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rejecting state’s contention harmless error analysis applied
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NO. PD-0212-21 NO. PD-0213-21
01-11-2023
Eluid LIRA, Appellant v. The STATE of Texas Scott Huddleston, Appellant v. The State of Texas
John R. Messinger, for State. John C. Moncure, for Appellant.
John R. Messinger, for State.
John C. Moncure, for Appellant.
Newell, J., delivered the opinion of the Court in which Hervey, Richardson, Walker and McClure JJ., joined.
Does the Texas Supreme Court's "Seventeenth Emergency Order Regarding the COVID-19 State of Disaster" authorize a trial court to conduct a plea proceeding via videoconference despite the lack of a defendant's written consent? No. We have previously held in In re Ogg that the Supreme Court's emergency orders modifying deadlines and procedures could not be used to suspend a party's substantive rights or a procedure that involves a trial court's authority. The statutory requirement that a defendant consent in writing to a plea proceeding by videoconference is both a substantive statutory right and procedure necessary for the trial court to have the authority to proceed. As the court of appeals held, it is on par with the written-consent-by-the-State requirement at issue in Ogg . Accordingly, we affirm the court of appeals.
Background
The State charged both Appellants with second-degree felony assault on a public servant. The State alleged in Lira's indictment that he had previously been convicted twice for felony possession of a controlled substance and twice for felony possession of a controlled substance with intent to distribute. The State alleged in Huddleston's indictment that he had previously been convicted for murder. Both Appellants were represented by the State Counsel for Offenders.
Both Appellants reached plea agreements with the State and their cases were set for back-to-back pleas via a "zoom/video-conference plea docket." Prior to the hearing, counsel for Appellants filed identical motions objecting to the trial court's setting the cases for plea hearings via a Zoom videoconference. In the motions, Appellants argued that pleading by videoconference would violate their constitutional right to counsel, right to public trial, and statutory rights under Articles 27.18 and 27.19 of the Code of Criminal Procedure. The State filed identical responses to the motions and argued that the use of Zoom videoconference technology during the hearings would not affect the Appellants’ ability to consult with counsel; intrude on confidential communications between Appellants and their attorneys; or restrict the public's access to the proceeding. Ultimately, the State argued that Emergency Orders issued by the Supreme Court of Texas controlled over the Code of Criminal Procedure.
When the day for the videoconference arrived, the trial court heard arguments regarding the Appellants’ motions and overruled them. Appellant Lira was sentenced to eight years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. Appellant Huddleston was sentenced to eight years and a fine of $3,000. The parties agreed that Appellants would retain their right to appeal "on constitutional issues, public trial issues, the 27.18 all of those issues, the right to counsel ..."
Appeal
On appeal, the Appellants argued that their statutory right to enter a guilty plea in person in open court was a substantive right. Because of this, it was not subject to the Texas Supreme Court's emergency orders regarding the modification or suspension of deadlines and procedures. The State argued that, if preserved, Appellants’ arguments failed because the Texas Supreme Court had the authority to modify or suspend "the act of criminal defendants appearing live in live courtrooms[.]"
The court of appeals agreed with the Appellants. It held that paragraph 3(c) of the Seventeenth Emergency Order could not require a defendant in a criminal case to appear via videoconference for a plea hearing over his objection. First, the court of appeals cited to this Court's recent decision in In re State ex. Rel. Ogg for the proposition that neither Section 22.0035(b) nor the Seventeenth Emergency Order purported to authorize a trial court to modify substantive rights. Next, it noted that a defendant's rights to appear both in person and in open court are not merely procedural, but substantive rights provided for by statute. After noting that the conditions set out in Articles 27.18 and 27.19 of the Code of Criminal Procedure had not been met, the court of appeals held that the trial court was not authorized to accept the guilty plea. Finally, the court of appeals held that the plea was voidable because of the trial court's lack of authorization.
Lira v. State , 630 S.W.3d 439, 442 (Tex. App. – Eastland 2021) ; Huddleston v. State , 630 S.W.3d 436, 439 (Tex. App. – Eastland 2021).
Lira , 630 S.W.3d at 441 ; Huddleston , 630 S.W.3d at 438.
618 S.W.3d 361 (Tex. Crim. App. 2021) (orig. proceeding).
Lira , 630 S.W.3d at 442 ; Huddleston , 630 S.W.3d at 438.
Lira , 630 S.W.3d at 442 ; Huddleston , 630 S.W.3d at 438 (citing to Tex. Code Crim. Proc. arts 1.13, 27.18, and 27.19 ).
Lira , 630 S.W.3d at 442 ; Huddleston , 630 S.W.3d at 439.
Lira , 630 S.W.3d at 442 ; Huddleston , 630 S.W.3d at 439 (citing generally Davis v. State , 956 S.W.2d 555, 557–58 (Tex. Crim. App. 1997) ; Ogg , 618 S.W.3d at 365 ; Lilly v. State , 365 S.W.3d 321, 328, 333 (Tex. Crim. App. 2012) ).
Petitions for Discretionary Review
In its petition for review to this Court, the State Prosecuting Attorney (SPA) raised one ground: "If a defendant has to accept the benefit of a negotiated plea agreement via videoconferencing, has he lost a substantive right or been harmed?" We note at the outset that the SPA's framing of its issue lacks precision. This is not a situation in which the Appellants consented to appear via videoconference in exchange for a plea bargain recommendation. Rather, the Appellants objected to the videoconference proceeding and refused to provide written consent to that procedure before formally entering a plea and accepting a plea bargain. As mentioned above, the parties agreed, and the trial court noted that Appellants would be able to appeal the issue raised in their pre-trial motion.
This is akin to the situation we faced in Lilly v. State , in which the defendant objected to the location of a plea-bargain proceeding (claiming it violated his right to a public trial) prior to entering the plea. In Lilly , we rejected the argument that the defendant's public trial claim had been waived by acceptance of the plea bargain. To the extent that the SPA is arguing that Appellants consented to the videoconference by accepting the plea bargain, we reject that argument just as we rejected the waiver argument in Lilly.
Lilly v. State , 365 S.W.3d 321, 324-25 (Tex. Crim. App. 2012).
Id. at 328.
Id.
According to the SPA, the overarching question in these cases is whether the right to accept a plea in person rather than by videoconference is a matter of procedure subject to modification during a declared disaster. After noting various models of determining the character of the contested rights in these cases, the SPA argues that this Court held in In re Ogg that procedures affecting jurisdiction or authority are not subject to modification by the Supreme Court's Emergency Order. According to the SPA, this case is distinguishable from Ogg because the statute at issue does not confer jurisdiction or authority over a particular type of proceeding. Finally, the SPA argues that, even if the trial court was not authorized to suspend the consent requirement, the result was regular trial error subject to non-constitutional harm analysis and the Appellants were not harmed because they "got everything [they] wanted."
In response, the Appellants argue that this case is like Ogg because the requirement of written waiver of pleading in person and in open court are procedures that implicate the trial court's jurisdiction or authority in the same way that the procedural requirement that the State consent to a defendant's waiver of a jury trial does. Appellants acknowledge that a trial court does have jurisdiction to accept a defendant's guilty plea, but they argue that Section 22.0035(b) of the Government Code did not supply it with jurisdiction to suspend their substantive rights to appear in person under Article 27.13. Appellants argue that the failure to comply with these procedures renders a proceeding void but argue in the alternative that if the error is subject to harm analysis, it is subject to analysis for constitutional error because the suspension of Article 27.13 rights violated "federal constitutional due-process principles."
With these arguments in mind, we turn to the question at hand. Does the Texas Supreme Court's "Seventeenth Emergency Order Regarding the COVID-19 State of Disaster" authorize a trial court to conduct a plea proceeding via videoconference despite the lack of a defendant's written consent? Again, no.
Standard of Review
When we interpret statutes, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. In so doing, we necessarily focus our attention on the plain text of the statutes and attempt to discern the fair, objective meaning of the text at the time of its enactment. Our duty is to try to interpret the work of our legislature as best we can to fully effectuate the goals they set out.
Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Id.
Tex. Code Crim. Proc. art. 1.26 ("The provisions of this Code shall be liberally construed so as to attain the objects intended by the Legislature: The prevention, and suppression, and punishment of crime."); see also , e.g. , Tex. Penal Code § 1.05(a) ("The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.").
In interpreting the text of 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. We do not focus solely upon a discrete provision; we look at other statutory provisions as well to harmonize provisions and avoid conflicts. Accordingly, time-honored canons of interpretation, both semantic and contextual, can aid interpretation, provided the canons esteem textual interpretation. Statutory construction is a question of law that we review de novo.
State v. Rosenbaum , 818 S.W.2d 398, 400–01 (Tex. Crim. App. 1991) (citing Tex. Gov't Code §§ 311.025(b), 311.026(a) ); State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).
Watkins v. State , 619 S.W.3d 265, 272 (Tex. Crim. App. 2021) ; see , e.g. , Murray v. State , 302 S.W.3d 874, 877–79 (Tex. Crim. App. 2009) (interpreting the phrase "included in the indictment" in Article 4.06 of the Code of Criminal Procedure after considering Articles 37.08 and 37.09 of the Code of Criminal Procedure ).
Watkins , 619 S.W.3d at 272.
Id. at 273.
Analysis
To appropriately answer the question in this case, we first set out the underlying statutory authority for the Supreme Court's recent Emergency Orders, the cause of the Emergency Order underlying this case, and the text of the Emergency Order at issue in this case. Second, we discuss our recent opinion in In re Ogg and the cases that it relied upon. Third, we discuss the underpinnings of a defendant's substantive statutory right to be personally present during court proceedings. And finally, we set out the textual mechanisms for the waiver of a defendant's right to trial by jury, a defendant's plea of guilty or no contest without a jury, and the mechanisms for a videoconferenced plea proceeding.
Ultimately, we agree with the court of appeals that the trial court had no authority to preside over a videoconferenced plea hearing where the Appellants had not waived in person or in writing their right to be present. As we held in Ogg , the Supreme Court's Emergency Orders cannot suspend procedures designed to protect substantive rights, nor can they create authority for a trial court to preside over proceedings over which it has no authority. Under the plain text of the relevant statutes, the trial court would not have had authority to proceed to the videoconferenced plea absent the Appellants’ consent. The Supreme Court's emergency order could not provide a trial court with authority that did not previously exist.
Texas Government Code Section 22.0035, COVID-19, and the Supreme Court's Seventeenth Emergency Order
In 2009, the Texas Legislature amended the Texas Government Code to add Section 22.0035. The new section authorized the Texas Supreme Court, notwithstanding any other statute, to 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:
See Acts 2009, 81st Leg., ch. 1281, § 1, eff. June 19, 2009.
(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. An order under this section may not extend for more than 90 days from the date the order was signed unless renewed by the chief justice of the supreme court.
The new section was spurred by a string of natural disasters that had impacted Texas in the preceding two years. It sought to address the difficulties that events such as Hurricane Ike posed for courts attempting to maintain schedules and meet statutory deadlines. At base, it sought to acknowledge the "inherent authority" of the Texas Supreme Court, in the event of a declared disaster, "to suspend procedures to conduct any affected court proceeding." By its own terms, the statute does not authorize the suspension or modification of substantive rights.
Senate Research Center, Bill Analysis, Tex. H.B. 1861, 81st Leg. at 1 ("Author's / Sponsor's Statement of Intent").
Id.
Id.
On March 4, 2020, the State of Texas reported its first case of COVID-19. In reaction, Texas Governor Greg Abbott issued a proclamation certifying that "COVID-19 pose[d] an imminent threat of disaster" and declared a state of disaster for "all counties in Texas." Following this, the Texas Supreme Court, in conjunction with this Court, issued its First Emergency Order Regarding the COVID-19 State of Disaster pursuant to Section 22.0035(b) of the Government Code. The Texas Supreme Court has renewed this Order multiple times, with many orders superseding prior orders.
In re State of Texas , 602 S.W.3d 549, 550 (Tex. 2020).
The Governor of the State of Tex., Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2094–95 (2020).
Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket Nos. 20-9042, 596 S.W.3d 265, 265–66 (Tex. 2020).
Ogg , 618 S.W.3d at 364.
On May 26, 2020, the Texas Supreme Court issued its Seventeenth Emergency Order Regarding the COVID-19 State of Disaster (the Emergency Order). The Emergency Order provided, in pertinent part:
Supreme Court of Texas, Seventeenth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9071, 609 S.W.3d 119 (Tex. 2020).
3. 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. except as provided in paragraph (b), modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order for a stated period ending no later than September 30, 2020;
b. [addressing proceedings under Subtitle E, Title 5 of the Family Code]
c. Allow or require anyone in any hearing, deposition, or other proceeding of any kind—including but not limited to a party, attorney, witness, court reporter, grand juror, or petit juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means;
[...].
Id. at (3)(a-c).
This Emergency Order was in place at the time of both pleas underlying this case.
In re Ogg and the Authority it Relied Upon
We have recently held that "[t]he Supreme Court's Emergency Order does not authorize a trial court to preside over proceedings over which the judge would otherwise be barred from presiding." In In re Ogg , a trial court concluded that it could conduct a bench trial despite the State's refusal to consent to the defendant's waiver of his or her right to a jury. The State sought mandamus relief from this Court, arguing that the Emergency Order merely governed procedures and deadlines and did not "imbue courts with the discretion to selectively ignore the substantive rights and privileges of parties." We ultimately held that the trial court did not have the authority to preside over a non-jury proceeding without the consent of the State and we conditionally granted mandamus relief.
Ogg , 618 S.W.3d at 364.
Id. at 362.
Id. at 362–63.
Id. at 366.
Notably, we did not regard the requirement at issue in Ogg —the State's written consent to the defendant's waiver of a jury trial—as a "substantive right." Instead, we regarded it as a procedure necessary to empower the trial court to proceed to determine the case without a jury. Statutorily, this requirement appears as one of several pre-conditions necessary to affect a defendant's waiver of his or her right to a jury determination of guilt and punishment. Article 1.13 sets out that a defendant's waiver of his right to a jury is only effective if the waiver occurs in person, in writing, and in open court. Moreover, the statute sets out that the procedures for a videoconferenced plea in Article 27.19 are an exception to these statutory requirements. Of course, we did not address in Ogg whether the lack of these other pre-conditions for a waiver of a jury deprived the trial court of authority to proceed. However, these pre-conditions are textual equals to the pre-condition that we did consider, namely the statutory requirement that the State provide written consent to a defendant's waiver of his or her personal right to a jury trial.
Of course, it would have made no sense to analyze the procedure at issue as a "substantive right" of the State. The State does not have "substantive rights," particularly not a "right" to a jury. State ex. rel Turner v. McDonald , 676 S.W.2d 371, 373 (Tex. Crim. App. 1984) ("As a matter of "right," the State technically has none to a trial by jury[.]"). As we explained in State ex rel. Turner v. McDonald , "[D]ue process and due course of law are guarantees to citizens and not governments or their agents." Id. However, we noted in our opinion in Ogg , that the Emergency Order, by its own terms, did not authorize the modification of substantive rights. Ogg , 618 S.W.3d at 364. And we equated the unauthorized proceeding with the complete abrogation of a defendant's substantive right. Id. at 365. Further, the SPA argues that the defendant's written consent requirement at issue here is neither a substantive right nor a procedure affecting the trial court's authority to proceed. Accordingly, we must analyze whether the Emergency Order authorized the abrogation of a substantive right or a procedure affecting a trial court's authority.
In analyzing whether the State's written consent to a defendant's waiver of his or her right to a jury trial was necessary to provide the trial court with authority to proceed without a jury, we started our analysis by looking to the plain text of both Article 1.13 and Government Code Section 22.0035(b). We observed that, "[o]n their faces, neither Section 22.0035(b) nor the Emergency Order purport to authorize courts to modify substantive rights" and only address "procedural matters." We also looked to prior cases where we issued mandamus relief against a trial court attempting to conduct bench trials without the State's consent to the defendant's waiver of a jury.
Id. at 363–64.
Id. at 364.
Id. (citing State ex. Rel. Curry v. Carr , 847 S.W.2d 561, 561–62 (Tex. Crim. App. 1992) and In re State ex rel. Mau v. Third Court of Appeals , 560 S.W.3d 640, 646–47 (Tex. Crim. App. 2018) ).
For example, in State ex rel. Curry v. Carr , a trial judge declared his intent to set a case for trial before the court over the State's refusal to consent to the defendant's jury trial waiver. The State sought mandamus relief. We relied on our prior decision in State ex rel. Turner for the proposition that the trial court did "not have the discretion to serve as a factfinder in the trial of a misdemeanor case absent the consent and approval of the State as prescribed by Article 1.13 to the accused waiver of jury trial" to grant relief. Given the circumstances, we held that the trial court had "a ministerial duty to conduct a jury trial."
Curry , 847 S.W.2d at 562.
Id.
Id. (citing State ex. Rel Turner v. McDonald , 676 S.W.2d 371, 371–72 (Tex. Crim. App. 1984) ).
Id.
Similarly, in Ex parte George , we dealt with the consequences of a trial court's decision to render a verdict of ‘not guilty’ in the face of the State's decision to not consent to a jury waiver under Article 1.13(a). We held that, without the requirements of Article 1.13(a), the trial court's verdict was as proper as if the court bailiff had announced that the defendant was acquitted: "We think it clear that the bailiff's announcement would not be an acquittal in contemplation of law because he is not authorized by law to pass upon the culpability of the accused." So also, "the trial judge was not authorized by law to pass upon the culpability of the accused." Ultimately, similar to this case, the question we faced in Ogg was whether the Emergency Order could change that underlying lack of authority.
George , 913 S.W.2d at 525.
Id. at 527.
Id.
Ogg , 618 S.W.3d at 365.
First, we noted that the language of the Emergency Order "presupposes a pre-existing power or authority over the case or the proceedings." Because of this, we reasoned that, under the Emergency Order, "[a] court may extend a deadline or alter a procedure that would otherwise be part of the court proceedings," but the ability to modify or suspend "procedures" is not a "magic wand that allows a judge to preside over a proceeding over which he is otherwise barred from presiding." To illustrate this conclusion, we noted that it would be "patently absurd" to suggest that the authority to modify statutory deadlines and procedures "would confer upon the trial court the power to abrogate a defendant's statutory right to a jury trial at punishment." While we noted that the Emergency Order stated that it was "subject only to constitutional provisions," we reasoned that this was "still not an explicit statement that courts and judges have the ability to enlarge their jurisdiction and authority over proceedings."
Id.
Id. at 364–65.
Id. at 365.
Id.
Then, we held that the trial court did not have the authority to conduct a bench trial without the State's consent pursuant to Article 1.13, and the Emergency Order did not change that fact. We concluded that the consent requirement was not merely procedural but implicates the trial court's authority to preside over a particular type of proceeding. In reaching this conclusion, we referenced cases that held that a trial court's lack of authority to preside over a hearing invalidated the proceeding itself, and that indicated that a judgment from such a proceeding was a nullity for double jeopardy purposes.
Id.
Id.
Id. (citing Davis , 956 S.W.2d at 557–58 and George , 913 S.W.2d at 525 ).
Significantly, we equated the abrogation of the procedural requirement of the State's written consent to a jury-trial waiver to the abrogation of a defendant's right to a jury trial at punishment. As we explained, "[i]t seems—and is—patently absurd that a generically framed right to modify statutory deadlines and procedures would confer on the trial court the power to abrogate a defendant's statutory right to a jury trial at punishment." Accordingly, we held that the trial judge could not use the Emergency Order's authorization to hold a bench trial without the State's consent because that would amount to the trial judge conferring "authority upon himself."
Id.
Id.
Notably, the Emergency Order at issue in Ogg purported to authorize proceeding without the consent of the participants. While it is easy to overlook that a non-corporeal entity such as the "State" is still a "participant" in the proceedings, it nonetheless is. And proceeding without a jury trial (even when a defendant is willing to waive his right to one) would have furthered the stated goal of the Emergency Order to "avoid the risk" of subjecting countless jurors and potential jurors to possible COVID infection. Nevertheless, we held in Ogg that the trial court lacked authority to proceed to a bench trial despite the lack of one participant's consent even though the Emergency Order specifically authorized proceeding without the consent of either or both participants. With this understanding of Ogg in mind, we consider the question of whether modification of procedures surrounding a plea bargain abrogated the substantive rights of the Appellants or granted the trial court authority where none existed. We conclude that it did both.
Id. at 364.
Id. at 365.
The Right to be Present
"A leading principle that pervades the entire law of criminal procedure is that, after indictment, nothing shall be done in the absence of the prisoner." The personal presence of the defendant is essential to a valid trial and conviction on a charge of felony, if he is absent, will be set aside. This common law requirement was premised on the notion that a fair trial could take place only if the jurors met the defendant face-to-face and only if those testifying against the defendant did so in his presence. As the Supreme Court of the United States observed, "[i]t was thought ‘contrary to the dictates of humanity to let a prisoner ‘waive that advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence [sic] with indulgence.’ " The United States Supreme Court has recognized that the right to be present in the courtroom at every stage of trial is guaranteed by the Confrontation Clause of the Sixth Amendment. It is also based in the Due Process Clauses of the Fifth and Fourteenth Amendments and applies at any stage of the criminal proceeding that is critical to its outcome, "if the defendant's presence would contribute to the fairness of the procedure."
Lewis v. United States , 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).
Crosby v. United States , 506 U.S. 255, 259, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993).
Id. (citing F. Wharton, Criminal Pleadings and Practice 392 (9th ed. 1889)) and 1 J. Bishop, New Criminal Procedure 178 (4th ed. 1895 quoting Prine v. Commonwealth , 18 Pa. 103, 104 (1851) ), see also Prine , 18 Pa. at 104 ("It is undoubtedly error to try a person for felony in his absence, even with his consent. It would be contrary to the dictates of humanity to let him waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence. Never has there heretofore been a prisoner tried for felony in his absence. No precedent can be found in which his presence is not a postulate of every part of the record. He is arraigned at the bar; he pleads in person at the bar; and if he is convicted, he is asked at the bar what he has to say why judgment shall not be pronounced against him. These things are matter of substance, and not peculiar to trials for murder: they belong to every trial for felony at the common law, because the mitigation of the punishment does not change the character of the crime.").
Illinois v. Allen , 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
Kentucky v. Stincer , 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).
The plea proceeding is a stage at which a defendant's presence is critical to the outcome. As the United States Supreme Court noted of plea proceedings,
Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one's accusers.
Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (internal citations omitted).
These rights remain in place prior to a plea of guilty, and, therefore, a defendant necessarily has a right to be present at the plea hearing as part of his right to confront his accusers and his due process right to be present at any stage of the criminal proceeding.
It is worth noting that even if there is a plea-bargain agreement, the trial court is under no obligation to accept that agreement. If the trial court rejects the plea bargain agreement, the defendant may withdraw his or her plea of guilty. See Moore v. State , 295 S.W.3d 329, 332 (Tex. Crim. App. 2009).
We have also noted that "[o]ne of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom during his trial." We have relied upon Supreme Court precedent to recognize that the right to be present is largely based on the Confrontation Clause, although it has a due process component. Intermediate courts of appeals have recognized a constitutional right to be present as well. As we stated in Miller v. State , " ‘[W]ithin the scope of the right of confrontation is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, absent a waiver of that right through defendant's own conduct.’ " Physical presence is personal to the accused and cannot be disregarded or ignored by the courts without affirmative action or assent by the accused.
Garcia v. State , 149 S.W.3d 135, 140 (Tex. Crim. App. 2004).
Ex parte Mines , 26 S.W.3d 910, 915 (Tex. Crim. App. 2000) (citing United States v. Gagnon , 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) ).
See, e.g., Monreal v. State , 546 S.W.3d 718, 733 (Tex. App.—San Antonio, 2018, pet. ref'd.) ("Both the United States Constitution and the Texas Constitution require any defendant threatened with the loss of liberty to be physically present at all phases of the criminal proceedings against him."); Sanchez v. State , 702 S.W.2d 258, 259 (Tex. App.—Dallas 1985, pet. ref'd.) (noting that a criminal defendant has a fundamental right to be present at every stage of his trial).
Miller v. State , 692 S.W.2d 88, 91 (Tex. Crim. App. 1985) (quoting Baltierra v. State , 586 S.W.2d 553, 556 (Tex. Crim. App. 1979) (internal citations omitted)).
Baltierra , 586 S.W.2d at 556.
Our legislature has made clear that a trial court simply lacks authority to enter a felony conviction unless a defendant appears in person and in open court to enter his plea and validly waives his rights. Article 27.13 of the Code of Criminal Procedure makes clear that if a defendant wishes to plead ‘guilty’ or ‘nolo contendre,’ that plea must be made "in open court by the defendant in person":
A plea of "guilty" or a plea of "nolo contendere" in a felony case must be made in open court by the defendant in person ; and the proceedings shall be as provided in Articles 26.13, 26.14, and 27.02. If the plea is before the judge alone, same may be made in the same manner as is provided for by Articles 1.13 and 1.15.
Tex. Code Crim. Proc art. 27.13 (emphasis added).
Article 1.15 specifically prohibits a trial judge from convicting a defendant of a felony unless the defendant appears "in open court in person " to waive his right to a jury:
No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14 [...]
Tex. Code Crim. Proc art. 1.15 (emphasis added).
Both statutes establish a statutory requirement that the defendant be present in person and in open court to enter a plea of guilty. Finally, article 33.03 sets out that a defendant must be personally present in all felony cases as well as any misdemeanor cases in which any part of the punishment includes imprisonment in jail:
See Tex. Code Crim. Proc arts. 1.15, 27.13.
In all prosecution for felonies, the defendant must be personally present at the 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, 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. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of evidence to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case.
In Miller we acknowledged that a defendant may waive his right to be present during trial, but we interpreted this statutory section to mean that a defendant's right to be present is unwaivable prior to jury selection. Though Miller only considered whether the right to be present was unwaivable before jury selection, the same logic would seem to apply to the other pre-condition in the statute, "pleading to the indictment or information." But even if we were to distinguish Miller on that basis, the statutory language in Article 33.03 further 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.
Miller , 692 S.W.2d at 91.
And the Code of Criminal Procedure also contains separate references to "in person" status versus appearance via electronic means in non-plea contexts, demonstrating that the legislature's use of the statutory phrase "in person" does not include an appearance by electronic means. For instance, Article 15.17(a) mandates that an "arrested person may be taken before the magistrate in person or the image of the arrested person may be presented to the magistrate by means of a videoconference. " In addition, Article 43.03 allows a defendant to appear in a hearing on confinement for defaulted payments of a fine "in person or by means of an electronic broadcast system [.]"
See, e.g. , Tex. Code Crim. Proc. arts. 15.03(c), 15.17(a), 17.292(j), 43.03(f), 45.0201, 45.046(c), and 63.004(b).
Tex. Code Crim. Proc. art. 15.17(a) (emphasis added).
Tex. Code Crim. Proc. art. 43.03(f) (emphasis added).
We cannot overlook the legislature's obvious textual determinations. Whether because of concern for the constitutionality of remote plea proceedings without the defendant's consent or because of some other policy determination left squarely to the legislature, the legislature has made its intent plain through text, and we must accord it respect. Accordingly, we cannot read references to a defendant's "in person" status as anything other than a substantive guarantee of personal presence prior to pleading.
See, e.g. , People v. Stroud , 208 Ill.2d 398, 281 Ill.Dec. 545, 804 N.E.2d 510 (2004) (holding that "a defendant's physical presence at a guilty plea proceeding is constitutionally required unless he consents to having the plea taken by closed-circuit television.").
See Vandyke v. State , 538 S.W.3d 561, 569 (Tex. Crim. App. 2017) ("We are not empowered to substitute what we believe is right or fair for what the Legislature has written, even if the statute seems unwise or unfair.").
Id. ("When we interpret statutes, our duty is to determine and give effect to the apparent intent of the legislators who voted on it [...] If we only defer to the legislature when we agree with their policy determinations then we are not deferring to the legislature at all.").
Given this backdrop, we agree with the court of appeals that a defendant has at least a substantive statutory right to appear in person in open court for a guilty plea hearing. While we acknowledge that a defendant can voluntarily waive that right after he or she pleads to the indictment or information, this is not a case involving such a waiver. Appellants affirmatively objected to proceeding via videoconference without their consent. Moreover, we are only asked to determine whether the right to be personally present exists as part of the resolution of the question of whether the Appellants had substantive rights that could not be abrogated by the Emergency Order. As we noted in Ogg , it would be patently absurd to regard a generically framed order authorizing the modification of statutory deadlines and procedures as conferring upon a trial court the power to abrogate a defendant's statutory right to a jury trial at punishment. It is equally absurd to regard the same Emergency Order at issue in Ogg as conferring upon a trial court the power to abrogate a defendant's statutory right to be personally present in open court to enter his plea.
Lira , 630 S.W.3d at 442 ; Huddleston , 630 S.W.3d at 439.
Ogg , 618 S.W.3d at 365.
Videoconference Plea Hearings and the Waiver of the Right to a Jury
Not only does a defendant have a substantive right to be present in order to waive his rights and enter his plea, the Code of Criminal Procedure also requires a defendant's personal presence as a procedural requirement for the trial court's authority to proceed without a jury. The default proceeding for resolution of a criminal charge is trial by jury. Our state Constitution mandates: "[t]he right of trial by jury shall remain inviolate." Our Code of Criminal Procedure repeats this mandate verbatim. The Constitution further mandates: "[t]he Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency."
See Tex. Const. art. I, § 15.
Id.
Tex. Const. art. I, § 15.
As set out above, our legislature, made clear that a trial court simply lacks authority to enter a felony conviction unless a defendant appears in person and waives his rights in full compliance with the statutes that set out the conditions for a valid waiver. Article 1.15 requires that a defendant who wants to shift from the baseline of a trial by jury must waive his right to a jury "in open court in person. " If this waiver of right to trial by jury is made in order to plead ‘guilty’ or ‘nolo contendre,’ the legislature mandates that the plea be made "in open court by the defendant in person". Both statutes establish a statutory requirement that the defendant be present in person and in open court.
Tex. Code Crim. Proc. art. 1.15 (emphasis added).
Tex. Code Crim. Proc. art. 27.13 (emphasis added).
In addition, both cite to required compliance with Article 1.13 if the defendant is waiving his right to jury and appearing solely before the Judge. Article 1.13, in turn, requires the defendant's jury waiver to be made in person and in open court "except as provided by Article 27.19":
The defendant in a criminal prosecution for any offense other than a capital felony case in which the state notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, except as provided by Article 27.19, the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state.
Tex. Code Crim. Proc. art. 1.13(a) (emphasis added).
Accordingly, such a waiver of right to jury and entry of a guilty or no contest plea must be made by the defendant "in person," "except as provided by Article 27.19." Article 27.19, in turn, authorizes a trial court to accept a plea of guilty or no contest for an incarcerated defendant if the plea is made "in accordance with the procedure established by Article 27.18":
See Tex. Code Crim. Proc. arts. 1.15, 1.13(a), 27.13.
Notwithstanding any other provision of this code, a court shall accept a plea of guilty or nolo contendere from a defendant who is confined in a penal institution if the plea is made:
(1) in accordance with the procedure established by Article 27.18 ; or
(2) in writing, including a writing delivered by United States mail or secure electronic or facsimile transmission, before the appropriate court having jurisdiction in the county in which the penal institution is located, provided that:
(A) the defendant is notified by the court of original jurisdiction of the right to counsel and the procedures for requesting appointment of counsel, and is provided a reasonable opportunity to request a court-appointed lawyer;
(B) if the defendant elects to proceed without counsel, the defendant must waive the right to counsel in accordance with Article 1.051;
(C) the defendant must waive the right to be present at the taking of the plea or to have counsel present, if the defendant has counsel; and
(D) if the defendant is charged with a felony, judgment and sentence are rendered in accordance with the conditions and the procedure established by Article 42.14(b).
Tex. Code Crim. Proc. art. 27.19(a) (emphasis added).
Article 27.19(a) sets up only two methods of waiving the right to jury trial and entering a plea of guilty or no contest for an incarcerated defendant who is not present in person in open court: (1) a plea in accordance with Article 27.18 or (2) a plea in absentia precipitated by a defendant's written waiver of his rights after sufficient notice of those rights. Following the statutory trail, Article 27.18, in relevant part, requires:
(a) Notwithstanding any provision of this code requiring that a plea or a waiver of a defendant's right be made in open court, a court may accept the plea or waiver by broadcast by closed circuit video conferencing to the court if:
(1) the defendant and the attorney representing the state file with the court written consent to the use of closed-circuit video tele-conferencing;
(2) the closed-circuit video teleconferencing system provides for a simultaneous, compressed full motion video, and interactive communication of image and sound between the judge, the attorney representing the state, the defendant, and the defendant's attorney; and
(3) on request of the defendant, the defendant and the defendant's attorney are able to communicate privately without being recorded or heard by the judge or the attorney representing the state.
Tex. Code Crim. Proc. art. 27.18(a) (emphasis added).
The legislature created an entire statutory scheme to accommodate a defendant who desired to waive his right to jury other than "in person."
See Tex. Code Crim. Proc. arts. 1.13(a), 27.19(a), and 27.18(a).
Even viewing the statutory requirement that a defendant appear "in person" as a mere procedural requirement, that procedural requirement is a prerequisite to a valid waiver of a defendant's substantive right to a jury trial. As we held in Ogg , without a valid waiver of the defendant's right to a jury trial (even when a defendant seeks to waive that right), the trial court has no authority to proceed without a jury. As mentioned above, the requirements that a defendant must either waive his right to a jury trial in person, in writing, and in open court or consent in writing to a videoconferenced plea are textually equal to the requirement that the State accept that wavier in writing. If the State's written consent to a defendant's waiver of a jury trial is a procedure necessary to establish a trial court's authority to proceed to a bench trial, so is the defendant's written consent to waive his personal right to a jury trial and proceed to a plea proceeding via videoconference.
Ogg , 618 S.W.3d at 365.
The Emergency Order Could Not Abrogate Substantive Rights Or Create Authority Where None Existed
The SPA argues that the Appellants’ personal presence at their plea hearings was neither a substantive right nor a procedure affecting the trial court's authority to proceed. As discussed, above, it is actually both. As we noted in Ogg , "neither Section 22.0035(b) nor the Emergency Order purport to authorize courts to modify substantive rights." The Emergency Order simply could not abrogate Appellants’ substantive statutory right to be present in person in open court. Failing to secure Appellants’ written consent resulted in the abrogation of the Appellants’ substantive statutory right to be present.
Ogg , 618 S.W.3d at 364.
Further, like its effect on the State's consent requirement in Ogg , the Emergency Order did not grant the trial court the authority to proceed without a jury absent the Appellants’ written consent. While Ogg acknowledged that a court could "extend a deadline or alter a procedure that would otherwise be part of the court proceedings," it also made clear that the Emergency Order could not expand a trial court's authority and allow a court to preside over a proceeding that it did not yet have authority to preside over. In this case, as in Ogg , the trial court had no authority to proceed, and the Emergency Order could not provide that authority.
Id.
First, while Article 27.18 says that a trial court may conduct a plea hearing remotely, the trial court's authority is still conditioned on the defendant's consent. Absent the requirements in 27.18(a)(1-3), the trial court simply does not gain the discretionary authority to hold the remote proceeding. Like the State's consent requirement in Ogg , the consent requirement under 27.18 is the type of procedure necessary to authorize the trial court to proceed. While the Emergency Order purported to allow a trial court to require any party to participate remotely in any hearing, under our holding in Ogg , it did not grant the trial court authority to preside over a proceeding that it otherwise would have been barred from presiding over.
Tex. Code Crim. Proc. art. 27.18.
See Ogg , 618 S.W.3d at 365 ; Tex. Code Crim. Proc. art. 27.18 ; see also East v. State , 48 S.W.3d 412, 414 (Tex. App. – Houston [14th Dist.] 2001, no pet.).
See Ogg , 618 S.W.3d at 364.
Id.
Second, the Appellants’ lack of in-person presence deprived the trial court of authority to accept the Appellants’ jury waiver and guilty pleas at all, and the Emergency Order did not change that. A trial court only gains authority to preside over a non-jury resolution to a criminal case when the requirements of Article 1.13(a) are met. As we have repeatedly held, the trial court has no discretion to resolve the issue of the defendant's guilt in any manner but by a jury trial unless the trial court complies with Art. 1.13(a). In addition, a trial court cannot accept a plea of guilty or no contest in a felony case under Article 27.13 when the requirements of Article 1.13 have not been met.
See Tex. Code Crim. Proc. art. 1.13(a) ; see e.g. , Mau , 560 S.W.3d at 646 ("By the time the jury returned a guilty verdict, Rivera had not waived his right to a jury trial, and the State had not consented (in writing or otherwise) to such a waiver. We agree that the trial court was without authority to enter an order deferring adjudication of guilt —the action that provoked the State's objection in this case.") (emphasis added).
See, e.g. , George , 913 S.W.2d at 526 ("Accordingly, if we consider the question presented as a matter of the judge's authority, not of the court's jurisdiction, it is apparent that the judge in this case did not have authority to acquit the appellant."); Turner , 676 S.W.2d at 374 ("We hold Respondent does not have the discretion to serve as factfinder in the trial of a felony case absent the consent of the State as prescribed by Article 1.13, supra, to the accused's waiver of right to jury trial. Indeed, under the circumstances presented, Respondent has a ministerial duty to conduct a jury trial."); Curry , 847 S.W.2d at 562 ("We hold Respondent does not have the discretion to serve as a factfinder in the trial of a misdemeanor case absent the consent and approval of the State as prescribed by Art. 1.13(a), supra, to the accused's waiver of jury trial. Under the circumstances presented, Respondent has a ministerial duty to conduct a jury trial."); Mau , 560 S.W.3d at 646 ("Absent the consent of the State as prescribed by Article 1.13 of the Code of Criminal Procedure, the trial court had no discretion to resolve the issue of Rivera's guilt in any manner but by a jury trial.").
See Tex. Code Crim. Proc. art. 27.13 ("A plea of ‘guilty’ or a plea of ‘nolo contendere’ in a felony case must be made in open court by the defendant in person; and the proceedings shall be as provided in Articles 26.13, 26.14, and 27.02. If the plea is before the judge alone, same may be made in the same manner as is provided for by Articles 1.13 and 1.15. ") (emphasis added).
While the requirement of 1.13(a) at issue in Ogg and its underpinning cases was the consent of the State, it is not the only requirement in 1.13(a) whose absence would block the trial court's authority to proceed to a non-jury proceeding. As we have discussed earlier, this is especially true given the heavy legislative emphasis, throughout the Code of Criminal Procedure, on the defendant's "in person" rather than consented-to videoconferenced presence. In fact, the requirement that a defendant's waiver of a jury trial be made "in person" is the first in a long list of requirements that "must" be satisfied for there to be a valid jury waiver. In addition, the base line requirements of a defendant being "in person" and "in open court" are repeated three separate times in three separate mandatory and interrelated statutes. And any departure from this requirement is specifically addressed by two additional heavily-detailed and consent-centric statutes. To read the "in person" requirement as anything other than a legislatively-created block to the trial court's authority to proceed would be to essentially nullify Articles 27.19 and 27.18.
See Tex. Code Crim. Proc. art. 1.13(a) ("... except as provided by Article 27.19, the waiver must be made in person by the defendant ...").
See Tex. Code Crim. Proc. arts. 1.15, 1.13, 27.13.
See Tex. Code Crim. Proc. arts. 27.19(a), 27.18(a).
Accordingly, the trial court was not authorized to proceed without a jury because the written consent requirement of Article 27.18(a)(1) was not met. This is because the lack of consent to the videoconference led to Article 27.18 not being met, which in turn led to Article 27.19 not being met, which, combined with the lack of in-person presence, led to Article 1.13(a) not being met. Article 1.13(a) not being met, in turn, resulted in the only valid factfinder being a jury under Article 1.15 and the only valid plea being in person before a jury under Article 27.13.
This is similar to prior situations where we have held that the lack of a defendant's presence affected a court's jurisdiction and authority. For instance, in Casias v. State , we noted that the statutory definition of a ‘sentence’ included a requirement that it be made "in the presence of the defendant." We then went on to hold that, even if a defendant had waived his right to be present at sentencing, a sentence rendered outside of the defendant's presence was "no sentence at all." Because "[p]ronouncement of sentence is jurisdictional for an appeal to this court," we held that the lack of a proper sentence required the appeal to be dismissed. Here, the governing statute similarly requires a defendant's presence (either in person or through Article 27.19 ) as a condition to the proper waiver his right to trial by jury. Without fulfillment of that condition, the waiver was not proper and the trial court had no authority to preside over anything but a trial by jury.
See, e.g. , Casias v. State , 503 S.W.2d 262, 265 (Tex. Crim. App. 1973) ("If the sentence was insufficient where it failed to reflect that the defendant was present, then A fortiori where the instrument affirmatively states the defendant was Not present, the appeal must be dismissed for want of a proper sentence [sic]."); see also Mennis v. State , 493 S.W.2d 799, 800–01 (Tex. Crim. App. 1973) (in a case where the record did not reflect that the defendant was present when the sentence was imposed, holding that "[f]or the reason that the sentence in this record is insufficient, the appeal will be dismissed.").
Casias , 503 S.W.2d at 263.
Id. at 265.
Id.
The State argues that we should hold that any error in proceeding without Appellants’ personal presence (or without a written consent to presence via videoconference) is subject to a harmless error analysis. The State's point is well taken. We have held before that no error, except those labeled as structural error is categorically immune to a harm analysis. We acknowledge that there are cases in which we have held that lack of compliance with Article 1.13 can be harmless. But those cases involved situations in which there was at least consent as a matter of fact even if the appropriate form of consent was not present in the record. Here, the Appellants did not consent in fact to proceed via videoconference. The error was not merely the failure to file the appropriate paperwork. Proceeding without securing Appellants’ consent abrogated Appellants’ substantive statutory right to be present.
Cain v. State , 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).
Johnson v. State , 72 S.W.3d 346 (Tex. Crim. App. 2002) (holding that trial court's failure to obtain written jury waiver from defendant was harmless error); Garza v. State , 77 S.W.3d 292 (Tex. Crim. App. 2002) (remanding for consideration of harm in light of Johnson ).
Appellants requested a continuance in their respective motions to rescind the orders setting their cases on the video-conference plea docket and objected to proceeding remotely. In a separate letter to the trial court, Appellants noted the risk and spread of COVID-19 within the prisons as support for their motion to rescind the order, but they never consented to proceed remotely.
Moreover, these cases pre-date Ogg . In Ogg we went beyond saying that the lack of written consent to a jury waiver meant that the trial court had a ministerial duty to empanel a jury. We equated the trial court's lack of authority to proceed to the abrogation of a defendant's substantive statutory right. And by casting the State's written consent to a jury waiver as a procedure necessary for the trial court's authority to proceed, we necessarily cast the textually equal requirements (such as a defendant's written consent to proceed remotely) as necessary for the trial court's authority. As we recognized in Ogg , "a judge's lack of authority to preside over a proceeding can, depending on the reason for that lack of authority, invalidate the proceeding itself." And, as we recognized in Ex parte George , where a trial court has no authority to act as the fact-finder, his finding of fact as to the defendant's culpability "has no more legal effect than such a finding by any other unauthorized person or entity would have." And finally, Article 1.15 makes clear that no person can be convicted of a felony unless by a jury verdict or when the requirements for a jury waiver have been met. As we have described above, the trial court was not authorized to accept Appellants’ guilty pleas and proceed without a jury because it lacked authority to preside over the case without a valid waiver of Appellants’ respective rights to a jury trial. Accordingly, the court of appeals was correct to find those pleas voidable.
Ogg , 618 S.W.3d at 365.
Id. The reason for the lack of authority in Ogg is the same one in this case, the lack of a valid waiver of a jury trial.
George , 913 S.W.2d at 527.
Tex. Code Crim. Proc. art. 1.15.
Ogg , 618 S.W.3d at 365-66 ("It seems—and is—patently absurd that a generically framed right to modify statutory deadlines and procedures would confer on the trial court the power to abrogate a defendant's statutory right to a jury trial as punishment.").
We are mindful that trial courts should embrace the use of technology to resolve cases more efficiently and increase transparency in the proceedings. Nothing in this opinion should be interpreted as preventing a trial court from proceeding remotely when there is a valid waiver of a defendant's right to be personally present when pleading guilty pursuant to a plea bargain. Neither should our holding be misinterpreted as prohibiting the participants from negotiating a waiver of the right to be present as part of a plea bargain agreement. Those are not the circumstances of this case.
Conclusion
This case boils down to the simple question of whether the Supreme Court's Emergency Order granted a trial court authority to preside over videoconferenced plea hearings when the Appellants had not consented. We conclude that it does not. A trial court has no authority to hold a videoconferenced plea hearing when the defendant has not consented. As we held in Ogg , the Texas Supreme Court's Emergency Order cannot grant authority where none exists. Accordingly, we will affirm the judgment of the court of appeals and remand the cause to the trial court for further proceedings.
Keller, P.J., filed a dissenting opinion in which Keel and Slaughter, JJ., joined.
Yeary, J., concurred.
Keller, P.J., filed a dissenting opinion in which Keel and Slaughter, JJ., joined. DISSENTING OPINION
In 2018, Appellant Huddleston was in prison for murder and Appellant Lira was in prison for felony possession of a controlled substance with intent to distribute when they each committed the current charged offense of assault on a public servant. On March 13, 2020, at the beginning of the COVID-19 pandemic, the Supreme Court of Texas and this Court entered a joint emergency order which said, in relevant part:
I assume that the convictions listed in the indictment are the offenses for which the Appellants were incarcerated.
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.
First Emergency Order Regarding the COVID-19 State of Disaster , Misc. Docket Nos. 20-9042 (SC) & 20-007 (CCA), 596 S.W.3d 265, Section 2 (Tex. March 13, 2020) (emphasis added).
By late May of 2020, the Supreme Court had issued its Seventeenth Emergency Order, which—with the exception of jurors and the time frame for the order—included the above language virtually word-for-word. The trial court set a Zoom hearing on Appellants’ negotiated guilty pleas, to which Appellants objected. Relying explicitly on the emergency order, the trial court overruled the objections. Appellants reserved the right to appeal the Zoom issue. The Court now concludes that the trial court erred to require Appellants to resolve their cases by Zoom. It further concludes that the error was not harmless. In arriving at its conclusions, the Court principally relies upon In re State ex rel. Ogg . I disagree with both of the Court's conclusions, and I disagree that Ogg supports them.
618 S.W.3d 361 (Tex. Crim. App. 2021).
A. Remote proceedings were authorized.
1. The Emergency Order authorized it.
The Supreme Court's Seventeenth Emergency Order provided in relevant part:
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. except as provided in paragraph (b), modify or suspend any and all deadlines and procedures , whether prescribed by statute, rule, or order for a stated period ending no later than September 30, 2020;
* * *
c. Allow or require anyone involved in any hearing, deposition, or other proceeding of any kind—including but not limited to a party, attorney, witness, court reporter, grand juror, or petit juror—to
participate remotely , such as by teleconferencing, videoconferencing, or other means.
Seventeenth Emergency Order Regarding the COVID-19 State of Disaster , Misc. Docket No. 20-9071, 609 S.W.3d 119, 120, Section 3 (Tex. May 26, 2020) (emphasis added).
Only Subsection (a) of the Emergency Order was at issue in Ogg . The question in Ogg was whether the term "procedures" in that subsection encompassed waiving a jury trial against the wishes of a party entitled to one. We held that the power to alter a "procedure" does not allow a court to "create authority to preside over proceedings over which the judge would otherwise be barred from presiding." We further concluded that the requirement that the State consent to waiving a jury was "not merely procedural" but implicated "the trial court's authority to preside over a particular type of proceeding"—a "bench trial." In our discussion, we explained, "If the Supreme Court's Emergency Order were really intended ... to permit trial judges to enlarge the types of proceedings over which they have authority, we would expect a provision to explicitly say so." A "generically framed right to modify statutory ... procedures" could not abrogate a statutory right to a jury trial.
Id.
Id.
Id. at 365.
Id.
Id.
But in the present case, Subsection (c) of the Emergency Order is also at issue. As outlined above, Subsection (c) explicitly authorized the trial judge to "require" any person "to participate remotely." The Emergency Order subjected this explicit authorization only to "constitutional limitations." So the present cases differ from Ogg because (in the absence of a constitutional violation) the Emergency Order explicitly authorized what the trial court did here—in fact it demanded it. By contrast, the Emergency Order did not explicitly authorize a trial court to deny a party a jury trial.
2. The Constitution did not forbid it.
The constitutional right to presence is largely rooted in the Confrontation Clause of the Sixth Amendment, but when witnesses and evidence are not being confronted, the right to presence is protected only by Due Process. Even the right to physical ("face-to-face") confrontation is not absolute. Physical confrontation can be denied when "denial of such confrontation is necessary to further an important public policy and ... where the reliability of the testimony is otherwise assured." In Maryland v. Craig , the Supreme Court held that circumstances could permit a child complainant to testify by one-way closed circuit television, with defendant observing the testimony remotely. For a due-process inquiry, the question is simply whether the defendant's "presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Here, an important public policy counseled in favor of denying face-to-face confrontation. Impeding the spread of COVID-19 during the pandemic was an important public policy interest, and the prevailing thought at the time was that preventing physical gatherings was necessary to further that policy interest. In a letter addendum to its motion opposing the Zoom hearing, Lira's counsel alleged that the Allred Unit, where Lira resided, was on lockdown and that within the entire prison system:
United States v. Gagnon , 470 U.S. 522, 526 (1985).
Maryland v. Craig , 497 U.S. 836, 844 (1990).
Id. at 850.
Id. at 851-52.
Gagnon , 470 U.S. at 526 (quoting Snyder v. Massachusetts , 291 U.S. 97, 105-06 (1934) ).
Appellants’ plea proceedings, on May 27, 2020, occurred just one day after the Seventeenth Emergency Order issued.
2214 prisoners and 742 staff employees have tested positive with 457 prisoners and 145 staff members recovered. There have been 32 prisoner deaths connected to COVID-19 with an additional 27 under investigation. And there have been seven staff member deaths from COVID-19.
The prosecutor argued that it was safer to keep an offender in the Unit than "transporting them onto a bus, transporting them into a courthouse, taking them from the facility and all the way back again the exposure is far greater than having a hearing using this method ... it not only assures their health is better but it also assures the safety of everyone involved is better protected." The record supports a conclusion that holding a Zoom hearing would better protect Appellants, prison personnel, and court personnel than an in-person hearing would.
And the reliability of the proceedings was otherwise assured. Appellants’ proceedings were guilty plea proceedings, pursuant to plea agreements. Appellants were permitted to fully participate in those proceedings via videoconference. Given that the plea agreements were followed, Appellants received the sentences that they not only expected, but bargained for. Appellants’ physical presence would not have made these proceedings more reliable, nor could it have given them a better outcome with respect to their charges than what they received. The trial court's proceedings did not run afoul of any constitutional provisions.
Although the Emergency Order could not trump constitutional protections even if it purported to do so, the conclusion that no constitutional limitations are at issue disposes of the only remaining question about the Emergency Order's language. Given the explicit language of the "remote participation" provision of the Emergency Order and the fact that constitutional limitations were not implicated, the Emergency Order's express terms authorized the trial court's actions in the cases before us.
3. Statute authorized the Emergency-Order provision.
The next question is whether the provision in the Emergency Order was lawful: whether the Emergency Order lawfully overrides statutes that would otherwise guarantee the defendant a right to physical presence. Article 1.13 states that a waiver of the defendant's right to a jury trial must "be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State." Article 1.15 provides that, to be convicted of a felony on anything other than a jury verdict, a person must have "in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14." Article 27.13 says that a plea of guilty "must be made in open court by the defendant in person." Article 27.18 allows a court to accept a plea or waiver by video conference if both parties consent.
Id. art. 1.15
Id. art. 27.13.
Id. art. 27.18(a)(1) ("Notwithstanding any provision of this code requiring that a plea or a waiver of a defendant's right be made in open court, a court may accept the plea or waiver by video conference to the court if ... the defendant and the attorney representing the state file with the court written consent to the use of video conference."). The statute has other requirements, none of which have been alleged to have been violated here. See id. art. 27.18, passim . Under another statute, a defendant confined in a penal institution may plead guilty under the procedures outlined in Art. 27.18 or may plead guilty in writing if certain other procedures are followed. Id. art. 27.19.
Government Code Section 22.0035 allows the Texas Supreme Court to suspend, during an emergency, procedures dictated by other statutes:
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. An order under this section may not extend for more than 90 days from the date the order was signed unless renewed by the chief justice of the supreme court.
The important limitation here is that the statutory mandates that may be suspended are those that prescribe "procedures for the conduct of any court proceeding." If the "in person" presence requirement in the statutes cited earlier qualify as "procedural" under this language, then suspension of that requirement is permitted.
Ogg did not address whether "deadlines and procedures" under Subsection (a) of the Emergency Order meant the same thing as "procedures for the conduct of any court proceeding" in the Government Code provision. The Court did say that "neither Section 22.0035(b) nor the Emergency Order purport to authorize courts to modify substantive rights" and that "[b]oth the statute and the order address procedural matters." But the Court then focused on the "deadlines and procedures" language of the Emergency Order and said that such language "presupposes a pre-existing power or authority over the case or the proceedings." And, as explained above, the Court said that it would expect an explicit provision permitting a court to enlarge its own authority before it would construe the Emergency Order to do so.
See 618 S.W.3d at passim .
Id. at 364.
Id.
Id. at 365.
An explicit provision is at issue in this case, and so the question becomes: Is the requirement of in-person presence at a plea and waiver proceeding a "procedure for the conduct of a court proceeding?" Just from looking at the language of the statute, the answer would seem to be "yes."
Ogg does not require us to hold otherwise. As explained above, Ogg did not address whether the Supreme Court could use an emergency order to temporarily override the statutory requirement that the State consent to a jury waiver. It simply held that the Emergency Order at issue did not do so. But even if Ogg had held that the Government Code provision would not have permitted the Emergency Order to authorize what the trial court did in that case, the present case is still distinguishable. Ogg pointed out that the trial court does not have the authority to conduct a bench trial unless both parties have given consent to do so. That is a different thing than talking about how the parties must consent. Whether both parties consent to a bench trial addresses the trial court's power to proceed, but how both parties consent to a bench trial is a matter of procedure.
Id.
It is true that the State-consent language is in the same sentence as the "in person" language in Article 1.13. That does not mean that the two provisions share the same character as either involving the power to proceed or involving mere procedure. First, substantively, the two provisions are different, as explained above. Second, Article 1.13 also outlines how the State consents ("in writing, signed by that [prosecuting] attorney, and filed in the papers of the cause"). So Article 1.13 recognizes that the defendant and the State have to consent to a bench trial, and it provides procedures for how each party consents. This is consistent with the fact of consent going to the core power of the trial court to proceed and the method of consent being a matter of mere procedure, which could be overridden in an emergency. Third, Article 27.18 allows the "in person" requirement to be overridden, by consent, in favor of presence by videoconference. This suggests that the "in person" requirement is procedural despite any proximity of that requirement to the State-consent requirement. Fourth, the "in writing" requirement for the defendant's waiver is also in the same sentence as the State-consent requirement, but we have held the failure to comply with that requirement to be a mere statutory violation that is not cognizable on habeas corpus, at least absent a showing of harm. We likened this to the requirement that the State's consent to a jury waiver be in writing. And we pointed out that there was no constitutional requirement that a waiver be in writing. Likewise, although there is ordinarily a constitutional right to physical presence, there was not one in the present case due to circumstances of the pandemic.
Ex parte Sadberry , 864 S.W.2d 541, 542-43 (Tex. Crim. App. 1993).
Id. at 542.
Id. at 543.
Finally, nothing in Article 1.15 requires a different result. It is true that the article says, "No person can be convicted of a felony except" if waiver of a jury occurs in open court and in person in accordance with Article 1.13. This language does not mean that a trial court lacks the power to preside over the proceedings, only that obtaining a conviction would be improper absent adherence to the statutory procedures. As explained above, the failure to meet the writing requirement does not render a conviction a nullity. And the "No person can be convicted" sentence also contains a proviso that the State must introduce evidence in support of a guilty plea, which we have held is a state-law requirement for which relief cannot be obtained on habeas. This discussion confirms that the Court has treated various requirements of 1.13 and similar statutes either as purely procedural or as relating to the power to proceed in accordance with the kind of requirements they are (the fact of waiver versus the procedures surrounding the waiver), rather than according talismanic significance to the position of those requirements in the text of the various statutes. Because the right to physical presence to waive a jury and enter a plea of guilty is merely procedural—as opposed to the fact of waiving a jury or the fact of pleading guilty— Section 22.0035 authorized the Supreme Court to issue an order overriding that procedural requirement.
TEX. CODE CRIM. PROC. art. 1.15.
Id. ("provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same").
Ex parte Martin , 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988).
B. Appellant was not harmed
1. If there is error, it is subject to a harm analysis
In Cain v. State , we held, "Except for certain federal constitutional errors labeled by the United States Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." I have already explained that there was no federal constitutional violation in this case. Under Cain , a state-law claim cannot be structural. As Cain indicates, that is true even if the claim is jurisdictional. Even if constitutional error had occurred, only a very limited class of constitutional errors have been labeled by the Supreme Court as "structural," and the right to presence during plea or trial proceedings is not one of those.
947 S.W.2d 262, 264 (Tex. Crim. App. 1997).
See also Do v. State , 634 S.W.3d 883, 897 (Tex. Crim. App. 2021) ("But only federal constitutional errors can be structural, and most are not.").
Greer v. United States , 141 S. Ct. 2090, 2099 (2021).
See Neder v. United States , 527 U.S. 1, 8 (1999) (list).
And any error was obviously harmless under any standard. The constitutional standard requires that an error be deemed harmless only if "the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Even under that least forgiving standard, we can conclude that any error was harmless. Appellants here received exactly what they wanted: the sentences they bargained for. They were able to attend the proceedings via videoconference and had the ability to consult with their attorneys and interact personally with the trial judge. Even beyond a reasonable doubt, we can and should conclude that nothing would have changed had the proceedings been conducted in person.
I respectfully dissent.