Tydarrian Tershodd Baul v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00106-CR
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TYDARRIAN TERSHODD BAUL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 21-03-03599-CR
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MEMORANDUM OPINION

Appellant Tydarrian Tershodd Baul appeals his conviction for possession with

intent to deliver/manufacture a controlled substance. See Tex. Health & Safety Code

Ann. § 481.112(a), (d). In his sole issue, Baul complains the trial court erred by

finding he voluntarily absented himself from trial and proceeding with the guilt-

innocence phase without his presence. For the reasons explained herein, we affirm

the trial court’s judgment.

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PROCEDURAL BACKGROUND

A grand jury indicted Baul for possession with intent to deliver/manufacture

a controlled substance, and the indictment included an enhancement paragraph

alleging Baul had a prior felony conviction. See id.; Tex. Penal Code Ann. §

12.42(c)(1). Prior to trial, Baul signed a Scheduling Order stating the defendant

“SHALL be present at ALL settings” and “this case is set on February 6, 2023 at

9:00 a.m. for JURY TRIAL.” The Scheduling Order also notes “VOIR DIRE ON

02.03.23 @ 9:00AM.” Baul was present on February 3 for voir dire, and defense

counsel informed the trial court that Baul had rejected the State’s plea offers and

wanted to avoid a “full-blown, jury trial[,]” enter an open plea to the court on a

punishment range of less than ten years, and have the State waive its right to a jury

trial. The State explained that it had offered to proceed on a lesser charge, which

would have provided the trial court the opportunity to place Baul on community

supervision, but at that point, Baul was facing fifteen to life, the jury panel was

present, and it would not waive its right to a jury. The State informed the trial court

that it was willing to discuss a plea offer for a certain term of years. Baul explained

that he rejected the State’s five-year plea offer, which he understood was below the

minimum punishment he was facing for the charged offense, and he wanted to plead

open to the court.

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The trial court allowed the parties to discuss a plea bargain, and Baul rejected

the State’s plea offer. Defense counsel explained that against his advice, Baul would

only accept an offer that included probation. Following voir dire and swearing of the

jury, defense counsel entered a plea of “not guilty[]” on Baul’s behalf, and the trial

court twice informed the jury it would proceed with trial on “Monday morning at

9:00 a.m.” After excusing the jury, the trial court arraigned Baul and explained his

punishment range, and Baul entered a plea of “[n]ot guilty.”

When trial resumed the following Monday, February 6, Baul failed to appear,

and defense counsel informed the trial court that Baul had not responded to his

telephone calls or text messages. Defense counsel stated that he did not know where

Baul was and requested a continuance to locate him. The State objected to a

continuance and moved for bond forfeiture, stating the trial court properly arraigned

Baul on Friday, it was ready to proceed with trial, and the bailiff had called Baul’s

name three times. The bailiff informed the trial court there had been “[n]o response

for Baul.” The trial court denied defense counsel’s motion for continuance, forfeited

Baul’s bond, and found:

[O]n Friday, Mr. Baul was present in the courtroom. He was properly
arraigned outside the presence of the jury, also in front of the jury, after
the jury being sworn, his counsel entered a plea of not guilty and the
trial started and that was in response to the reading of the indictment,
So, I’m finding that the defendant has voluntarily absented himself after
pleading to the indictment; and therefore, the trial can proceed, denying
your motion for continuance based on those grounds. Just for purposes

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of the record, referring to Article 33.03 of the Code of Criminal
Procedure.

See Tex. Code Crim. Proc. Ann. art. 33.03. The trial court also noted, outside the

jury’s presence, that a search “did not find any new, active warrants or cases and

checked our local Montgomery jail roster along with Harris County jail roster and

could not find . . . Baul, finding he has still voluntarily absented himself from the

proceedings, which he has a right to do.” The trial court proceeded with trial.

After the State rested, the trial court conducted a charging conference, during

which the State advised the trial court he was unsuccessful in reaching Baul’s

girlfriend, who was listed on his bond paperwork, and Baul’s bond person and the

Department of Public Safety were actively searching for him. Defense counsel

moved for a continuance, asking the trial court to allow him to secure Baul’s

presence at trial. The State objected, and the trial court denied the continuance.

The jury found Baul guilty of possession with the intent to deliver a controlled

substance, and after the trial court released the jury, defense counsel made a third

motion for continuance. The trial court denied the motion and proceeded with

punishment. Defense counsel pleaded “not true” to the enhancement paragraph on

Baul’s behalf, and the State presented punishment evidence. Defense counsel made

a fourth request for a continuance, asking the trial court to allow him to secure Baul’s

presence for punishment so he could provide testimony and an excuse for not being

present at trial. The trial court granted a “short” four-day continuance.
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When the trial court resumed the punishment phase on Friday, February 10,

Baul failed to appear, and defense counsel explained he had tried to reach Baul.

Defense counsel rested his punishment case, and the trial court found the

enhancement to be true and assessed Baul’s punishment at twenty-five years of

confinement. After his arrest, Baul appeared at his sentencing hearing on April 4,

2023, and pleaded true to the enhancement paragraph, and the trial court sentenced

Baul to twenty-five years of confinement. Baul failed to present any evidence

explaining his absence from trial.

ANALYSIS

In his sole issue, Baul complains the trial court erred by ruling that he

voluntarily absented himself from trial and proceeding with the guilt-innocence

phase without him. Baul argues there was no evidence of voluntariness presented

during trial and that the trial court prevented him from confronting the witnesses

against him. See U.S. CONST. amend. VI. The State argues Baul waived any

confrontation argument and that the trial court did not abuse its discretion by finding

Baul voluntarily absented himself from trial because there is no evidence

contradicting the trial court’s finding.

A defendant has a constitutional and statutory right to be present throughout

his trial. Illinois v. Allen, 397 U.S. 337, 338 (1970); Tex. Code Crim. Proc. Ann. art.

33.03. That said, a trial court may proceed with trial to its conclusion when the

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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; see also Taylor v. U.S., 414 U.S. 17, 18–19 (1973).

A defendant may waive his constitutionally guaranteed confrontation right when he

voluntarily absents himself from trial. See Miller v. State, 692 S.W.2d 88, 90 (Tex.

Crim. App. 1985); Staten v. State, 328 S.W.3d 901, 905 (Tex. App.—Beaumont

2010, no pet.); Wortham v. State, 750 S.W.2d 326, 327 (Tex. App.—Beaumont

1988, no pet.); see also Taylor, 414 U.S. at 19–20. A trial court has discretion to

determine whether a defendant voluntarily absented himself from proceedings. See

Moore v. State, 670 S.W.2d 259, 260–61 (Tex. Crim. App. 1984). While article

33.03 does not require the trial court to weigh specific factors, it may consider “the

likelihood that the trial can soon take place with the defendant present; the difficulty

of rescheduling the trial; the burden on the Government in having to undertake two

trials; and the inconvenience to the jurors.” Id. “Absent evidence to the contrary, an

appellate court will uphold a trial court’s determination that a defendant voluntarily

absented himself from the proceedings.” Venegas v. State, 560 S.W.3d 337, 355

(Tex. App.—San Antonio 2018, no pet.). In reviewing the trial court’s decision, we

review the supporting evidence presented before and after the trial court’s ruling.

See Moore, 670 S.W.2d at 261 (explaining trial court’s decision is most often

determined in hindsight); Eason v. State, No. 09-05-383-CR, 2007 WL 1151818, at

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*2 (Tex. App.—Beaumont Apr. 18, 2007, no pet.) (mem. op., not designated for

pub.).

To preserve error regarding his Confrontation Clause claim, a defendant must

obtain a ruling on an objection, or absent a ruling, object to the trial court’s refusal

to rule. Scott v. State, 555 S.W.3d 116, 126–27 (Tex. App.—Houston [1st Dist.]

2018, pet. ref’d) (citing Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App.

2010)); see also Tex. R. App. P. 33.1(a)(1)(A). Additionally, “[a] defendant’s issue

on appeal must comport with the specific objection made at trial.” Millican v. State,

No. 09-08-103-CR, 2008 WL 5263383, at *2 (Tex. App.—Beaumont Dec. 17, 2008,

no pet.) (mem. op., not designated for pub.) (citing Wilson v. State, 71 S.W.3d 346,

349 (Tex. Crim. App. 2002)). The record shows that on the four occasions defense

counsel moved for a continuance, he never argued the trial court’s ruling violated

Baul’s right to confrontation. We hold Baul waived his constitutional confrontation

clause complaint by failing to object on that basis. See Tex. R. App. P. 33.1(a)(1)(A);

Davis, 313 S.W.3d at 347 (noting Confrontation Clause claims require a timely and

specific objection to preserve error); Scott, 555 S.W.3d at 126–27 (holding that

where defense counsel failed to object, defendant who voluntarily absented himself

from trial forfeited his Confrontation Clause claim); Millican, 2008 WL 5263383, at

*2.

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We note the trial court cited article 33.03 as the statutory basis for its initial

ruling that Baul voluntarily absented himself from trial, despite Baul’s counsel never

citing article 33.03 as a basis for any of the motions for continuance. That said, there

is no evidence contradicting the trial court’s determination that Baul voluntarily

absented himself from trial. See Venegas, 560 S.W.3d at 355; Eason, 2007 WL

1151818, at *2. The record shows Baul signed a scheduling order indicating his trial

was set for February 6, and Baul rejected the State’s plea bargain offers and

expressed a desire to not have a jury trial. He was present during voir dire, and after

voir dire, the trial court informed the jury in Baul’s presence, that trial would resume

on February 6. When Baul failed to appear for trial on February 6, his counsel stated

he could not locate Baul, and Baul failed to appear for the remainder of trial. When

the trial court sentenced Baul, he failed to explain his absence, and Baul did not file

a Motion for New Trial or supplement the record with any evidence explaining his

absence.

Without any contrary evidence, we defer to the trial court’s voluntariness

determination in hindsight. See Moore, 670 S.W.2d at 261; Venegas, 560 S.W.3d at

355. Accordingly, based on this record, we conclude the trial court did not err by

determining Baul voluntarily absented himself from trial. See Gittens v. State, 560

S.W.3d 725, 737–38 (Tex. App.—San Antonio 2018, pet. ref’d) (holding trial court

did not err in determining defendant voluntarily absented himself from trial); Simon

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v. State, 554 S.W.3d 257, 266 (Tex. App.—Houston [14th Dist.] 2018, no pet.)

(same); see also Hooks v. State, No.09-22-00139-CR, 2024 WL 351424, at *4 (Tex.

App.—Beaumont 2024, no pet.) (mem. op., not designated for pub.). We overrule

Baul’s sole issue and affirm the trial court’s judgment.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on February 16, 2024
Opinion Delivered February 21, 2024
Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

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