Zackery Jamarcier Summage v. State, 06-14-00210-CR

Defendant Zackery Summage charged with assault of a public servant; voir dire began Nov. 3, 2014; trial occurred Nov. 6, 2014; sentenced to 8 years.
Summage was not present at the start of voir dire and was late to the trial on the merits; the court announced it would forfeit bond if he did not appear.
Defense counsel informed the court she had texted and later spoke with Summage, who said he was about ten minutes away and cited a family medical issue as the reason for lateness.
The court warned counsel it would proceed and issued a bond forfeiture; the jury was brought in, sworn, and the trial proceeded in Summage’s absence.
Evidence presented to the jury: Summage’s car was disabled; a tow driver smelled marijuana; a deputy searched the car with permission and found marijuana and a large amount of cash; Summage grabbed cash, struck the deputy, and fled.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether record showed exercise of peremptory strikes and seating of first 12 jurors	Appellee: Supplemental clerk's record contains both parties' jury lists and strikes; issue moot	Appellant: Trial record initially lacked clear documentation of strikes and juror seating	Court: Moot — supplemental record shows strikes used and first 12 eligible jurors seated; issue overruled
Whether trial court abused discretion by proceeding after defendant's voluntary absence	Appellee: No abuse — defendant was voluntarily absent; counsel declined court's alternative (bond forfeiture/mistrial) and did not request continuance	Appellant: Counsel's statements preserved complaint that defendant was absent and sought more time; proceeding without defendant was error	Court: No abuse of discretion — no preserved continuance request or objection; evidence supports voluntariness; point overruled

Moore v. State, 670 S.W.2d 259 (Tex. Crim. App. 1984) (standard: appellate review for abuse of discretion where some evidence must support voluntariness of defendant's absence)
Hudson v. State, 128 S.W.3d 367 (Tex. App.—Texarkana 2004) (appellate hindsight review of voluntariness determinations)
Nauls v. State, 762 S.W.2d 336 (Tex. App.—San Antonio 1988) (absence due to emergency facts and preservation issues)
Papakostas v. State, 145 S.W.3d 723 (Tex. App.—Corpus Christi 2004) (appellate standard for voluntariness review)
Sanchez v. State, 842 S.W.2d 732 (Tex. App.—San Antonio 1992) (defendant has responsibility to communicate absence; courts may proceed when absence is voluntary)