Ray, Donnie v. The State of Texas--Appeal from Criminal District Court No. 7 of Dallas County (opinion )

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AFFIRM; Opinion issued February 21, 2013 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-00724-CR No. 05-11-00725-CR No. 05-11-00726-CR No. 05-11-00727-CR No. 05-11-00728-CR DONNIE RAY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause Nos. F08-34906-Y; F10-34747-Y; F10-34748-Y; F10-34749-Y; F10-34750-Y OPINION Before Justices Bridges, Lang, and Richter 1 Opinion By Justice Bridges Donnie Ray appeals his convictions for unlawful possession of marijuana in cause number 05-11-00724-CR, delivery of marijuana in cause number 05-11-00725-CR, delivery of cocaine in cause numbers 05-11-00726-CR and 05-11-00728-CR, and possession with intent to deliver cocaine in cause number 05-11-00727-CR. A jury convicted appellant and sentenced him to 1 The Honorable Martin E. Richter, retired Justice, sitting by assignment. twenty years= confinement in cause numbers 05-11-00724-CR, 05-11-00725-CR, and 05-11-00727-CR, ten years= confinement in cause number 05-11-00726-CR and fifteen years= confinement in cause number 05-11-00728-CR. In a single issue, appellant argues the trial court erred in excluding him from the courtroom during the punishment phase of trial. We affirm the trial court=s judgments. Appellant entered guilty pleas to each of the charged offenses and pled true to the enhancement paragraphs. Following the State=s presentation of evidence regarding the charged offenses, the trial court instructed the jury to find appellant guilty on his pleas and to assess punishment. The jury retired to consider its verdict, and the trial judge recessed the proceedings. The jury returned to the courtroom, and the jury foreman announced the jury had reached a unanimous verdict in all five cases. The trial judge read the jury=s verdicts in cause numbers 05-11-00726-CR, 05-11-00728-CR, and 05-11-00727-CR. Appellant then stated, AThat wasn=t me.@ The trial judge began to read a fourth verdict, but appellant interrupted again, saying AIt wasn=t me. That wasn=t me. I don=t deserve that.@ The trial judge said, ATake him back,@ and appellant was removed from the court room. The trial judge stated, AFor the record, the defendant has been removed from the courtroom and the microphone is on.@ The trial judge finished reading the verdicts in cause numbers 05-11-00725-CR and 05-11-00724-CR and dismissed the jury. After the jury had left the courtroom, the trial judge stated the jury convicted appellant of Aall the cases@ and restated the punishment assessed in each case. The trial judge said, Afor the record, all of this is being piped into the defendant who was removed from the courtroom due to his outburst.@ The trial judge then pronounced sentence against appellant and adjourned the proceedings. In a single issue, appellant argues the trial court erred by excluding him from the courtroom during the punishment phase of trial. Specifically, appellant argues the trial court erred in failing B2B to give appellant a warning that Ahis conduct must be corrected or that he would be removed@ from the courtroom. Appellant argues his exclusion from the courtroom during the reading of the verdict requires reversal. A criminal defendant may lose his constitutional right to be present at trial if, Aafter he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.@ Illinois v. Allen, 397 U.S. 337, 343 (1970); Ramirez v. State, 76 S.W.3d 121, 129 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Trial judges confronted with Adisruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.@ Allen, 397 U.S. at 343; Ramirez, 76 S.W.3d at 129. Where a defendant=s behavior is of Aan extreme and aggravated nature,@ that discretion encompasses expulsion from the courtroom. Allen, 397 U.S. at 346; Ramirez, 76 S.W.3d at 129. Even assuming appellant=s removal from the courtroom without warning was error, this deprivation was not a defect that permeated A[t]he entire conduct of the trial@ or affected Athe framework within which the trial proceed[ed].@ Ramirez, 76 S.W.3d at 130 (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). Consequently, the question becomes one of harm. Ramirez, 76 S.W.3d at 130 (citing Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001) see also Rushen v. Spain, 464 U.S. 114, 117 n.2 (1983) (holding Athe right to be present during all critical stages of the proceedings@ is Asubject to harmless error analysis, unless the deprivation, by its very nature, cannot be harmless@). We need not reverse the trial court=s judgment if we determine that appellant=s exclusion did not contribute to his conviction or punishment. TEX. R. APP. P. 44.2(a); Jasper, 61 S.W.3d at 423; Ramirez, 76 S.W.3d at 130. B3B Here, appellant entered guilty pleas to each of the charged offenses. Following the State=s presentation of evidence, the jury deliberated and returned a guilty verdict in each case. The trial judge read the jury=s verdicts in cause numbers 05-11-00726-CR, 05-11-00728-CR, and 05-11-00727-CR without incident. Appellant then stated, AThat wasn=t me.@ The trial judge began to read a fourth verdict, but appellant interrupted again, saying AIt wasn=t me. That wasn=t me. I don=t deserve that.@ The trial judge, without issuing a verbal warning, ordered appellant removed from the courtroom and finished reading the verdicts in cause numbers 05-11-00725-CR and 05-11-00724-CR. The record indicates that, though appellant was not physically present in the courtroom, the proceedings were Abeing piped into@ him where he waited following his removal from the courtroom. Further, it is clear appellant=s removal from the courtroom did not contribute to his conviction or punishment because the jury had concluded its deliberations and reached a verdict in all five of the charges against him. See TEX. R. APP. P. 44.2(a); Jasper, 61 S.W.3d at 423; Ramirez, 76 S.W.3d at 130. Thus, any error in his exclusion was harmless beyond a reasonable doubt. See TEX. R. APP. P. 44.2(a); Jasper, 61 S.W.3d at 423; Ramirez, 76 S.W.3d at 130. We overrule appellant=s issue on appeal. We affirm the trial court=s judgments. /David L. Bridges/ DAVID L. BRIDGES JUSTICE Do Not Publish TEX. R. APP. P. 471 110724F.U05 B4B S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DONNIE RAY, Appellant No. 05-11-00724-CR On Appeal from the Criminal District Court No. 7, Dallas County, Texas Trial Court Cause No. F08-34906-Y. Opinion delivered by Justice Bridges. Justices Lang and Richter participating. V. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 21, 2013. /David L. Bridges/ DAVID L. BRIDGES JUSTICE B5B S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DONNIE RAY, Appellant No. 05-11-00725-CR On Appeal from the Criminal District Court No. 7, Dallas County, Texas Trial Court Cause No. F10-34747-Y. Opinion delivered by Justice Bridges. Justices Lang and Richter participating. V. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 21, 2013. /David L. Bridges/ DAVID L. BRIDGES JUSTICE B6B S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DONNIE RAY, Appellant No. 05-11-00726-CR On Appeal from the Criminal District Court No. 7, Dallas County, Texas Trial Court Cause No. F10-34748-Y. Opinion delivered by Justice Bridges. Justices Lang and Richter participating. V. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 21, 2013. /David L. Bridges/ DAVID L. BRIDGES JUSTICE B7B S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DONNIE RAY, Appellant No. 05-11-00727-CR On Appeal from the Criminal District Court No. 7, Dallas County, Texas Trial Court Cause No. F10-34749-Y. Opinion delivered by Justice Bridges. Justices Lang and Richter participating. V. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 21, 2013. /David L. Bridges/ DAVID L. BRIDGES JUSTICE B8B S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DONNIE RAY, Appellant No. 05-11-00728-CR On Appeal from the Criminal District Court No. 7, Dallas County, Texas Trial Court Cause No. F10-34750-Y. Opinion delivered by Justice Bridges. Justices Lang and Richter participating. V. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 21, 2013. /David L. Bridges/ DAVID L. BRIDGES JUSTICE B9B

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