Douglas Gardner VanHooser v. The State of Texas--Appeal from 71st District Court of Harrison County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00120-CR
______________________________
DOUGLAS GARDNER VANHOOSER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 05-0403X
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Charged with driving while intoxicated (D.W.I.), Douglas Gardner VanHooser appeared in the trial court on Monday, May 7, 2006, at which time a jury was selected and empaneled, the indictment was read, VanHooser's plea of "not guilty" was received, and the trial court announced that trial would begin at 9:00 a.m., May 9. At the announced time, trial did begin, but VanHooser was absent.

The jury found VanHooser guilty and found that he had twice previously, finally, and sequentially been convicted of D.W.I. The trial court sentenced VanHooser to ten years' imprisonment and a $10,000.00 fine, in accordance with the jury's punishment verdict. VanHooser now appeals, raising two points of error. We affirm because we hold that (1) denying VanHooser's motion for continuance was not error, and (2) VanHooser's issue claiming denial of a fair and impartial trial is multifarious and should be overruled as such.

(1) Denying VanHooser's Motion for Continuance Was Not Error

VanHooser first contends the trial court erred by denying his motion for continuance. When the trial court called the case for trial on Wednesday, VanHooser was not present. The trial court asked VanHooser's counsel if he had received any contact from the defendant, and counsel responded that he had not. The trial court sent the bailiff to look elsewhere for VanHooser, but the defendant could not be located. VanHooser's counsel requested a continuance, which the trial court denied. In overruling that request, the trial court stated,

The record should reflect that on Monday we picked the jury and I was concerned about Mr. VanHooser's desire to return based on observations in the courtroom and so I had the indictment read and took his plea and it would be the court's position that the Motion for Continuance be denied. And that we will try him and he can join you when he gets here.

The trial court then asked if VanHooser's counsel was prepared to proceed with cross-examination of the State's witnesses. Counsel responded affirmatively, and trial began.

A trial court's ruling on a motion for continuance is reviewed for an abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995); Hart v. State, 173 S.W.3d 131, 138 (Tex. App.--Texarkana 2005, no pet.). To demonstrate that the trial court abused its discretion, "there must be a showing the defendant was actually prejudiced by the denial of the motion." Hart, 173 S.W.3d at 138. If an accused voluntarily absents himself or herself after pleading to the indictment, or if he or she does so after the jury has been sworn, the trial may proceed to conclusion without the defendant's presence. Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2006).

The State contends VanHooser failed to preserve this issue for our review because counsel's motion for continuance was made orally without a written, sworn motion. "A motion for continuance not in writing and not sworn preserves nothing for review." Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) (referencing Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 2006)). The State is correct: because defense counsel's motion was made orally, without a written and sworn motion, the alleged error has not been preserved for appellate review.

Yet, even if this issue had been preserved, the record before us does not support the conclusion that the trial court abused its discretion by denying the requested continuance based on VanHooser's absence from trial. In Heard v. State, this Court visited the issue of whether a trial court erred by trying an accused in absentia under Article. 33.03 of the Texas Code of Criminal Procedure. 887 S.W.2d 94, 96-97 (Tex. App.--Texarkana 1994, pet. ref'd). In that case, a jury was selected and empaneled the week preceding a trial on guilt/innocence. When the trial court called the case for trial the following week, Heard was nowhere to be found. Heard's brothers searched for him in parts of Texas, Arkansas, and Louisiana; Heard's bondsman searched for him; and the local hospitals were checked--all without success. It turned out that Heard was absent from trial because he had been intoxicated the night before trial and had apparently "forgotten" that trial was to take place the following day. This Court determined that Heard's state of intoxication was not sufficient evidence to establish that his absence was "involuntary" for purposes of Article 33.03. Accordingly, this Court concluded no abuse of discretion had been shown. Id. at 96-99.

In the current case, VanHooser claimed at his subsequent sentencing (held May 22, 2006) that his absence at the May 9 trial was a result of oversleeping. VanHooser told the court that, once he realized he was late for court, he panicked and did not know what to do. Continuing, he stated,

As I told the gentleman here. I stayed away a couple of days and I came back on Friday, actually Thursday night and spent the night with my wife and got up the next day and tried to get a lawyer and that is when I saw the officer and I just didn't know. I was never running. And I know that y'all weren't going to believe.

 

The trial court responded that it had "seen the offense report where they picked you up in Lancaster." VanHooser's appellate counsel now asks us to look to VanHooser's proffered excuse of "oversleeping"--given nearly two weeks after the trial court denied counsel's motion for continuance--as evidence that VanHooser's absence at trial was unintentional and that, therefore, the trial court erred in denying the requested continuance.

We disagree with such an assessment of the record. Our reading of the record suggests only that VanHooser's continued absence from the proceedings below was voluntary. VanHooser made several conscious decisions to stay away from the Harrison County proceedings: (1) when he awakened and decided not to contact his attorney, (2) when he failed to present himself in the trial court at the soonest possible moment following his realization that he was missing his trial, (3) when he made the decision to "stay away a couple of days" from the proceedings, (4) when those "couple of days" turned into nearly two weeks of absence, (5) when he continued to not contact his bondsman or attorney, and (6) when he only finally returned to Harrison County following his arrest in the Dallas area. We conclude there is nothing in the record to support a conclusion that VanHooser's continued absence from trial was anything but voluntary. No abuse of discretion has been shown. (1) We overrule VanHooser's first point of error.

(2) VanHooser's Issue Claiming Denial of a Fair and Impartial Trial Is Multifarious and Should Be Overruled as Such

In a single point of error, VanHooser next contends the trial court made several rulings, the cumulative effect of which was to deny VanHooser a fair trial guaranteed him by the United States and Texas Constitutions. VanHooser argues the trial court erroneously (1) prompted the State to read the jurisdictional enhancement provisions of the indictment after the State had initially failed to do so, (2) denied counsel's motion for continuance, (3) allowed the State to reopen its case-in-chief--over the defense's objection--to present evidence to support the indictment's jurisdictional enhancement paragraphs, (4) permitted the State to call a person who had not been listed as a potential witness, and (5) admitted a State's exhibit for which the proper predicate had not been laid. VanHooser contends the cumulative effect of these errors was that the trial court was assisting the State in prosecuting its case, conduct which thereby denied VanHooser a fair and impartial trial under the United States and Texas Constitutions.

"Attorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground. If sufficient distinction between state and federal constitutional grounds is not provided by counsel, this Court may overrule the ground as multifarious." Luquis v. State, 72 S.W.3d 355, 364 n.21 (Tex. Crim. App. 2002) (quoting McCambridge v. State, 712 S.W.2d 499, 501-02 n.9 (Tex. Crim. App. 1986)); see also Foster v. State, 101 S.W.3d 490, 499 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (overruling issue as multifarious that attacked cumulative effect of three separate trial court rulings as denying presumption of innocence).

VanHooser's second point of error makes no effort to distinguish between the federal and state constitutional issues. This second point is multifarious, and we overrule it as such.

For the reasons stated, no reversible error has been shown. We affirm the trial court's judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: October 26, 2006

Date Decided: November 3, 2006

 

Do Not Publish

 

1. Cf. Heard, 887 S.W.2d at 96-99; Schmitt v. State, No. 12-01-00306-CR, 2003 Tex. App. LEXIS 9009 (Tex. App.--Tyler Oct. 22, 2003, no pet.) (mem op., not designated for publication) (trial court had sufficient facts before it to decide accused voluntarily absented himself when court sent deputies to search courthouse, where counsel had received no contact from accused, and where accused apparently returned to court the next day only after being arrested); and Vasquez Mata v. State, No. 13-01-00743-CR, 2002 Tex. App. LEXIS 5631 (Tex. App.--Corpus Christi Aug. 1, 2002, no pet.) (mem. op., not designated for publication) (no evidence accused's medical condition prevented her attendance at trial when record showed she was released from hospital before trial resumed).