Frances, Keith Wayne, PD-0753-15

Keith Wayne Francis was indicted (Jan 31, 2014) for possession of <1 gram of cocaine with two prior enhancement allegations.
On June 25, 2014 Francis (with counsel) attended a pretrial hearing where counsel filed a Motion to Set Aside Indictment.
On June 26, 2014 the trial court signed an order denying the motion; there is no record of a hearing or other proceedings on that date.
Francis later pleaded guilty (Aug 5, 2014) and was sentenced to eight months in a state jail facility.
On appeal Francis argued the trial court violated his statutory and constitutional right to be personally present at the pretrial hearing because the court signed the denial order without him present.
The First Court of Appeals affirmed, concluding the signing of the order was not a "pretrial proceeding" requiring personal presence and that no due-process violation occurred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court violated article 28.01 by ruling on the motion to set aside the indictment when Francis was not physically present for the court's signing of the denial order	Francis: He was entitled to be personally present at the pretrial proceeding on his motion; the court erred by denying the motion outside his presence	State: There is no indication the court held any proceeding when it signed the order; courts may take matters under advisement and rule in a defendant’s absence	Held: The court found no pretrial "proceeding" on June 26; signing the order alone did not trigger article 28.01 presence requirement, so no statutory violation was shown
Whether Francis’s due-process right to be present at critical stages was violated by the court’s action	Francis: Denial outside his presence thwarted his opportunity to defend; his physical presence was reasonably related to his defense	State: Francis’s presence was not reasonably related to the ruling; no proceeding occurred that would have impacted his opportunity to defend	Held: No due-process violation. Because Francis was present at the June 25 hearing and no proceeding occurred on June 26, the absence did not deny a fair hearing

Rushen v. Spain, 464 U.S. 114 (U.S. 1983) (defendant’s presence right at critical stages under the Constitution)
Riggall v. State, 590 S.W.2d 460 (Tex. Crim. App. 1979) (written order reciting "came on to be heard" and containing findings indicates a proceeding requiring defendant presence)
Malcom v. State, 628 S.W.2d 790 (Tex. Crim. App. 1982) (overruling a motion by notation/docket entry was not a "proceeding" triggering article 28.01)
Watkins v. State, 333 S.W.3d 771 (Tex. App.—Waco 2010) (no article 28.01 violation where only an order denying a motion appears and no hearing occurred)
Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003) (due-process test: defendant’s presence required when reasonably substantial to opportunity to defend)
Snyder v. Massachusetts, 291 U.S. 97 (U.S. 1934) (presence required only to the extent absence thwarts a fair hearing)