I have a misdemeanor DWI coming to trial in 2 weeks and the defendant lives about 6 hours away and his attorney doesn't want to make him attend voir dire and the judge seems to think it is ok as long as he waives any right to be there. I personally don't care if he is there for voir dire, I think it is somewhat disrespectful to the jury if he isn't, but I didn't think that was legal. I thought he had to be there for voir dire. Haven't been able to find a case or statute that definitively says so one way or the other. Any help would be appreciated.

CCP 33.03 governs. The defendant's absence can be harmful. See, e.g., Kerr v. S., 83 sw3d 832 (Texarkana 2002, no pet)

Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996)

"In point of error number twenty-four, appellant contends he was denied his right under art. 33.03 to be present at certain proceedings held on August 21, 1991. On that day about ten prospective jurors were qualified and received instructions from the court. Counsel for appellant was notified in advance but he informed the court he could not be in attendance because of some unspecified medical reason and because he would be in trial. Appellant and appellant's counsel indicated they had no objection to the proceedings occurring without their presence and so indicated on the record. Subsequently, the State filed a motion to quash the venire. At the hearing on the motion, appellant indicated his objection to it. The trial court complied with appellant's wishes and denied the state's motion.
We have held that a defendant may not, by his own actions, create reversible error. Appellant, in the present case, affirmatively waived his right to be present at the August 21 proceedings, a confrontation clause-based right granted under Texas Code of Criminal Procedure 33.03. We have held that this right, even if denied, is subject to harmless error analysis. McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App. 1978), cert. denied 444 U.S. 919 (1978). See also Weber v. State, 829 S.W.2d 394, 396 (Tex.App.--Beaumont 1992). Appellant was not denied his right to be present -- he waived it. Furthermore, he objected to the State's motion to quash the venire, the only method by which the effects of the August 21 proceedings could have been eliminated. Our holdings in Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App. 1975), Beasley v. State, 634 S.W.2d 320 (Tex.Cr.App. 1982) and Kelley v. State, 823 S.W.2d 300 (Tex.Cr.App. 1992) are dispositive.
Appellant's point of error number twenty-four is overruled."

John, I found a number of court of appeals cases that address this issue in favor of the defendant (as did you, I'm sure), and the plain language of the statute seems to indicate it is not a waivable right, but the Court of Criminal Appeals opinion in Garcia (a capital murder case) persuaded me that if he voluntarily waives attendance, he cannot later complain about it.

(For the record, I'm not passing judgment on whether I think this is a good idea or not; but simply stating there is authority for it.)

[This message was edited by Gretchen on 11-02-11 at .]

Yes, Gretchen, after Blanco, we know that a defendant can waive pretty much any right (except the right to a jury trial in a d/p case). I overlooked that this defendant might waive his presence. A waiver made understandingly, knowingly, and voluntarily could work.

*Phew!!!* I always worry a little in secret when I come to a different conclusion than you do.

Appreciate the help.