Bottom v. State

860 S.W.2d 266, 1993 Tex. App. LEXIS 2355, 1993 WL 320978

• Court: Court of Appeals of Texas
• Decided: August 25, 1993
• Docket: 2-92-239-CR
• Status: Published

Opinion

OPINION

FARRIS, Justice.

A jury convicted Blane Adair Bottom of aggravated sexual assault of a child younger than fourteen years of age, see TexPenal Code Ann. § 22.021 (Vernon 1989), and sen- teneed him to fifty-years imprisonment. Bottom appeals, claiming the court abused its discretion in continuing the trial in his absence. Because Bottom was present when the jury was selected and his absence from the courtroom was voluntary, we overrule his point of error and affirm the judgment.

At this trial, Bottom was present during voir dire, seating and swearing of the jury, presentation of the State’s case in chief, and sentencing. After the State rested, defense counsel informed the court Bottom was not in the courtroom, but in the hospital, because he had attempted suicide, or some harm to himself. Defense counsel requested, and the court denied, a continuance. The court did, however, order a competency hearing from which Bottom was found competent to stand trial.

When a defendant voluntarily absents himself after pleading to the indictment, or after the jury has been selected, the trial may proceed to its conclusion. Tex.Code CrimJProcAnn. art. 33.03 (Vernon 1989); Gonzales v. State, 515 S.W.2d 920 (Tex.Crim.App.1974).

The competent evidence shows Bottom was not absent because of some sudden unexpected medical emergency, but because he chose to ingest large quantities of aspirin and arthritis medication. Because Bottom chose to act in this way, his absence was voluntary. Because Bottom acted voluntarily and because he cannot avoid trial by intentionally disabling himself, we overrule his point of error.

Judgment affirmed.