Case Information

*1

753-15 MO. OI-14-OOTIS-CR

IN THE

COURT OF CELMINAL APPEALS FOR: THE STATE OF TEXAS

ORIGINAL

KEITH WAYME FRANCIS,

APPEIIANT PRO.SE us. THE STATE OF TEXAS, APPEIIER

APPEIIANTS PETITION
FOR DISceItionARY REVIEW

ON PETITION FOR DISceItionARY REVIEN FROM THE COURT OF APPEALS FIESt DISTRICT OF TEXAS AT HOUSTON IN CAUSE NO.OI-14-OOTIS-CR, AFFIRMING THE CONVLITION IN CAUSE NO. HOGGO! FROM THE DISTRICT COURT OF HARRIS COUNTS. TEXAS 178 TH Judicial. District

FILED IN

COURT OF CRIMINAL APPEALS JUL 24205 KETH WAYME FRENES TOCJ-CID 1175391 EASTHAM UNIT 2665 PRISON Road 2 LOVEAdy, TEXAS 158E1 APPEIIANT PRO. SE

RECEIVED IN COURT OF CRIMINAL APPEALS JUL 212015 Abel Acosta, Clerk

*2

Iden tity OF Parties and Counsel

Judse:

Prosecution(s):

Defense Attorney AT teia!

APPEIIANT ATtDeney:

APPEIIANT:

ATtDeney For APPEtIEE:

HONDRAble David MendozA DISTRICT Judge 178 TY Judicia! DISTRICT L.ONET OF HARRIS L.ONITY, TEXAS

MS. Jessica Vu MR. ERIK L.OLASCED ASSISTANT DISTRICT ATtDRENEEY 1201 FANKIIN. SuITE 600 HOUSTON, TEXAS 77002

CRYSTAI D. HENDEESON ATtDRENY AT LAW 2210 BiodgEtt HOUSTON, TEXAS

CASEY GAREETt 1214 HEIShts RoulEVARD HOUSTON, TEXAS 77008

Keith WAYNE FRENICis TDCJ-CIO 1175291 2665 PRISON ROAD 1 2 OUEIAdY, TEXAS 75851

Hareis Country Disteict ATtDRENYYS OFFICE. APPEIIAte Division 1201 FANKIIN. SuITE 600 HOUSTON, TEXAS 77002

*3

Table of Contents

Page no.

Identity of Parties and Counsel Table of Contents ..... ii Index of Authorities ..... iii STATement Regarding Oral Argument ..... 1 Statement of the Case ..... 1 Procedural History of the Case ..... 2 Question For Review ..... 2 (1).Did the first Couett of Appeals Exeoneously detemine that "APPEllant does not dispute that he was present with Counsel at the Pre-Trial hearing"on his motion TO SET ASide the Indictment (memo.OP. AT 3) (2) WAS APPEllant Denied his RishT to be present at All critical States of trial when He was denied his RishT to be present at the Pre-Trial Hearing ON His motion TO set aside the Indictment Reasons for Review ..... 2 RAYER ..... 4 CERTIFICATE OF SEEVIC. ..... 5 APPENDIX ..... 6

*4

Index of Authorities

CASES: Adanandus v. state, 266 s.w. 2 d 210,219 (TEx cerm ABP 199324 erooks v. state, 771 s.w .2d 112, 115 (Tex. App compus cheisti. Per eef EXPArte Mines, 26 S.w. 3d 910,914 (TEX. Cerm. 2000) 4 Kentucky V. Stincee, 482 U.S. 730, 745 (1987) 4 Ri99all V-STATE, 590 s.w. 2 d 460 (TEX.Cerm. APP. 1979) 2 Rushen V. Spain, 464 U.S.114,117-118 (1983) 2 SNYdeR V. massachusetts. 291 us. 97, 105-106 (1934) 4

STATUTES:

Tex. Code Cerm P. AnN. Ret 28.01 (Vernon 2012) 3 Rule 66.3 (C) (D) T.R.A.P. 2 Rule 68.1 T.R.A.P. 1 Rule 66.4 2

*5 NO. 01-14-00115-CR

IN THE LOURT OF CERININAL APPPEALS FOR THE STATE OF TEXAS

KEITH WAYNE FRANKLIS

APPERIANT RO-SE

VS.

THE STATE OF TEXAS

APPERISE

APPERIANTS PETITION FOR DISCRETIONARY REVIEW

TO THE HONOARDS COURT OF CERININAL APPPEALS: LOMES NOW. KEITH WAYNE FRANKLIS, HEESEFTER APPERIANT. IN THE ABOVE STYIED AND NUNBERED CAUSE, PRO-SE, AND FILES his "PETITION FOR DISCRETIONARY REVIEW."PURSUANT TO RULE 62.1 TEXAS RULE OF APPERIANT PROCEDURE OTRAP. IN SUPPORT OF THIS PETITION FOR REVIEW, APPERIANT WOULD RESPECTFULLY'S NOW THE COURT AS FOLIOUS:

STATEMENT RESERDING ORAL AROUMENT APPERIANT WAIVES ORAL AROUMENT SINCE BY LAW HE CAN'T ARQUE WITHOUT THE ASSISTANCE OF COUNSEL.

*6 STATEMENT OF THE CASE

ON JUNE 25, 2014 A PRETEIAL HEARING WAS held ON APPERIANTS MOTION TO SET ASIDE THE INDICIMENT ALSO SEKNEAL OTHER MOTIONS WERE FIIEd AT THE HEARING WIRDUT APPERIANT BEING PRESENT AT THE HEARING. APPERIANT SOU9HY REVERSEL OF his CONVICIION AND A NEW TRIAL ARQUING that "THE TRIAL COURT EREED BY FAIING TO SECURE [HIS] PRESENCE AT A PRE-TRIAL HEARING BASED ON THE IESAIIYY OF THE INDICIMENT AGAINST HIM.

PROCEDURAL HISTORY

APPERI WAS PRESENTED TO THE FIRST COURT OF APPERAS IN HOUSTON, TEXAS. AND ON APPEL 28, 2015, THAT COURT AFFICMED APPERIANTS CONVICIION AND SENTENCE (APPERLIA) NO MOTION FOR REheARING WAS FIIEd. PETION FOR DEGRECTIONARY REVIEW IS dUE ON OR DEFORE. JUUY 21, 2015.

QUESIONS FOR REVIEW

(1) Did THE FIRST COURT OF APPERAS EERONEOUSLY DETERMINE THAT "APPERIANT DOES NOT definite THAT he WAS PRESENT WITH COUNSEL AT THE PRE-TRIAL HEARING" ON HIS MOTION TO SET ASIDE THE INDICIMENT MERD. OF AT 2.

(2) WAS APPERIANT DENIED HIS RIGHT TO BE PRESENT AT All CRITICAL STAGES OF TRIAL WHEN he WAS DENIED HIS RIGHT TO BE PRESENT AT THE PRE-TRIAL HEARING ON HIS MOTION TO SET ASIDE THE INDICIMENT.

REASONS FOR REVIEW

THE REASON SISCEETIONARY REVIEW Should be GRANTED UNDER RULE (66.3%) (C) (D). IN THE PRESENT CASE THE FIRST COURT OF APPERAS EERONEOUSLY DETERMINE THAT "APPERIANT DOES NOT DISPUTE THAT HE WAS PRESENT WITH COUNSEL AT THE PRE-TRIAL HEARING" BASED ON HIS MOTION TO SET ASIDE THE INDICIMENT. (MERD. OR, AT 3.) REVIEW Should be GRANTED BECAUSE THE COURT OF APPERAS BASED IT'S DECISION OF OPINION ON A MISSTATEMENT OF THE QUESTION PRESENTED BY APPERIANT COUNSEL MERD. BRIEF, AT 1, AND IS CONTENAY TO THIS COURTS DECISION IN RESPALL U. STATE, 590 S.W. 3d. 160 ETEL (CRIM APPL) AND THE SUPPERME COURTS DECISION IN RUSSEN U. SPAIN 164 U.S. 114. (1983). SEE: TRAP. (66.4).

*7

Thus the Coult of APEEals decision is not based ON the FACTS Contained in the Recoed OF TelaL. the deLision is so far outside the norms OF A Judicial Redceedings as to warent this Coult's superevisOeV autoRITY wherefore APPEllant REspectFully RESuest that this Coult demand the case back to the Coult of APEEals with insteudions that it Reconsidee this claim based on the facts presented in the Recoeds that APPEllant was not present at the ceitical stage when his motion to set aside the Indictment was heard. R399all V. Stute, 590 s.w. 2d. 460 (TEX. Ckim. APR(1979).

Reasons for GENTINg REVilew

AUGSTION (2)

WAS APPEIIANT deNIEd his RIBHT TO be PRESENT AT All ceitical stages OF trial when he was denied his Ript to be present at the free-Teial Heraing on his motion to set aside the Indictment. The ReView should be gERnited because the Coult of Appeals decision is CONTERRY to this Coult's deLision in ReEgall v. Stute. 590 s.w. 2d. 460 . (TEx. Ckim APR) And the U.S. Supreme Couets decision in Kentucky V. Stincer, 422 U.S. 730 745. (1987). In it's opinion the Fiest Coult of Appeals stated that "Aetical 28.01 provides that a defendant must be present during "ANY PRE-TEIAL Proceedings." Memo. OR At 3, cHing. TEX Code Ckim. Pro. Ann. Aft 28.01. However the Coult of Appeals 30 es on to ERconsously find that "APPEllant does not dispute that he was present with Counsel at the free-Teial Heraing on June 25, 2014. Rather, he complains that HeWAS. NOT PRESENT THE NEXT dAY when the teiAL Coult Signed the CREEK denYing the motion to dismiss." the Fiest Coult of APEeL's FUethe EREONECUSly found that the "Question presented here is whether the teial Coult's EHeraing an Oeder denying APPEllant's motion to set aside the Indictment was a free-Teial Receeding. As ReElected APPEllants APEEAL BeIef the question presented in his direct APPEAL Accurately stated is "THE TEiAL Coult EEREd by Failing to Secure me. Fenncis' Presence at a free-Teial heAring based on the legality of the Indictment against him." (APPEAL. Beief. Rase 7) In fact APPEllants Entire Regiment was that he was denied his presents at the actual Heraing on the motion and not just when the Coult ruled on the motion. moreOve the REPOETEe's RECORD clearly REFLECTs"THAT APPEIIANT WAS NOT PRESENT AT THE Heraing ON June 25, 2014"

*8

The: hearing on MR. Francis' motion to set aside the indictment constituted a hearing at which he had a right to be present. See text: Code Leim. P. Ann. Aft. 29.01 (Vernon 2006); Riggall V. State, S90. S.W. 2d 460 (text. comm. App. 1979). An accused is entitled to be present at a preterial hearing. Besides V. State, 171 S.W. 2d 112, 115 (text. App. Corpus cheisti. Pet. reE'd). This is a Constitutional. Right as well as a statutory one. Ex. Parte mines. 26 S.w. 3d 910.914 (text. ceimn app. 2000); see Kentucky V. Stines, 422 U.S. 730, 745 (1937). Even in situations where the defendant is not actually confronting witnesses or the evidence against him, he has a due process right to be a present in his own person whenever his presence has a relation. Reasonably substantial, to the fullness of his opportunity to defend against the charge." Stines, 422 U.S. at 745 (emoting SNYdEe V. Massachusetts, 291 U.S. 97, 105-106 (1934), overeted in part on other seconds malloy V. HogAN, 278 U.S. 1 (1964) If the defendant's presence would further his defense, his presence beara a reasonably substantial relationship to the opportunity to defend. See Adamandus V. State, 266 S.W. 2d 210.219 (text. ceim. App. 1993). MR. Francis should have been permitted to attend the hearing on his preterial motion to set aside the Indictment. This motion was crucial to his defense and his decision to proceed with a PIER. THE substance of the motion directly concerned his defense and the nature of that the character of the his defense under Adamandus. The teia count ereed in failing to ensure the presence at the preterial hearing and the case should be reversed and remanded for a new тела.

PAYER

wherefore. Afferiant Keith wave, Francis, years that the Texas COURT OF Criminal Apperals garant this "Pertition for Descentimany Review" and reverse the decision of the First Court of Afferals and demand this cause for a new тела; and for any other relief to which APPEIANT may be entitled. Respectfully submitted SEith Wave, Francis "itssm EAStham UNIT 2665 Person Road 1 Loveland, Texas 75251

*9

CERTIFICATE OF SERVICE

This is to CERTIFY that a TENE and COREET COPY OF the FOREGOING "APPEIIANTS BRIEF, (P.D.E.) WAS FORMAEDE by US MAiL Postage Prepaid, to HAREs COUNTY DISFICt ATTOEUEY'S office APPellate Division, 1201 Fennilim, suite 600, Houston, Texas 77002 ON this US dAY OF JULY 2015

KELtL Nayre Thamid 7/25291

Keith Wayne Fenncis ${}^n/175291$

CERTIFICATE OF SERVICE

This is To CERTIFY that a. TENE and COREET COPY OF the FOREGOING "PETITION FOR DESCRIPTIONARY REVIEW!" WAS SENT BY U.S. MAiI, Postage Prepaid to District Clerk of the COUET OF CIIINIAL APPEALS, P.O. Box 12303 Capital STATIONAuTIN, Texas 78711 ON This US dAY OF JULY 2015.

Keith Wayne FANcis 9/15291 EASTHAN UNIT 2665 FRISON Road "I LONEIAdY, Texas 75851

LC: MS. Louise RAASON, CIEEL Lout of CIIiniral APEeALS D.O.Box 12308, CApitalstation AuSTIN, TEXAS 78711

*10

Opinion issued April 28, 2015

In The Court of Appeals For The first Bistrict of Texas NO. 01-14-00715-CR

KEITH WAYNE FRANCES, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1406601

MEMORANDUM OPINION

Appellant Keith Wayne Francis pleaded guilty to possession of a controlled substance and was sentenced to eight months' confinement in a State Jail Facility. In a single issue, he argues that he is entitled to a new trial because the trial court

*11

ruled on his motion to set aside the indictment without him being present. We affirm.

BACKGROUND

On January 31, 2014, appellant was indicted for possession of less than one gram of cocaine, with enhancements for two prior felony possession convictions. On June 25, 2014, appellant and his counsel attended a pretrial hearing and appellant's counsel filed several motions. One of those filings was a Motion to Set Aside Indictment, alleging that "the State has provided insufficient evidence to show that Mr. Francis possessed a controlled substance, other than the mere possession of paraphernalia with residue." The following day, on June 26, 2014, the trial court signed an order denying the motion to set aside the indictment. On August 5, 2014, appellant entered a guilty plea.

PRESENCE AT PRETRIAL HEARING

Appellant seeks reversal of his conviction and a new trial, arguing that "the trial court erred by failing to secure [his] presence at a pretrial hearing based on the legality of the indictment against him." He contends that the right to personal presence at all critical stages of trial is a fundamental right recognized under the U.S. Constitution, Rushen v. Spain, 464 U.S. 114, 117-18, 104 S. Ct. 453, 455 (1983), and codified by the Texas Legislature. See Tex. Code Crim. Pro. Ann. art 28.01, § 1 (West 2006).

*12

The State disagrees, arguing that the appellant cannot show a violation of article 28.01 because "there is no indication that the trial court held any type of proceeding when it ruled on appellant's motion." The State also contends that the "trial court did not violate appellant's constitutional right to be present when the court denied his motion because appellant's presence was not reasonably related to his opportunity to defend himself."

ANALYSIS

Article 28.01 provides that a defendant must be present during "any pretrial proceeding." Tex. Code Crim. Pro. Ann. art 28.01. Appellant does not dispute that he was present with counsel at the pretrial hearing on June 25, 2014. Rather, he complains that he was not present the next day when the trial court signed the order denying the motion to dismiss. The question presented here is whether the trial court's entering an order denying appellant's motion to set aside the indictment was a pretrial proceeding. We agree with the State that it was not.

If the trial court holds a hearing on a defendant's pretrial motions, the defendant is entitled, under the plain language of article 28.01 , to be present. The trial court may, however, take matters under advisement and make pretrial rulings in the absence of a defendant. This distinction was addressed in Watkins v. State, a case in which the appellant argued that the trial court's failure to conduct a hearing in the defendant's presence on appellant's pretrial motion to dismiss his appointed

*13 counsel violated article 28.01. 333 S.W.3d 771, 775-76 (Tex. App.—Waco 2010, pet. ref'd). The trial court in that case "entered an order in which it stated that it had considered [the appellant's] motion and denied it." Id. at 775. The Waco Court of Appeals examined the relevant case law, ultimately concluding this did not amount to a pretrial proceeding at which the appellant was required to be present under article 28.01 .

In Riggall v. State, the Court of Criminal Appeals determined that the trial court's actions constituted a "proceeding" under article 28.01, by noting that the written order overruling Riggall's motion to dismiss recited that the cause "came on to be heard" and contained four paragraphs containing findings of fact and conclusions of law, indicating that some type of evidence or testimony was heard or considered. Riggall v. State, 590 S.W.2d 460 (Tex. Crim. App. 1979). Since there was some type of "proceeding" in that case, the Court of Criminal Appeals held that Riggall or his appointed counsel should have been present. In the present case, there is nothing to indicate that there was any kind of "proceeding" with regard to the denial of Watkins's motion. See Jones v. State, No. 14-87-00951-CR, 1989 WL 31803 at 1-2, 1989 Tex. App. LEXIS 758 at 4 (Tex. App.Houston [14th Dist.] April 6, 1989, no pet.) (not designated for publication) (no violation of article 28.01 where there was only a handwritten notation on the motion to dismiss court appointed counsel which read "Denied," together with the date and the signature of the trial judge). We believe that Riggall is distinguishable since the record shows nothing other than the order signed by the trial court that it considered Watkins's motion to indicate that a proceeding was held. There are no findings in the order or other indications that evidence or testimony was heard or considered.

We find that a more analogous case to the case at bar is Malcom v. State. Malcom v. State, 628 S.W.2d 790 (Tex. Crim. App. 1982). In Malcom, there was no formal written order, but there was a notation on a docket sheet that a motion to dismiss counsel was overruled. The Court of Criminal Appeals held that the trial court's

*14 action of overruling the motion was not a "proceeding" under article 28.01. Malcom, 628 S.W.2d at 792. By application of the holdings of Malcom and Riggall, we find that the trial court in this case did not violate article 28.01 .

Id. at 775-76. We likewise conclude that the facts of this case are more like Malcom than Riggall. There is no record of a hearing or any type of proceeding on June 26, 2014, the date the trial court signed the complained-of order. The order itself states only that " $[t]$ he foregoing motion is in all things denied." Because nothing in the record-including the language of the June 26 order-indicates that the trial court's signing the denial order was a proceeding under article 28.01, we conclude that appellant has not shown that the trial court violated article 28.01.

To the extent that appellant argues that his due process rights were violated by the trial court's ruling on appellant's motion to dismiss outside appellant's presence, we reject that argument as well. A defendant has constitutional right to be present "whenever [the defendant's] presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Routier v. State, 112 S.W.3d 554, 577 (Tex. Crim. App. 2003) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332 (1934)). The "presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. (quoting Snyder, 291 U.S. at 107-08, 54 S. Ct. at 333)). Given that appellant was present at the June 25, 2014 pretrial proceeding, and given that there was no proceeding held on

*15

June 26, 2014 when the trial court signed the order denying appellant's motion, appellant has not established that the trial court's ruling on the motion without his being present denied his right to due process.

We overrule appellant's sole issue.

CONCLUSION

We affirm the trial court's judgment.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).