated. As such, this Court should also overrule the
statutory and constitutional claims appellant raises in his point of error and uphold his
conviction.
CONCLUSION
The State of Texas respectfully urges the Court to overrule appellant’s point of
error and affirm his conviction.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
dessauer_carly@dao.hctx.net
curry_alan@dao.hctx.net
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CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 1,883 words, based upon the representation provided by the word
processing program that was used to create the document. TEX. R. APP. P. 9.4(i).
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
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CERTIFICATE OF SERVICE
The State will serve a copy of the foregoing instrument to appellant’s attorney
though TexFile:
Casey Garrett
Attorney at Law
1214 Heights Boulevard
Houston, Texas 77008
casey.garrett@sbcglobal.net
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
Date: February 13, 2015
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