Billy Joe Polston a/k/a Billy J. Polsten v. The State of Texas--Appeal from 355th District Court of Hood County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00020-CR
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BILLY JOE POLSTON, A/K/A BILLY J. POLSTEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 355th Judicial District Court
Hood County, Texas
Trial Court No. CR10162
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

On the afternoon of November 6, 2006, the trial court called the case against Billy Joe Polston, a/k/a Billy J. Polsten, for jury selection and trial on a charge of felony driving while intoxicated (DWI). Polston's voir dire was conducted, and his jury was selected, that afternoon, from a panel that included some veniremembers who had been voir dired that morning in connection with a different case, but who had not been selected to serve on the other jury. Polston's jury found him guilty, found he had been twice previously and sequentially convicted of a felony offense, and assessed his punishment at sixty years' imprisonment.

Polston's sole issue on appeal asserts that his absence from the morning voir dire erroneously denied him the right to be at his trial. Because we conclude that the morning voir dire in a different case was not part of Polston's trial, we overrule Polston's point of error and affirm the judgment of the trial court.

The reporter's record in this case suggests the State was trying two cases back to back. After a jury had been selected in a separate case, during the morning of November 6, the members of the morning venire panel who had not been selected for that jury were then apparently "recycled" and added to a new master jury panel, along with new veniremembers, to constitute a new jury pool from which the Polston jury would be selected that afternoon. Because the State had questioned some of the prospective jurors during the morning session, the State chose not to repeat many of the questions it had asked during the earlier session.

That afternoon, Polston was present from the beginning of the voir dire portion of his own trial. The State concedes on appeal, however, that Polston was not present during the morning court session.

Polston now contends the trial court committed reversible error by conducting the morning voir dire session outside of his presence, allowing the State to learn information from prospective jurors who later appeared as part of Polston's afternoon panel. Polston acknowledges that his attorney was present during the morning voir dire of the unrelated case; but Polston contends he was not himself also present and, therefore, error exists requiring reversal of his conviction and remand for a new trial.

Our law requires that a defendant must be present for all portions of a trial in which the accused is charged with a felony, except in cases where the defendant voluntarily absents himself or herself either after pleading to the charge or after the jury has been selected. Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2006). When the record affirmatively shows the accused was present for any portion of the trial, however, the reviewing court must presume, absent evidence to the contrary, that the accused was also present during the entire trial. Id.

In Bledsoe v. State, 936 S.W.2d 350, 351-52 (Tex. App.--El Paso 1996, no pet.), the accused contended on appeal that the trial court had erred when it had conducted voir dire in her case outside her presence. Id. at 351. The State conceded Bledsoe's absence during voir dire in that case. Id. That appellate court concluded error had been shown and, after reviewing the record for harm, concluded the record demonstrated harm sufficient that the reviewing court could not conclude beyond a reasonable doubt that the error did not contribute to her conviction or punishment. Id. at 352 (citing former appellate procedure Rule 81(b)(2), now Rule 44.2(a) of the Texas Rules of Appellate Procedure).

In this case, all Polston missed during the morning court session was the voir dire of a different case. But missing part of voir dire during another person's trial does not constitute missing a portion of one's own trial. Merely because the State may have learned information that it later used in selecting jurors in Polston's case does not thereby transform any part of that other trial into a part of Polston's trial. (1)

Polston's absence during the voir dire of another case did not deny him his right to be present during his own trial. Polston's presence during the voir dire of another case does not bear a reasonable and substantial relationship to the opportunity to defend himself at his own trial. Accord Mares v. State, 571 S.W.2d 303, 307 (Tex. Crim. App. 1978); see Bath v. State, 951 S.W.2d 11, 22 (Tex. App.--Corpus Christi 1997, pet. ref'd); Bledsoe, 936 S.W.2d at 351; Weber v. State, 829 S.W.2d 394, 396 (Tex. App.--Beaumont 1992, no pet.); cf. Adanandus v. State, 866 S.W.2d 210, 218-20 (Tex. Crim. App. 1993). Moreover, Polston has not shown that his absence from the voir dire in a different case in any way harmed his defense. See Haygood v. State, 127 S.W.3d 805, 812 (Tex. App.--San Antonio 2003, pet. ref'd).

Finding no violation of Article 33.03, we affirm the trial court's judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: April 25, 2007

Date Decided: May 30, 2007

 

Do Not Publish

 

1. To demonstrate further the flaw in Polston's argument, assume hypothetically that the prosecutor has previously met someone while watching a high school football game and learns from this individual that he is a true "law and order" kind of guy. The following week, the prosecutor sees this new acquaintance on a venire panel. That Friday night conversation has not become part of the trial being conducted on Monday.