Summary
holding that the Confrontation Clause does apply to revocation proceedings
Summary of this case from Cunningham v. StateOpinion
NO. 14-20-00628-CR
03-15-2022
Darren Tramell HUGHES, Appellant v. The STATE of Texas, Appellee
Patrick F. McCann, Houston, for Appellant. Jessica Alane Caird, Kim K. Ogg, Clinton Morgan, Houston, for Appellee.
Patrick F. McCann, Houston, for Appellant.
Jessica Alane Caird, Kim K. Ogg, Clinton Morgan, Houston, for Appellee.
Panel consists of Justices Wise, Spain, and Hassan.
Meagan Hassan, Justice
Darren Tramell Hughes appeals his conviction for tampering with a government record following an adjudication of guilt after violating the terms and conditions of his community supervision. Appellant contends (1) the trial court denied his right to be present in the courtroom during his community supervision revocation hearing; (2) the evidence is insufficient to support the trial court's adjudication of his community supervision; and (3) the trial court judgment should be reformed to correct several errors. We reverse and remand.
BACKGROUND
Appellant was indicted for tampering with a government record in 2016. In March 2017, Appellant pleaded guilty without an agreed recommendation to punishment; the trial court deferred his adjudication of guilt and placed him on community supervision for three years. In January 2020, the State moved to adjudicate Appellant's guilt and alleged, among other things, that Appellant committed forgery.
The trial court held a hearing on the State's motion to adjudicate on August 25, 2020. Although Appellant's counsel was present in the courtroom at the hearing, the State, the witnesses, and Appellant attended via Zoom. The trial court stated Appellant is on "video in the jail and the reason he is not here in court is because he has been exposed to COVID-19 and may have even tested positive for it but those are people who are on the list not to come to court and are prohibited from coming to court for — because the administration is afraid they could expose other people to the virus."
Appellant pleaded "false", "i.e. , ‘not true’ " to the State's allegation he committed forgery in January 2020. At the hearing, Appellant tried to speak or interject during witness testimony and the State's closing argument, but the trial court instructed that Appellant be muted. Appellant was not given an opportunity to speak or communicate during the hearing except for when he testified in his defense. After hearing evidence and the parties’ closing statements, the trial court found the State's allegation of forgery true, adjudicated Appellant guilty, and assessed his punishment at ten years’ confinement. The trial court certified Appellant's right to appeal, and Appellant filed a timely notice of appeal.
ANALYSIS
I. Sufficiency of the Evidence
We begin by addressing Appellant's second issue, in which he argues that the "evidence is insufficient to support the trial court's adjudication of Appellant's community supervision."
An order revoking community supervision must be supported by a preponderance of the evidence, meaning that the greater weight of the credible evidence would create a reasonable belief that the defendant has violated a condition of his community supervision. Rickels v. State , 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006) ; see also Hacker v. State , 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013) and Black v. State , 411 S.W.3d 25, 28 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We review an order revoking community supervision under an abuse of discretion standard. Hacker , 389 S.W.3d at 865 ; Rickels , 202 S.W.3d at 763 ; Black , 411 S.W.3d at 28. In conducting this review, we view the evidence in the light most favorable to the trial court's order. Moore v. State , 11 S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ; Greer v. State , 999 S.W.2d 484, 486 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd). The trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony. Bell v. State , 566 S.W.3d 398, 401-02 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ; Moore , 11 S.W.3d at 498.
The State alleged Appellant violated the terms and conditions of his community supervision by committing forgery on or about January 12, 2020. A person commits the offense of forgery if he "forges a writing with intent to defraud or harm another." Tex. Penal Code Ann. § 32.21(b) ; see also Johnson v. State , 425 S.W.3d 516, 520 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). "Forge" means to "alter, make, complete, execute or authenticate any writing so that it purports ... to be the act of another who did not authorize that act." Tex. Penal Code Ann. § 32.21(a)(1)(A).
"To prove the requisite intent, the trier of fact must be able to reasonably infer that Appellant knew the instrument was forged." Ramsey v. State , 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). In reviewing the evidence to determine whether the trier of fact reasonably could have made this inference, we look to the totality of the circumstances and weigh all of the facts. Leroy v. State , 512 S.W.3d 540, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Intent to defraud or harm may be established by circumstantial evidence. Williams v. State , 688 S.W.2d 486, 488 (Tex. Crim. App. 1985) (en banc). "There is no bright-line rule establishing what the State must present to show intent to defraud or harm another." Leroy , 512 S.W.3d at 543.
Appellant argues that although the trial court is the sole judge of the credibility of the witnesses, "here the inconsistencies and lack of evidence beyond the testimony of a sole police officer lead to the determination that no rational trier of fact could have found the essential elements of forgery by a preponderance of the evidence" and in particular that "Appellant knew the check was forged." We disagree and determine the evidence is sufficient to show Appellant committed forgery.
At the adjudication hearing, Detective Mezegabe testified that he set up a sting operation after he was contacted by a car dealership parts manager regarding a potential forgery scheme. He testified that Appellant had requested car parts and communicated with the manager via email under the name Jimmy Martin. The manager set up a meeting with Appellant at which Mezegabe would deliver the requested car parts instead of the manager. On January 10, 2020, Mezegabe waited for Appellant at the location Appellant chose. When Appellant arrived, he rolled down his car window and asked Mezegabe if he was "the parts guy." Mezegabe answered affirmatively and Appellant instructed Mezegabe "to meet him around the back." Mezegabe followed Appellant "around the back of the building." After Appellant exited his car, Mezegabe asked him if he was "Jesse Martin" but Appellant corrected him saying: "No, I'm Jimmy Martin." Mezegabe identified Appellant during the hearing as the man who introduced himself as Jimmy Martin.
Mezegabe testified that Appellant tried to pay for car parts giving Mezegabe a forged "check that was written out to Joe Meyers [sic] and it was from Tex Star Auto Repair" in the amount of $493.14. A copy of the forged check was admitted into evidence and identified by Mezegabe as "a copy of the check that was given to" him by Appellant. Mezegabe testified that his investigation showed the check Appellant gave him was fraudulent because the "account numbers, everything -- the company is fraudulent." Mezegabe also testified the following occurred during his interview with Appellant:
[Appellant] stated he knew nothing about this and that he was working for somebody. And during the investigation we found that he had a[n] application on his phone that is a burner app which he used to — you come up with a phone number and it's a spoof cell phone number. You can make phone calls and texts. And that's the number that he was using to communicate with Joe Myers. And then also, the same e-mail address for
Jimmy Martin, we had the parts manager e-mail him while we were here and we saw the notification on his phone, on his e-mail, pop up on his phone.
Mezegabe testified that he did not see Appellant write the forged check and that several car dealerships sold parts to a person who identified himself as Jimmy Martin. "[T]he payments to those dealerships made by the person that identified himself as Jimmy Martin" were fraudulent and made "[w]ith similar checks." Mezegabe further testified that when police searched Appellant's car, they found "two more fraudulent checks that were filled out and multiple blank checks."
Appellant testified in his own defense. He claimed he did not write or sign the checks found in his car but that "[s]omewhere on the southwest side" "[a] guy met [him] and gave them to [him]." Appellant testified: "I was basically working for somebody. They told me they would pay me $150 to do a pickup. Once I dropped the parts off, whatever [the] situation may have been." Appellant denied sending e-mails to the car dealership under a specifically alleged email address; he claimed that "the same burner app [Mezegabe] said I have on my phone, half the world has it on their phone and he got it on his phone, Detective Mezegabe."
Considering (1) the evidence shows that Appellant used a false name, used a spoof cell phone number to communicate with the dealership, lied to police about emailing the dealership, and had other forged and blank checks in his car; and (2) the trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony at the hearing on a motion to adjudicate, the court could have determined that Appellant knew the check he gave Mezegabe was forged and Appellant intended to defraud the dealership by trying to pay for parts with the forged check.
Based on the record before us, we conclude the evidence is sufficient to support the trial court's finding that Appellant committed the offense of forgery in violation of the terms and conditions of his community supervision. Accordingly, we overrule Appellant's second issue.
II. Presence at Revocation Hearing
In his first issue, Appellant contends the trial court denied his right to be present in the courtroom during his community supervision revocation hearing and that, absent waiver by a defendant, a trial court has an independent duty to secure a defendant's presence in the courtroom for his revocation hearing. He also contends there was no waiver and that he was harmed by the trial court's denial of his right to be present in person at his revocation hearing because he was unable to communicate with his counsel in a meaningful way and "his attempts to interject during the hearing resulted in clear frustration on the part of the trial court."
The State acknowledges that the Sixth Amendment right to confrontation encompasses a right to be present but claims "the right to confrontation does not apply at probation revocation proceedings." The State also claims that Appellant's presence via Zoom satisfied due process requirements and that any error was harmless.
We begin our analysis by addressing whether the constitutional guarantees of confrontation and due process of law apply to revocation hearings.
A. Revocation Hearing and Constitutional Guarantees of Confrontation and Due Process
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." U.S. Const. amend. VI ; Illinois v. Allen , 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Allen , 397 U.S. at 338, 90 S.Ct. 1057. "One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." Id. ; see also Garcia v. State , 149 S.W.3d 135, 140 (Tex. Crim. App. 2004). The right of confrontation includes the right to face-to-face confrontation and the right to meaningful and effective cross-examination. Coronado v. State , 351 S.W.3d 315, 325 (Tex. Crim. App. 2011). "Indeed, it is that personal presence of the defendant and the right to ask probing, adversarial cross-examination questions that lies at the core of an American criminal trial's truth-seeking function." Id.
The Texas Court of Criminal Appeals opinion in Ex parte Doan , 369 S.W.3d 205 (Tex. Crim. App. 2012) controls. There, the Court of Criminal Appeals held that "[c]ommunity-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings." Id. at 212.
Although several intermediate appellate court cases (decided both pre- and post- Doan ) have concluded that the Confrontation Clause does not apply to community supervision revocation proceedings, we are not bound by cases that are contrary to high court pronouncements. These cases do not recognize the importance of Doan and, thus, neglect to give controlling weight to the Court of Criminal Appeals's pronouncements therein.
See Olabode v. State , 575 S.W.3d 878, 881 (Tex. App.—Dallas 2019, pet. ref'd) ("By its own terms, the Confrontation Clause applies only to criminal prosecutions, and a probation revocation, whether it follows ‘regular’ probation or deferred adjudication probation, is not a stage of criminal prosecutions."); Mauro v. State , 235 S.W.3d 374, 375-76 (Tex. App.—Eastland 2007, pet. ref'd) ("Because a revocation hearing is not a stage of a criminal prosecution, [the Confrontation Clause] is inapplicable."); Trevino v. State , 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ("This court has consistently held in light of the Confrontation Clause's focus on criminal prosecutions, that the clause does not apply to post-conviction proceedings."); see also Taylor v. State , No. 09-19-00171-CR, 2020 WL 6472684, at *7 (Tex. App.—Beaumont Nov. 4, 2020, no pet.) (mem. op., not designated for publication) ("[A] community supervision revocation proceeding, while a judicial proceeding, is not a stage of a criminal prosecution. Accordingly, the Confrontation Clause is inapplicable in those proceedings."); Corona v. State , No. 14-17-00821-CR, 2019 WL 1768598, at *3 (Tex. App.—Houston [14th Dist.] Apr. 23, 2019, no pet.) (mem. op., not designated for publication) ("A community supervision revocation hearing is not part of a criminal prosecution.").
In Doan , the court laid out the differences and similarities in revocation hearings in federal and state courts in light of controlling United States Supreme Court precedent governing constitutional rights. Id. at 209-12. It acknowledged a distinction between a federal probation revocation hearing (which is an administrative proceeding requiring a preliminary hearing to determine probable cause to believe a probationer has violated a condition of his probation before proceeding to a hearing in front of the parole authority) and the Texas system, which is based in the courts and has only one hearing. Id. at 209-10. The court specifically pointed out that a Texas community supervision revocation proceeding "bears little resemblance" to the administrative hearing under the federal scheme, explaining:
In Texas, the State is represented by a prosecutor, the defendant does have a right to counsel, the hearing is before the judge, formal rules of evidence do apply, and there may be [an] appeal directly to a court of appeals. They are conducted entirely within the judicial branch. The Rules of Evidence and the exclusionary rule to bar illegally seized evidence apply fully in a Texas probation revocation hearing. Indeed, aside from the burden of proof required to prove a community-supervision violation (preponderance of the evidence, which is lower than the burden of proof beyond a reasonable doubt that is required to prove a new criminal offense), there are few procedural differences between a Texas criminal trial and a Texas community-supervision revocation proceeding.
Id. at 210. The Court of Criminal Appeals acknowledged that "in some respects" there is "an ‘administrative’ nature to a trial court's decision in a revocation hearing" in that, "[e]ven if a community-supervision violation is proven, the trial court has the discretion to continue or modify the terms of community supervision rather than revoking it," and the court "has the discretion to make this determination based on its weighing of policies, such as protecting the public and rehabilitating the offender." Id. at 212. However, the court explained that the fact a decision includes some policy considerations does not turn a "distinctly judicial proceeding into an administrative one." Id. In that regard, it noted that juries and trial courts weigh policy considerations with a great degree of discretion when deciding whether to sentence a defendant to community supervision, "but we would never characterize the punishment phase of a trial as an administrative proceeding." Id. It further noted the difference between revocation proceedings and administrative proceedings:
A Texas community-supervision revocation proceeding involves the application of law to past facts that remain static. It is conducted according to judicial rules before a trial judge, not an administrative agency. Applying administrative law—the law that governs the decision-making processes of administrative agencies—to revocation hearings has no basis in the Code of Criminal Procedure. Community-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings.
Id.
The "minimal requirements of due process" apply to Appellant's community supervision revocation proceeding for the same reason they apply in federal administrative proceedings to revoke parole or probation, i.e. , that the revocation of community supervision results in a loss of liberty—a right protected by the Due Process Clause. See Torres v. State , 617 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (Keyes, J., concurring). Given the Texas Court of Criminal Appeals's holding in Doan , we conclude that due process safeguards apply at a community supervision revocation hearing.
B. Violation of the Confrontation Clause
Next, we must determine whether the trial court violated Appellant's right to be present in the courtroom during his community supervision revocation hearing under the Confrontation Clause of the Sixth Amendment. Appellant contends that his constitutional complaint is not subject to procedural default under ordinary preservation of error rules because a defendant's right to be present at his revocation hearing cannot be forfeited; instead, absent waiver by a defendant, a trial court has an independent duty to secure a defendant's presence in the courtroom (regardless of whether his trial counsel requests same). Appellant argues that because he did not waive his right to proceed with his revocation hearing via Zoom, he was denied his Sixth Amendment right to be present at this critical proceeding to confront witnesses.
To resolve whether Appellant's trial counsel was required to object to preserve error, we must categorize the asserted error under the procedural default rules outlined in Marin v. State , 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (en banc). In Marin , the Court of Criminal Appeals recognized three categories of rights: rights that are mandatorily enforced, rights subject to waiver, and rights subject to forfeiture. Peyronel v. State , 465 S.W.3d 650, 652 (Tex. Crim. App. 2015) ; Marin , 851 S.W.2d at 279.
The first category, mandatorily enforced rights, involve absolute requirements and prohibitions. See Garcia , 149 S.W.3d at 144. The "[i]mplementation of these requirements is not optional and cannot, therefore, be waived or forfeited by the parties." Marin , 851 S.W.2d at 279. The second category, rights subject to waiver, involve rights that must be implemented by the trial court unless expressly waived. Garcia , 149 S.W.3d at 144 ; Marin , 851 S.W.2d at 280. A defendant need not make such a request, and failure of the court to implement these second category rights at trial is an error that can be presented on appeal whether or not it was first urged in the trial court. Marin , 851 S.W.2d at 280. A defendant's waiver of his right must amount to an intentional relinquishment or abandonment. See Peyronel , 465 S.W.3d at 652. The third category, rights subject to forfeiture, involve rights which are implemented upon request. Garcia , 149 S.W.3d at 144. "All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong," and many constitutional rights fall into this third category. Marin , 851 S.W.2d at 279.
The First Court of Appeals has already addressed this question. See Hayes v. State , 516 S.W.3d 649, 656 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). There, the defendant "was not ‘brought up’ from the jail on the day that his co-defendant, Amos, testified and presented his own punishment defense." Relying on the Court of Criminal Appeals’ opinion in Garcia , the court in Hayes concluded that the Sixth Amendment right to be present for trial to confront witnesses is a category two Marin right and cannot be forfeited by counsel's failure to assert it on a defendant's behalf. Id. at 655-56 (citing Garcia , 149 S.W.3d at 144-46 (finding that the right to have an interpreter, which it equated to a right to be present in the courtroom, is a category two right under Marin that must be implemented by a trial court absent a defendant's waiver, and concluding that a trial court violates a defendant's Sixth Amendment right to be present to understand and confront witnesses when it is aware the defendant has difficulty understanding English but fails to assure the proceedings are translated for him)). The court also stated that "[t]his conclusion is supported by the U.S. Supreme Court's language in Allen , wherein it stated that ‘the privilege (of personally confronting witnesses) may be lost by consent or at times even by misconduct.’ " Id. at 656 (quoting Allen , 397 U.S. at 342-43, 90 S.Ct. 1057 ). We agree with the Hayes court's holding and conclude that the Sixth Amendment right to be present to confront and cross-examine witnesses is a category two Marin right that, absent a waiver by the defendant, must be implemented by a trial court and that failure to do so can be challenged on appeal regardless of whether it was first urged in the trial court. Here, Appellant did not waive his right to be present; therefore, he can challenge on appeal whether the trial court erred in securing his presence via Zoom (as opposed to securing his physical presence in the courtroom). However, we are neither prepared to make blanket pronouncements in this case nor conclude that a defendant is not present at a proceeding under the Sixth Amendment if he is present via video-conferencing.
In Hayes , the defendant was tried together with a co-defendant, but the defendant was not present in the courtroom during part of the punishment proceeding in which his co-defendant testified and presented his own punishment defense. See id. at 651-53.
In this case, Appellant's counsel appeared in the courtroom, but the trial court only allowed Appellant to attend his revocation hearing via video-conferencing "because he has been exposed to COVID-19 and may have even tested positive." Appellant was in a separate break-out room with no possibility to communicate with his counsel in private regarding how to confront and cross-examine Mezegabe—the sole witness the State called to prove its forgery allegations. Without the possibility to speak to his counsel in confidence during witness testimony, Appellant was not truly present during his hearing. Instead, he was relegated to being a distant observer with no opportunity to confront or cross-examine as envisioned by the Confrontation Clause. We conclude that Appellant was not present at his hearing for Sixth Amendment purposes when he could not interact with his counsel regarding confrontation and cross-examination of the witness. Therefore, under the circumstances of this particular case, the trial court violated Appellant's Sixth Amendment right to be present to confront and cross-examine witnesses. "This error is of constitutional magnitude." Kessel v. State , 161 S.W.3d 40, 48 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) ; see also Garcia , 149 S.W.3d at 146.
There is no evidence that Appellant in fact tested positive or had COVID-19.
Our dissenting colleague opines that this finding is unsupported by the record and that "Appellant does not point to any part of the record demonstrating that he was unable to communicate with his counsel during the hearing." Dissenting Op. at 473. We disagree. First, Appellant's brief states, "[T]he trial court denied Appellant his right to be present at this critical proceeding ... by ‘muting’ Appellant whenever he tried to speak during the hearing. (RR 11, 15, 20, 27, 40, 41, 43)." A review of these pages in the record reveals that during Appellant's counsel's cross-examination of Mrs. Jones (the person assigned to monitor Appellant's community supervision), Appellant stated, "You can't stop me — talking —" to which the court responded, "Can someone mute the defendant?". The next time Appellant spoke, he simply asked, "What?", to which the trial court responded, "Would you mute the defendant again". The next time Appellant spoke, he interrupted Mezegabe's testimony and accused him of lying; again, the court instructed that he be muted. Ordinarily, Appellant would have been (and should have been) afforded the opportunity to privately communicate such matters with his attorney sitting next to him in the courtroom. Here, however, he was denied that opportunity before being sentenced to ten years of confinement.
Having found this constitutional error, we must reverse the judgment adjudicating Appellant's guilt unless we determine beyond a reasonable doubt that the trial court's error did not contribute to the judgment. See Tex. R. App. P. 44.2(a) ; Garcia , 149 S.W.3d at 146 ; Kessel , 161 S.W.3d at 48. As we stated above, Appellant's right to confront and cross-examine Mezegabe was severely affected by Appellant's inability to communicate with his counsel either in person or in a private video-conference setting. Appellant did not have an opportunity to tell his counsel in confidence if Mezegabe was lying or if the events occurred differently than Mezegabe claimed during his testimony.
Appellant was also unable to point out to his counsel any inconsistencies or inaccuracies in Mezegabe's testimony. Had Appellant been able to interact with his counsel, his counsel might have elicited other testimony that would have cast doubt on Mezegabe's version of events. We do not know what Appellant would have told his counsel if Appellant had been present in the courtroom or able to confidentially communicate with his counsel via video-conferencing, or how his counsel would have cross-examined Mezegabe. Any time Appellant tried to speak or interject during Mezegabe's testimony or the State's argument, the trial court instructed that Appellant be muted.
Based on the record before us, we cannot determine beyond a reasonable doubt that the trial court's violation of Appellant's Sixth Amendment right to be present to confront and cross-examine witnesses did not contribute to the trial court's judgment revoking Appellant's community supervision. Because we conclude the trial court committed harmful error, we sustain Appellant's first issue.
CONCLUSION
Having sustained Appellant's first issue, we reverse the trial court's judgment and remand the case to the trial court for further proceedings.
In light of our disposition, we need not address Appellant's third issue in which he contends the trial court judgment "should be reformed to correct the following errors: the name of Appellant's attorney, Appellant's plea to the motion to adjudicate, what conditions of community supervision were found to have been violated by Appellant, that his appeal has not been dismissed, and that a mandate has not issued."
( Wise, J., dissenting).
DISSENTING OPINION
Ken Wise, Justice
I have two primary concerns with the majority's opinion. First, the majority does not exercise judicial restraint when it claims that this court's precedent is contrary to a higher court's precedent because the majority crafts a rule of constitutional law broader than is necessary under the specific facts of this case. Second, the majority finds error based on an allegation that is not supported by the record—specifically, that appellant was unable to communicate privately with counsel. For these reasons, I respectfully dissent.
I. JUDICIAL RESTRAINT
A cardinal principle of judicial restraint is that "if it is not necessary to decide more, it is necessary not to decide more." VanDevender v. Woods , 222 S.W.3d 430, 433 (Tex. 2007). Courts should not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Estes v. State , 546 S.W.3d 691, 696–97 (Tex. Crim. App. 2018) ; Pena v. State , 191 S.W.3d 133, 136 (Tex. Crim. App. 2006).
The majority states that this court's decision in Trevino v. State , 218 S.W.3d 234 (Tex. App.—Houston [14th Dist.] 2007, no pet.), is contrary to the Court of Criminal Appeal's decision in Ex parte Doan , 369 S.W.3d 205 (Tex. Crim. App. 2012). See Majority Op. at 467 & n.2. There are two problems with this assertion.
First, appellant does not complain about Trevino ’s holding that the admission of a witness's out-of-court testimonial statement does not violate the Confrontation Clause for a probationer on post-conviction community supervision. See 218 S.W.3d at 239. His claim on appeal is based on the distinct right to be present during a criminal proceeding, which is derived from both the Confrontation Clause and the Due Process Clause of the United States Constitution. See Majority Op. at 466–68; Gilley v. State , 383 S.W.3d 301, 306–07 (Tex. App.—Fort Worth 2012) ("While the right to be present is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, the right also has a due process component."), aff'd , 418 S.W.3d 114 (Tex. Crim. App. 2014). The majority acknowledges the due-process aspect of appellant's claim. See Majority Op. at 466–68. Thus, it is unnecessary to undermine Trevino ’s holding, as the majority does, by holding broadly that the Confrontation Clause applies at a community supervision revocation hearing. See Majority Op. at 470.
Second, notwithstanding the fact that Ex parte Doan says nothing about the Confrontation Clause, Trevino need not be overruled by a panel of this court because Trevino involved community supervision following a conviction (i.e., "straight probation"), while appellant's case involves deferred adjudication community supervision preceding a conviction. In a case of straight probation, the defendant has been found guilty, and punishment has been assessed; the defendant serves community supervision in lieu of physical confinement. Trevino reasoned that a straight probation revocation proceeding was a "post-conviction proceeding," to which the Confrontation Clause does not apply. See Trevino , 218 S.W.3d at 239. With deferred adjudication probation, however, there has been no finding of guilt and no punishment assessed until after the community supervision is revoked; that is, appellant had not yet been adjudicated guilty, nor had his sentence been assessed, at the time of his revocation hearing. See generally Tapia v. State , 462 S.W.3d 29, 31 n.2 (Tex. Crim. App. 2015). As such, his revocation hearing—a unitary proceeding at which the trial court revoked community supervision, found appellant guilty, assessed punishment, and sentenced him—was not necessarily a "post-conviction proceeding" under the holding in Trevino. See Cantu v. State , 339 S.W.3d 688, 690–91 (Tex. App.—Fort Worth 2011, no pet) (avoiding the question of whether the Confrontation Clause applies to deferred adjudication community supervision revocation proceedings, but noting that deferred adjudication means, unlike straight probation, there has been no conviction, so it is unclear whether the Trevino rationale applies).
By purportedly overruling Trevino , rather than distinguishing it, the majority has decided more than is necessary and formulated a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
II. INSUFFICIENT RECORD
The majority declines to make a blanket holding "that a defendant is not present at a proceeding under the Sixth Amendment if he is present via video-conferencing" although not physically inside the courtroom. Majority Op. at 470. Rather, the majority holds that appellant was not "truly present" during the revocation hearing because he had "no possibility to communicate with his counsel in private regarding how to confront and cross-examine" the State's key witness. Id. Nothing in the record support's the majority's factual assertion.
It is an appellant's burden to present a record demonstrating reversible error. See Newman v. State , 331 S.W.3d 447, 450 (Tex. Crim. App. 2011) ; see also Ortiz v. State , 144 S.W.3d 225, 230 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (en banc) (holding that an appellant has a "burden of presenting a record to show error requiring reversal insofar as he is required to develop the record to show the nature and source of an error and, in some cases, its prejudice to him"). Just like any other claim of error, the record must establish an allegation based on an inability to communicate with counsel as a result of utilizing remote video conferencing. See Cathey v. State , No. 07-20-00235-CR, 2021 WL 1376961, at *2 (Tex. App.—Amarillo Apr. 12, 2021, no pet.) (mem. op., not designated for publication) (holding that the appellant's rights to confront witnesses and to the effective assistance of counsel were not violated when the trial court held a community supervision revocation hearing by Zoom; "That appellant may not have been able to communicate with her attorney may be significant had the record established the allegation."); see also Linton v. State , 275 S.W.3d 493, 509 (Tex. Crim. App. 2009) (holding that the deaf defendant's due process rights were not violated when "whatever communication difficulties might have existed between appellant and her trial counsel were not apparent in the record" and she failed to identify any specific instance in which she was unable to communicate with counsel during trial); cf. In re K.G. , No. 05-20-01053-CV, 2021 WL 688447, at *4 (Tex. App.—Dallas Feb. 23, 2021, pet. denied) (mem. op.) ("Nothing in the record shows appellant could not discuss the case with his attorney in private. We conclude appellant has failed to show the trial court erred by holding the hearing by remote video conference.").
Appellant does not point to any part of the record demonstrating that he was unable to communicate with his counsel during the hearing, which was held by Zoom video conference. Nor does the record show that appellant asked to speak with his attorney about any particular matter, despite appellant interjecting during the proceeding at least seven times. Although the record shows that the trial court announced an intention to mute appellant on several occasions, appellant continued to interrupt the proceedings. Even if appellant was muted for some unknown amount of time, nothing in the record affirmatively shows that appellant was prevented from speaking with counsel , either through typed messages or a separate breakout room. Under these circumstances, and given the technical capabilities of Zoom video conferencing, we cannot speculate that appellant was unable to speak privately with his counsel during the hearing if he desired to do so. See Cathey , 2021 WL 1376961, at *2 (noting the capability in Zoom video conference for a trial court to place the defendant and her counsel "in a separate room, so to speak, in which they could converse in private," yet neither the defendant nor counsel requested it); see also Vazquez Diaz v. Massachusetts , 487 Mass. 336, 167 N.E. 3d 822, 831–32, 841 (2021) (rejecting claim of deprivation of counsel based on trial court's holding of a virtual evidentiary hearing during Covid-19 pandemic; noting that a "Zoom hearing allows [the defendant] to communicate with counsel privately upon request and through the Zoom ‘breakout room’ feature" and that the "use of Zoom can effectively safeguard the defendant's right to be present by allowing him to listen to the evidence, adequately observe the witnesses who testify at the hearing, and privately consult with his attorney at any time during the Zoom hearing"); Chaparro v. Nevada , 137 Nev. ––––, 497 P.3d 1187, 1190-92 (2021) (rejecting due-process claim and upholding sentencing of the defendant by Zoom during the Covid-19 pandemic; noting that the defendant "joined the hearing from a jail courtroom and was able to communicate confidentially with counsel").
To the extent appellant wanted to develop the record to present his claim on direct appeal, he had the ability to do so through a motion for new trial. See Tex. R. App. P. 21.2 ; see also Linton , 275 S.W.3d at 509 (rejecting due-process claim based on lack of adequate interpreter when the defendant failed to identify at the motion for new trial hearing any specific instance in which she was unable to communicate adequately with her counsel during trial or how any such failure led to a fundamentally unfair trial).
Appellant's complaint that he was unable to communicate with counsel is not supported by the record, and the majority should not indulge this speculation.
III. CONCLUSION
For the reasons discussed above, I respectfully dissent.