SABINA VASQUEZ MATA v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

  NUMBER 13-01-00743-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

SABINA VASQUEZ MATA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

  On appeal from the 24th District Court of Victoria County, Texas.

  O P I N I O N

  Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Hinojosa

A jury found appellant, Sabina Vasquez Mata, guilty of the offense of forgery,[1] and the trial court assessed her punishment at two years confinement in a state jail facility, $1,000.00 fine, and $46.00 in restitution. By a single point of error, appellant contends the trial court erred: (1) in determining she had voluntarily absented herself from the trial; and (2) by proceeding with the guilt/innocence phase of the trial despite her absence. Appellant asserts her absence was involuntary, because she was admitted to a hospital the night before the trial. We affirm.

A. Background

On Monday, September 10, 2001, appellant was present for jury selection. The jury was selected and sworn. The trial court then informed all present:

As I told you this morning, we=re gonna recess the trial until nine o=clock tomorrow morning, and at that time, we will begin with the presentation of the indictment and opening statements from the attorneys, and then we will begin with the evidence.

The court released the jury and recessed the trial. Appellant was free on bond.

At 9:00 a.m. on September 11, appellant did not appear for trial, and her counsel informed the trial court that he was unaware of her whereabouts. Appellant made no attempt to contact the trial court or her counsel. At approximately 10:00 a.m., the trial court made a finding that appellant had Avoluntarily absented herself from the trial.@ Defense counsel requested a continuance and objected to the court=s proceeding with the trial in his client=s absence. The motion for continuance was denied, and the trial continued without appellant.

At approximately 11:10 a.m., outside the presence of the jury, the trial court granted the State=s motion to forfeit appellant=s bond and request that a capias be issued for her arrest. After lunch, the trial court was informed by a bailiff that appellant had gone to the emergency room of a local hospital at approximately 10:00 p.m. on September 10, complaining of hyperventilation, and had been released at 1:25 a.m. on September 11. The jury subsequently returned a guilty verdict.

Appellant was later arrested. The trial court held a punishment hearing on October 11, 2001, with appellant in custody and present.

B. Analysis

Article 33.03 of the code of criminal procedure provides, in relevant part:

Art. 33.03. Presence of defendant

In all prosecutions for felonies, the defendant must be personally present at the trial, . . . ; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment . . . , 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 (Vernon 1989). In most instances the appellate court will have to determine, from hindsight, the validity of the trial court=s determination that the defendant=s absence was voluntary. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). In reviewing the validity of this determination, an appellate court is not limited to the evidence available to the trial court at the time of the determination, but may consider later evidence that demonstrates the involuntary nature of the absence. Id. However, without such evidence, an appellate court should not disturb the trial court=s finding. Id.

Appellant was present in court on Monday, September 10, 2001, when the jury was empaneled and sworn. She was free on bond and aware that she was due in court at 9:00 a.m. on Tuesday, September 11. Appellant did not contact her lawyer. The trial court made numerous efforts to locate appellant, all of which were unsuccessful. After checking with area hospitals and learning that appellant was not in a hospital, the probability that appellant was involuntarily absent was diminished. See id. We conclude the trial court had enough information before it to reasonably infer that appellant voluntarily absented herself from the trial. See id. (trial court did not abuse its discretion in finding voluntary absence because it had sufficient information to reasonably infer so when defendant was free on bond, had been advised by court and his attorney to be present, had not contacted court or his attorney, and a check of most of area hospitals had been fruitless). We hold the trial court did not abuse its discretion in finding that appellant had voluntarily absented herself from the trial, in light of the information with which it was presented at the time.

We also review evidence subsequent to the determination. Id. Appellant contends the evidence that she had been admitted to the hospital on the evening of September 10, demonstrates the involuntary nature of her absence. However, the record also shows that appellant was released from the hospital at 1:25 a.m. on September 11, and did not appear for her trial at 9:00 a.m. We find no evidence in the record that appellant=s medical condition, subsequent to her release, prevented her from attending the trial. In the absence of such evidence and of an abuse of discretion at the time of the determination, we will not disturb the trial court=s finding. Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

1st day of August, 2002.

[1]See Tex. Pen. Code Ann. ' 32.21 (Vernon Supp. 2002).