TATES v. STATE (2025)

OPINION

Appellant appeared remotely via videoconferencing during the punishment phase of his trial. He did not object at trial but complained on appeal that proceeding remotely violated his constitutional and statutory rights to be present at trial.¹ This requires us to consider whether Appellant forfeited the right to complain about his remote appearance on appeal by failing to object at trial. We conclude that the statutory right to be personally present during the punishment phase of trial is at least a category-two Marin right meaning it must be affirmatively waived and is not subject to forfeiture by failing to object at trial. The court of appeals correctly held that Article 33.03's right to personal presence is a waivable-only right. Therefore, although we agree with the State's contention that the court of appeals erred in its reliance on Lira v. State to reach this conclusion, we affirm.²

Background

In January of 2020, Appellant was convicted by a jury of evading arrest with a prior conviction for evading arrest making the offense a state-jail felony.³ He appeared in person for the entirety of the guilt-innocence proceedings. Before voir dire, Appellant notified the trial court that he elected to have the trial court to assess punishment if a verdict of guilty was returned. Both parties indicated to the jury during voir dire that the jury would not be assessing punishment in the event of a guilty verdict.

On January 29, 2020, the jury returned its verdict of guilt. Following the verdict, the State requested Appellant's bond be revoked pending sentencing. Appellant asked to be permitted to continue on bond noting his compliance with bond conditions and appearance at all court proceedings. The trial court revoked Appellant's pretrial bond, imposed a higher bail amount, and ordered GPS monitoring as a condition of further release. The proceedings were adjourned following the bond discussion.

Then COVID happened.

Appellant appeared before the trial court for the punishment phase of his trial on April 7, 2020. Appellant appeared via videoconferencing.⁴ In the interim, Texas Governor Greg Abbott, pursuant to Section 22.0035(b) of the Texas Government Code, declared a state of disaster in all 254 counties in the State in response to the COVID-19 pandemic.⁵ In response, the Texas Supreme Court, in conjunction with this Court, issued its First Emergency Order Regarding the COVID-19 State of Disaster on March 13, 2020.⁶ The Emergency Order provided in relevant part:

2. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant's consent:

a. Modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor's state of disaster has been lifted;

b. Allow or require anyone involved in any hearing, deposition, or other proceeding of any kind—including but not limited to a party, attorney, witness, or court reporter, but not including a juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means;

c. Consider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means;

d. Conduct proceedings away from the court's usual location, but in the county of venue, and only with reasonable notice and access to the participants and the public ․7

This Emergency Order was in place when Appellant, who was in custody, appeared for the punishment phase of trial. Appellant's counsel appeared in-person and attorneys for the State appeared remotely. At the outset of the hearing, Appellant's counsel informed the trial court that he had not been able to meet with Appellant via a private virtual meeting room prior to the hearing. A recess was taken and no further mention of the ability, or lack thereof, to confer virtually was made. At no time did Appellant object or otherwise complain about appearing remotely. Appellant entered a plea of not true to two enhancement paragraphs alleging he had been previously convicted of two felony offenses. Each of the State's four punishment witnesses appeared via videoconferencing. Appellant testified in his defense via videoconferencing and the defense called no other witnesses. At the conclusion of the punishment hearing, the trial court found both enhancement paragraphs true and sentenced Appellant to five years imprisonment in the Texas Department of Criminal Justice along with court costs. Appellant filed a notice of appeal.

Appeal

Appellant made two arguments on appeal. First, he challenged the trial court's refusal to provide a Section 38.23 exclusionary rule instruction to the jury.⁸ Second, he argued that the trial court violated his state and federal constitutional and state statutory rights by conducting the punishment hearing by videoconference.⁹ Only the second issue is relevant to our review.

At the outset, the court of appeals concluded that Appellant did not need to object to appearing remotely at sentencing in order to preserve the second issue for its review.¹⁰ The court acknowledged that this Court has not determined whether the right to be personally present at during the punishment phase of trial is a category one, two, or three Marin right.¹¹ Looking to illegal sentence jurisprudence, however, the court of appeals held that the right to be personally present at sentencing implicates the legality of the sentence, and is therefore not subject to forfeiture by failing to object at trial.¹² The court of appeals reasoned that “[t]he right to be sentenced legally [is] an absolute or waivable-only right.”¹³ The court, looking to our decision in Lira v. State, noted “the Lira court recognized, a sentence rendered outside of the defendant's presence is not authorized by law.”¹⁴ The court of appeals concluded that “the right to be present at sentencing implicates the legality of the sentence and is not forfeited by a failure to object at trial.”¹⁵

Turning to the merits, the court of appeals acknowledged that a defendant may waive his or her statutory right to be present at a punishment proceeding or sentencing pursuant to Articles 33.03 and 42.14(b) of the Code of Criminal Procedure.¹⁶ The court found Appellant's remote presence at sentencing was tantamount to being absent and that the record contained no evidence that there was a waiver or that the absence was voluntary.¹⁷ The court concluded that “because [Appellant] was not present for sentencing in a manner recognized or permitted by the code and the record does not support the existence of waiver ․ the trial court abrogated [Appellant's] substantive statutory right to be present at punishment and sentencing.”¹⁸ The court of appeals sustained Appellant's second issue and remanded for a new sentencing hearing.¹⁹

Discretionary Review

We granted the State's petition for discretionary review on two grounds:

1. The lower court erred when it ignored existing case law so that it could create, in a publish[sic] opinion, a new waivable-only right to physical presence under Article 33.03 that conflicts with decisions of the Court of Criminal Appeals, the lower court, and other courts of appeals.

2. The lower court erred when it misappropriated this Court's analysis in Lira to rationalize creating, in a published opinion, a new requirement that a defendant must affirmatively waive this new waivable-only right to physical presence under Article 33.03 which conflicts with the Texas Supreme Court's Emergency Orders.

Standard of Review

The lower court's decision in this case rests on the statutory right to be personally present at trial.²⁰ Statutory construction is a question of law that we review de novo.²¹ Likewise, when a statutory right is invoked determining the appropriate Marin category for preservation purposes is also essentially a question of statutory construction.²² When we interpret statutes, we presume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.²³ Our focus is on the plain text of the statute and we attempt to discern to the fair, objective meaning of the text at the time of its enactment.²⁴ Our duty is to interpret the work of our legislature as best we can to fully effectuate the goals they set out.²⁵

Statutory Right to be Personally Present During the Punishment Phase of the Trial

Several provisions of the Texas Code of Criminal Procedure discuss the right to be present at criminal proceedings. The Code requires defendants be personally present at trial.²⁶ Article 33.03, which was “the crux” of Appellant's argument on appeal,²⁷ provides in relevant part:

In all prosecutions for felonies, the defendant must be personally present at 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, where 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.

The Code also requires a defendant's presence for the pronouncement of sentence.²⁸ Article 42.03 provides that “[e]xcept as provided in Article 42.14, sentence shall be pronounced in the defendant's presence.”²⁹ Article 42.14 provides that “[i]n a felony case, the judgment and sentence may be rendered in the absence of the defendant only if:

(1) The defendant is confined in a penal institution;

(2) The defendant is not charged with a felony offense:

(A) that is listed in Article 42A.054(a); or

(B) for which it is alleged that:

(i) a deadly weapon was used or exhibited during the commission of the offense or during immediate flight from the commission of the offense; and

(ii) the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited;

(3) The defendant in writing before the appropriate court having jurisdiction in the county in which the penal institution is located:

(A) waives the right to be present at the rendering of the judgment and sentence or to have counsel present;

(B) affirms the defendant does not have anything to say as to why the sentence should not be pronounced and that there is no reason to prevent the sentence under Article 42.07;

(C) states that the defendant has entered into a written plea agreement with the attorney representing the state in the prosecution of the case; and

(D) requests the court to pronounce sentence in the case in accordance with the plea agreement;

(4) The defendant and the attorney representing the state in the prosecution of the case have entered into a written plea agreement that is made a part of the record in the case; and

(5) Sentence is pronounced in accordance with the plea Agreement ․”30

The sentence must be pronounced in the defendant's presence absent a written waiver and other conditions being met.³¹

Under the plain terms of Article 33.03, Appellant had the right to be “personally present” at trial unless he voluntarily absented himself.³² “Personally present” in this context means “in person.”³³ In 1856, the earliest codification of the criminal laws of Texas required that, [i]n every case of felony, the defendant shall be present in the court when any such proceeding is had ․”³⁴ In 1907, the Legislature introduced the concept of continuing after a defendant voluntarily absented themselves.³⁵ In 1911, the Code of Criminal Procedure combined the personal presence requirement and voluntary absenting provisions in Article 899, which provided:

In all prosecutions for felonies the defendant must be personally present at the trial ․ provided, that in all cases, the verdict of the jury shall be received by the court, and entered upon the records thereof in the absence of the defendant when such absence on his part is wilful or voluntary, and when so received, it shall have the same force and effect as if received and entered in the presence of such defendant.36

Under 42.03, the trial court was required to pronounce the sentence in the defendant's “presence” absent a written waiver.³⁷ Like the right to be personally present at trial, the pronouncement rule was also included in the earliest version of the Code of Criminal Procedure.³⁸

Preservation

The issue before us is whether the court of appeals properly determined that Appellant did not forfeit his statutory complaint. Rule 33.1 of the Texas Rules of Appellate Procedure provides that a contemporaneous objection must be made to preserve error for review on appeal.³⁹ This Rule, however, only applies to forfeitable rights known as category-three Marin rights.⁴⁰ Rights and requirements, in terms of error preservation, are classified, pursuant to Marin, as: (1) absolute requirements and prohibitions that can neither be forfeited or waived; (2) rights of litigants which must be implemented unless expressly waived; and (3) rights of litigants which are to be implemented upon request.⁴¹ Category-two waivable only rights are those rights understood to be “so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection” such that the record must reflect that they have been “plainly, freely, and intelligently” waived a trial.⁴² Category-two rights “must be implemented by the system unless expressly waived.”⁴³ A claim that a waivable only right was violated can be raised for the first time on appeal. Error preservation requirements turn on the nature of the right allegedly infringed.⁴⁴ With that, we turn to Article 33.03.

Analysis

The text of Article 33.03 itself supports the conclusion that the right to in-person presence is a waivable-only right.⁴⁵ Article 33.03 provides a defendant “must be personally present at trial.”⁴⁶ The plain text indicates a right to personal presence that must be implemented absent an exception.⁴⁷ Article 42.03 further supports the understanding that defendants have a waivable-only right to be present by providing the sentence “shall” be pronounced in the defendant's presence, which also imposes a duty on the trial judge rather than announcing a right the litigant must demand.⁴⁸ The exception to the right to personal presence – voluntarily absenting oneself – is a waiver of that right by action.⁴⁹ Most importantly the exceptions to the mandatory requirement of personal presence in both statutes are couched in terms of an affirmative waiver by a defendant. Neither provision has terms that support forfeiture by a defendant's inaction.

A principal characteristic of waivable-only rights, those rights that are understood to be fundamental to the proper functioning of the adjudicatory system, is that they cannot be extinguished by inaction alone.⁵⁰ We recognized long ago, when considering Article 33.03’s predecessor, that the nature of the statutory right to be present means one “cannot be deprived of these rights without consent,” which are “beyond the power of the courts to disregard or ignore,” rather “courts should see to it that these provisions of law are not violated during trials had before them.”⁵¹ If the defendant does nothing, Article 33.03, like its predecessors, requires personal presence.⁵² A defendant “need make no request at trial” to be present.⁵³ Rather, he “must” be personally present.⁵⁴ Based on the statute's text and the Court's historical interpretation of the statute's predecessors ⁵⁵ , we agree with the court of appeals’ conclusion that the right to personal presence at punishment proceedings is a substantive waivable-only right.

The State, on the other hand, asserts that a violation of the right to personal presence under Article 33.03 has been held to be forfeitable by this Court in Routier v. State.⁵⁶ The State argues that the lower court disregarded Routier and misappropriated Lira’s analysis to create a new waivable-only right. Consequently, the State argues, that the lower court created a new rule that a trial court is divested of authority to preside over a remote proceeding in the absence of an affirmative waiver. Absent a timely objection, the State argues Appellant's challenge to remote presence at the punishment phase is waived.

The State contends we need only look to Routier to determine the right to personal presence at sentencing is in fact forfeitable.⁵⁷ It is true that decades ago, in Routier we stated, without analysis, that by failing to object at the earliest opportunity the defendant failed to preserve her argument that the right to presence under Article 33.03 was violated when the trial court read and responded to a jury note in her absence.⁵⁸ But the Court in Routier failed to even consider where the statutory requirement of a defendant's “personal presence at trial” fits within Marin’s categorization of rights before declaring the issue unpreserved.⁵⁹ And the Court went on to consider the merits of the Article 33.03 argument and concluded the trial court did not err “in accepting her attorneys’ waiver of her appearance.”⁶⁰ Despite initially casting the issue as unpreserved, the Court found that a waiver of appearance had been made by counsel, which we held the trial court did not err to accept.⁶¹ Thus, Routier is not determinative as the State suggests.⁶² Rather, the Court's analysis supports the conclusion that an affirmative waiver is statutorily required.⁶³

More recently, in Hughes v. State, we held the right to presence under the Due Process Clause was waivable only and thus, we could consider the defendant's argument that his right to presence was violated despite the lack of objection to remote proceedings.⁶⁴ In that case, we held that the due process right to be present applies in hearings on motions to adjudicate guilt and the right was violated by remote proceedings on a motion to adjudicate.⁶⁵ In concluding the error was waivable only, we noted that courts “have long treated the right to be present as subject to waiver (typically by the defendant's voluntary absence) regardless of the particular basis for the right, whether statute [Article 33.03], the Confrontation Clause, or even the Due Process Clause.”⁶⁶ While we do not base our decision on Hughes, we nevertheless point out that our position in this case is consistent with how we resolved the issue in Hughes when considering the due process right to be present during trial.

The court of appeals correctly held that the right to be present at sentencing is not forfeited by the failure to object at trial.⁶⁷ However, we agree with the State that the court of appeals reached this conclusion by relying erroneously on our holding in Lira to conclude that the right to be present at punishment proceedings implicates the legality of the sentence.⁶⁸ An illegal sentence is one that is not authorized by law.⁶⁹ The court of appeals relied upon Lira’s recognition that “a sentence rendered outside of the defendant's presence was ‘no sentence at all’ ” to conclude a violation of the right to be present in this case implicated the legality of the sentence.⁷⁰ But that recognition in Lira came from Casias v. State, in which this Court dismissed an appeal because the sentence was not pronounced in the defendant's presence despite a waiver of the right to appear.⁷¹ In that case, the Court held that a proper sentence is jurisdictional for an appeal and because jurisdictional matters cannot be waived, a sentence not pronounced in the defendant's presence, even with a waiver of appearance, was by “statutory definition [ ] no sentence at all.”⁷² Casias turned on the prior statutory definition of “sentence” contained in a prior version of Article 42.02, which defined “sentence” as “the order of the court in felony or misdemeanor case made in the presence of the defendant, except in misdemeanor cases where the maximum possible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”⁷³

However, that statutory definition of “sentence” was amended in 1981 to remove the presence element.⁷⁴ Likewise, today, the statutory definition of “sentence” does not include an element of presence.⁷⁵ Indeed, if Casias controlled in this case, the proper disposition would have been for the lower court to dismiss the appeal for want of jurisdiction assuming a sentence pronounced remotely is akin to a sentence pronounced in the defendant's absence. But Casias was about whether a proper “sentence” was pronounced, according to the statutory definition that controlled at the time, in order to vest the appellate court with jurisdiction. While proper pronouncement of sentence may be jurisdictional for an appeal, neither Casias nor Lira mean that a violation of the right to be personally present during the punishment phase of trial renders the sentence illegal.

Finally, we must consider the effect of the Emergency Order. We recognized in Lira that the Supreme Court's Emergency Orders cannot suspend a substantive right.⁷⁶ To the extent the State argues recognizing Article 33.03’s right to personal presence to be waivable only conflicts with the Emergency Orders, we disagree. Appellant had a substantive statutory right to be present at the punishment proceedings and he does not forfeit the ability to complain about a violation of that right on appeal by not objecting at trial. Rather, the right must be affirmatively waived.⁷⁷ That conclusion is consistent with our previous holdings regarding the Emergency Orders.⁷⁸

Conclusion

The statutory right to personal presence at punishment proceedings is a waivable-only right not one that is forfeitable through inaction. Therefore, although Appellant did not object to proceeding remotely before the trial court, the court of appeals correctly considered the error raised for the first time on appeal. Although we reject the court of appeals’ reliance on Lira to conclude the legality of the sentence was implicated, we affirm the court of appeals’ conclusion that Appellant did not forfeit his personal presence claim by failing to object at trial.⁷⁹

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 “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 –––– – ––––. 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

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 ––––. 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 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 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.

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 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 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 439-40, 24 S.W. at 419. This Court declared that “[t]he question of waiver by defendant is not in this case, and a discussion is pretermitted.” Id. at 440, 24 S.W. at 419. 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 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 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 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 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, 114 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, 114 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, 114 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 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

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 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 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 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 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

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 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 sentence of the statute to create a waiver-only right, the Legislature reenacted 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 ––––. 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 –––– – ––––. Never mind that the Court in the past has always treated a voluntary absence as a kind of implied waiver, not a forfeiture. E.g., Gonzales, 515 S.W.2d at 921; Whitehead v. State, 66 Tex. Crim. 482, 486, 147 S.W. 583, 583−88 (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 extensively from Diaz v. United States, 223 U.S. 442, 454-58, 32 S.Ct. 250, 56 L.Ed. 500 (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 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.

CONCURRING OPINION

I join the Court's opinion but write separately to expand on a few points. In Article 33.03, the exception to the requirement that the defendant be “personally present” is when “the defendant voluntarily absents himself.”¹ The “voluntarily absents himself” wording is likely derived from the Supreme Court case of Diaz v. United States, which, using this exact phrase, held:

[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.2

As Judge Yeary's concurrence points out, this Court relied on Diaz shortly after it was handed down,³ and in fact, this Court quoted liberally from the Supreme Court's opinion, including the passage quoted above.⁴ Diaz and its progeny have also been the basis for Federal Rule of Criminal Procedure 43, successive iterations of which have used the exact language in Diaz or something very similar.⁵

From federal caselaw and the federal rule, we can derive four different types of “waivers” of presence: (1) a conduct waiver when a non-incarcerated defendant fails to show up, regardless of whether he has been given any sort of warning,⁶ (2) a conduct waiver when a defendant is removed from the courtroom after he fails to heed a warning that his continued disruption of the proceedings would result in his removal,⁷ (3) an express waiver when a defendant is incarcerated or ordered not to personally be in the courtroom,⁸ and (4) an implicit waiver when the defendant is present in open court and does not assert his desire to be present at a bench conference or in-chambers conference.⁹

The first three types of waivers, at least, are perfectly consistent with the notion that the Texas statutory right to presence is a waivable-only right. Although a category-two Marin waiver is typically an express act personally done by the defendant after being warned of the nature of the right at issue and the consequences of his waiver,¹⁰ that is not invariably so.¹¹ The Legislature is free to modify what is needed for a waiver of a statutory requirement,¹² and the two conduct waivers mentioned above fit comfortably within the phrase “voluntarily absents.”

The fourth type of waiver is the one that looks most like a forfeiture, and the Supreme Court did not nail down its status. In Gagnon, the Court merely said that if the defendant had a right to be present at an in-chambers conference under Rule 43, he voluntarily relinquished it by not asserting it.¹³ It is possible that the Supreme Court will eventually say that the right to presence under Rule 43 is fully satisfied by the defendant's presence in open court and that any right to be present at an in-chambers conference is a common-law right subject to forfeiture by inaction.¹⁴ Or the Court could draw a distinction between “not being invited” to a bench conference or in-chambers conference and being “excluded” from one, with an objection being required to nail down that the defendant was actually being excluded. Or the Court could draw a distinction between what is minimally required as physical presence and the maximal reach of the physical presence right, with what is minimally required being subject to an explicit waiver or conduct waiver and the maximal reach being subject to an implicit waiver. The Court could perhaps reason that, so long as the defendant is physically present in open court, he voluntarily absents himself from “more” presence (e.g., at a bench conference) if he fails to assert his desire for such “more” presence. Any of these rationales could conceivably be applied to Article 33.03 to construe the statute to permit bench conferences and in-chambers conferences to occur outside the defendant's presence without requiring express consent. And any of these rationales could support rejecting the “presence” point of error in Routier, and at least one of them might also support the decision's reasoning.¹⁵ In any event, like the Supreme Court in Gagnon, this Court in Routier hedged its holding, and what to do about conferences that do not have to happen in open court is an issue for another day.¹⁶

Regardless of how proceedings outside of open court are treated, we can be confident that the phrase “voluntarily absents” required more in Appellant's case than a mere failure to object. Appellant was physically excluded from the entire punishment phase of trial. And he could not just “show up” to court because he was incarcerated—which defeats the qualification in Diaz that the “voluntarily absent” individual be “not in custody.”¹⁷

Also, the trial court ordered the proceedings to be virtual so that Appellant would not physically attend. Let's suppose a defendant who was physically present in the courtroom had done nothing to justify removal, but the trial court ordered him to leave anyway. Or suppose the trial court had ordered that defendant not to come back the next day. Would we suppose that the defendant “voluntarily absented himself” under the plain meaning of that phrase by meekly complying with either of those orders? My common sense intuition tells me “no,” and other contexts seem to support that conclusion. To borrow terminology from the Fourth Amendment context, a mere submission to a show of authority ¹⁸ does not, by itself, make the defendant “voluntarily absent.” And in the Fifth Amendment context, when we say a suspect has “voluntarily accompanied” a police officer to the station, we do not mean that he submitted, without objection, to an order to go.¹⁹

With these comments, I join the Court's opinion.

DISSENTING OPINION

Appellant forfeited his statutory right to personal presence when he failed to object to his appearance via videoconference at his non-jury punishment hearing. Because the Court holds otherwise, I respectfully dissent.

I. Marin Categories

Marin sorted our error-preservation rules into three categories: (1) absolute requirements and prohibitions that cannot be waived, (2) rights that must be implemented unless expressly waived, and (3) rights that are implemented upon request or else forfeited. 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Most rights, including constitutional rights, are forfeitable. Id.; Cruz v. State, 698 S.W.3d 265, 268 (Tex. Crim. App. 2024). Forfeitable rights include the right to challenge a statute's constitutionality, avoid prosecution outside the statute of limitations, confront witnesses, present a complete defense, and keep a jury free from outside influence. Cruz, 698 S.W.3d at 268.

Forfeitability “is premised on both an appellant's knowledge of and failure to challenge an issue.” London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016). A defendant “may not be faulted for failing to object when he or she was simply not given the opportunity to do so.” Id. So, for example, court costs imposed without a defendant's knowledge or opportunity to object may be challenged for the first time on appeal. Johnson v. State, 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014). Otherwise, only rights that are “fundamental to the proper functioning of our adjudicatory system” fall into Marin’s first two categories of non-forfeitable rights. Id. (quoting Marin, 851 S.W.2d at 278).

Marin did not define or identify fundamental rights; the right at issue in that case—an indigent defendant's right to ten days after appointment of counsel to prepare for trial—was obviously not forfeitable. Id. at 280. Still, Marin said, “All but the most fundamental rights” are forfeitable, many constitutional rights are forfeitable, and “relatively few” are non-forfeitable. Id. at 279. But its further efforts to distinguish the categories were circular or opaque. It asserted, for example, that non-forfeitable rights are characterized by their non-forfeitability. Marin, 851 S.W.2d at 278. And it said that assigning a right to a category “will usually settle the question of procedural default in the context of a particular case.” Id. at 279. But it did not formulate a method for assigning rights or requirements to its categories.

We have since suggested that a mandatory statute explicitly directed at the trial judge may indicate a non-forfeitable right. Proenza, 541 S.W.3d at 798. But mandatory language is neither a necessary nor a sufficient condition for deeming a statutory right or requirement to be non-forfeitable. On one hand, for example, our jury waiver statute directs its mandate to the defendant, not the trial judge. See Tex. Code Crim. P. art. 1.13(a). Still, it enshrines a waivable-only right under Marin’s terms. Marin, 851 S.W.2d at 280 (waiver must happen “plainly, freely, and intelligently, sometimes in writing and always on the record”). On the other hand, Article 42.15(a-1) mandates a trial court to inquire about a defendant's ability to pay costs; it says “a court shall inquire” about it. Tex. Code Crim. P. art. 42.15(a-1). But even so, the statute's mandate is forfeitable. Cruz, 698 S.W.3d at 269. Mandatory language directed at a trial judge is not a test of fundamentality as much as a description of many procedural statutes. Something more is required to deem a right or requirement fundamental. Id. at 270.

We found something more with the rights to be (1) tried free of judicial bias expressed in the jury's presence, (2) sentenced by a judge who knows the range of punishment, and (3) served by an interpreter if the judge is aware of a language barrier. Proenza, 541 S.W.3d at 801 (judicial bias); Grado, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014) (knowledgeable sentencing judge); Garcia, 149 S.W.3d 135, 144 (Tex. Crim. App. 2004) (interpreter). These rights are “so fundamental to the proper functioning of our adjudicatory process” as to be non-forfeitable, and our opinions about them shed some light on what may be “fundamental.”

Proenza addressed Article 38.05’s prohibition against judicial commentary on the weight of the evidence in the jury's presence. See Tex. Code Crim. P. art. 38.05. The prohibition was “fundamental” and non-forfeitable because its violation would cast doubt on the trial judge's impartiality, and the adversarial system depends on or at least assumes such impartiality. Proenza, 541 S.W.3d at 799. An objection to such comments would be “futile at best” or even counterproductive because it would highlight for the jury the judge's antipathy to the defense. Id. And requiring an objection to a judge's expression of bias would risk undermining public confidence in the judicial system. Id. at 799-800.

Grado deemed fundamental the right to a sentencing judge who knows the correct range of punishment because such knowledge implicates “the integrity of judicial sentencing proceedings.” 445 S.W.3d 736, 741 (Tex. Crim. App. 2014). A judge's failure to consider the correct range of punishment risks “undermining the principle that the judicial system applies equally the range of punishment to all offenders.” Id.; see also Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (acknowledging a defendant's right to obtain relief from an illegal sentence on appeal or habeas).

Garcia held that the right to an interpreter is non-forfeitable if the judge knows about the defendant's language barrier. “In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by the defendant.” 149 S.W.3d 135, 145 (Tex. Crim. App. 2004). “It would be illogical to require a non-English-speaking defendant to assert his right to an interpreter in a language he does not understand when he may very well be unaware that he has the right in the first place.” Id. at 144. Garcia “deserved more than to sit in total incomprehension as the trial proceeded.” Id. at 146. Without an interpreter, he was subjected to a Kafkaesque scenario. Id. at 145-46.

But Article 33.03 implicates no such concerns, it anticipates forfeiture, and its constitutional analogs are themselves forfeitable, so we should deem its requirement forfeitable, too.

II. Analysis

Article 33.03’s right to presence does not implicate the concerns at issue in Proenza, Grado, or Garcia or anything like them. Appellant was not prevented by a language barrier—or anything else—from objecting to the Zoom format of his hearing, and neither was his lawyer. An objection would have cost the defense nothing, and it would not likely have been futile or counterproductive; Appellant did not face a hostile judge whose antipathy towards the defense would have been highlighted for the jury by an objection to the Zoom format. And requiring an objection to preserve a complaint under Article 33.03 would not jeopardize the equal application of punishment ranges or cast the judicial system in a bad light. On the contrary, encouraging the prevention and early correction of errors is a good thing. See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (noting the utility of error preservation).

Article 33.03 anticipates forfeiture of the right to presence in the case of a voluntarily absent defendant; it is otherwise silent about error preservation. Under the statute's terms, a felony defendant who voluntarily absents himself after voir dire loses his right to be present at his trial. No on-the-record, intelligent, voluntary relinquishment of a known right is required. See Marin, 851 S.W.2d at 280 (defining waiver). Voluntary absence under Article 33.03 is not any kind of waiver because it is unwarned. By contrast, a defendant can “lose his [constitutional] right to be present at trial” because of his disruptive actions only if the judge warns him that his continued disruptions will cause his removal. Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Without a warning, there is no waiver, so Article's 33.03 anticipates only a forfeiture and not a waiver. Furthermore, we have already held that Article 33.03’s right to presence is forfeitable. Routier v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003); see also United States v. Gagnon, 470 U.S. 522, 529, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (deciding that defendants’ knowing failure to object to their lack of presence at in-chambers discussion during trial “waived” their right); but see Marin, 851 S.W.2d at 280 (losing a right by failing to assert it, “[a]lthough often called a waiver,” is a forfeiture).

The Legislature knows how to write a Marin waiver. E.g., Tex. Code Crim. P. art 1.13(a) (jury waiver); 1.14 (waiver of indictment); 27.18 (waiver of in-person plea proceeding); 36.29 (c) (waiver of verdict by twelve jurors). But it did not write Article 33.03 that way. It is perverse to impose a Marin waiver requirement onto a statute whose only mention of preservation is a narrowly defined forfeiture. And doing so yields absurd results: a more lenient preservation requirement granted by judicial fiat to the defendant who can object—the remotely present one—than the Legislature granted to the wholly absent one who cannot.

Article 33.03’s constitutional analogs—the rights to confrontation and due process—are themselves forfeitable. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (confrontation); Anderson v. State, 301 S.W.3d 276, 279-80 (Tex. Crim. App. 2009) (due process). And the Sixth Amendment may not apply at all to this post-conviction, non-jury punishment hearing. See Betterman v. Montana, 578 U.S. 437, 439, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016) (holding that the Sixth Amendment speedy trial right does not apply after a guilty plea or finding of guilt). Since the constitutional basis for the right to presence may be forfeited, it offers no support for reading the statutory right as non-forfeitable.

The majority errs to impose a waiver requirement onto this statute.

III. Counterarguments

A. Statutory History

Article 33.03’s predecessor statutes and cases decided under them are mostly irrelevant because, aside from the 1911 Code, in effect until 1925, none of the predecessors to Article 33.03 included the critical “voluntarily absent” proviso. And Article 33.03 has never contemplated the situation we face here—a virtually present defendant. Unlike the defendants from bygone years, Appellant was neither absent nor personally present. He had the opportunity to object to his non-personal presence, but he did not, so we should recognize that he forfeited it.

B. Felonies vs. Misdemeanors

Appellant points to Article 33.03’s requirement in felony cases that a defendant “be personally present” and contrasts that with the statute's requirement in misdemeanor cases that the defendant “be present.” See Tex. Code Crim. P. art. 33.03. He says the difference signals a more important right in felony cases. Even if it did, it would not make Article 33.03’s right to presence non-forfeitable; many important rights are forfeitable. His argument is also defective because it neglects the statute's use of the word “likewise.”

Article 33.03 says that in felonies “the defendant must be personally present at the trial, and he must likewise be present” for trial of misdemeanors whose punishment includes incarceration. Tex. Code Crim. P. art. 33.03. “Likewise” means “in like manner.” Webster'S Third New International Dictionary 1310 (2002). A natural reading of Article 33.03 is (1) in a felony trial the defendant must be personally present, and (2) he must be present in like manner in misdemeanors that may be punished by incarceration. The statute does not signify some different form of presence for the two types of cases, and it is unlikely that the Legislature considered videoconferencing a viable alternative to personal presence when the statute was enacted in 1965. Act of June 18, 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 442. Back then, videoconferencing and the internet were embryonic. The defendant either appeared in court or was absent, so “personal” presence could not have meant to distinguish between personal presence and the not-yet-developed “virtual” presence.

IV. Conclusion

Appellant forfeited his right to personal presence under Article 33.03. Since the majority holds otherwise, I respectfully dissent.

FOOTNOTES

1.   Although Appellant raised statutory and constitutional challenges on appeal, the court of appeals “resolve[d] the issue on statutory grounds,” and “did not reach [Appellant's] constitutional challenges.” Tates v. State, 692 S.W.3d 628, 635 (Tex. App. – Corpus Christi-Edinburg 2023, pet. granted). Our review thus concerns the statutory right to be personally present.

2.   On discretionary review, the State raised two issues both of which challenge the lower court's determination that the right at issue is waivable-only. Therefore, no other issue is properly before this Court.

3.   Tex. Penal Code Ann. § 38.04(b)(1)(A).

4.   The record indicates that Appellant had been in the county jail since the trial court's imposition of the increased bond.

5.   The Governor of the State of Tex., Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2094 (2020); Tex. Gov't Code § 22.0035(b) (“Notwithstanding any other statute, the supreme court may modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor.”).

6.   First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265 (Tex. 2020).

7.   Id.

8.   Tates, 692 S.W.3d at 631.

9.   Id.

10.   Id. at 633-35.

11.   Id. at 634 (“If an alleged error falls into one of the first two Marin categories—that is, if it involves a violation of an absolute systemic requirement or a violation of a right that is waivable only—it may be raised for the first time on appeal.”) (citing Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)).

12.   Id.

13.   Id. (citing Burg v. State, 592 S.W.3d 444, 449 (Tex. Crim. App. 2020)).

14.   Id. (citing Lira v. State, 666 S.W.3d 498, 518 (Tex. Crim. App. 2023) (quoting Casias v. State, 503 S.W.2d 262, 264 (Tex. Crim. App. 1973)).

15.   Id. (citations omitted).

16.   Id. at 636.

17.   Id. at 637-38.

18.   Id. at 638.

19.   Id. at 638 (concluding that the statutory violation “warrant[ed] the same result as in Lira”).

20.   Id. at 635.

21.   Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009).

22.   Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017).

23.   Lira, 666 S.W.3d at 505.

24.   Ramos, 303 S.W.3d at 306 (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)).

25.   Lira, 666 S.W.3d at 505.

26.   Tex. Code Crim. Proc. Art. ann. 33.03.

27.   Tates, 692 S.W.3d at 636.

28.   Tex. Code Crim. Proc. 42.03, § 1(a).

29.   Tex. Code Crim. Proc. Ann. 42.03, § 1(b).

30.   Tex. Code Crim. Proc. Ann. 42.14(b).

31.   Id.

32.   Tex. Code. Crim. Proc. Art. 33.03.

33.   Merriam-Webster's Collegiate Dictionary 924 (11th Ed. 2020) (defining “personally” as “in person”).

34.   1856 Tex. Crim. Stat. 540 (“In all prosecutions for felonies the defendant must be personally present on the trial; and he must likewise be present in all cases of indictment or information for misdemeanors where the punishment is imprisonment in Jail.”).

35.   Acts 1907, 30th Leg., ch. 19, § 1, p. 31, eff. Mar. 15, 1907.

36.   1911 Tex. Crim. Stat. 899. The history of the statute thus supports the conclusion that the right to personal presence may be lost through waiver not forfeiture.

37.   Tex. Code Crim. Proc. Art. 42.03, § 1(a).

38.   1856 Tex. Crim. Stat. 682 (“the judgement of the Court, in cases of felony, shall be entered, and sentenced pronounced in presence of the defendant ․”). That is unsurprising given that at common law personal presence was understood to be “essential to a valid trial and conviction on a charge of felony.” Crosby v. United States, 506 U.S. 255, 259, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993). As early as 1873, the Texas Supreme Court recognized that in a prosecution for a felony, “[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 established.” Brown v. State, 38 Tex. 482, 485 (1873).

39.   Tex. R. App. P. 33.1.

40.   Burg, 592 S.W.3d at 449 (citing Marin, 851 S.W.2d at 279-80).

41.   Proenza, 541 S.W.3d at 792 (citing Marin, 851 S.W.2d at 279).

42.   Id.

43.   Id.

44.   Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014) (noting that the Marin categories turn on the nature of the right allegedly infringed).

45.   Lira, 666 S.W.3d at 513 (“Article 33.03 supports the conclusion that a defendant has a substantive right to personal presence that must be waived before a trial court is authorized to proceed remotely”).

46.   Tex. Code Crim. Proc. Ann. art. 33.03.

47.   See Marin, 851 S.W.2d at 279-80 (describing waivable-only rights as those “rights of litigations which must be implemented by the system unless expressly waived” and those for which a defendant “need make no request for the implementation of ․ as the judge has an independent duty to implement them absent an effective waiver by him”).

48.   Tex. Code Crim. Proc. Ann. art. 42.03(a).

49.   See Illinois v. Allen, 397 U.S. at 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (holding “a defendant can lose his right to be present at trial if, after he has been warned ․ he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.”); Snyder v. Mass., 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (“No doubt the privilege (of personally confronting witnesses) may be lost by consent or at times even by misconduct.”); Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (holding that if a defendant voluntarily absents himself after a trial has begun in his presence it “operates like a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.”). The Supreme Court has thus long considered voluntarily absenting oneself to be a waiver.

50.   Marin, 851 S.W.2d at 279-80.

51.   Bell v. State, 32 Tex. Crim. 436, 24 S.W. 418, 440 (1893) (discussing the statutory right for defendants to be personally present on the trial of all felonies). See also Derden v. State, 56 Tex. Crim. 396, 400, 120 S.W. 485, 486 (1909) (considering a defendant's challenge to a verdict rendered in his absence on appeal notwithstanding that no objection was raised before the trial court to the defendant's absence).

52.   Proenza, 541 S.W.3d at 800-01 (“A law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only”) (citing Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)).

53.   See Marin, 851 S.W.2d at 280 (recognizing that a litigant “need make no request” for the implementation of waivable rights and thus, “failure of the judgment to implement them at trial is an error which might be urged on appeal whether or not it was first urged in the trial court”). Category-three rights, on the other hand, are rights that must be implemented upon request. Id. at 279.

54.   Tex. Code Crim. Pro. Art. ann. 33.03.

55.   See Gibson v. State, 3 Tex. App. 437, 442 (1878) (reversing a conviction when defendant had not waived his right to be present at a hearing on his motion for new trial); Shipp v. State, 11 Tex. App. 46, 50 (1881) (noting that it was the duty of the court and the prosecuting attorney to ensure that the defendant be present in court when the trial court dealt with juror communications to the court); Granger v. State, 11 Tex. App. 454 (1882) (reversing case when an appellant was not present when the trial court altered a jury charge); Mapes v. State, 13 Tex. App. 85 (1882) (defendant's absence for the entry of a judgment nunc pro tunc rendered the judgment void); Powers v. State, 23 Tex. App. 42, 5 S.W. 153 (1887) (holding any error from defendant's absence during voir dire of veniremember was harmless because the veniremember did not serve on the jury); Bell v. State, 32 Tex. Crim. 436, 24 S.W. 418, 440 (1893) (holding that an accused cannot be deprived of his right to be present without his consent); Hill v. State, 54 Tex. Crim. 646, 114 S.W. 117 (1908) (interpreting predecessor to Art. 33.03 as requiring a personal waiver of the right to be present from the defendant when the jury in the defendant's murder trial asked to have certain testimony reproduced); Derden v. State, 56 Tex. Crim. 396, 400-03, 407, 120 S.W. 485, 487-88, 491 (1909) (holding that trial court could not return jury verdict in defendant's absence despite trial counsel's failure to object); Gonzales v. State, 38 Tex. Crim. 62, 41 S.W. 605 (holding there was no error when trial court ruled on the defendant's motion for new trial in the defendant's absence because the defendant affirmatively declined the trial court's offer to re-urge it after setting the ruling aside); O'Toole v. State, 40 Tex. Crim. 578, 51 S.W. 244 (1899) (holding that defendant's temporary absence when the jury was empaneled did not result in error because the defendant declined the trial court's offer to re-empanel the jury in the defendant's presence); Cason v. State, 52 Tex. Crim. 220, 106 S.W. 337 (1907) (introducing evidence in defendant's absence was not error because the evidence was reintroduced in the defendant's presence); Killman v. State, 53 Tex. Crim. 570, 112 S.W. 92 (1908) (upholding conviction even though defendant voluntarily absented himself during a portion of his attorney's argument “without discussing the question of waiver”); Foreman v. State, 60 Tex. Crim. 576, 578, 132 S.W. 937, 938 (1910)(holding that defendant was entitled to have his motion for trial granted because evidence was inadvertently presented in his absence); Brooks v. State, 77 Tex. Crim. 517, 179 S.W. 447 (1915) (reversing a conviction in which the defendant was absent during an argument for an instructed verdict and rejecting an argument that the error was forfeited by trial counsel's failure to object); Crow v. State, 89 Tex. Crim. 149, 230 S.W. 148 (1921) (holding that defendant's absence during jury selection required reversal even though trial counsel rejected the trial court's offer to bring the defendant back into court to discuss exusing a previously selected juror); Sullivan v. State, 90 Tex. Crim. 170, 174, 233 S.W. 986, 988 (1921) (op. on reh'g) (holding no error occurred when defendant voluntarily absented himself while evidence was introduced because the same evidence was reintroduced in his presence but noting that the right to be present cannot be waived for a defendant by his counsel); Curl v. State, 65 Tex. Crim. 431, 436, 145 S.W. 602, 606 (1912) (upholding conviction where defendant voluntarily absented himself when part of the charge was read to the jury and noting both that counsel failed to object and that the defendant consented to being absent); Whitehead v. State, 66 Tex. Crim. 482, 147 S.W. 583 (1912) (holding defendant had voluntarily absented himself during part of his attorney's opening statement); Fry v. State, 78 Tex. Crim. 435, 439-40, 182 S.W. 331, 333-34 (1916) (holding that defendant voluntarily absented himself during reading of “dynamite” charge to the jury); Cartwright v. State, 97 Tex. Crim. 230, 259 S.W. 1085 (1923) (prosecutor's display of an item of physical evidence to the jury in the courtroom in the defendant's absence was a harmless violation of statute requiring personal presence during trial); Ballou v. State, 113 Tex. Crim. 493, 494, 22 S.W.2d 666, 667 (1929) (treating voluntary absence as a species of waiver); Ex parte Cassas, 112 Tex. Crim. 100, 13 S.W.2d 869 (1929) (effectively holding that defendant who left the courtroom because he was intoxicated had voluntarily absented himself as his attorney argued the case, but also noting that the defendant failed to object); Schafer v. State, 118 Tex. Crim. 500, 502-02, 505, 40 S.W.2d 147, 149, 150 (1931) (holding that defendant's absence during jury communications with the court and noting that the defendant did not waive his statutory right to be present); Henderson v. State, 137 Tex. Crim. 18, 127 S.W.2d 902 (1939) (reversing misdemeanor conviction in which the trial court considered and overruled a defendant's motion despite the defendant's absence from court); Lee v. State, 144 Tex. Crim. 135, 161 S.W.2d 290 (1942) (holding that defendant's absence during a hearing on a motion for instructed verdict was not voluntary and reversing the defendant's conviction despite trial counsel's lack of objection); Phillips v. State, 163 Tex. Crim. 13, 288 S.W.2d 775 (1956) (holding that defendant did not waive his right to be present during hearing on his motion for new trial); Gonzales v. State, 515 S.W.2d 920, 921 (Tex. Crim. App. 1974) (treating voluntary absence as a species of waiver of a defendant's right to be personally present at trial); Johnston v. State, 477 S.W.2d 891, 893 (upholding conviction despite defendant's voluntary absence from trial while also noting that the defendant's attorney failed to object to the continuation of the trial in the defendant's absence).

56.   Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003).

57.   Id.

58.   Id. at 575.

59.   Id. Indeed, in Marin, this Court explained that the error preservation requirements set out in Rule 33.1 of the Rules of Appellate Procedure only apply to the types of claims that are forfeitable through inaction and not claims involving violations of “fundamental” rights or rights that must be affirmatively waived by the defendant. Marin, 851 S.W.2d at 280. Unfortunately, the Court did not explain how reviewing courts should go about determining where particular rights or requirements fit into the Marin categorization scheme, so the inquiry appears to be undertaken on a case-by-case basis. See, e.g., Gutierrez v. State, 380 S.W.3d 167, 177 (Tex. Crim. App. 2012) (evaluating which Marin category a self-deportation condition of community supervision falls into).

60.   Id. at 576.

61.   Id. at 576-77 (noting that under both Article 33.03 and due process it was not shown that the waiver of presence given by counsel was erroneous).

62.   We acknowledge that in United States v. Gagnon, the Supreme Court found that a defendant's failure to object was relevant to whether he voluntarily absented himself under Rule 43 of the Federal Rules of Criminal Procedure for purposes of an in-camera conference. United States v. Gagnon, 470 U.S. 522, 528, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). But, as the Supreme Court noted, “[i]f a defendant is entitled under Rule 43 [which contains an exception for conference or argument upon a question of law] to attend certain ‘stages of trial’ which do not take place in open court, the defendant or his counsel must assert that right at the time.” Id. at 529, 105 S.Ct. 1482. The proceeding at issue, sentencing, is an adversarial proceeding that took place in open court and thus, is unlike the in-camera proceeding at issue in Gagnon.

63.   Relying on Routier, as the State suggests, would serve to exacerbate the confusion between an affirmative waiver and forfeiture through inaction, which Marin draws a distinction between. Marin, 851 S.W.2d at 278-79 (recognizing waivable only rights cannot be extinguished by inaction rather they require express waiver). By failing to consider Marin in Routier, the Court conflates the two distinct concepts.

64.   Hughes v. State, 691 S.W.3d 504, 523 (Tex. Crim. App. 2024).

65.   Id.

66.   Id. at 519-20.

67.   Tates, 692 S.W.3d at 634.

68.   Id.

69.   Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).

70.   Tates, 692 S.W.3d at 634 (citing Lira, 666 S.W.3d at 518).

71.   Casias, 503 S.W.2d at 265.

72.   Id. (“A purported sentence which does not meet all the elements of the statutory definition is no sentence at all.”).

73.   Tex. Code Crim. Proc. Ann. art. 42.02 (1965).

74.   Act of June 8, 1981, 67th Leg., R.S., ch. 291, Tex. Gen. Laws 761, 809 (amending Article 42.02 to define “sentence” as “that part of the judgment, or order revoking a probated sentence, that orders that the punishment be carried into execution in the manner prescribed by law.”).

75.   Tex. Code Crim. Proc. Ann. art. 42.02 (“The sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.”).

76.   Lira, 666 S.W.3d at 506 (“As we held in Ogg, the Supreme Court's Emergency Orders cannot suspend procedures designed to protect substantive rights ․ “) (citing In re Ogg, 618 S.W.3d 361, 364 (Tex. Crim. App. 2021) (recognizing that neither Government Code Section 22.0035(b), which authorizes the modification or suspension of procedures for the conduct of court proceedings during a disaster declared by the governor, nor the Emergency Orders themselves “purport to authorize courts to modify substantive rights”).

77.   The State argues that Appellant consented in fact to proceeding remotely because neither Appellant nor his counsel indicated a need or preference for Appellant to be physically present. While we have not been entirely consistent on what amounts to a sufficient waiver of a Marin category 2 right, we decline the State's invitation to recast the failure to object as an affirmative waiver. See Marin, 851 S.W.2d at 280 (recognizing a litigant may “give [waivable rights] up” but are not “deemed to have done so in fact unless [the litigant] say so plainly, freely, and intelligently, sometimes in writing and always on the record”); Routier, 112 S.W.3d at 576 (concluding the defendant did not show that the trial court erred to accept her attorney's waiver of her presence); compare with Hill v. State, 54 Tex. Crim. 646, 114 S.W. 117, 118-19 (1908) (interpreting Article 33.03’s predecessor and refusing to accept trial counsel's purported waiver). In this case, there was no attempt at an affirmative waiver, so we need not address the question of what constitutes a sufficient affirmative waiver of a waiveableonly right.

78.   Id.

79.   Though it may seem counter-intuitive given that our discussion of the nature of the right at issue decides whether Appellant had a right to be personally present, we do not address the issue of whether the substantive right to be personally present was violated in this case because it is not clearly raised in the points of error we granted even though it is arguably raised in the State's briefing. Because we do not believe we are asked to address the remedy assessed below for what the court of appeals regarded as the trial court's error, we need not remand the case for the court of appeals to assess the question of harm.

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.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.

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 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?

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, 4 S.Ct. 202, 28 L.Ed. 262 (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, 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, 105 S.Ct. 1482, 84 L.Ed.2d 486 (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.

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, 5 S.W. 153 (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”).

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).

14.   The Court explained that Hill “was on bond at the time and was voluntarily absent[.]” Id. at 649, 114 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.

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 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”).

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 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 (1923) (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).

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 S.W. 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, 32 S.Ct. 250, 56 L.Ed. 500 (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 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 preShipp 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 Crispen, 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.

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.

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, 114 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).

1.   Tex. Code Crim. Proc. art. 33.03.

2.   223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (brackets and emphasis added).

3.   Yeary, J., concurring at n.20 (citing Whitehead v. State, 66 Tex. Crim. 482, 147 S.W. 583 (1912)).

4.   See Whitehead, 66 Tex. Crim. at 486-88, 147 S.W at 585-86.

5.   See Fed. R. Crim. P. 43(c)(1)(A), (B) (“voluntarily absent”); United States v. Gagnon, 470 U.S. 522, 524 n.1, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (quoting from 1975 version of R. 43) (“voluntarily absents”); Fed. R. Crim. P. 43, Notes (U.S.C.S. 1992) (quoting from original 1944 version of R. 43) (“voluntary absence”).

6.   See supra at nn.2, 5; Taylor v. United States, 414 U.S. 17, 17-20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (rejecting contention that the defendant must be expressly warned about the right to be present and the dangers and disadvantages of being absent); Gagnon, supra (quoting then R. 43(b)(1) (“whether or not the defendant has been informed by the court of the obligation to remain during the trial”); Fed. R. Crim. P. 43, Advisory Committee Notes, 1974 amendment (U.S.C.A. 1990) (Rule change “makes clear that voluntary absence may constitute a waiver even if the defendant has not been informed by the court of his obligation to remain during the trial,” and “a warning seldom is thought necessary in current practice.”).

7.   See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Gagnon, supra (quoting then R. 43(b)(2) (“after being warned by the court that disruptive conduct will cause him to be removed from the courtroom, persists in conduct which is such as to justify his being excluded from the courtroom”)); Fed. R. Crim. P. 43, Notes of Committee on the Judiciary, House Report No. 94-247 (U.S.C.S. 1992) (citing Allen).

8.   See supra at n.2 (“in custody” exception); Fed. R. Crim. P. 43(a) (current, last amended in 2011) (permitting certain misdemeanor proceedings by video-conference if the defendant gives “written consent”).

9.   Gagnon, 470 U.S. at 528, 105 S.Ct. 1482 (“We disagree with the Court of Appeals that failure to object is irrelevant to whether a defendant has voluntarily absented himself under Rule 43 from an in camera conference of which he is aware. The district court need not get an express ‘on the record’ waiver from the defendant for every trial conference which a defendant may have a right to attend. As we have noted previously, ‘there is scarcely a lengthy trial in which one or more jurors does not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial.’ A defendant knowing of such a discussion must assert whatever right he may have under Rule 43 to be present.”) (brackets and citation omitted).

10.   See Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993) (“Instead, if a defendant wants to relinquish one or more of them, he must do so expressly ․ The State may not successfully put him to trial without counsel or jury merely because he voiced no objection to the procedure. Rather, it must first obtain his permission by express waiver—waiver which is not sufficient in contemplation of the law unless it amounts to the ‘intentional relinquishment or abandonment of a known right or privilege.’ ”) (ellipsis inserted, citation omitted).

11.   Cf. supra at n.2 (“operates as a waiver”).

12.   See Rushing v. State, 85 S.W.3d 283, 286 (Tex. Crim. App. 2002) (The Legislature can change the error-preservation rules for rights, requirements, or prohibitions that it creates.).

13.   See supra at n.9.

14.   Cf. Gagnon, 470 U.S. at 524 n.1, 105 S.Ct. 1482 (quoting then Fed. R. Crim. P. 43(c)(3) (providing an exception for “a conference or argument upon a question of law”)).

15.   See Routier v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003) (concluding that error was forfeited under Tex. R. App. P. 33.1).

16.   See id. (further addressing the defendant's claim in “an abundance of caution”).

17.   See supra at n.2.

18.   See Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

19.   See Maine v. Thibodeau, 475 U.S. 1144, 1146, 106 S.Ct. 1799, 90 L.Ed.2d 343 (1986).

Newell, J., delivered the opinion of the Court in which Schenck, P.J., Richardson, Yeary, Walker, Mcclure, Finley and Parker, JJ., joined.

Yeary. J., filed a concurring opinion in which Schenck, P.J., and Parker, J., joined. Parker, J., filed a concurring opinion in which Schenck, P.J., and Finley, J., joined. Keel, J., filed a dissenting opinion.