“Can harmlessness be presumed from a silent record when a defendant has been denied his constitutional and statutory rights to be present during a pretrial proceeding?”
Prior to voir dire, the trial court held a hearing on King’s motion in limine regarding punishment evidence. King was not present. The State did not oppose the motion and it was granted. Before King was brought in, those present discussed what King’s plea might be, whether he would stipulate to anything, and whether he might be disruptive. Defense counsel also mentioned that King thought he could fire him and delay the trial, but the trial court assured him there would be no delay. There was also an off-the-record discussion for one-and-a-half to two minutes. The record of this hearing comprises four pages in the record. When King was brought in, he said he planned to plead “guilty” and “true” to the enhancement allegation. It was not until the next day that King formally entered his plea. He was convicted and sentenced to the maximum punishment.
King complained on appeal that his absence from the pretrial hearing violated his statutory and constitutional rights. See Tex. Code Crim. Proc. art. 28.01 § 1 (“The defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding.”); Snyder v. Massachusetts, 291 U.S. 97, 107-08 (1934) (“[T]he 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.”). He said his absence was harmful under the “reasonably substantial relationship rule” adopted in Adanandus v. State, which focuses on the effect of the defendant’s absence on the advancement of his defense, as opposed to its effect on the verdict or punishment. 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993). Beyond losing any opportunity to assist with the motion in limine, King argued, he was faced with walking into court having a number of important decisions apparently made for him.
The court of appeals disagreed. It acknowledged the violation but found no conceivable harm regarding the motion in limine because it was uncontested and granted. Further, King was given the opportunity to confirm what counsel anticipated would be his pleas and did not enter formal pleas until the next day, giving ample time to confer with counsel. Chief Justice Gray dissented. Not only were matters discussed that might have affected the trial court’s attitude towards King—King’s potential disruption and attempt to delay—the record does not say what was discussed in the off-the-record discussion. In light of what is known and unknown and King’s punishment, he could not find King’s exclusion harmless beyond a reasonable doubt.
King focuses his argument to the Court of Criminal Appeals on the impossibility of performing a meaningful harm analysis on this record. See VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007) (“Rather than automatically precluding whole categories of error from consideration for a harm analysis, appellate courts should more appropriately determine whether, for any particular case, a meaningful harm analysis is possible.”). The off-the-record discussion could have involved any number of topics King’s presence would have been important to, including his desire for new counsel. Without that information, no appellate court can determine whether the “reasonably substantial relationship rule” was violated.