Ex Parte Lee Cassas

This appellant was tried, convicted of a felony, appealed his case, same was affirmed, and on motion for rehearing in the appellate court for the first time, — he attempted to raise the question that he was absent from the court room during part of such trial. This court properly refused to consider such matter when thus presented, and the case was finally disposed of by the overruling of the motion for rehearing. Cassius v. State, 7 S.W.2d 530.

He then made application to the district court of Nacogdoches county for habeas corpus asking discharge from confinement under the sentence in said original case, setting up that the judgment in said case was void by reason of his said absence from the court room. On hearing he was remanded, and appealed. The remanding judgment was affirmed, and he now moves for a rehearing on the same ground originally set up. There can be but one question, viz: was the judgment rendered in the original case void? Otherwise, habeas corpus would not avail to bring about his discharge. Ex parte McKay, 82 Tex.Crim. Rep.; Ex parte Adlof,86 Tex. Crim. 13; Ex parte Roach, 87 Tex.Crim. Rep..

The record on appeal in the original case showed him present at the beginning of the trial, also that he testified as a witness therein. Nowhere in said record was there a suggestion of his absence at any stage of the trial. This court on appeal was bound by the terms of Art. 580 C. C. P., which pointedly says if the record on appeal shows the accused present at any part of his trial, and fails to affirmatively show his absence at some other part thereof, the presumption will be that he was there all the time. We also observe that Art. 692 C. C. P. also plainly provides that in a felony case the verdict may be received in the absence of the defendant if he wilfully or voluntarily absents himself. In Benavides v. State,31 Tex. Crim. 173, we said in so many words that defendant can waive his right to be present. The same appears in Bell v. State, 32 Tex.Crim. Rep., and in Shipp v. State, 11 Texas Crim. App. 49, referring to old Art. 23, now Art. 11 C. C. P., which provides that the accused may waive any right guaranteed him save that of a trial by jury. Mr. Bishop says: "The prisoner's right to be present at the rendition of the verdict is perfect; at least unless he waives it." 1 Bish. Crim. Proc., 3 ed., Sec. 272. Not only can the presence of the accused be waived by him, but if he be absent at any proceeding during the trial, and desires to raise the point of such absence, same should be brought forward in the trial court where the matter may be looked into and corrected if possible. Gibson v. State, 3 Texas Crim. App. 441; Sweat v. State, 4 Texas Crim. App. 617; Cordova v. State, 6 Texas Crim. App. 227. In Sweat's case, supra, we said: "It must be made to appear from the record affirmatively that he desired to exercise the right to be present, and that this was denied him, in the court trying the case." In other words, as said, in substance, in Cartwright v. State, 97 Tex.Crim. Rep., the statement in Mapes v. State, 13 Texas Crim. App. 85, quoted with apparent approval in Derden v. State, 56 Tex.Crim. Rep., that to take any steps in the trial of a felony case, in the absence of the defendant, will render the proceedings absolutely void, is not correct, but the word voidable should have been used, which would mean only that such absence is an error which if brought forward in time and in a proper manner may avail the accused, but if not presented and supported while the case is before the trial court, may not be raised afterward, and unquestionably not in any collateral way.

The use of the word "void" in the cases last mentioned was evidently an inadvertence. None of our other cases hold the mere fact of absence from some proceeding to render the judgment void. Many hold to the contrary. The law has been changed since the opinion was written in the Mapes' case, supra, and under our present statutes (Arts. 580 and 692 C. C. P.), even if it had been shown in the motion for new trial filed in the original case (Cassius v. State, supra), that the accused had voluntarily absented himself during the argument of his case and when the verdict was received; and his motion for new trial had been denied, and he had brought the matter before this court regularly upon appeal, we would likely have held him to have waived his right to be present. This, however, is aside from the question before us, in as much as the effort here is to have us sustain a collateral attack by habeas corpus upon proceedings had in the trial court which, at most, might have rendered the judgment voidable. Such attack can not be made by habeas corpus under all the authorities.

Appellant's motion for rehearing is overruled.

Overruled.