Opinion
NO. PD-1003-20
02-22-2023
Justin KING, Appellant v. The STATE of Texas
Michael Evans, Houston, for State. Clay Dean Thomas, Nacogdoches, for Appellant.
Michael Evans, Houston, for State.
Clay Dean Thomas, Nacogdoches, for Appellant.
OPINION
Keller, P.J., announced the judgment of the Court and filed an opinion in which Richardson, Keel and Slaughter, JJ., joined.
At issue in this case is whether the trial court violated the Due Process Clause or Article 28.01, Section 1 of the Code of Criminal Procedure when it held a pre-trial hearing in Appellant's absence. We find that there was no due process violation and any Article 28.01 violation was harmless.
I. BACKGROUND
A. Trial
Appellant was charged with evading arrest or detention with a motor vehicle and with theft of a firearm. The trial court held a pre-trial hearing on Appellant's motion in limine regarding punishment evidence. Appellant's trial counsel attended the hearing, but Appellant was not present in the courtroom. The trial court granted the unopposed motion in limine after a brief discussion with the attorneys.
While appellant was still outside the courtroom, the attorneys and trial court discussed whether Appellant intended to stipulate to the enhancements alleged in the indictment and whether Appellant might be disruptive at trial. Defense counsel also said that Appellant "believes he can fire me and get another attorney and delay this trial." The trial court responded that the trial would not be delayed. The next two minutes of the bench conference are not in the record.
Back on the record, the trial court and attorneys discussed how they would conduct voir dire under the assumption that Appellant would plead not guilty. Appellant then entered the courtroom. The State's attorney said he would be trying only the evading arrest charge and would use the theft of firearm charge as an unadjudicated pending offense during the punishment phase.
At this point, Appellant's trial counsel left the courtroom. The trial court advised Appellant of his right to plead not guilty and asked whether he wanted to plead not guilty and go to trial. Appellant said that he wanted to plead guilty on the evading arrest charge and have the jury assess punishment. The trial court then asked Appellant to confirm this with his trial counsel. Appellant's trial counsel returned to the courtroom, and Appellant told his attorney, "I want to apologize to you. I want you to represent me to the fullest extent. I want to plead ‘guilty’ to the evading and use the jury for sentencing." The court then explained that pleading guilty would affect the way the attorneys conducted voir dire. Appellant said that he understood and wanted to plead guilty.
Appellant did not formally plead guilty to the charge and true to the enhancements until the next day. The jury found Appellant guilty and assessed punishment at twenty years’ confinement and a $10,000 fine.
B. Court of Appeals
On direct appeal, Appellant argued that his absence from the hearing violated the Fourteenth Amendment's Due Process Clause and Article 28.01, Section 1 of the Code of Criminal Procedure. The Court of Appeals agreed that Appellant's absence was error but found the error to be harmless because Appellant's presence did not bear a reasonably substantial relationship to his defense and his absence did not affect the outcome of the trial. Appellant's petition for discretionary review asks, "Can harmlessness be presumed from a silent record when a defendant has been denied his constitutional and statutory rights to be present during a pretrial proceeding?"
King v. State , No. 10-19-00354-CR, 2020 WL 5667148, at *2 (Tex. App.—Waco Sept. 23, 2020).
Id. at *3.
II. ANALYSIS
A. Law
Multiple constitutional provisions protect a defendant's right to be present at different stages of prosecution. The Fourteenth Amendment Due Process Clause is implicated when "the defendant is not actually confronting witnesses or evidence[.]" In Snyder v. Massachusetts , the Supreme Court stated that the due process right to presence is not absolute; rather, the "presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Put another way, there is no due process violation when the defendant's presence does not bear a reasonably substantial relationship to his or her defense. Of course, if there is no due process violation, no harm analysis need be conducted.
United States v. Gagnon , 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (Sixth Amendment Confrontation Clause and Fifth Amendment Due Process Clause); Snyder v. Massachusetts , 291 U.S. 97, 106-08, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (Fourteenth Amendment Due Process Clause).
Gagnon , 470 U.S. at 526, 105 S.Ct. 1482 ; see Routier v. State , 112 S.W.3d 554, 587 (Tex. Crim. App. 2003) (stating the Sixth Amendment applies when the defendant is actually confronting witnesses).
Snyder , 291 U.S. at 107-08, 54 S.Ct. 330.
Routier , 112 S.W.3d at 576.
In addition to the Due Process Clause, Article 28.01, Section 1 of the Texas Code of Criminal Procedure requires that a defendant be present during "any pre-trial proceeding." A violation of Article 28.01 is non-constitutional error subject to review under Texas Rule of Appellate Procedure 44.2(b). Rule 44.2(b) states that non-constitutional error must be disregarded unless it affects the defendant's substantial rights. "A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect."
Tex. Code Crim. Proc . art. 28.01, § 1.
See Tex. R. App. P . 44.2(b).
Id.
Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
B. Application
Appellant raises four issues discussed during the bench conference that he contends the Court of Appeals failed to adequately address: (1) how Appellant's attorney would handle the motion in limine; (2) how Appellant might plead to the charge and enhancements; (3) whether Appellant might be disruptive at trial; and (4) trial counsel's comment about Appellant hoping to substitute new counsel to delay trial. Discussing each in turn, we find that Appellant cannot prevail under either the due process standard or Rule 44.2(b).
Appellant's Brief at 10.
Appellant first argues that he did not have the opportunity to consult with trial counsel about the motion in limine. Both parties cite to Adanandus v. State , where the defendant challenged his conviction because the trial court conducted a pre-trial hearing in his absence. In that case, we held that the defendant's absence was harmless because the defendant's trial counsel was present at the meeting, sufficiently advocated on the defendant's behalf, and secured favorable rulings. Further, there was "no evidence that appellant had any information, not available to the attorneys or the court, regarding any of the matters discussed at the meeting."
Adanandus v. State , 866 S.W.2d 210, 217 (Tex. Crim. App. 1993).
Id. at 220.
Id.
The same is true here. Appellant's trial counsel was present at the hearing and argued Appellant's unopposed motion in limine, which the trial court granted in its entirety. Further, Appellant does not contend that he had any personal insight or information not already available to the attorneys or the court that would have aided his defense. So his presence did not have a reasonably substantial relationship to defending the motion in limine. For the same reasons, we have fair assurance that the error did not influence the jury. This was a preliminary hearing. Nothing decided about the motion in limine was final. And the trial court granted the motion that was the subject of the hearing.
See id.
See id.
Appellant next argues that he did not have the opportunity to consult with counsel before pleading guilty after the State said it would proceed on only the evading arrest charge. But Appellant did not formally enter his plea until the next day. The trial court was simply trying to determine how voir dire would be conducted. The trial court did ask Appellant to confer with his trial counsel about his plea in relation to voir dire. And Appellant told his attorney, on the record, that he wanted to plead guilty to the evading arrest charge and have the jury assess punishment. We are also assured that Appellant's absence did not influence the jury. If there was concern about the effect of altered charges, Appellant and his counsel had ample opportunity to resolve such concerns before moving forward with his plea. In fact, using the theft-of-firearm charge as an unadjudicated offense only benefitted Appellant because it was considered pursuant to Texas Penal Code § 12.45 and is now barred from prosecution.
Cf. Adanandus , 866 S.W.2d at 217 (giving defendant a second opportunity to fully voir dire venirepersons who were previously voir dired in his absence).
Cf. Kapperman v. State , No. 01-20-00127-CR, 2022 WL 3970081, at *28 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022, no pet.) (mem. op., not designated for publication) (finding no constitutional harm in the defendant's absence from trial when the defendant could consult with counsel during breaks between witnesses and when the court recessed, and there was no indication the defendant was denied an opportunity to speak with counsel).
Appellant next argues that he should have been present to defend against his attorney's statement that he might be disruptive at trial. But Appellant elected to have the jury determine punishment, and the jury was not in the courtroom when trial counsel made the statement. Moreover, there is no evidence that the trial court made any rulings based on the statement, or that the attorneys or trial court ever alluded to Appellant being disruptive in front of the jury. His presence would have served no purpose, and his absence could not have influenced the jury's decision.
Appellant next contends that there may have been some issue with trial counsel's representation based on his comment about Appellant wanting another attorney and that the trial court should have conducted a hearing to resolve the issue. But later in the hearing, Appellant made an apparently unsolicited apology to his trial counsel in front of the trial judge and clearly stated that he wanted his trial counsel to continue representing him. Appellant already made his wishes clear; nothing would have been gained from a separate hearing on the matter. For the same reason, we have fair assurance that his absence from the pretrial hearing did not affect the jury's decision.
See Snyder v. Massachusetts , 291 U.S. 97, 106-07, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (stating a defendant's presence is not substantially related to the defense when any additional benefit is minimal); see also Adanandus , 866 S.W.2d at 220.
Last, Appellant argues that "[b]ecause of the unrecorded 2-minute bench conference, the record contains insufficient data to assess harm, and reversal is required." We have held that, except for certain errors labeled by the Supreme Court as "structural," no category of cases is immune from harmless error analysis. There are instances where "the data is insufficient to conduct a meaningful harmless error analysis," but that is not the case here. Due process cases do not typically place the burden on the State to show that there was no violation, and absent some evidence to the contrary, we will presume that an off-record discussion between the attorneys and trial court during a short interlude at an otherwise typical preliminary hearing, such as this, involved trivial or insubstantial matters with minimal significance to the due process analysis. As for the Rule 44.2(b) analysis, neither party bears the burden of proof. We need only have fair assurance, based on our independent review of the whole record, that Appellant's absence did not contribute to the jury's decision or had but slight effect.
Appellant's Brief at 7.
Cain v. State , 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).
Id. ; see also VanNortrick v. State , 227 S.W.3d 706, 714 (Tex. Crim. App. 2007).
Compare Routier v. State , 112 S.W.3d 554, 587 (Tex. Crim. App. 2003) 576-77 (finding no due process violation where the defendant could not show that her presence at an in-chambers meeting regarding trial transcripts was reasonably related to the defense), with Ex Parte Chavez , 371 S.W.3d 200, 208-09 (Tex. Crim. App. 2012) (placing burden on defendant to show both falsity and materiality in false testimony due process claim), and Ex parte Kimes , 872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (placing burden on defendant to show suppression of material evidence in Brady due process claim).
See United States v. Gagnon , 470 U.S. 522, 527, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (finding no due process violation from trial court's private discussion with a juror and an attorney for one of the defendants about a defendant drawing sketches of the jury where (1) the meeting was a "short interlude in a complex trial"; (2) there was nothing the defendants could have contributed to the discussion; and (3) the trial judge was inquiring into a "minor occurrence"); cf. Kentucky v. Stincer , 482 U.S. 730, 746–47, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (finding no due process violation after defendant was excluded from competency hearing where the sole focus of the hearing was to determine the witnesses’ competence and not the substantive testimony they might give at trial).
VanNortrick , 227 S.W.3d at 708-09.
See id.
Nothing in our review suggests that the nature of the hearing changed during the unrecorded discussion. In fact, the first thing the trial court stated back on the record was that it would conduct voir dire under the assumption Appellant intended to plead not guilty. The unrecorded conversation was likely limited to that issue, and as we have said, Appellant made his wishes clear on that front. But even if other issues were discussed, we have no reason to believe that Appellant would have made unique contributions, or that the discussions substantially influenced the jury's decision. The unrecorded discussion occurred outside the presence of the jury, during a preliminary hearing, and there is nothing in the record to suggest that the trial court made any binding decisions adverse to Appellant as a result. The decisions that were made, by the trial court and the State's attorney, seem only to have benefitted Appellant.
See Love v. State , 543 S.W.3d 835, 846 (Tex. Crim. App. 2016) ("[W]e take into account any and every circumstance apparent in the record that logically informs [the harmless error determination].").
III. CONCLUSION
There was no due process violation because Appellant's presence did not bear a reasonably substantial relationship to defending the hearing, and the Article 28.01 violation was harmless because Appellant's absence did not substantially affect the jury's decision. We affirm the court of appeals and the trial court.
Newell, J., filed a concurring opinion in which Hervey and Walker, JJ., joined.
Yeary and McClure, JJ., concurred.
NEWELL, J., filed a concurring opinion in which Hervey and Walker, JJ., joined.
The court of appeals held that the error in this case—Appellant's absence from a pre-trial conference attended in full by his attorney—was harmless under both the constitutional and statutory standards for determining harm. Appellant primarily argues before this Court that this is the rare case in which it is impossible for a reviewing court to conduct a meaningful harm analysis because the record is silent regarding a portion of that pre-trial conference. Specifically, he relies upon our unanimous holding in VanNortrick v. State to support his argument. Rather than analyze whether error occurred in this case or even analyze the proper standard of harm, I would simply distinguish VanNortrick and affirm the court of appeals.
King v. State , 10-19-00354-CR, 2020 WL 5667148 at *3 (Tex. App.—Waco Sept. 23, 2020).
In VanNortrick , we held that a trial court's error in failing to admonish the defendant regarding the immigration consequences of his guilty plea (as article 26.13 of the Code of Criminal Procedure requires) was not harmless. We explained that analyzing harm requires a reviewing court to conduct an independent examination of the record as a whole. Further, neither party carries a burden to prove harm or harmlessness resulting from the error.
VanNortrick v. State , 227 S.W.3d 706 (Tex. Crim. App. 2007).
Id. at 708-709.
Id. at 709.
But we also explained that the record was insufficient to establish the defendant's citizenship. And, because of the silent, or nearly silent record, we would be required to speculate about whether the defendant would have changed his mind about his guilty plea had he been properly admonished. Ultimately, we held that a silent record on the issue of citizenship or a record that is insufficient to determine citizenship establishes harm for non-constitutional error. Moreover, the record was also silent, or at least insufficiently vocal, about the defendant's thought process in pleading guilty and what effect admonishments regarding immigration consequences would have had on the defendant's decision to plead.
Id. at 713.
Id. at 714.
Id.
Appellant argues in this case that the silent record regarding the portion of the pre-trial conference requires the same result as in VanNortrick. But it doesn't. Unlike in VanNortrick , in this case we can still conduct an independent review of the record to determine if any error (constitutional or non-constitutional error) flowing from Appellant's absence from the pre-trial proceeding resulted in harm. While we may not know what transpired during the off-the-record bench conference, we can still look at the rest of the proceedings to see if, for example, the discussion "impacted the trial court's attitude towards the defendant" as the dissent below suggested.
King , 2020 WL 5667148 at *4 (Gray, CJ., dissenting).
There is no indication from the remainder of the proceedings that Appellant was precluded from advancing his preferred strategy, involuntarily waived any rights, or even received any erroneous rulings from the trial court. More generally, nothing in the remainder of the proceedings indicates that the trial court or Appellant's counsel deprived Appellant of a fair trial. Unlike the situation in VanNortrick , we are not left to speculate as to the effects of what occurred off the record because, unlike in VanNortrick , we can judge the effects of what occurred off the record in this case by looking at what occurred on the record. We can independently examine the record as a whole (not merely the record of the pre-trial conference) to determine whether there is fair assurance that whatever occurred during the pre-trial conference did not impact the rest of the proceedings adversely to Appellant. It did not. Looking at the record as a whole, I see nothing that indicates that Appellant's absence from the pre-trial conference resulted in either constitutional or non-constitutional harm.
The court of appeals held that any error was harmless. I do not believe this Court improves upon that analysis. We could easily just dismiss this case as improvidently granted. Or we could remand the case to the court of appeals to reconsider its analysis in light of VanNortrick given that neither party addressed this issue below. But since we granted discretionary review to essentially determine whether the record is sufficient to conduct a meaningful harm analysis, I would simply hold that it is and affirm the court of appeals’ harm analysis. The rest of the Court's analysis is unnecessary.
With these thoughts, I concur.