Bobby Cartwright v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 20, 2021
• Docket: 02-20-00121-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-20-00121-CR ___________________________

BOBBY CARTWRIGHT, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1517428D

Before Sudderth, C.J.; Kerr and Womack, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

I. Introduction

In a single issue, Appellant Bobby Cartwright complains that the trial court

abused its discretion when it concluded that he had voluntarily absented himself from

his trial. We affirm.

II. Background

Cartwright was charged with having committed aggravated robbery with a

deadly weapon on or about October 5, 2017, and his indictment included a repeat

offender notice with regard to a prior felony conviction.1 See Tex. Penal Code Ann.

§ 29.03(b) (stating that aggravated robbery is a first-degree felony); see also id. § 12.32

(providing that first-degree felony punishment range is life or 5 to 99 years and up to

a $10,000 fine), § 12.42(c)(1) (increasing first-degree felony punishment range for a

repeat offender to life or 15 to 99 years and up to a $10,000 fine). Cartwright made

bond pending trial.

Cartwright rejected two plea-bargain offers, and by November 5, 2019, the

second day of the guilt-innocence phase of his trial, the State had called five witnesses

and had presented over 20 exhibits to the jury. The State rested its case at 11:01 a.m.

that day, and the trial court called for an early one-hour lunch.

1 Cartwright does not challenge the sufficiency of the evidence to support his conviction.

2 At 12:10 p.m., after Cartwright failed to appear, his attorney reported that he

had been unable to locate him. The trial court ordered a 10-minute recess so that

bailiffs could perform a thorough search of the floor of the building where the trial

was being held and the men’s restrooms on that level, as well as a thorough search of

the plaza level and the men’s restrooms on that level. The trial court also stated that if

Cartwright were not found at the end of the 10-minute recess, trial would proceed

without him.

At the conclusion of the recess, the trial judge observed that the bailiffs had

conducted the search and had not found Cartwright and that defense counsel had also

tried to contact Cartwright through family members and by cell phone without

success. The trial court determined that Cartwright had voluntarily absented himself.

Cartwright’s counsel requested a continuance to keep looking for Cartwright, which

the trial court denied, and then the guilt-innocence phase of trial resumed with two

witnesses for the defense.

The first defense witness testified that he had known Cartwright, who was in

his mid-30s, for 12 to 13 years through family. According to the witness, he had seen

Cartwright earlier that morning “coming out [of] the courtroom,” but he did not

know where Cartwright had gone. The second defense witness, Cartwright’s

stepsister, testified that the last time she had spoken with him had been “right before

[she] came in [the courtroom].” She testified as follows:

Q. Where did you talk to him at?

3 A. Walking through the door when he was smoking his cigarette. And he was like, Sis, would you testify for me? I said, yes.

Q. Okay. So before 15 minutes ago, you didn’t know you were going to testify today?

A. No.

Q. Okay. Even though you witnessed what happened that day?

A. Right.

Q. Where is Bobby right now?

A. I have the slightest idea.

Q. He didn’t say where he was going?

A. He sa[id] he was going to the restroom.

The jury found Cartwright guilty and the repeat offender allegation true, and

the trial court proceeded to the punishment phase of trial. After the State presented

testimony from six witnesses, the jury assessed Cartwright’s punishment at 26 years’

confinement and no fine. The trial court held Cartwright’s bond forfeited and issued

a warrant, and in the judgment of conviction, his sentence was set to commence

“upon apprehension.”

Almost a year later, Cartwright was arrested, and his judgment and sentence

were amended to reflect that his sentence started August 19, 2020. When asked by

the trial court if there was any legal reason he should not be sentenced at that time, his

counsel replied, “No legal reason.” Cartwright did not file a motion for new trial. Cf.

Tex. R. App. P. 21.2 (requiring motion for new trial as a prerequisite in a criminal

4 appeal when necessary to adduce facts not in the record), 21.3(a) (stating that one of

the grounds for a new trial in a criminal case is when the defendant has been

unlawfully tried in absentia); Larez v. State, No. 02-01-00421-CR, 2003 WL 253614, at

*2 (Tex. App.—Fort Worth Feb. 6, 2003, no pet.) (mem. op., not designated for

publication) (holding no preservation of error when, although trial court did not allow

appellant to introduce evidence at his sentencing regarding the reasons for his absence

at his trial two years before, appellant did not file a motion for new trial alleging that

he was unlawfully tried in absentia).

III. Discussion

Texas Code of Criminal Procedure Article 33.03 states that in all prosecutions

for felonies, the defendant must be present in person at the trial, but it also provides

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.” Tex. Code Crim. Proc. Ann. art. 33.03 (emphasis added);

Moore v. State, 670 S.W.2d 259, 260–61 (Tex. Crim. App. 1984) (en banc). When the

trial court has some evidence before it to support its conclusion that a defendant’s

absence is voluntary, it does not abuse its discretion by denying a motion for

continuance and proceeding with trial as authorized by Article 33.03. Moore, 670

S.W.2d at 261. In reviewing a trial court’s decision to proceed to trial in the

defendant’s absence, we may consider not only the evidence before the trial court at

the time that it made its ruling but also the evidence that develops subsequent to the

5 ruling, and “[a]bsent any evidence from the defendant to refute the trial court’s

determination that his absence was voluntary, we will not disturb the trial court’s

finding.” Id.; see also Larez, 2003 WL 253614, at *1 (“An appellate court will not

disturb the trial court’s finding that an appellant voluntarily absented himself from

trial when the appellant fails to put on any evidence to refute that determination.”).

This court is bound by the precedent of the Court of Criminal Appeals and has no

authority to disregard or overrule its precedent. Sierra v. State, 157 S.W.3d 52, 60 (Tex.

App.—Fort Worth 2004), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007).

Moore is directly on point in the case before us. See 670 S.W.2d at 260–61. In

that case, after the appellant appeared in court and entered a plea of not guilty and the

jury was selected and sworn, the trial court recessed until the next morning. Id. at 260.

Although the appellant’s counsel told the appellant when and where to appear the

next day, the appellant, who was out on bond, did not appear when court resumed the

next morning. Id. The trial court had the bailiff call the appellant’s name in the hall,

and the appellant’s counsel informed the trial court that he had not spoken with the

appellant since the prior evening and did not know his whereabouts. Id.

When the trial court decided to proceed with the case under Article 33.03, the

appellant’s counsel objected and moved for a 24-hour continuance to try to locate the

appellant, who had no phone and “no fixed place of abode” and had a history of heart

problems. Id. The trial court replied that there was no evidence as to why the

appellant was absent and that a motion for mistrial would be entertained if the

6 appellant had fallen ill from a heart attack but “right now the Court has nothing

before it as to why this case should not continue under Article 33.03.” Id. The

appellant remained absent for the rest of the trial, and the jury found him guilty and

assessed his punishment; six months later, he was extradited from Illinois and

sentenced. Id.

On appeal to this court, the appellant argued that the trial court had erred by

continuing the trial in his absence because it had not proceeded far enough in

determining whether his absence was voluntary and did not inquire whether the case’s

circumstances were such that it would be difficult or inconvenient to reschedule the

trial with him present. Moore v. State, 656 S.W.2d 206, 207 (Tex. App.—Fort Worth

1983), rev’d, 670 S.W.2d at 260–61. This court agreed with the appellant. See id. The

Court of Criminal Appeals did not. See Moore, 670 S.W.2d at 260–61.

The Court of Criminal Appeals first noted that the trial court had some

evidence before it to support its conclusion that the appellant’s absence was voluntary

because the appellant had been in court the day before and had been informed by

both the court and his attorney when and where to appear. Id. at 261. The appellant

had been out on bond when he disappeared, and neither the court nor the appellant’s

attorney had received any communication from him or anyone else to explain his

absence on the morning of the trial. Id. Although the appellant’s attorney had

suggested that the appellant might have been taken ill with heart problems, he had

7 also informed the trial court that a check with most of the area hospitals had been

fruitless. Id.

The court then observed that we had incorrectly held that we could only

consider evidence that was before the trial court at the time it made its ruling in

reviewing the validity of the trial court’s decision to proceed under Article 33.03, even

if evidence substantiating the decision developed thereafter. Id. The court concluded

that absent any evidence from the defense to refute the determination that the

absence was voluntary, the reviewing court would not disturb the trial court’s finding.

Id. The court also declined to require the trial court to first consider factors such as

the difficulty of rescheduling the trial, the burden on the State in having to undertake

two trials, the inconvenience to the jury, and the likelihood that the trial could soon

take place with the defendant present before proceeding with trial under Article 33.03.

Id.

Here, Cartwright argues that the trial court abused its discretion by concluding

that he had voluntarily absented himself from trial when “[t]he record does not

contain some evidence of this.” However, the record reflects that, like the appellant

in Moore, Cartwright was out on bond, had appeared for his trial, and was told when

and where to appear when court reconvened. See id. at 260. Furthermore, Cartwright

waited to absent himself until he had seen all of the evidence in the State’s case that

was presented to the jury, and he was not apprehended until almost a year later. From

this circumstantial evidence, it was fair for the trial court to infer that he had freely

8 absented himself. Moreover, under Moore, even if the trial court had insufficient

evidence before it at the time that it made its ruling, the fact that Cartwright was not

apprehended until almost a year later and the lack of any evidence from the defense to

refute the trial court’s determination that Cartwright’s absence was voluntary require

us to uphold the finding. See id. at 260–61; Larez, 2003 WL 253614, at *1–2; see also

Sierra, 157 S.W.3d at 60. Accordingly, we overrule Cartwright’s sole issue.

IV. Conclusion

Having overruled Cartwright’s sole issue, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: May 20, 2021