666 S.W.3d 581
Tex. Crim. App.2023Background
- King was charged with evading arrest with a motor vehicle and theft of a firearm; the court held a pretrial hearing on a motion in limine while King was outside the courtroom and his counsel was present.
- At a short, partly unrecorded bench conference the judge, prosecutor, and defense counsel discussed possible stipulation to enhancements, how voir dire would proceed, whether King might be disruptive, and defense counsel’s comment that King might seek new counsel to delay trial.
- On the record King later entered, told the court he wanted to plead guilty to the evading charge and have the jury assess punishment, and formally pleaded and admitted enhancements the next day.
- The jury found King guilty and assessed punishment at 20 years’ imprisonment and a $10,000 fine.
- The court of appeals held King’s absence was error but harmless; King sought discretionary review arguing his constitutional and statutory presence rights were violated and that harmlessness cannot be presumed from a silent record.
- The Court of Criminal Appeals affirmed: no due process violation (presence was not reasonably related to the defense) and any Article 28.01 statutory violation was harmless under Rule 44.2(b).
Issues
| Issue | King's Argument | State's Argument | Held |
|---|---|---|---|
| Whether King’s absence from the pretrial hearing violated Due Process | Denial of Fourteenth Amendment right to be present at pretrial proceedings; absence could affect defense | No due process violation because the matters discussed were not substantially related to King’s defense and counsel was present | No due process violation — presence did not bear a reasonably substantial relationship to the defense |
| Whether Article 28.01 (statutory right to be present) was violated and requires reversal | Statutory right to be present at any pretrial proceeding; the unrecorded bench conference prevents harmless-error review | Any Article 28.01 violation is non-constitutional and subject to Rule 44.2(b) harmless-error review; record shows no effect on jury | Article 28.01 violation (if any) was harmless under Rule 44.2(b) — no substantial effect on verdict |
| Whether King was denied opportunity to consult counsel about the motion in limine and plea/voir dire | Absent when motion/strategy discussed; could not consult about pleading options or voir dire consequences | Counsel participated, secured favorable rulings, King later conferred on the record and delayed formal plea until next day | Counsel represented King at the hearing; King voiced plea decision on record; absence did not prejudice defense |
| Whether the two-minute unrecorded bench conference prevents meaningful harmless-error analysis | The silent record precludes assessment of whether discussion harmed King | Short off‑record interlude likely trivial; presumption that matters were insubstantial absent contrary evidence | The Court presumed the off‑record discussion was trivial; record provides fair assurance the error did not influence the jury |
Key Cases Cited
- Snyder v. Massachusetts, 291 U.S. 97 (1934) (defendant’s presence required only to the extent a fair hearing would be thwarted by absence)
- United States v. Gagnon, 470 U.S. 522 (1985) (short private conferences do not necessarily violate due process where matters are trivial and defendant could not contribute)
- Adanandus v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993) (absence harmless when counsel present, advocated, and defendant had no unique information)
- Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003) (no due process violation where presence not reasonably related to defense)
- VanNortrick v. State, 227 S.W.3d 706 (Tex. Crim. App. 2007) (discusses Rule 44.2(b) harmless-error standard)
- Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) (harmless-error framework and that only certain errors are structural)