TATES, ELIJAH v. the State of Texas

In the Court of Criminal
Appeals of Texas
════════════
No. PD-0486-23
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ELIJAH TATES, Appellant

v.

THE STATE OF TEXAS

═══════════════════════════════════════
On State’s Petition for Discretionary Review
From the Thirteenth Court of Appeals
Brazos County
═══════════════════════════════════════

YEARY, J., filed a concurring opinion in which SCHENCK, P.J., and
PARKER, J., joined.

We granted the State’s petition for discretionary review in this
case to resolve essentially one question: Did the court of appeals err to
rely on this Court’s opinion in Lira v. State, 666 S.W.3d 498 (Tex. Crim.
App. 2023), to hold that the statutory requirement that a defendant be
TATES – 2

“personally present at [his] trial” is not a forfeitable right under the
rubric of Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)? Tates
v. State, 692 S.W.3d 628, 633−35 (Tex. App.—Corpus Christi 2023); TEX.
CODE CRIM. PROC. art. 33.03. The Court seems to agree with the State
that Lira does not logically support that proposition. See Majority
Opinion at 18−20. I will therefore say no more about that question here.
I join the Court’s opinion with the following observations.
The State argues that this Court settled the question of whether
Article 33.03 creates a forfeitable right several decades back, in Routier
v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003). There, in a capital
murder direct appeal, we peremptorily dispatched an argument that the
trial court erred to conduct an in-chambers discussion of a jury note in
the defendant’s absence by observing that “[s]he failed to object at the
earliest opportunity” and thereby “failed to preserve error.” Id. (citing
TEX. R. APP. P. 33.1). 1 We did so uncritically, without any discussion of
where the statutory requirement of a defendant’s “personal presence at
the trial” should fall on the Marin spectrum of error-preservation
analysis. 2

1 Having concluded that Routier forfeited her Code of Criminal
Procedure Article 33.03 claim, the Court nevertheless proceeded to declare
both that no error occurred and that any error was harmless. Routier, 112
S.W.3d at 575−79.

2 In relevant part, Article 33.03 reads:

In all prosecutions for felonies, the defendant must be
personally present at the trial, . . .; 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.
TATES – 3

In Marin, the Court made clear that Rule 33.1 of the Rules of
Appellate Procedure was designed to apply only to the types of claims
that are forfeitable, and not to those that are of the “fundamental” or
“waiver-only” variety. 3 Today, though, Judge Keel characterizes Marin’s
“efforts to distinguish” forfeitable rights from non-forfeitable rights as
“circular or opaque.” Dissenting Opinion at 2. But Marin did not purport
to undertake the more daunting project of defining exactly how to locate
particular rights/requirements within its categorization scheme. It
simply described the error-preservation consequences that follow from a
categorization. Deciding which category a particular right/requirement
falls under must be undertaken on a right/requirement-by-
right/requirement basis. See, e.g., Gutierrez v. State, 380 S.W.3d 167,
177 (Tex. Crim. App. 2012) (“[A] condition of community supervision
that effectively operates to deport a probationer violates an absolute
prohibition and is therefore not subject to ordinary principles of waiver
or procedural default.”).
When the right/requirement that is invoked is of statutory origin,
determining the appropriate Marin category is essentially a question of
statutory construction. See Proenza v. State, 541 S.W.3d 786 (Tex. Crim.
App. 2017) (construing TEX. CODE CRIM. PROC. art. 38.05, prohibiting a

TEX. CODE CRIM. PROC. art. 33.03.

3 Marin actually dealt with Rule 33.1’s predecessor, Rule 52(a) of the

former Texas Rules of Appellate Procedure. “Since its adoption in 1986,” the
Court said, “we have regularly applied [Rule 52(a)] only in cases of forfeitable
trial rights and never to a violation of fundamental systemic requirements or
to the infringement of rights so important that their implementation is
mandatory absent an express waiver.” Marin, 851 S.W.2d at 280.
TATES – 4

trial court judge from commenting on the weight of the evidence or
offering “his opinion of the case”); Mendez v. State, 138 S.W.3d 334 (Tex.
Crim. App. 2004) (describing the statutory scheme governing guilty
pleas, as construed by the Court over the years, in determining whether
the right to withdraw a guilty plea is forfeitable). “The starting point for
determining statutory meaning is to examine both the literal text of the
statute and its context; and part of the statutory context includes the
history of the statute in question.” Ex parte Moon, 667 S.W.3d 796, 803
(Tex. Crim. App. 2023).
In my opinion, both the language of Article 33.03 itself, as well as
this Court’s treatment of it since its inception in the 1856 “Old Code”
[hereinafter, “O.C.”], support the proposition that the statutory
right/requirement to “be personally present at the trial” falls squarely
within the “waiver-only” category, and that it is decidedly not subject to
mere forfeiture.
I. ERROR PRESERVATION: STATUTORY HISTORY OF ARTICLE 33.03
A. Article 540 of the 1856 “Old Code”
As originally enacted in 1856, Article 540 of the “Old Code”
provided, almost identically to the first sentence of present Article 33.03,
that “in all prosecutions for felonies, the defendant must be personally
present on the trial.” O.C. art. 540. Although not directly citing the
statute, the Texas Supreme Court remarked in 1873 that “[t]he accused
should not only be within the walls of the court house, but he should be
present where the trial is conducted, that he may see and be seen, hear
and be heard, under such regulations as the law has established.” Brown
TATES – 5

v. State, 38 Tex. 482, 485 (1873). 4 And, on its face, the statutory
language does not suggest the kind of right that an accused must insist
upon or else he loses it. 5
The earliest case I can find that explicitly addresses Article 540
is Gibson v. State, 3 Tex. App. 437 (1878). There, the appellant
complained on appeal that he had been excluded from the hearing on his
motion for new trial, “absent in jail, and without a waiver of his presence
in court.” Id. at 438. On the strength of Article 540, in combination with
Article 682 of the “Old Code,” which required “the presence of the
defendant” for the entry of judgment and pronouncement of sentence
after a motion for new trial proceeding, the Texas Court of Appeals
reversed the conviction. 6 Id. at 442.

4 The Texas Supreme Court had criminal appellate jurisdiction until it

was removed in the 1876 Texas Constitution. That same constitution also
created the Texas Court of Appeals—the predecessor court to this Court—and
endowed it with criminal appellate jurisdiction. Watson v. State, 204 S.W.3d
404, 429 (Tex. Crim. App. 2006) (Cochran, J., dissenting). This Court, in turn,
at least under its current name, was created in amendments to the Texas
Constitution adopted in 1891, which granted it “exclusive appellate
jurisdiction over criminal cases.” Id. at 430 (Cochran, J., dissenting).

5 Marin defines a forfeiture to be “the loss of a claim or right for failure

to insist upon it by objection, request, motion, or some other behavior
calculated to exercise the right in a manner comprehensible to the system’s
impartial representative, usually the trial judge.” 851 S.W.2d at 279.
“Waivable rights, on the other hand, do not vanish so easily.” Id. at 280. An
accused “need make no request at trial for the implementation of such rights,
as the judge has an independent duty to implement them absent an effective
waiver by him.” Id. A waiver-only right cannot be “forfeitable by a party’s
inaction.” Proenza, 541 S.W.3d at 797 (quoting Mendez, 138 S.W.3d at 342).

6 Section (1)(a) of current Article 42.03, which began its life as O.C. art.

682, still provides that “sentence shall be pronounced in the defendant’s
presence[,]” except as provided in Article 42.14 of the current Code. TEX. CODE
TATES – 6

Without explicitly saying whether Gibson had raised this issue in
the trial court, the Court of Appeals there did remark: “The objection
that the accused was not present when any proceeding was had in his
case should always be made in the lower court, in order that that court
might have an opportunity to correct the error.” Id. at 441. The Court
did not say whether such an objection was necessary to preserve error
for appeal before concluding, however, that “when the record shows
affirmatively, as in this case, that [the defendant] was not present [for
a new trial hearing], the judgment will be reversed and the case
remanded for a new trial.” Id. at 442.
In that same year, the Court of Appeals also cited to Gibson for
the proposition that the accused is “entitled to be present” at a motion
for new trial hearing. Sweat v. State, 4 Tex. App. 617, 620 (1878). The
Court noted in Sweat v. State, however, that in Gibson, “the attention of
the [trial] court was directed to” the fact of the defendant’s absence
(presumably by his counsel), so that the record affirmatively showed he
had not been present. 7 Id. at 619. By contrast, the Sweat Court observed:
In the present case it is not shown anywhere that the
attention of the court below was ever called to the fact; nor
is it made to appear, except inferentially, that the accused
was not, in fact, present in court when the motion for a new

CRIM. PROC. art. 42.03(1)(a). Article 42.14(b) provides for the pronouncement
of sentence in the defendant’s absence under very narrow and specific
circumstances not relevant to this case. TEX. CODE CRIM. PROC. art. 42.14(b).
As the court of appeals noted, “[n]either party advocates for the applicability
of Article 42.14(b); therefore, our analysis concerns only Article 33.03.” Tates,
692 S.W.3d at 636−37 n.7.

7 I find nothing in the Court’s opinion in Gibson to indicate this. Perhaps

the Court was taking judicial notice from its memory of the case?
TATES – 7

trial was determined.

Id. at 619−20. The Court next remarked that, by statute, any right may
be “waived,” 8 and noted that, when the accused’s absence has not been
expressly shown in the record, a “presumption” of waiver “might” be
“indulge[d].” Id. at 620. The Court concluded:

[T]o entitle [the accused] to a reversal of a judgment of
conviction, it must be made to appear from the record,
affirmatively, that he desired to exercise the right of being
present, and that this was denied him, in the court which
tried the case. It is but reasonable that, if the court should
be about to commit an error of this character, through
inadvertence or otherwise, his attention should be called to
it, and an opportunity afforded him to not only give the
accused all his rights under the law of his case, but also to
place himself right upon the record.

Id. at 621−22.
It is arguable, therefore, that the Court in Sweat treated what
Marin would regard as a forfeiture—the loss of a right by inaction—as
sufficient to establish a “waiver” under our general waiver statute. 9 If

8 The general waiver provision was in Article 26 of the “Old Code,” and

has been carried over, with revisions over the years, into Article 1.14(a) of the
current Code of Criminal Procedure. O.C. 26; TEX. CODE CRIM. PROC. art.
1.14(a).

9 Six years later, construing a statute from the Utah Territory that, like

540 of the Old Code, required the “personal presence” of the defendant at trial,
the United States Supreme Court observed that, not only was the requirement
not subject to forfeiture, but that “[w]e are of opinion that it was not within the
power of the accused or his counsel to dispense with statutory requirement as
to his personal presence at trial.” Hopt v. People of the Territory of Utah, 110
U.S. 574, 579 (1884). This language would suggest a Marin category one
construction of the statute—an absolute requirement that is “to be observed
even without partisan request.” 851 S.W.2d at 280. So far as I have found,
TATES – 8

so, the Court would soon change course. 10
B. Article 596 of the 1879 Code
Article 596 of the 1879 Code of Criminal Procedure made no
substantive changes to the statute; only a few minor revisions of
punctuation. It continued to provide that, in felony cases, “the defendant
must be personally present on the trial[.]” The most pertinent authority
with respect to the question of forfeiture versus waiver under that
Article may be found in this Court’s opinion in Bell v. State, 32 Tex.
Crim. 436, 24 S.W. 418 (1893).
In Bell, the accused had not been brought into court from jail
during the direct-examination testimony of a State’s witness. Id. at 419,
24 S.W. at 439−40. This Court declared that “[t]he question of waiver by
defendant is not in this case, and a discussion is pretermitted.” Id. at
419, 24 S.W. at 440. Perhaps this was the Court’s way of articulating
that the accused had made some kind of objection to the proceedings
occurring in his absence, once again potentially confusing forfeiture for
“waiver”—but it is unclear.
What is clear, however, is that, before reversing Bell’s murder

however, this Court has never gone so far in construing any of Article 33.03’s
predecessor statutes. Nor has the Supreme Court ultimately adhered to that
view. United States v. Gagnon, 470 U.S. 522, 529 (1985).

10 Two other cases under the Old Code affirmed convictions where the

accused had been absent at a motion for new trial hearing, but the trial court
remedied the situation by recalling its ruling and conducting a new hearing in
his presence. Krautz v. State, 4 Tex. App. 534 (1878); Berkley v. State, 4 Tex.
App. 122 (1878). Neither case speaks to the question of whether the claim was
waivable versus forfeitable, having resolved the issue based upon the trial
court’s curative action upon noticing the problem at the trial court level.
TATES – 9

conviction, the Court went on to discuss the nature of an accused’s rights
under both the general terms of Article 596, as well as under certain
other Code provisions that mandated his presence at specific stages of
trial. 11 Id. This is how the Court described the nature of those rights:
The accused “cannot be deprived of [them] without his consent, had in a
proper way, and the courts should see to it that these provisions of law
are not violated during trials had before them.” Id. This sounds a lot like
how Marin described an accused’s waiver-only right, namely, that “the
judge has an independent duty to implement [it] absent an effective
waiver by him.” 851 S.W.2d at 280; see also Mendez, 138 S.W.3d at 342
(“A law that puts a duty on the trial court to act sua sponte, creates a
right that is waivable only.”). 12
One opinion of special note, decided under the 1879 Code, was

11 Besides Article 596 of the 1879 Code, the Court in Bell also cited

Articles 695 through 698, which together provided that “the defendant shall be
present in court” for communications between the jury and the trial court after
jurors have retired to deliberate, and Article 711, requiring that “the defendant
must be present when the verdict is read[.]” Neither of these provisions was
actually implicated on the facts of Bell, however, since the accused was absent
during the State’s presentation of evidence in Bell.

12 Other cases decided under Article 596 of the 1879 Code, but not
passing on the question of waiver versus forfeiture, include: Granger v. State,
11 Tex. App. 454 (1882) (appellant was not present at the time the trial court
altered its jury charge, but he later complained about it in a motion for new
trial: reversed and remanded); Mapes v. State, 13 Tex. App. 85 (1882)
(appellant was not present when the trial court acted upon a nunc pro tunc
judgment, being in jail, but his attorney demanded his presence; his absence
rendered the judgment void, depriving the Court of Appeals of appellate
jurisdiction); Powers v. State, 23 Tex. App. 42 (1887) (appellant’s absence
during the voir dire of a particular venireman, “called to the attention of the
[trial] court,” was technically error, but the State’s use of a peremptory
challenge made any such error “manifestly harmless”).
TATES – 10

Shipp v. State, 11 Tex. App. 46 (1881). It was authored by the same
Court of Appeals judge (Winkler) who had written the opinion in Sweat
three years before, but it did not address Article 596. Instead, Shipp was
concerned with Articles 695 through 698 of the 1879 Code, which
specifically provided that “the defendant shall be present in court”
whenever the trial court dealt with juror communications with the court
after the jury has retired to deliberate. Shipp had been absent when the
trial court gave the jury additional instructions, and for that error, the
judgment was reversed. Id. at 50−51.
As to the statutory requirement that the accused be present for
this particular stage of trial, the Court of Appeals in Shipp observed that
“the subject of a waiver of his right to be present” was never mentioned
during the proceedings, but that it did not ultimately matter:
We are of opinion further that the defendant’s counsel,
though present, was not obliged to see that the defendant
was present, and that it could not be inferred from his
silence that the defendant had waived his right to be
present when the proceeding in question was being had
against him. It was the duty of the court and the
prosecuting attorney to see to it that the rights guarantied
to him by law when his liberty was involved were
guarantied to him on the trial, and that he is present in
court when by law he is entitled to be present. The
defendant’s counsel could not waive for him the right to be
present in court when a charge was being given to the jury;
and hence the presence and silence of his counsel cannot be
construed into a waiver by the defendant of his legal right
to be personally present in court on so important an
occasion. If it had been sought to bind the defendant by a
waiver, the record should have shown in plain and
unmistakable language that the defendant in person and
in open court, his attention being specifically directed
thereto by the court or under its direction, formally waived
TATES – 11

his right to be present in court.

Id. at 50. Once again, this language seems to point to the kind of
obligation upon the trial court that Marin would regard as the hallmark
of a waiver-only right. And it is important because this Court would
later rely on the Court of Appeals’ opinion in Shipp as authority when
construing a later predecessor to Article 33.03, as we shall see.
C. Article 633 of the 1895 Code and the Act of 1907
Article 633 made no substantive change from Article 596. But
twelve years after the 1895 Code came into effect, in 1907, the
Legislature enacted a new statute which parroted the “personal
presence on the trial” language of Article 633, but for the first time also
introduced the concept of a defendant’s voluntary absence as a
justification for completing a trial notwithstanding that absence. Acts
1907, 30th Leg., ch. 19, § 1, p. 31, eff. Mar. 15, 1907. This 1907 provision
would eventually be codified as Art. 899 of the 1911 Code of Criminal
Procedure, and it would co-exist with Article 633 of the 1895 Code, which
later became Article 646 of the 1911 Code, until the two provisions were
essentially combined as Article 580 of the 1925 Code. 13 In the absence

13 Besides introducing the voluntary absence proviso, the 1907
enactment also included the presumption that if the accused were present at
the outset of a trial, he would be deemed present throughout, absent a contrary
showing in the record. This presumption was later carried over into Article 580
of the 1925 Code, and again into Article 33.03 of the 1965 Code. But curiously,
the voluntary absence proviso was not carried over into the 1925 Code. It was
later reinstated in Article 33.03 of the 1965 Code, as then-Judge Onion
observed in his Special Commentary, to “incorporate[] the existing case law
into the statute[.]” See Miller v. State, 692 S.W.2d 88, 91−92 (Tex. Crim. App.
1985) (quoting Judge Onion’s Special Commentary to Article 33.03 and citing
cases).
TATES – 12

of any indication that the accused had voluntarily absented himself from
trial, this Court’s decisions under Article 633 of the 1895 Code, and the
independent 1907 enactment, continued to treat the statutory right to
be present during trial as waivable—not forfeitable.
In Hill v. State, 54 Tex. Crim. 646, 14 S.W. 117 (1908), the jury
during its deliberations asked to have certain testimony reproduced,
which the trial court permitted though the accused was not recalled to
the courtroom, being out on bond. 14 His counsel did not simply fail to
object—he purported to waive Hills’ appearance for him. Id. at 649, 14
S.W. at 118. But this Court refused to honor counsel’s waiver, remarking
that “the statute [referring to the 1907 enactment, later codified as
Article 899, and eventually combined with Article 633 of the 1925 Code,
the immediate predecessor to Article 33.03] explicitly says the defendant
must be personally present, and . . . the action of the [trial] court is in
the face of the statute.” Id. at 649−50, 14 S.W. at 118−19. The Court
apparently believed that an accused’s “personal presence” could only be
abandoned by his “personal” waiver. Hill’s murder conviction was
reversed.
The appellant in Derden v. State, 56 Tex. Crim. 396, 400, 120 S.W.
485, 486 (1909), was absent when the jury’s verdict was returned, but
was “making his way from his boarding house to the court.” The trial
court declared that it was permissible to return the verdict in Derden’s

14 The Court explained that Hill “was on bond at the time and was
voluntarily absent[.]” Id. at 649, 14 S.W. at 118. But he was apparently not
informed of the jury’s request, and he cannot have been thought to have known
to be back in the courtroom at the time. Nor did the Court purport to apply the
new statutory authority to continue the trial in Hill’s absence on account of his
“voluntary” absence.
TATES – 13

absence and refused to wait. Id. at 399, 120 S.W. at 486. His counsel
neither purported to waive his client’s statutory right to be present, “nor
did he at that time make any objection to the action of the court” in
accepting the verdict in his client’s absence. Id. at 400, 120 S.W. at 486.
Invoking Article 633, the 1907 enactment, as well as Article 749 of the
1895 Code, which specifically required the presence of the accused when
the verdict is returned, 15 and on authority of its earlier holding in Hill,
the Court reversed this murder conviction as well, notwithstanding trial
counsel’s failure to object to Derden’s absence. Id. at 400−03, 407, 120
S.W. at 487−88, 491. 16

15 Article 749 of the 1895 Code has survived largely intact and is
incorporated in present Article 37.06 of the 1965 Code. It currently reads, in
relevant part: “In felony cases the defendant must be present when the verdict
is read unless his absence is wilful or voluntary.” TEX. CODE CRIM. PROC. art.
37.06. Article 749 of the 1895 Code read: “In cases of felony the defendant must
be present when the verdict is read, unless he escape after the commencement
of the trial of the cause.”

16 Other cases decided under Article 633 of the 1895 Code and/or the

1907 enactment were disposed of without reference to whether the error must
be preserved by objection—several on the basis that the defendant had
voluntarily absented himself. See, e.g., Gonzales v. State, 38 Tex. Crim. 62, 41
S.W. 605 (1897) (though the defendant was not present for the passing upon
his motion for new trial, there was no error when the trial court set aside its
ruling and offered the defendant the chance to re-urge it, which the defendant
declined); O’Toole v. State, 40 Tex. Crim. 578, 51 S.W. 244 (1899) (the
defendant was temporarily absent when the jury was empaneled, but there
was no error when he declined the trial court’s offer to conduct the same
proceedings over again when he returned); Cason v. State, 52 Tex. Crim. 220,
106 S.W. 337 (1907) (no error where the defendant’s temporary absence was
remedied when the trial court instructed the jury to disregard evidence
presented in his absence and the State reproduced the evidence in the
defendant’s presence); Killman v. State, 53 Tex. Crim. 570, 112 S.W. 92 (1908)
(when the defendant voluntarily absented himself during a portion of his
counsel’s argument, “[w]ithout discussing the question of waiver, or how far
that might affect the appellant’s contention here,” the Court refused to reverse
TATES – 14

D. Articles 646 and 899 of the 1911 Code
Article 646 of the 1911 Code continued to provide that, “[i]n all
prosecutions for felonies, the defendant must be personally present on
the trial[.]” In Brooks v. State, the accused was absent from the
courtroom, and “locked up in jail[,]” while his attorney was arguing that
the trial court should grant an instructed verdict. 77 Tex. Crim. 517,
518, 179 S.W. 447 (1915). On the strength of Article 646, 17 a majority
reversed the conviction—even in the face of a dissenting opinion that
complained that Brooks’ counsel had made no contemporaneous
objection. Id. at 519, 179 S.W. at 447−48. Thus, while there was no
discussion of waiver in the Court’s brief opinion, there was an implicit
rejection of any application of forfeiture, if only perhaps because Brooks
had at least complained of the matter in a motion for new trial. Id. at
518, 179 S.W. at 447.
In Crow v. State, 89 Tex. Crim. 149, 230 S.W. 148 (1921), the
defendant was kept in jail during the jury-selection portion of his trial
for murder. When the attorneys for both sides agreed to excuse a
previously selected juror, the trial court suggested that it might be

the conviction). In Foreman v. State, 60 Tex. Crim. 576, 132 S.W. 937 (1910),
evidence was inadvertently presented in the defendant’s absence, to which he
complained in a motion for new trial. This Court reversed the conviction under
Article 633, holding that the new trial should have been granted, without any
discussion of waiver or forfeiture. Id. at 578, 132 S.W. at 938.

17 Brooks was on trial for a misdemeanor offense, but Article 646’s
presence requirement applied equally (as did its predecessors all the way back
to the Old Code) to misdemeanors where incarceration is a potential
punishment. See Id. at 519, 179 S.W. at 447 (quoting Article 646 in total,
including the phrase: “. . . and he must likewise be present in all cases of
indictment or information for misdemeanors where the punishment or any
part thereof is imprisonment in jail”).
TATES – 15

appropriate to “have the defendant brought back to court” to dispose of
the matter. Id. at 152, 230 S.W. at 149. Crow’s counsel assured the trial
court that this would not be necessary “as the question would never be
raised,” presumably meaning on appeal. Id. But it was raised on appeal,
and after quoting the relevant text of Article 646, this Court excerpted
a lengthy portion of the Court of Appeals’ opinion in Shipp (much of
which is quoted above), for the proposition that Crow’s counsel was not
empowered to waive his right to be present for him. Id. at 155, 230 S.W.
at 151. The right not having been validly waived, the Court reversed the
conviction. Id. at 160, 230 S.W. at 154.
Of similar import that same year, in Sullivan v. State, 90 Tex.
Crim. 170, 174, 233 S.W. 986, 988 (1921) (op. on reh’g), the Court once
again, in an opinion on rehearing, cited approvingly to Shipp, among
other authorities, for the proposition that in cases involving the right of
the accused to be present in court during trial, such right “cannot be
waived by the attorneys for the accused.” Sullivan involved both Articles
646 and 899. Ultimately, the waiver question did not make a difference
in Sullivan’s case, since he had voluntarily absented himself, and when
he returned, the same evidence was reintroduced in his presence, so that
no error actually occurred. Id. at 172, 233 S.W. at 987. 18 But it suggests

18 Other cases decided under Articles 646 or 899 of the 1911 Code, but

which shed little light on the question of waiver versus forfeiture, include: Curl
v. State, 65 Tex. Crim. 431, 436, 145 S.W. 602, 606 (1912) (although the accused
was absent when part of the trial court’s charge was read to the jury, his
absence was voluntary, and while the Court’s opinion mentions that trial
counsel did not object, it also points out that Curl had notified the trial court
that she would not be present “and all parties apparently then consented”—
which sounds like a waiver); Whitehead v. State, 66 Tex. Crim. 482, 147 S.W.
583 (1912) (the accused missed part of his counsel’s opening statement to the
TATES – 16

to me that, if counsel cannot even affirmatively waive his client’s right
to be “personally present on the trial” under those provisions, surely it
cannot be said that counsel could forfeit his client’s right by inaction.
E. Article 580 of the 1925 Code
The first sentence of Article 580 of the 1925 Code remained
substantively the same as all of its predecessors, with the exception that,
like former Article 899, it said “at” the trial instead of (as in former
Article 646) “on” the trial. For the first time, it also took from former
Article 899 the presumption that when the accused is present at the
“commencement” of trial, it is presumed he was present throughout,
absent a contrary showing in the record. See note 13, ante. Article 899
itself was recodified as Article 692 of the 1925 Code, and it carried
forward Article 899’s requirement that the accused be present when the
verdict is read unless his absence at that time is “wilful [sic] or
voluntary[.]” 19 No such language was included, however, in Article 580.
Schafer v. State, 118 Tex. Crim. 500, 40 S.W.2d 147 (1931), like

jury, but his absence was voluntary); Fry v. State, 78 Tex. Crim. 435, 439−40,
182 S.W. 331, 333−34 (1916) (the accused, having voluntarily absented himself
during a trial court’s “dynamite” charge to a deadlocked jury, would not be
heard to complain, especially in light of Article 899’s new authorization for trial
courts to proceed under such circumstances); Cartwright v. State, 97 Tex. Crim.
230, 259 S.W. 1085 (1924) (when the prosecutor displayed an item of physical
evidence to the jury in the courtroom in the absence of the accused and his
attorney, any error under Article 646 was deemed harmless).

19 See Hadley v. State, 163 Tex. Crim. 571, 294 S.W.2d 717 (1956)
(applying the “wilful or voluntary” provision of Article 692 of the 1925 Code to
affirm the conviction when the accused was absent when the jury’s verdict was
read); Reed v. State, 172 Tex. Crim. 122, 353 S.W.2d 850 (1962) (treating “wilful
or voluntary” absence under Article 692 “as a waiver” of the statutory right to
be present).
TATES – 17

Shipp before it, involved the defendant’s absence during jury
communications with the court, so Article 580 was not cited. Instead,
the Court relied upon the 1925 Code provisions expressly requiring the
presence of the accused during such communications, especially then-
Article 679, to reverse a murder conviction. Id. at 502, 505, 40 S.W.2d at
149, 150. In the course of reversing, however, the Court quoted
extensively from Crow, which in turn had quoted Shipp (as quoted
above), before concluding:
In the present case there was a failure on the part of
the [trial] court to follow the mandatory provisions of the
statute. Appellant did not waive the right to be present in
court when the trial judge communicated with the jury. His
counsel could not waive such right for him.

Id. at 502−03, 505, 40 S.W.2d at 149, 150.
Not surprisingly, then, over the next twenty-five years, this Court
would twice reiterate Crow’s waiver requirement in cases in which
Article 580 was invoked. First, in Lee v. State, 144 Tex. Crim. 135, 161
S.W.2d 290 (1942), a murder case, the trial court permitted the
defendant to leave the courtroom during his lawyer’s argument for an
instructed verdict. Counsel made no objection. Id. at 141, 161 S.W.2d at
293. On original submission, and on authority of Brooks, discussed
above, this Court reversed the conviction. Id. Then, on rehearing, while
recognizing earlier “voluntary absence” cases, including one decided
under Article 580’s predecessors, 20 the Court noted that Lee had not

20 See Ballou v. State, 113 Tex. Crim. 493, 494, 22 S.W.2d 666, 667
(1929) (applying voluntary absence under Article 679 of the 1925 Code, even
though that provision contains no such language on its face; but, notably,
treating it as a species of “waiver”); Whitehead, 66 Tex. Crim. at 486−88, 147
TATES – 18

been at large on bail, and that his “absence or presence . . . was not
within his control.” Id. at 142−43, 161 S.W.2d at 294. Accordingly, it
overruled the motion for rehearing. Id.
Second, in a fairly perfunctory opinion in Phillips v. State, 163
Tex. Crim. 13, 288 S.W.2d 775 (1956), the Court reversed an assault
with intent to rape conviction, on authority of Article 580, concluding
that “the appellant was not present when his motion for new trial was
overruled, that he was in jail, and that he did not waive his right to be
present at the proceedings.” Id. (emphasis added). 21 By this time, the
requirement of a waiver was so well entrenched that the “able State’s
Attorney” confessed error, though no mention is made of whether there
was an objection to preserve error (or whether there had to be an
objection to preserve error). Id. 22

S.W.2d at 585−86 (applying voluntary absence where the accused excused
himself to go to “the closet” during his counsel’s argument to the jury; no
statute is mentioned, but either Article 646 or Article 899 of the 1911 Code
must have been the basis for the claim on appeal, since no statute specifically
requires the presence of the accused during the arguments of counsel). In
Whitehead, this Court recognized the brand-new opinion of the United States
Supreme Court in Diaz v. United States, 223 U.S. 442, at 455 (1912), in which
that Court recognized that voluntary absence “operates as a waiver of [the
accused’s statutory] right to be present[.]”

21 The Court had likewise granted relief under Article 580 without any

mention of waiver versus forfeiture in another perfunctory opinion in
Henderson v. State, 137 Tex. Crim. 18, 127 S.W.2d 902 (1939). Henderson
involved a misdemeanor theft conviction for which jail time was an option, so
Article 580 applied. The trial court “heard, considered and overruled” the
motion in the absence of the accused. Under these circumstances, with little
discussion, the Court reversed the conviction under Article 580.

22 One possible outlier is the Court’s opinion in Ex parte Cassas, 112

Tex. Crim. 100, 13 S.W.2d 869 (1929). There, the accused became intoxicated
during trial—admittedly by “his own voluntary act”— and remained out of the
TATES – 19

F. Article 33.03 of the 1965 Code
The first clause of the first sentence of Article 33.03 is identical to
that of Article 580 of the 1925 Code: “In all prosecutions for felonies, the
defendant must be personally present at the trial[.]” Acts 1965, 59th
Leg., Vol. 2, ch. 722, § 1, p. 317, eff. Jan. 1, 1966. Article 33.03 also added
the “voluntary absence” proviso, which had formerly been embodied in
Article 899 of the 1911 Code, namely: “provided that in all cases, when
the defendant voluntarily absents himself after pleading guilty to the

courtroom while his counsel argued the case. Id. at 102, 13 S.W.2d at 870. He
made no issue of his absence on direct appeal, but he raised it for the first time
in a post-conviction application for writ of habeas corpus filed in the trial court,
which denied relief. Id. On appeal to this Court, denial of relief was affirmed.
Id. Cassas argued that his absence had rendered the conviction “void.” Id. at
103, 13 S.W.2d at 870. This Court pulled out all the stops to hold otherwise,
notwithstanding earlier cases that might have supported Cassas’s claim. On
rehearing, the Court declared that earlier discussions of Article 580 and its
predecessors in direct appeal cases had overstepped to suggest that a violation
of the accused’s right to be “personally present” during his trial would render
his conviction “void”—“the word ‘voidable’ should have been used[.]” Id. at
106−07, 13 S.W.2d at 872 (op. on reh’g). Along the way the Court pointed out,
not only the fact that Cassas essentially waived his right by virtue of his
voluntary intoxication, but also the fact that he had failed to object, as the pre-
Shipp opinions in Sweat and Gibson may have required him to do to preserve
error. Id. Such questions were ultimately deemed to be “aside from the
question before us,” however, which was whether a conviction that is merely
“voidable” may be collaterally attacked. Id. at 107, 13 S.W.2d at 872 (op. on
reh’g). The Court held that it may not. Id. Cassas was decided during an era in
which only void convictions were assailable in post-conviction collateral
attacks. Ex parte Crispin, 777 S.W.2d 103, 106 (Tex. Crim. App. 1989) (Clinton,
J., concurring). Nowadays, of course, we would simply declare that “[p]urely
statutory violations are not cognizable in [post-conviction] habeas corpus.” Ex
parte Stepherson, 693 S.W.3d 364, 384 (Tex. Crim. App. 2024). In any event,
the fleeting allusion to forfeiture in Cassas, besides being anachronistic, was
arguably obiter dictum, and contrary to every case on the subject since Shipp.
TATES – 20

indictment or information, the trial may proceed to its conclusion.” Id. 23
Notwithstanding the addition of the proviso, however, the Court has
described voluntary absence as a species of “waiver,” not forfeiture. See,
e.g., Gonzales v. State, 515 S.W.2d 920, 921 (Tex. Crim. App. 1974)
(holding that, by voluntarily absenting himself from trial after entering
his not guilty plea once the jury was selected, “[t]he appellant waived
his right to be personally present at the trial”). 24 If even “voluntary
absence” operates as a waiver, how much so must a waiver be required
when an accused is deprived of his right to be personally present not
through his own conduct, but simply because some part of “the trial” was
conducted in his involuntary absence?
When the Legislature recodified the personal-presence-at-trial
requirement in Article 33.03 in 1965, it was undoubtedly aware that this
Court had almost uniformly construed its predecessors to create a
waiver-only right. Aware of how this Court had construed the first

23 In 1979, Article 33.03 was amended to add the phrase “or after the

jury has been selected when trial is before a jury,” to identify the beginning
point at which the defendant’s voluntary absence will trigger the proviso in a
jury trial. See Miller, 692 S.W.2d at 91−93 (describing the significance of the
amendment to Article 33.03 in Acts 1979, 66th Leg., ch. 745, § 1, p. 1832, eff.
Aug. 27, 1979). The 1979 amendment, as described in Miller, has no bearing
on the waiver-versus-forfeiture issue before us in this case.

24 Another case since 1965 that invoked the new voluntary absence
clause of Article 33.03 was Johnston v. State, 477 S.W.2d 891 (Tex. Crim. App.
1972). There, the Court observed that “[c]ounsel for appellant made no
objection to the continuation of the trial.” Id. at 893 & n.1. Despite this allusion
to the absence of an objection, the Court’s ultimate ruling was that “[n]o error
is shown.” Id. at 893. The Court did not declare, as it would later do in Routier,
that no error was preserved. The Court made no attempt in Johnston to explain
the significance of counsel’s failure to object, and undoubtedly ruled on the
merits based on Johnston’s voluntary absence, not forfeiture.
TATES – 21

sentence of the statute to create a waiver-only right, the Legislature re-
enacted it again and again, in Code after Code. In re-enacting it once
again in the 1965 Code, the Legislature seems to have perpetuated the
meaning as thus judicially determined from the statutory language. See
Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS, at 322 (2012) (“If a word or phrase has been
authoritatively interpreted by the highest court in a jurisdiction, . . . a
later version of that act perpetuating the wording is presumed to carry
forward that interpretation.”).
Perhaps that explains how, only a year ago, the Court was able,
once again, to confidently assert that the statutory right to be personally
present at trial is subject to “waiver”—as opposed to “forfeiture”—citing
our opinion under Article 580 of the 1925 Code in Phillips, discussed
above. Hughes v. State, 691 S.W.3d 504, 518−19 & n.7 (Tex. Crim. App.
2024). The dissent today errs if it believes that the insertion of the
“voluntary absence” proviso into Article 33.03 has changed what has
always been regarded as a waiver-only right into a forfeitable one.
Dissenting Opinion at 6. For these reasons, in addition to those the
Court gives today, I agree that the court of appeals did not err to reach
the merits of Appellant’s complaint.
II. WAIVER VERSUS FORFEITURE UNDER ARTICLE 33.03
The dissent today declares that the only aspect of Article 33.03
that even speaks to the question of waiver versus forfeiture is the
voluntary absence proviso, and that (apparently) this proviso plainly
identifies a forfeiture rather than a waiver. Dissenting Opinion at 6−7.
Never mind that the Court in the past has always treated a voluntary
TATES – 22

absence as a kind of implied waiver, not a forfeiture. E.g., Gonzalez, 515
S.W.2d at 921; Whitehead v. State, 66 Tex. Crim. 482, 486−88, 147
S.W.2d 583, 585−86 (1912). In any event, the voluntary absence proviso
does not speak at all to the situation in which the accused is available
but is somehow prevented from attending the trial in person.
Even if voluntary absence were to operate as a forfeiture rather
than a waiver, would a defendant who has not voluntarily absented
himself still have to object to preserve error for appeal? The Court never
said he would before the proviso was added to Article 33.03, even though
it had recognized voluntary absence as an implied “waiver” long before
1965. See Miller v. State, 692 S.W.2d 88, 91 (Tex. Crim. App. 1985)
(quoting then-Judge Onion’s Special Commentary to Article 33.03,
indicating that the added proviso “incorporates the existing case law
into the statute”). On the contrary, the Court has made it clear—over
the long history of the statute—that in any case in which voluntary
absence is not involved, the right to be present at trial is a classic waiver-
only right, not subject to forfeiture on appeal by a failure to object at
trial.
Historically, the “voluntary absence” waiver was first codified in
a bail provision, in the 1907 enactment that would later become Article
899 of the 1911 Code before it was eventually wholly subsumed into
Article 33.03. Acts 1907, 30th Leg., ch. 19, § 1, p. 31, eff. Mar. 15, 1907.
It was thought that a defendant should not be able to abuse the right to
be at large on bail during trial by absconding, while also relying on his
competing right to be personally present to paralyze the proceeding. See
Whitehead, 66 Tex. Crim. at 486−88, 147 S.W. at 585−86 (quoting
TATES – 23

extensively from Diaz v. United States, 223 U.S. 442, 454−58 (1912)).
Nothing like that happened in this case.
Appellant was not free on bail during his punishment proceeding.
Nothing in the record suggests his physical presence could not have been
obtained by the trial court. He was not responsible for the Covid
pandemic, and it was not his choice to appear remotely at the
punishment hearing rather than in person. Absent a “voluntary
absence” of the kind that the statutory scheme has historically
contemplated, the cases have always construed Article 33.03 and its
predecessors to require an affirmative waiver of the kind Marin
described—that is, the accused must relinquish his right “plainly, freely,
and intelligently, . . . and always on the record.” Marin, 851 S.W.2d at
280. The cases have also been emphatic that a purported waiver by
counsel simply will not do. 25 Because Appellant did nothing to waive his
claim that his right to be personally present was violated, the Court
today is correct to conclude that he has not forfeited it for appellate
review.
III. THE ISSUES OF ERROR AND HARM ARE NOT BEFORE US
The State’s petition for discretionary review does not seem to

25 See Shipp, 11 Tex. App. at 50 (“The defendant’s counsel could not

waive for him the right to be present in court[.]”); Hill, 54 Tex. Crim. at 649−50,
14 S.W. at 118−19 (reversing even though trial counsel had purported to waive
Hill’s right to be present); Crow, 89 Tex. Crim. at 152, 157, 230 S.W. at 149−50,
152 (reversing despite trial counsel’s purported waiver, quoting inter alia,
Shipp); Sullivan, 90 Tex. Crim. at 174, 233 S.W. at 988 (op. on reh’g) (citing
Shipp for the proposition that “the presence of the accused . . . cannot be waived
by the attorneys of the accused”); Schafer, 118 Tex. Crim. at 502, 505, 40
S.W.2d at 149, 150 (same).
TATES – 24

argue that the court of appeals, having concluded that error was
preserved, and thus having reached the merits, erred in concluding that
the trial court committed reversible error. This Court also did not grant
discretionary review of any other issue “on its own initiative[,]” as the
rules would have permitted. TEX. R. APP. P. 66.1, 67.1. Therefore, neither
the question of error nor the question of harm (or the applicability of a
harmless error analysis) is presently before us, and the Court does well
not to address them.
IV. CONCLUSION
With these supplemental observations, I join the Court’s opinion
affirming the judgment of the court of appeals.

FILED: July 2, 2025
PUBLISH