THOMAS FLOYD REED, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued August 3, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01064-CR
No. 05-06-01065-CR
............................
THOMAS FLOYD REED, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-56913-RV and F05-56914-V
.............................................................
OPINION
Before Chief Justice Thomas and Justices Morris and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        The trial court entered a plea of not guilty on behalf of appellant Thomas Floyd Reed before a jury to two offenses of aggravated assault.   See Footnote 2  The jury found appellant guilty in each case and assessed appellant's punishment at forty-five (45) years' confinement in appellate cause number 05- 06-01064-CR and fifteen (15) years' confinement in appellate cause number 05-06-01065-CR. The trial court sentenced appellant in accordance with the jury's verdicts. This appeal ensued.
        In three issues on appeal appellant contends the trial court reversibly erred in conducting voir dire in his absence in violation of his rights under the federal and state constitutions and under article 33.03 of the Texas Code of Criminal Procedure. See U.S. Const. amend. VI; Tex. Const. art. 1, § 10; Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2006).
        The State responds the trial judge did not reversibly err by conducting voir dire in appellant's absence because his presence would not have furthered his defense. Alternatively, the State argues any error was harmless because it did not contribute to appellant's conviction or punishment. In a cross-issue, to which appellant did not respond, the State seeks reformation of the judgment in trial cause number F05-56913-RV (appellate number 05-06-01064-CR) to correctly reflect appellant was convicted of a first-degree felony.
        For reasons that follow, we hold the trial court did commit error; however, we further hold the error was harmless, not reversible, error. We affirm the judgment in trial court cause number F05-56914-RV (appellate number 05-06-01065-CR) (aggravated assault on Gus Agson).
        We resolve the State's cross-issue in its favor and reform the judgment in the aggravated assault of Stephannie Simpson to reflect appellant was convicted of a first-degree felony. As reformed, we affirm the judgment in trial court cause number F05-56913-RV (appellate cause number 05-06-01064-CR).
Procedural Background
 
        On June 5, 2006, in open court with the defendant present, the State announced ready. When the trial judge asked appellant if his name was Thomas Reed, he responded “[m]ay I ask a question, sir?” For the next nine pages in the record a dialogue ensued between appellant and the seemingly patient trial judge. Appellant was unhappy with his third defense attorney, did not want to go to trial, refused to change into civilian clothes, sign an application for probation or an election as to punishment, and repeatedly interrupted the trial judge. After the trial judge heard appellant out, he explained to appellant trial would proceed with his current defense counsel. The trial court recessed the proceedings to await the arrival of the jury panel.
        When the prospective jurors arrived outside the courtroom, the trial judge resumed the proceedings. Appellant was not present. The trial judge verified through the bailiff appellant refused to come into the courtroom. The State announced ready to proceed with jury selection.
        Defense counsel announced not ready “based on [his] client's refusal to come into court, his refusal to sign the application for probation, and his refusal to make an election as to whether we go to the judge or the jury for punishment.” Defense counsel moved for a continuance. After hearing the State's response to the motion, the trial court denied the motion. The prospective jurors entered the courtroom, and a jury was selected in appellant's absence.
        On June 6, 2006, after the prosecutor and defense counsel announced ready for trial, the following proceedings occurred, in relevant part:
 
        [Court]: All right. Would you please arraign Mr. Reed.
 
 
 
        [Prosecutor]: True Bill of Indictment. In the name and by the authority of the State of Texas, the Grand Jury of Dallas County, State of Texas, duly organized at the July term, A.D., 2005, of the 265th Judicial District Court, Dallas County, in said court, at said term, do present that one, Thomas Floyd Reed - sir, is that your name?
 
 
 
        [Appellant]: May I ask what this proceeding is, sir?
 
 
 
        [Court]: This is an arraignment, sir.
 
 
 
        [Appellant]: Okay. What is an arraignment?
 
 
 
        [Court]: That means she's going to read the indictment to you and then take your plea of either guilty or not guilty.
 
 
 
        [Appellant]: Okay. Is this trial starting now?
 
 
 
        [Court]: Yes, sir.
 
 
 
        [Appellant]: It's starting right now?
 
 
 
        [Court]: Yes, sir.
 
 
 
        [Appellant]: At this time? Sir, if it's on the record, is it being recorded?
 
 
 
        [Court]: Yes, sir.
 
 
 
        [Appellant]: I'd like the right of asking for a change of attorney. I have not changed number one attorney. Yes, I have had three. One got off my case, and he's now with Dallas County. The attorney I did change, here's the letter that I did have from him, that he asked to get off my case because I said we had differences.
 
 
 
        I've also asked that from this gentleman right here, Mr. Price, he has not worked my case, sir.
 
 
 
        [Court]: I understand. You told me that yesterday.
 
 
 
        [Appellant]: Okay. But I want it to be on record of that. And, yesterday, also, sir, I had a paper sent to me saying September, that they was going to - that the case had been moved back to September.
 
 
 
        I stepped back from the window and said thank you, Jesus. I can get me a free world lawyer. If he's my lawyer and with me, how would he go into the courtroom and say, Judge, he said, by then, he'd have a free world lawyer.
 
 
 
        And then, he kicked me up to this court to have a trial because I had papers stating the trial had been moved back to September, sir, to September.
 
 
 
        [Court]: All right.
 
 
 
        [Appellant]: How can you move it back down from September to now, and it's that crucial to put me in the court to go in front of you now and to have my case now? If you just gave the piece of paper saying September, September should have been my date.
 
 
 
        I should be entitled to get me a lawyer, like I said that I was going to do, a lawyer that would do an adequate job of defending me. That's all I'm asking. I do not have one now that could defend me for the stack of charges that are against me.
 
 
 
        That's all I'm asking for, is for my rights not to be violated. They are definitely being violated by pushing me back into court and telling me to go to court with him, and I have asked for change of counsel. I have asked that. And I have not used my allowance of twice changing counsel. I have not did that.
        [Court]: Okay. You told me that yesterday. Please continue reading the indictment.
 
 
 
        [Appellant]: But I have not did that.
 
 
 
        [Court]: Please continue reading.
 
 
 
        [Appellant]: But I have not - I have not.
 
 
 
        [Court]: Please continue -
 
 
 
        [Appellant]: Something is wrong with this. There's got to be something wrong with this. There has to be. There has to be.
 
 
 
        [Court]: Okay. Continue reading the indictment.
 
 
 
        [Appellant]: There has to be something wrong with this.
 
 
 
        [Court]: Read it.
 
 
 
        [Appellant]: There has to be something wrong with this.
 
 
 
        [Prosecutor]: The defendant -
 
 
 
        [Appellant]: Because I have not had legal counsel. He has not sat down and talked to me, sir. We have not discussed - we have not discussed the case, as far as lawyer and client. We have not did this. This gentleman is going off the police report and that only.
 
 
 
        I wouldn't be this adamant toward you. I'm not no deranged fool. I'm not that. I am standing up for my rights. That's all I'm doing. I'm not raving and ranting and cursing and threatening no one. I'm just saying -
 
 
 
        [Court]: Mr. Reed, I'm asking -
 
 
 
        [Appellant]: - that my rights are being violated.
 
 
 
        [Court]: - you to please be quiet and listen to the State read this indictment.
 
 
 
        [Appellant]: But will you listen to me about that?
 
 
 
        [Court]: I've listened to you for two days.
 
 
 
        [Appellant]: But nothing is being done.
 
 
 
        [Court]: Now, please be quiet.
        [Appellant]: Nothing is being done. Nothing is being done, sir. Sir, I'm not dishonoring you and you being a judge. I'm saying this is not right. This cannot be right.
 
 
 
        [Court]: I have heard you out, and it's on the record. Now, please continue.
 
 
 
        [Appellant]: But if it's on the record. Well, why hasn't something been changed because it's - I'm adamant this is not right. It's just not right. He even said he sent someone out to my house yesterday. People were there.
 
 
 
        [Court]: I have heard you out.
 
 
 
        [Appellant]: They was there -
 
 
 
        [Court]: I have heard you out.
 
 
 
        [Appellant]: There was no one here.
 
 
 
        [Prosecutor]: Defendant, on or about the 7th day of September 2005, 2005, in the County of Dallas and said State -
 
 
 
        [Appellant]: There is no one here. I'm just asking for a fair trial. That's all I'm asking for.
 
 
 
        [Court]: Continue.
 
 
 
        [Appellant]: I'm asking for a fair trial.
 
 
 
        [Prosecutor]: - did then and there intentionally, knowingly and recklessly cause bodily injury to Gus Agson, hereinafter called complainant, by stabbing complainant with a knife and said defendant did use and exhibit a deadly weapon; to wit, a knife, during the commission of the assault.
 
 
 
        Against the peace and dignity of the State. Signed by Bill Hill, Criminal District Attorney of Dallas County, Texas and the foreman of the grand jury.
 
 
 
        [Appellant]: He should not be representing me.
 
 
 
        [Court]: How does Mr. Reed plead, guilty or not guilty?
        
 
                [Appellant]: He should not be representing me.
 
. . .
 
 
        [Court]: I enter a plea of not guilty on behalf of Mr. Reed.
 
 
 
        [Appellant]: He should not be representing me.
 
 
 
        [Court]: Please proceed.
 
 
 
        [Appellant]: He should not be representing me. These procedures should not be going on.
 
 
 
        [Prosecutor]: In the name and by the authority of the State of Texas -
 
 
 
        [Appellant]: There is a violation. There has to be.
 
 
 
        [Prosecutor]: - the grand jury of Dallas County, State of Texas -
 
 
 
        [Appellant]: How do you tell a person -
 
 
 
        [Prosecutor]: - duly organized at the July term, A. D., 2005 -
 
 
 
        [Appellant]: How do you tell a person September and then you ship it back to another court?
 
 
 
        [Prosecutor]; - of the 265th Judicial District Court, Dallas County, in said court, at said term, do present that one, Thomas Floyd Reed, defendant, on or about the 7th day of September A. D. -
 
 
 
        [Appellant]: Why are you standing here grabbing and twisting my arm, sir? This is an adamant violation of my rights.
 
 
 
        [Prosecutor]: - 2005 -
 
 
 
        [Appellant]: Now, you've got him twisting my arm.
 
 
 
        [Prosecutor]: - in the County of Dallas and said State, did unlawfully then and there intentionally -
 
 
 
        [Appellant]: I'm just asking for my rights.
 
 
 
        [Prosecutor]: - knowingly and recklessly cause serious bodily injury -
 
 
 
        [Appellant]: I'm not acting no violent way towards this gentleman. This is the same gentleman that dragged me by my feet and sprayed me -
 
 
 
        [Prosecutor]: - to Stephannie Simpson, hereinafter called complainant, by setting complainant on -
 
 
 
        [Appellant]: Oh. You're letting me go now?
 
 
 
        [Prosecutor]: - fire with a flammable accelerant -
 
 
 
        [Appellant]: And you sprayed me with mace.
 
 
 
        [Prosecutor]: - and a lighter and said defendant did use a deadly weapon, to wit: a flammable accelerant -
 
 
 
        [Appellant]: Yes, sir.
 
 
 
        [Prosecutor]: - and a lighter, during the commission of the assault. And further, the said defendant has and has had a dating relationship with the said complainant and the said defendant was a member of the complainant's family and household.
 
 
 
        Against the peace and dignity of the State, Bill Hill, Criminal District Attorney of Dallas County, Texas.
 
 
 
        [Court]: I enter a plea of not guilty on behalf of Mr. Reed.
 
 
 
        [Appellant]: This should not be proceeding.
 
 
 
        [Court]: Mr. Reed, I'm going to ask you, for your own sake, to change into civilian clothes and participate in this trial.
 
 
 
        [Appellant]: This should not be proceeding.
 
 
 
        Sir, I will participate when I have an adequate defense. I do not have adequate defense. This gentleman is not - I haven't even seen this gentleman before until like a couple of days ago in the courtroom. Now, he's with me on counsel with this gentleman here.
 
 
 
        [Court]: Now, if you don't, you're going to hurt your own case.
 
 
 
        [Appellant]: Sir, my case is hurt right now. I'm looking up at the mountain by myself. No one is with me.
 
 
 
        [Court]: All right.
 
 
 
        [Appellant]: And I'm walking into this courtroom by myself because I don't have a defense.
 
 
 
        [Court]: Are you going to participate in this trial?
 
 
 
        [Appellant]: I do not have a defense attorney. Where is my defense attorney, sir?
 
 
 
        [Court]: All right. Will you ask Mr. Reed to leave the courtroom.
 
 
 
        [Appellant]: Where is my defense attorney? I will not leave your courtroom, sir. I do not have a defense attorney. I asked that. I have been violated. I have been violated. I asked that. I asked for a defense attorney. I do not have one.
 
 
 
        (Defendant escorted out of the courtroom.)
 
 
 
        [Court]: All right. Let the record reflect Mr. Reed was arraigned. Mr. Reed has chosen not to participate in the trial again this morning.
 
        Reed was taken to the holdover cell where he could listen to the proceedings in the courtroom.   See Footnote 3  He did not return to the courtroom until he testified, after which he chose to remain in the courtroom.
Factual Background
        Stephannie Simpson testified at trial. Appellant and Stephannie Simpson had been in a relationship for over five years, and had lived together for the last year of the relationship. Shortly before September 2005, Simpson broke up with appellant and asked him to move out. Appellant moved out; however, he and Simpson continued to communicate.
        On September 7, 2005, which was Simpson's daughter's birthday, appellant called Simpson. Appellant told Simpson he needed help because he had lost his job. Simpson told appellant she did not have time to talk because she was going to the grocery store. Simpson refused to meet appellant downtown. Appellant knew Simpson shopped at Jerry's Supermarket. When Simpson got off the bus at the supermarket, appellant was there. Simpson agreed to help appellant by buying him some groceries. While shopping for groceries, appellant repeatedly implored Simpson not to end their relationship. After Simpson paid for the groceries,   See Footnote 4  she and appellant walked outside toward the bus stop. When Simpson would not agree to reconcile, appellant became angry. Appellant told Simpson she could not leave him, she belonged to him, and there would be consequences if she left him. Appellant began to hit Simpson. Simpson put down the groceries. Simpson saw a bottle in appellant's hand; she then felt something in her eyes and hair and smelled gasoline. Simpson began to run, but fell down; she got up and felt something hot. Simpson realized she was on fire, but she could not see. Appellant continued to “douse” Simpson and she continued to burn. Appellant pushed Simpson against a car. When Simpson felt something scrape her, she saw appellant holding a knife. Appellant tried to light Simpson on fire three times. Each time appellant said, “[b]urn, bitch, burn.” Some people tried to help Simpson. One man poured water on her head to put out the fire. The manager pulled her inside the store and locked the door. An ambulance came and took Simpson to the hospital. She was released from the hospital later that night. Simpson wore bandages for a month and had to see the doctor weekly until the end of October. The burns made Simpson more vulnerable to skin cancer.
        Gus Agson testified he was a 57-year-old construction worker. He admitted he had a history involving drugs. On September 7, 2005, he was on his way to Jerry's Supermarket. He identified appellant as the man he saw slap a woman near a bus stop on Singleton near the supermarket. He also saw him “skidding her with some type of fluid,” make a “motion like this,” saw a lighter in his hand, and then he saw her go up in flames. The flames were above her head. Her hair and her clothing were on fire as she ran toward him. Someone poured a liquid on her to put out the fire. Agson ran toward the woman. Agson testified:
 
And when I got towards her, this guy came back and started squirting her again. And he was trying to set her on fire a second time. And there was a pole in a truck, and I just reacted. I took the pole and hit him upside the head with it, and he dropped the little tube he had, and that's when he proceeded to attack me.
 
Appellant and Agson tussled. Agson thought appellant was punching him, but he was stabbing him. Agson fell to the ground, but got up. Others tried to help him. Someone told him he was bleeding. Agson realized he had been stabbed three times. Appellant told Agson he should have been minding his own business because if he had been he would not have stabbed him. Appellant was brought into the courtroom, over defense counsel's objection, and Agson identified him as the man he saw setting fire to the woman on September 7, 2005. Agson was taken to Parkland Hospital and stayed until later that afternoon.
        Appellant testified in his own behalf. He testified he did not call Simpson the morning of September 7, 2005. He talked to Simpson on Saturday and she told him to call back Sunday, but he did not because he slept all day. Simpson called him Monday morning, Labor Day, and they talked. He did not talk to her again until she called him on Tuesday. His mother called him in from outside where he was working on the Weedeater to take the telephone call.   See Footnote 5  Appellant knew it was Jasmine's birthday.   See Footnote 6  Appellant said Simpson kept saying he needed to “come now.” She was going to buy him something because he did not have any money. As appellant was coming out of his house, the bus passed. A neighbor gave appellant a ride to Ledbetter Station. Appellant caught the train from Ledbetter Station to downtown. From downtown, he caught the bus to Jerry's Supermarket. Simpson was not there. Appellant waited for her and she finally came. Simpson wanted appellant to meet her at Jerry's. When Simpson arrived, they exchanged greetings. Simpson then said “come on, let's go over and just get this over with.” Appellant said “all right. Let's go.” Appellant grabbed a basket and they began shopping. Simpson asked appellant what was wrong and he denied anything was wrong. They talked. When Simpson asked appellant if he was all right, he said he was all right, that he would “make it.” Simpson helped appellant get groceries. When they got to the vegetable aisle, appellant picked up something. Simpson came closer and again asked if he was all right. He said he was. Simpson then said,
 
[H]ey, it's going to be all right. It ain't no problem. We still see each other. I said, no. I ain't got time for that. She tried to kiss me. It may not look it now the way I look now, but she tried to kiss me. I said, no. I don't want none of that because, see, I don't know where your lips have been. When I said that, that's when the first blank you came toward me. That was number one.
 
Simpson then told appellant to hurry up. Appellant said, “I guess he must be having you on time schedule since he let you come up here where I am to see me and buy me something, so I guess you got to hurry back to him.” They began “slowly going back and forth.” They discussed about how many items appellant had got and whether he wanted cigarettes or cigars. Simpson paid for the groceries. Appellant stood by the other side of the cash register. Appellant then mentioned that Simpson had wanted to get together for Jasmine's birthday but that had changed. Appellant sat the groceries down and said “you can take it. You keep it. I don't need it.” Appellant started to turn around and walk off and “that's when the entourage started. And the next thing that happened came just a blur.” Simpson cursed at him again.
        Defense counsel then had the following exchange with appellant:
 
        Q. [Defense counsel]: Okay. So I want you to slow it down and explain to the jury what happened next.
 
 
 
        A. [Appellant]: The next thing just happened. The next thing just came (snapped fingers). She went to fire up a cigarette. She didn't have no lighter. I had a lighter. The lighter was in the same side where I had the mixture of oil and gas in that container. I lit the cigarette. She said something else at that time. The next thing you know, I'm not making no adamant things saying that it didn't happen. I'm saying this was not me.”
 
Appellant said he had nothing against Agson - that he reacted because Agson hit him. Appellant also denied he told the police he “did it.” He said he told the police “I know what I did.” Appellant heard Simpson say she was on fire and that was when she ran and fell. Appellant said the police report was incorrect.
        On cross-examination, appellant denied he was upset that his relationship with Simpson was not going well. Appellant said Simpson's family disliked him because he did not take care of them. Appellant considered Simpson his wife. He did not like it that she did not want him to be around anymore. He did not spray oil and gas on Simpson. He did not light Simpson on fire intentionally. Everything was just a blur. He denied seeing Simpson's arm as reflected in State's Exhibit 11.
        Appellant remembered Agson as the man who came at him with a pole. Appellant admitted he had a knife cutting the string on the Weedeater. The prosecutor asked, “[a]nd so you used a knife to stab that guy with the pole?” Appellant responded “I was being hit with a pole, Miss.” The prosecutor then asked, “I'm just asking you a yes or no question, Mr. Reed. Did you stab the guy with the pole?” Appellant responded, “I was trying to stop him from hitting me with the pole, Miss. I was defending myself. And as a result of that, I am in here in front of this court and trying to plead my -.” Appellant denied saying “burn, bitch, burn.” At the conclusion of appellant's testimony, the trial judge asked him if he wanted to stay in the courtroom. Appellant responded, “[a]ll right. I'll stay.” The trial judge told him to “[g]rab a chair.”
Applicable Law
 
Constitutional Rights
        The court of criminal appeals has previously held, under the Sixth Amendment to the United States Constitution and article 1, section 10 of the Texas Constitution, that “within the scope of the right of confrontation is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, . . . absent a waiver of that right through defendant's own conduct[.]” Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985) (citing Lewis v. United States, 146 U.S. 370 (1892); Illinois v. Allen, 397 U.S. 337 (1970) and Baltierra v. State, 586 S.W.2d 553 (Tex. Crim. App. 1979)).
        After commencement of trial proceedings, a defendant may voluntarily absent himself from the trial without a violation of his Sixth Amendment right to be present during all phases of the trial. See Taylor v. United States, 414 U.S. 17, 18-19 (1973) (per curiam); Miller, 692 S.W.2d at 90; Tracy v. State, 14 S.W.3d 820, 826 (Tex. App.-Dallas 2000, pet. ref'd). This is because the Supreme Court has recognized that a defendant's conduct in voluntarily absenting himself after his trial has commenced with him in attendance amounts to a forfeiture of his Sixth Amendment right to be present during the time he is absent. See Taylor, 414 U.S. at 18-19; Miller, 692 S.W.2d at 90- 91. The federal courts of appeals have determined that a trial “commences,” under the federal rules, “at least” from the time that “the work of impaneling jurors begins[.]” Miller, 692 S.W.2d at 90-91 (citing United States v. Miller, 463 F.2d 600 (1st Cir. 1972)).
Article 33.03 Statutory Rights
        Article 33.03 of the Texas Code of Criminal Procedure is a more protective provision than its federal counterpart. Miller, 692 S.W.2d at 90. Under article 33.03, an accused's right to be present at his trial is unwaivable until such time as the jury “has been selected[.]” Miller, 692 S.W.2d at 91. After discussing the legislative history of article 33.03, the court in Miller construed the term “has been selected” liberally to effectuate its view of legislative intent. Miller, 692 S.W.2d at 93. In construing article 33.03, the Miller court did not equate “selected” with “impaneled and sworn.”   See Footnote 7  In affirming the court of appeals' judgment in Miller, which affirmed the conviction, the Court “agree[d] that the jury had been 'selected' for purposes of article 33.03 . . . 'when the parties handed in their respective jury lists, with the [peremptory] challenges noted thereon[.]'” Miller, 692 S.W.2d at 93 (citing Miller v. State, 623 S.W.2d 491, 494 (Tex. App.-Beaumont 1981), aff'd, 692 S.W.2d 88 (Tex. Crim. App. 1985)).   See Footnote 8 
        In Bledsoe v. State, 936 S.W.2d 350, 351 (Tex. App.-El Paso 1996, no pet.), the defendant was not present until after the jury was selected and sworn. In its opinion reversing the conviction, the court noted, “[u]nder Article 33.03, it is irrelevant whether Appellant's absence was voluntary or due to some reason beyond her control since her absence occurred prior to the jury being selected.” Bledsoe, 936 S.W.2d at 351 n. 2. The court found a harmful statutory violation occurred. Bledsoe, 936 S.W.2d at 352.
        This court has also addressed a similar issue. In Tracy v. State, 14 S.W.3d 820, 826 (Tex. App.-Dallas 2000, pet. ref'd), the defendant was present at the beginning of voir dire but voluntarily left to go to the doctor and did not return until after the jury had been selected and sworn. This court found a violation of article 33.03; however, it found no Sixth Amendment violation because the defendant was initially present when voir dire began. Tracy, 14 S.W.3d at 826. The court found the error harmless under rule of appellate procedure 44.2(b) because the record did not show the defendant was denied a fair and impartial jury. Tracy, 14 S.W.3d at 827.
Analysis
        Appellant argues that here, unlike Tracy, his Sixth Amendment right to be present was violated because he was not initially present when voir dire began. He also contends his constitutional rights under the Texas constitution were violated because he was not present when the parties handed in their respective jury lists reflecting their juror strikes. And because he was not present “when the jury was selected” his rights under article 33.03 were also violated. The prospective jurors were informed only of Reed's name and could not view him to determine whether they might know him by sight.   See Footnote 9  The trial court's only comment about appellant's absence was made when he introduced the attorneys in voir dire:
 
        Mr. Reed has chosen not to participate in this trial this afternoon after being admonished by me. However, that's his decision. And under our law, he's allowed to do that.
 
 
 
        Now, I'd ask you not to read anything into that, because even though Mr. Reed is not here, the burden of proof is on the State of Texas.
 
        Appellant argues because the trial court error was constitutional, any harm analysis must be conducted under rule 44.2(a) of the appellate rules. See Tex. R. App. P. 44.2(a). Appellant contends that when the same factors considered by the Bledsoe court are considered here, he is entitled to a reversal of his conviction and a remand for a new trial. We disagree.
        A defendant may voluntarily absent himself from the trial without a violation of his Sixth Amendment right to be present during all phases of the trial. Taylor, 414 U.S. at 19; Miller, 692 S.W.2d at 90-91. We hold that appellant's constitutional rights were not violated inasmuch as he was present at the beginning of the trial proceedings and voluntarily absented himself during the voir dire and a major portion of his trial. There is no evidence in the record appellant's absence was involuntary. We conclude appellant forfeited his constitutional rights to be present during his trial.
        Under article 33.03 of the code of criminal procedure, a defendant must be personally present at the trial until the jury has been selected. See Tex. Code Crim. Proc. Ann. art. 33.03; Tracy, 14 S.W.3d at 826. The right to be present until selection of the jury cannot be waived. Tracy, 14 S.W.3d at 826 (citing Miller, 692 S.W.2d at 91). We hold, therefore, as this court did in Tracy, that appellant's absence during voir dire violated his statutory rights under article 33.03. That, however, does not end our inquiry. Such error is subject to a harm analysis. Tracy, 14 S.W.3d at 827.
Harm Analysis
        The error here was statutory error. Consequently, we may not reverse unless we determine the error affected a substantial right. Tex. R. App. P. 44.2(b). A substantial right is affected when the error (1) had a “substantial and injurious” effect or influence in determining the jury's verdict or (2) leaves one in grave doubt whether it had such an effect. Tracy, 14 S.W.3d at 827 (citations omitted). A substantial right is not affected and the error is harmless if, after reviewing the entire record, the appellate court determines the error did not influence, or had only a slight influence, on the trial's outcome. Tracy, 14 S.W.3d at 827.
        Just as in Tracy, the right of the defendant was the right to be present during the entire voir dire. The effect of that right is the ability to assist defense counsel in the exercise of peremptory challenges. The court of criminal appeals has held no violation of substantial rights occurs during the voir dire unless the record shows the defendant was denied a fair and impartial jury. Tracy, 14 S.W.3d at 827 (citations omitted). There is nothing in the record to show the jury chosen in appellant's absence was not fair and impartial. The record excerpts set out in this opinion show appellant would not have furthered his defense had he been present. Appellant's absence during voir dire did not affect a substantial right. Consequently, we disregard the error. Tracy, 14 S.W.3d at 827; Tex. R. App. P. 44.2(b). We affirm the judgment in cause number 05-06-01065-CR (trial cause number F05-56914-RV).
State's Cross-Issue
        The judgment in the clerk's record erroneously states appellant was convicted in F05-56913- RV of a second-degree felony with a punishment range of confinement for two to twenty years. The record reflects appellant was convicted in F05-56913-RV of a first degree felony with a punishment range of confinement for five to ninety-nine years or life. Appellant was sentenced to forty-five years. The State requests that we reform the judgment to reflect the truth.
        This court has the power to modify incorrect judgments when it has the necessary information to do so. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). We, therefore, reform the judgment in F05-56913-RV to show appellant was convicted of a first-degree felony. As reformed, we affirm that judgment.
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
061064F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 In cause number F05-56913-RV (appellate number 05-06-01064-CR) appellant was charged with first-degree aggravated assault causing serious bodily injury to Stephannie Simpson, the complainant, by setting complainant on fire with a flammable accelerant and a lighter. Tex. Pen. Code Ann. § 22.02(a) (Vernon Supp. 2006). The indictment also alleged use of a deadly weapon and involvement of family violence. In cause number F05- 56914-RV (appellate number 05-06-01065-CR) appellant was charged with second-degree aggravated assault causing bodily injury to Gus Agson, the complainant, by stabbing him with a knife, a deadly weapon. Tex. Pen. Code Ann. § 22.02(a).
Footnote 3 At one point Reed was removed from the holdover cell; defense counsel objected and the trial judge instructed the bailiffs to have him returned to the holdover.
Footnote 4 Simpson paid about $70 for groceries for appellant. For herself, she bought only food for dinner and ingredients for her daughter's birthday cake.
Footnote 5 Appellant testified he obtained some gas from his neighbor and was mixing the gas and oil together to put in the Weedeater.
Footnote 6 Jasmine was Simpson's daughter.
Footnote 7 In Crist v. Bretz, 437 U.S. 28 (1978), the United States Supreme Court held that jeopardy attaches when the jury is impaneled and sworn.
Footnote 8 However, the Court did state it would perhaps take issue with the court of appeals' conclusion that the clerk's reading out the first twelve unstricken names, pursuant to article 35.26 was “purely a ministerial act.” See Miller, 692 S.W.2d at 90.
Footnote 9 One prospective juror was an officer with the Dallas Sheriff's Department. He did not know appellant by name. When asked if he could be a fair and impartial juror, he stated, “[i]f I know the person personally and seen [sic] him, his work habits, or if he's been around me, then maybe I'd be a little bias [sic] toward this person.” (emphasis added). We note, however, he did not say if he did not know appellant, he would be biased against him. Moreover, this prospective juror did not sit on the jury.