For those of you who receive your Case Summaries for Friday, Sept. 16, here is the pop quiz question:

In Roberson, could the trial court have proceeded with sentencing in defendant's absence, thereby triggering the appellate timetable and preventing defendant from appealing because of his absence?

[This message was edited by John Bradley on 09-15-05 at .]

No.
Papakostas v. State, 145 S.W.3d 723, 726 n.4 (Tex.App.-Corpus Christi,2004, no pet.); Larez v. State, 2003 WL 253614 (Tex.App.-Fort Worth Feb 6, 2003, no pet.) (not published) (citing Tex.Code Crim. Proc. Ann. art. 42.03, § 1(a)).

Appellant was tried and convicted in District Court.

If the offense was a felony the answer is no.

If the offense was a misdemeanor then the answer would be yes under CCP Art. 42.14.

The opinion of the court does not state the degree of offense. But I'm sure someone reading this will enlighten us.

Art. 33.03. Presence of defendant

In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the
indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion.
When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the
contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at
the hearing on the motion for new trial in any misdemeanor case.

Art. 37.06. Presence of defendant

In felony cases the defendant must be present when the verdict is read unless his absence is wilful or voluntary. A verdict in a misdemeanor case may be received and read in the absence of the
defendant.

Art. 43.04.If defendant is absent

When a judgment and sentence have been rendered against a defendant for a fine in his absence, the court may order a capias issued for
his arrest. The sheriff shall execute the capias by bringing the defendant before the court or by placing the defendant in jail until he can be brought before the court.

Art. 42.07. Reasons to prevent sentence

Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced, are:

1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged.

2. That the defendant is incompetent to stand trial; and if evidence be shown to support a finding of incompetency to stand trial, no sentence shall be pronounced, and the court shall proceed under Chapter 46B; and

3. When a person who has been convicted escapes after conviction and before sentence and an individual supposed to be the same has been
arrested he may before sentence is pronounced, deny that he is the person convicted, and an issue be accordingly tried before a jury, or before the court if a jury is waived, as to his identity.

[This message was edited by John Bradley on 09-16-05 at .]