Earnest Moss v. The State of Texas--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-93-077-CR

EARNEST MOSS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 93-007-CR

O P I N I O N

A jury found Earnest Moss guilty of burglary of a building, and the court assessed punishment at thirty years. In his first point, Moss contends that the court erred in not granting his motion to strike the jury panel. Second, he argues that the court erred in excluding him from the courtroom during voir dire of the proposed jurors. In his final point, Moss complains that he was not allowed to employ a psychiatrist of his choice so as to offer evidence of his ability to stand trial. We affirm.

On January 25, 1993, the Pronto Food Store in Wortham was burglarized. William Parker testified that around midnight he saw a two-colored car parked in front of the store and individuals "fooling around" in front of the store. Parker informed Coolidge Police Officer William Buzzard of the strange actions he witnessed. Wortham police were notified, and they discovered that the building had been burglarized. Shortly thereafter, Moss and two others were pulled over for speeding, and items stolen from the convenience store were found in their possession.

In his first point, Moss contends that the court erred in denying his Batson motion. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989). Moss, who is black, objected to the composition and impanelling of the jury on the grounds that the State used a preemptory strike to remove one of the two black jurors. Moss contends that only the two black jurors were questioned extensively by the prosecutor and that white proposed jurors were not questioned in the same manner. The Texas Code of Criminal Procedure reads in part:

After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case.

Tex. Code Crim. Proc. Ann. art. 35.261.

In reviewing the preservation of a complaint, we must determine whether a party presented a timely objection or motion in the record. See Tex. R. App. P. 52(a). For a Batson objection to be timely, it must be made before the jury is impanelled. Tex. Code Crim. Proc. Ann. art. 35.261; Hill v. State, 827 S.W.2d 860, 864 (Tex. Crim. App.), cert. denied, ___U.S.___, 113 S. Ct. 297, 121 L. Ed. 2d 221 (1992). A jury is considered "impanelled" when its members have been both selected and sworn. Hill, 827 S.W.2d at 864. A Batson challenge made after the jury has been sworn does not preserve a complaint. Cooper v. State, 791 S.W.2d 80, 83-84 (Tex. Crim. App. 1990) (on rehearing). The State has no obligation to make an objection to the untimeliness of a Batson objection. Id. at 83. That the Batson hearing was conducted is irrelevant to whether the complaint was preserved for appellate review. Id. The record reflects that the Batson motion was made after the jury was sworn; thus, the complaint is waived. The first point is overruled.

Second, Moss argues that the trial court erred in excluding him from the courtroom during the voir dire proceeding. The court removed him from the courtroom during voir dire for violating the court's instructions to remain quiet in the presence of the panel members. He was repeatedly admonished by the court to be quiet but refused to do so. After voir dire was completed, the court allowed Moss to return to the courtroom where he remained until the trial was completed.

Although a defendant has the right to be personally present at all stages of a trial, the right is not absolute. Sanchez v. State, 702 S.W.2d 258, 259 (Tex. App. Dallas 1985, pet. ref'd). The privilege may be lost by consent or misconduct. Illinois v. Allen, 397 U.S. 337, 342-43, 90 S. Ct. 1057, 1060-61, 25 L. Ed. 2d 353 (1970). If a defendant continues to be disruptive in court even after he has been warned, he loses the right to be present at his trial. Id. The exclusion of a defendant requires careful judicial scrutiny. United States v. De Los Santos, 819 F.2d 94, 98 (5th Cir.), cert. denied, 484 U.S. 978, 108 S. Ct. 490, 98 L. Ed. 2d 488 (1987). The court must balance the interest of the government with the legitimate interest of a defendant. Id. The standard of review is whether there was an abuse of discretion by the court. Dotson v. State, 785 S.W.2d 848, 854 (Tex. App. Houston [14th Dist.] 1990, pet. ref'd). In the present case, the government's interest was insuring that the courtroom decorum not be disrupted by the outburst of the defendant. The Supreme Court has noted: "It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country." Allen, 397 U.S. at 343, 90 S. Ct. at 1061. Moss was disrupting the courtroom making it impossible for jury selection to take place. He was only removed during voir dire, and he was allowed to return to the courtroom for the remainder of the trial. Moss does not assert any harm sustained by his exclusion during voir dire but only that his presence is mandatory. No allegation has been made that the jury selection process was hindered because of his absence. No objection or motion for continuance was made. We find that the court did not abuse its discretion. Point two is overruled.

On June 7, the morning of trial, Moss informed the court that he was under treatment by a psychiatrist, Dr. Crosno, and claimed that he was not then competent to stand trial. The following then transpired:

THE COURT: Okay. What I'm going to do, we're going to begin the trial at 1:00; that is, the voir dire examination. We're going to pick the jury. And in the meantime I will get ahold of a psychiatrist. He will evaluate you during the trial to determine whether you are competent to stand trial.

. . .

THE COURT: But we're not going to delay this trial.

THE DEFENDANT: We're not going to delay it. Could we hire a psychiatrist?

THE COURT: I will appoint a psychiatrist.

THE DEFENDANT: Yes, sir.

THE COURT: Okay? And the county will pay for it.

THE DEFENDANT: We have insurance. We could hire our own psychiatrist.

THE COURT: I will --

THE DEFENDANT: My own.

THE COURT: Mr. Moss, I will appoint a psychiatrist. Okay?

Later, the court had to remove Moss from the courtroom during voir dire when he began a tirade on his incompetency to stand trial. Moss' parting words were these as he left the court:

You don't have to do me like that. You don't have to treat me so cruel. I asked for my own psychiatrist. I can afford to hire a psychiatrist. Let me have my own psychiatrist.

The record reflects that on June 7 the court, upon the defendant's own motion, appointed Dr. Stephen Mark, a disinterested psychiatrist, to examine Moss and determine his competency to stand trial. Dr. Mark's report, which was filed on June 10, indicates that he examined Moss on June 9 and that he was competent to stand trial. The report was filed on June 10, the day Moss was sentenced.

In his third point, Moss complains that he was not allowed to employ his own treating psychiatrist, which he alleges prevented him from offering evidence of his inability to stand trial. Rule 52(a) requires a party to obtain an adverse ruling on a motion, objection or request to preserve a complaint for appellate review. See Tex. R. App. P. 52(a). The record does not reflect that the defense ever attempted to call a defense psychiatrist. Thus, the court made no ruling prohibiting Moss from offering the testimony of Dr. Crosno or any other psychiatrist of Moss' own choosing. Thus, any complaint was waived. We overrule point three.

We affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion issued and filed May 4, 1994

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