Richard Alan Curlee v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00174-CR, 10-24-00175-CR

Richard Alan Curlee,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
12th District Court of Walker County, Texas
Judge David W. Moorman, presiding
Trial Court Cause Nos. 29142, 29144

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Richard Alan Curlee was separately indicted in two cases for the offense

of continuous sexual abuse of a young child committed against two different

children. See TEX. PENAL CODE ANN. § 21.02. The cases were consolidated and

tried together to a jury. The jury found Curlee guilty as charged in both cases

and he was sentenced to life in prison in each case, to run consecutively. On

appeal, Curlee raises issues concerning the trial court’s refusal to sequester
the jury, failure to conduct an informal inquiry into his competency before the

punishment phase of trial, denial of his motion for continuance, and

assessment of court costs. We affirm the judgments of the trial court.

Jury Sequestration

In his first issue, Curlee contends that the trial court reversibly erred by

refusing his request to sequester the jury after the charge was given in the

guilt-innocence phase of trial. See TEX. CODE CRIM. PROC. ANN. art. 35.23. The

State, conceding error, argues that the error was harmless.

ANALYSIS

We agree with the parties that the trial court erred in denying Curlee’s

request to sequester the jury. Article 35.23 of the Texas Code of Criminal

Procedure provides, in relevant part:

The court on its own motion may and on the motion of either party
shall, after having given its charge to the jury, order that the jury
not be allowed to separate, after which the jury shall be kept
together, and not permitted to separate except to the extent of
housing female jurors separate and apart from male jurors, until
a verdict has been rendered or the jury finally discharged.

Id. (emphasis added). When a party timely moves to sequester the jury after

the charge has been given, sequestration is mandatory and a trial court errs

by denying the request. See Polk v. State, 367 S.W.3d 449, 454 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d). Here, while the jury was deliberating

during the guilt-innocence phase, the trial court asked if any party objected to

Richard Alan Curlee v. The State of Texas Page 2
recessing the jury for the day. Curlee immediately voiced an objection and

requested jury sequestration. The trial court denied the request and permitted

the jury to separate. This was error. See id.

A trial court’s error in failing to sequester the jury in violation of article

35.23 is a statutory violation subject to harmless error analysis under Texas

Rule of Appellate Procedure 44.2(b). See id.; see also Rojas v. State, 986 S.W.2d

241, 252 (Tex. Crim. App. 1998) (Keller, J., concurring); TEX. R. APP. P. 44.2(b).

Under this standard, we must disregard any error that did not affect Curlee’s

substantial rights. See id. An error does not affect substantial rights if a

reviewing court has fair assurance from an examination of the record as a

whole that the error did not influence the jury, or had but slight effect.

Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).

Here, before recessing for the day, the trial court instructed the jury with

regard to their conduct as jurors while separated. See TEX. CODE CRIM. PROC.

ANN. art. 35.23. The jury was admonished to refrain from discussing the case

with anyone, to abstain from performing any independent research, and to “not

do anything on this case until you’re back in the jury room with all 12 of you.”

A jury is presumed to have understood and followed the trial court’s

instructions unless the record reflects otherwise. See Taylor v. State, 332

S.W.3d 483, 492 (Tex. Crim. App. 2011). There is no indication in the record

Richard Alan Curlee v. The State of Texas Page 3
that the jury failed to follow the trial court’s instructions or of any other harm

occurring from allowing the jurors to separate. We find that the trial court’s

error in refusing to sequester the jury was harmless. Accordingly, we overrule

Curlee’s first issue.

Competency Evaluation

In his second issue, Curlee argues that the trial court violated his due

process rights by failing to conduct an informal inquiry into his competency.

See TEX. CODE CRIM. PROC. ANN. art. 46B.004(c). We disagree.

AUTHORITY

“As a matter of constitutional due process, a criminal defendant who is

incompetent may not stand trial." Boyett v. State, 545 S.W.3d 556, 563 (Tex.

Crim. App. 2018). The issue of the defendant’s incompetency to stand trial

may be raised after the trial on the merits begins and may be determined any

time before the sentence is pronounced. See TEX. CODE CRIM. PROC. ANN. art.

46B.005(d). Chapter 46B of the Texas Code of Criminal Procedure outlines the

substantive and procedural framework for making competency

determinations. Boyett, 545 S.W.3d at 563; See TEX. CODE CRIM. PROC. ANN.

ch. 46B, subch. A-C.

The threshold requirement in our framework is a “suggestion” that the

defendant may be incompetent to stand trial. See TEX. CODE CRIM. PROC. ANN.

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art. 46B.004(a). This suggestion of incompetency may consist solely of a

representation from any credible source that the defendant may be

incompetent. Id. at art. 46B.004(c-1). A person is incompetent to stand trial if

the person does not have: “(1) sufficient present ability to consult with the

person’s lawyer with a reasonable degree of rational understanding; or (2) a

rational as well as factual understanding of the proceedings against the

person.” Id. at art. 46B.003(a). Upon a suggestion of incompetency, the trial

court must conduct an informal inquiry to determine whether there is “some

evidence” – defined as more than none or a scintilla – of the defendant’s

incompetency. See id. at art. 46B.004(c); Boyett, 545 S.W.3d at 565. If so, then

the trial court must, except in certain circumstances, stay all other proceedings

in the case, order a psychiatric or psychological competency examination, and

hold a formal competency hearing. TEX. CODE CRIM PROC. ANN. arts.

46B.004(d), 46B.005(a), (b); Boyett, 545 S.W.3d at 563.

DISCUSSION

After the jury found Curlee guilty on Friday afternoon, the trial court

recessed the proceedings and scheduled the punishment phase of trial to begin

on the following Tuesday morning. On Monday, the day before the punishment

phase was scheduled to begin, Curlee’s trial counsel filed a “Motion Suggesting

Incompetency and Request for Examination” and a separate “Motion for

Richard Alan Curlee v. The State of Texas Page 5
Continuance.” As grounds for each motion, trial counsel stated that Curlee

had attempted suicide on the previous Friday after the jury’s guilty verdicts

were announced.

On appeal, Curlee claims that the trial court failed to conduct an

informal inquiry into his competency under article 46B.004(c) despite trial

counsel’s motion suggesting incompetency. See TEX. CODE CRIM. PROC. ANN.

art. 46B.004(c). Contrary to Curlee’s assertion, the record clearly shows that

the trial court conducted an informal inquiry into his competence. During the

informal inquiry stage, the trial court is not required to follow a specific

protocol. See George v. State, 446 S.W.3d 490, 501 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d). Before beginning the punishment phase, while outside

of the presence of the jury, the trial court specifically called trial counsel’s

motion suggesting incompetency and asked if counsel wished to present any

evidence. Trial counsel chose to testify and provided additional information

about Curlee and his suicide attempt. After hearing counsel’s testimony and

considering its own observations of Curlee during trial, the trial court denied

the motion. We find that the trial court conducted an informal inquiry

pursuant to article 46B.004(c) of the Texas Code of Criminal Procedure. See

TEX. CODE CRIM. PROC. ANN. art. 46B.004(c).

Accordingly, we overrule Curlee’s second issue.

Richard Alan Curlee v. The State of Texas Page 6
Motion for Continuance

In Curlee’s third issue, he argues that the trial court abused its

discretion by denying his motion to continue the punishment phase of trial

after he attempted suicide, violating the Sixth Amendment of the United

States Constitution, Article I, Section 10 of the Texas Constitution, and article

33.03 of the Texas Code of Criminal Procedure. See U.S. CONST. amend. VI;

TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 33.03. We disagree.

AUTHORITY

The Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Texas Constitution guarantee a defendant threatened with

loss of liberty the right to be physically present at all phases of the criminal

proceedings against him. See U.S. CONST. amend. VI; TEX. CONST. art. I, §§

10, 19; Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985). After the

commencement of trial proceedings, a defendant may voluntarily absent

himself from the trial without a violation of his Sixth Amendment right to be

present during all phases of the trial. See Taylor v. United States, 414 U.S. 17,

18-19, 94 S. Ct. 194, 195, 38 L. Ed. 2d 174 (1973) (per curiam). The Texas Code

of Criminal Procedure affords even greater protection for defendants than does

the Sixth Amendment, permitting trial to proceed to its conclusion “when the

Richard Alan Curlee v. The State of Texas Page 7
defendant voluntarily absents himself after pleading to the indictment or

information, or after the jury has been selected when trial is before a jury[.]”

TEX. CODE CRIM. PROC. ANN. art. 33.03.; Tracy v. State, 14 S.W.3d 820, 826

(Tex. App.—Dallas 2000, pet. ref’d).

We review a trial court’s denial of a motion for continuance for an abuse

of discretion. See Moore v. State, 670 S.W.2d 259, 260-61 (Tex. Crim. App.

1984). Absent evidence to the contrary, we will uphold a trial court’s

determination that a defendant voluntarily absented himself from the

proceedings. See id.

DISCUSSION

In support of his motion to continue the punishment phase of trial,

counsel argued that Curlee’s absence impeded his ability to provide a complete

defense and mentioned that Curlee might be able to be physically present for

the punishment phase in the near future. The trial court denied the motion

for continuance on the ground that “[h]aving Mr. Curlee self-harm is, I believe,

an action to absent himself from the trial itself.”

Here, the record reflects that Curlee was physically present for voir dire

and the entire guilt-innocence phase of trial. Several courts have determined

that a defendant may be considered voluntarily absent from trial when he is

not present in the courtroom because he has chosen to attempt suicide. See,

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e.g., Smith v. State, 494 S.W.3d 243, 251-54 (Tex. App.—Texarkana 2015, no

pet.); Trotti v. State, 692 S.W.3d 679, 686 (Tex. App.—Houston [14th Dist.]

2023, pet. ref’d); Bottom v. State, 860 S.W.2d 266, 267 (Tex. App.—Fort Worth

1993, no pet.); Johnson v. State, Nos. 01-19-00602-CR, 10-19-00603-CR, 2020

WL 6065535, at *9 (Tex. App.—Houston [1st Dist.] Oct. 15, 2020, pet. ref’d)

(mem. op., not designated for publication). It is uncontested that Curlee’s

absence from the punishment phase was due to hospitalization from attempted

suicide by a self-inflicted gunshot wound after the guilty verdicts. Curlee

offered no evidence at trial – and he does not identify any evidence on appeal

– indicating that his absence from the punishment phase was anything other

than voluntary. We conclude that the trial court did not abuse its discretion

in denying Curlee’s motion for continuance and proceeding with the

punishment phase of trial.

Accordingly, we overrule Curlee’s third issue.

Court Costs

When multiple cases are tried together, the trial court may assess each

court cost or fee only once. See TEX. CODE CRIM. PROC. ANN. art. 102.073(a);

Hurlburt v. State, 506 S.W.3d 199, 203-04 (Tex. App.—Waco 2016, no pet.). In

his fourth issue, Curlee contends that the trial court erred in assessing court

costs in the amount of $290.00 in both judgments, violating Texas Code of

Richard Alan Curlee v. The State of Texas Page 9
Criminal Procedure article 102.073(a). See id. The State agrees that the

judgments should be reformed to reflect a single assessment of court costs.

Despite the parties’ agreement, our review of the judgments reveals that

the trial court assessed court costs in the amount of $290.00 only in the

judgment for trial court cause number 29142. The judgment for trial court

cause number 29144 lists the amount of assessed court costs at $0.00. This is

also consistent with the trial court’s statements when Curlee was sentenced.

Accordingly, we overrule Curlee’s fourth issue.

Conclusion

Having overruled all of Curlee’s issues on appeal, we affirm the

judgments of the trial court in each case.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: July 17, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CRPM

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