David Asa Villarreal v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-18-00484-CR
David Asa VILLARREAL,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR0549
Honorable Jefferson Moore, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 27, 2019
I believe the majority applies the wrong standard of review to Villarreal’s Sixth
Amendment assistance of counsel claim. Because I believe the trial court’s order effectively
denied Villarreal his Sixth Amendment right to assistance of counsel by prohibiting him from
conferring with his attorney during an overnight recess, I respectfully dissent. 1
1
Because I find Villarreal’s second issue dispositive, I do not address Villarreal’s first issue. See TEX. R. APP. P. 47.1.
Dissenting Opinion 04-18-00484-CR
RIGHT TO ASSISTANCE OF COUNSEL
Standard of Review and Applicable Law
Villarreal’s Sixth Amendment assistance of counsel claim should properly be reviewed
under a de novo standard of review. “In approaching a Sixth Amendment right-to-counsel
question, as with many other constitutional issues, . . . [a]n appellate court should afford ‘almost
total deference’ to a trial court’s determination of the historical facts and to its determination of
mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Mixed
questions of law and fact that do not turn on credibility and demeanor are to be reviewed de novo.”
See Manns v. State, 122 S.W.3d 171, 178 (Tex. Crim. App. 2003) (internal footnotes and citations
omitted). The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. CONST. amend. VI.
The Supreme Court has long recognized that a defendant’s right to assistance of counsel is
“important precisely because ordinarily a defendant is ill-equipped to understand and deal with the
trial process without a lawyer’s guidance.” Geders v. United States, 425 U.S. 80, 88 (1976). Thus,
the Supreme Court has interpreted the right to assistance of counsel “to mean that there can be no
restrictions upon the function of counsel in defending a criminal prosecution in accord with the
traditions of the adversary factfinding process that has been constitutionalized in the Sixth and
Fourteenth Amendments.” Herring v. New York, 422 U.S. 853, 857–58 (1975).
Claims that a defendant’s Sixth Amendment right to assistance of counsel were violated
by a trial court order restricting communication between the defendant and his attorney are
governed by two seminal Supreme Court cases, Geders v. United States, 425 U.S. 80 (1976), and
Perry v. Leeke, 488 U.S. 272 (1989). In Geders, the Supreme Court held that “an order preventing
petitioner from consulting his counsel ‘about anything’ during a 17-hour overnight recess between
his direct-and cross-examination impinged upon his right to the assistance of counsel guaranteed
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by the Sixth Amendment.” Geders, 425 U.S. at 91. The Court reasoned that a trial court’s “broad
power” in limiting witnesses’ communications before, during, and after their testimony in order to
lessen the possibility of witness tampering is curtailed when the witness is the defendant because
“[a] sequestration order affects a defendant in quite a different way from the way it affects a
nonparty witness who presumably has no stake in the outcome of the trial.” Id. at 87–88. The
Court explained that an overnight recess is often a crucial time for both the defendant and his
counsel:
It is common practice during such recesses for an accused and counsel to discuss
the events of the day’s trial. Such recesses are often times of intensive work, with
tactical decisions to be made and strategies to be reviewed. The lawyer may need
to obtain from his client information made relevant by the day’s testimony, or he
may need to pursue inquiry along lines not fully explored earlier. At the very least,
the overnight recess during trial gives the defendant a chance to discuss the
significance of the day’s events.
Id. at 88. The Court noted that a trial court could employ other means to guard against improper
witness influence, such as allowing the examination to conclude. The Court concluded:
To the extent that conflict remains between the defendant’s right to consult with his
attorney during a long overnight recess in the trial, and the prosecutor’s desire to
cross-examine the defendant without the intervention of counsel, with the risk of
improper “coaching,” the conflict must, under the Sixth Amendment, be resolved
in favor of the right to the assistance and guidance of counsel.
Id. at 91 (citing Brooks v. Tennessee, 406 U.S. 605 (1972)).
Thirteen years later, the Supreme Court explained its Geders precedent and further defined
the contours of a defendant’s Sixth Amendment right to assistance of counsel in Perry v. Leeke,
488 U.S. 272 (1989). In Perry, the Court held that an order barring a defendant from consulting
with his attorney during a 15-minute afternoon break did not violate the defendant’s Sixth
Amendment right to assistance of counsel. Id. at 284–85. While the Court acknowledged that
“the line between the facts of Geders and the facts of [Perry] is a thin one,” the Court explained,
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The interruption in Geders was of a different character because the normal
consultation between attorney and client that occurs during an overnight recess
would encompass matters that go beyond the content of the defendant’s own
testimony—matters that the defendant does have a constitutional right to discuss
with his lawyer, such as the availability of other witnesses, trial tactics, or even the
possibility of negotiating a plea bargain. It is the defendant’s right to unrestricted
access to his lawyer for advice on a variety of trial-related matters that is controlling
in the context of a long recess. The fact that such discussions will inevitably include
some consideration of the defendant’s ongoing testimony does not compromise that
basic right. But in a short recess in which it is appropriate to presume that nothing
but the testimony will be discussed, the testifying defendant does not have a
constitutional right to advice.
Id. at 284 (emphasis added) (citation omitted).
Sixth Amendment Discussion
Villarreal’s trial commenced on June 19, 2018, when the State began its case-in-chief. On
the third day of trial, the State offered three witnesses before resting. Defense counsel moved for
a directed verdict, which the trial court denied.
Defense counsel then began the presentation of defendant’s case-in-chief, and Villarreal
took the stand to testify in his own defense. Villarreal’s testimony consisted of his relationship
with Estrada and the events leading up to Estrada’s murder, including the verbal and physical
altercation between Villarreal and Estrada that allegedly precipitated the murder. As Villarreal
was testifying to his actions immediately following the stabbing of Estrada, the trial court called a
recess at 1:00 p.m. The recess would last until the following day at 1:00 p.m., at which time
Villarreal’s direct examination would continue. The majority’s opinion considers the exchange
between the trial court and Villarreal’s counsel and interprets the instruction to counsel as a
permissible exercise of “discretion to limit Villarreal’s right to confer with his attorneys during an
overnight recess to topics other than his ongoing testimony.” The majority essentially agrees with
the State’s argument that the trial court’s order struck a proper balance between the two competing
concerns emphasized in both Geders and Perry: preserving the integrity of the defendant’s
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testimony and protecting the defendant’s Sixth Amendment right to assistance of counsel.
Respectfully, this view lacks an objective perspective of the state of the case and the instruction’s
effect upon counsel and the accused.
As the record reflects, the trial court repeatedly ordered defense counsel to treat Villarreal
as if he was still on the witness stand during the overnight recess. Defense counsel was not to
discuss “what you couldn’t discuss with him if he was on the stand in front of the [j]ury” and “to
decide, if he asks you any questions . . ., [ask yourself] is this something that is going to be
considered to be conferring with him on the witness stand while the jury is there or not.” As the
majority emphasizes, a defendant has no constitutional right to consult with his lawyer while he is
testifying. As instructed, Villarreal’s defense counsel were to treat Villarreal as if he was still on
the witness stand in front of the jury, thus unable to consult with him at all during the overnight
recess. When asked to confirm that counsel could not confer with their client, the trial court,
supposing they may reach the sentencing phase the next day, permitted Villarreal’s counsel to
discuss “possible sentencing issues” with him during the overnight recess but immediately
repeated his instruction, “I don’t want you discussing what you couldn’t discuss with him if he
was on the stand in front of the jury.” Understanding the trial court’s instruction as a muzzle,
counsel properly urged an objection under the Sixth Amendment. Considering the trial court’s
order in its entirety, Villarreal was deprived of counsel who could consult with him “about
anything” or, at a minimum, about trial matters coming before the sentencing phase that did not
concern “sentencing issues.” Geders, 425 U.S. at 91 (“holding an order preventing [appellant]
from consulting [with] his counsel ‘about anything’ during a [24]-hour overnight recess” is
unconstitutional and “impinge[s] upon [the appellant’s] right to the assistance of counsel
guaranteed by the Sixth Amendment”).
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This division, however, is impermissible during a 24-hour overnight recess, as Perry and
Geders explained. See id. at 284. Here, where the witness is the defendant testifying after the
State has rested and the 24-hour overnight recess is the last before the defense rests, the majority
acknowledges but ignores what the Supreme Court in Perry recognized—an overnight recess is an
“interruption . . . of a different character” and, thus, a defendant has a constitutionally protected
right to discuss a “variety of trial-related matters” during an overnight recess that “will inevitably
include some consideration of the defendant’s ongoing testimony.” Id. at 281, 284 (emphasis
added). “It is the defendant’s right to unrestricted access to his lawyer for advice on a variety of
trial-related matters that is controlling in the context of a long recess,” regardless of “the fact that
such discussions will inevitably include some consideration of the defendant’s ongoing testimony.”
See id. at 284 (emphasis added). Perry’s reasoning was buttressed in Geders by specific examples
of appropriate subjects of discussion that touch upon a defendant’s testimony, including
“obtain[ing] . . . information made relevant by the day’s testimony,” such as the names and
availability of other witnesses who may be able to corroborate the defendant’s testimony or
discussing the possibility of negotiating a plea bargain after a defendant’s potentially damaging
testimony. Geders, 425 U.S. at 88; see Perry, 488 U.S. at 284. Consultation between a defense
attorney and his client “cannot be neatly divided into discussions about ‘testimony’ and those about
‘other’ matters.” Mudd v. United States, 798 F.2d 1509, 1512 (D.C. Cir. 1986). Unguided, the
majority interprets the trial court’s instructions as an attempt “to thread the needle” that
permissibly left Villarreal free to consult with his attorneys on any matter not related to his ongoing
testimony.
Here, the overnight recess occurred after the State had rested and during Villarreal’s direct-
examination while Villarreal was testifying to the alleged altercation that precipitated the stabbing
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of the victim. Discussions between Villarreal and his counsel, as Perry recognized, would thus
inevitably include “some consideration of” Villarreal’s testimony, particularly since the entirety
of the defense’s case-in-chief rested solely on Villarreal’s testimony of self-defense. See Perry,
488 U.S. at 284. This is supported by the fact that on the day following the overnight recess,
Villarreal’s testimony on direct concerned the defensive wounds Villarreal had allegedly received
from the altercation that led to the stabbing of the victim. Thus, the trial court’s order prevented
Villarreal from conferring with counsel about defensive matters that were “inextricably
intertwined” with his previous testimony on direct. See United States v. Triumph Capital Grp.,
Inc., 487 F.3d 124, 133 (2d Cir. 2007) (“[A] defendant’s constitutional right to consult with his
attorney on a variety of trial-related issues during a long break, such as an overnight recess, is
inextricably intertwined with the ability to discuss his ongoing testimony”). Because Villarreal’s
entire defensive theory hinged on his testimony, Villarreal “may have needed advice on demeanor
or speaking style, a task made more difficult if specific testimony could not be mentioned.” See
Mudd, 798 F.2d at 1512; see also United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000)
(holding that prohibiting the defendant from discussing his ongoing testimony with his attorney
during a substantial recess “would as a practical matter preclude the assistance of counsel across a
range of legitimate legal and tactical questions”).
Further, the trial court’s order was not just a simple instruction prohibiting Villarreal from
discussing his testimony with his attorney; rather, it was an ambiguous order where Villarreal’s
defense counsel, prior to advising Villarreal on his defensive strategy, was left to question whether
the matter to be discussed was “something that is going to be considered to be conferring with
[Villarreal] on the witness stand while the jury is there or not.” Cf. Commonwealth v. Werner,
214 A.2d 276, 278 (Pa. Super. Ct. 1965) (“It is not the function of the trial judge to decide what a
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Dissenting Opinion 04-18-00484-CR
defendant’s defense should be, nor when or how that defense should be planned, nor how much
consultation between a defendant and his retained counsel is necessary to adequately cope with
changing trial situations. That is the function of counsel.”). Even if Villarreal’s defense counsel
understood the trial court’s order as an attempt to sever discussions between Villarreal’s testimony
and other permissible vaguely-defined matters, such as “possible sentencing issues,” “an order
such as [this] one . . . can have a chilling effect on cautious attorneys, who might avoid giving
advice on non-testimonial matters for fear of violating the court’s directive,” particularly in light
of the trial court’s cautionary statement to Villarreal’s counsel that “lawyers are under different
rules than the defendants are.” See Mudd, 798 F.2d at 1512. Defense counsel may have avoided
further developing and exploring Villarreal’s theory of self-defense with him during the overnight
recess out of fear of violating the trial court’s order were they to inevitably broach Villarreal’s
ongoing testimony. See Geders, 425 U.S. at 88. The trial court’s order may have had a similar
“chilling effect” in preventing defense counsel from discussing with Villarreal the “possibility of
negotiating a plea bargain” if they had been dissatisfied with Villarreal’s testimony on direct. See
Perry, 488 U.S. at 284; Mudd, 798 F.2d at 1512. Further, defense counsel may have cautiously
avoided reevaluating trial tactics and strategies with Villarreal because it would require some
consideration of Villarreal’s ongoing testimony. See Perry, 488 U.S. at 284; United States v. Cobb,
905 F.2d 784, 792 (4th Cir. 1990) (“To remove from [the defendant] the ability to discuss with his
attorney any aspect of his ongoing testimony effectively eviscerate[s] his ability to discuss and
plan trial strategy. To hold otherwise would defy reason. How can competent counsel not take
into consideration the testimony of his client in deciding how to try the rest of the case?”).
Notably, in this case, Villarreal’s testimony was interrupted on direct examination after the
State had rested, and the trial court’s instructions were made sua sponte. Unlike in Geders, the
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government did not request an instruction pertaining to communications with the witness during
the 24-hour long recess, and the prosecutor expressed no desire to cross-examine Villarreal without
the intervention of counsel due to a risk of improper ‘coaching.’ The trial court was not asked to
resolve any conflict between Villarreal’s right to counsel and the prosecutor’s desire to cross-
examine an uninfluenced witness on cross-examination. See Geders, 425 U.S. at 82. The concerns
expressed in both Geders and Perry are not present here; the instruction is thus even less justified
than the order deemed impermissible in Geders. See Geders, 425 U.S. at 91 (holding the
“prosecutor’s desire to cross-examine the defendant without the intervention of counsel” to prevent
“the risk of improper ‘coaching’” must yield to the “defendant’s right to consult with his attorney
during a long overnight recess in the trial”). Even assuming a perceived risk by the trial court,
“the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance
and guidance of counsel.” See Geders, 425 U.S. at 91). This conclusion is consistent with
decisions by all of the federal circuit courts that have considered the issue—the Second Circuit,
the Ninth Circuit, the Seventh Circuit, the Fourth Circuit, and the District of Columbia Circuit.
See Triumph, 487 F.3d at 132 (“[A]ll of the federal circuit courts that have considered the issue
have concluded that under Perry and Geders a district court may not order a defendant to refrain
from discussing his ongoing testimony with counsel during an overnight recess, even if all other
communication is allowed.”); United States v. Sandoval-Mendoza, 472 F.3d 645, 651 (9th Cir.
2006); Santos, 201 F.3d at 965; Cobb, 905 F.2d at 792; Mudd, 798 F.2d at 1510.
For these reasons, I believe the trial court’s order prohibiting Villarreal from conferring
with his attorney during an overnight recess deprived him of his Sixth Amendment right to
assistance of counsel.
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Alternatively, Abuse of Discretion Review
Alternatively, I would also conclude that the trial court abused its discretion by prohibiting
Villarreal from conferring with his attorney during the overnight recess, particularly where the trial
court acts sua sponte and without the State indicating a desire to cross-examine an uninfluenced
witness because of a perceived risk of ‘coaching’ by defense counsel. A trial court abuses its
discretion by acting without reference to guiding rules and principles or by acting arbitrarily or
unreasonably. Burks v. State, 227 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d) (citing Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993)). As the record reflects,
the trial court did not merely prohibit Villarreal from discussing his testimony with his attorney,
but repeatedly ordered defense counsel to treat Villarreal as if he was still on the witness stand
during the overnight recess. Because a testifying defendant does not have a constitutional right to
advice from counsel while on the stand, the trial court’s instructions effectively divested Villarreal
of his right to unrestricted consultation with counsel during the long overnight recess. The trial
court essentially equated the long, overnight recess with a short, few-minute break. The trial court
was thus acting without reference to the guiding constitutional principles set out in Geders and
Perry by denying Villarreal of his “right to unrestricted access to his lawyer for advice” and abused
its discretion by depriving Villarreal of his Sixth Amendment right to assistance of counsel during
the overnight recess. See Geders, 425 U.S. at 91; Perry, 488 U.S. at 284.
Even assuming, as the majority does, that the trial court “tried to thread the needle” by
prohibiting only communications concerning Villarreal’s ongoing testimony, the trial court did not
have the discretion to impose even this tailored limitation on Villarreal and his counsel because
their discussions during the 24-hour long overnight recess would “inevitably include some
consideration of the defendant’s ongoing testimony.” See Perry, 488 U.S. at 284. While it is
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entirely “appropriate to presume that nothing but the testimony will be discussed” in a short recess,
an overnight recess is “of a different character” and is not subject to the same presumption. Id.
Instead, “[i]t is the defendant’s right to unrestricted access to his lawyer . . . that is controlling in
the context of a long recess.” Id. (emphasis added). Because this was a recess spanning 24-hours,
much longer than the 17-hour overnight recess in Geders, the trial court had no discretion to take
away Villarreal’s right to “unrestricted access” to his lawyer even if such discussions would
involve ongoing testimony, particularly where his own testimony amounts to his whole defense.
See id.; cf. Werner, 214 A.2d at 278 (“The right to the assistance of . . . counsel is not a right which
exists only from 9 a.m. to 4 p.m. and only in the courtroom and only concerning certain aspects of
the case. The defendant had the right to discuss the entire case, including his own testimony, with
his attorney. . . . Discussion of this testimony might have been very important in determining the
future course of his defense.”).
For these reasons, I would also find, in the alternative, that the trial court acted without
reference to the constitutional principles set out in Geders and Perry, and thus abused its discretion
by prohibiting counsel to provide unrestricted counsel to Villarreal during the overnight recess.
Harm Discussion
Having found error under an abuse of discretion standard, I must next consider whether the
error is “structural” and thus reversible without a showing of harm, or whether the error must be
subjected to a harm analysis because it is not “structural.” See Johnson v. State, 169 S.W.3d 223,
235–36 (Tex. Crim. App. 2005). A structural error is a “defect affecting the framework within
which the trial proceeds, rather than simply an error in the trial process itself.” Johnson v. United
States, 520 U.S. 461, 468 (1997) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
Structural errors “give rise to automatic reversal, with no harm analysis whatsoever.” Johnson,
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169 S.W.3d at 232. We may “not review and analyze a claim of error as structural error unless the
United States Supreme Court has defined the error as structural . . . .” Burks, 227 S.W.3d at 144
(citing Gray v State, 159 S.W.3d 95, 97 (Tex. Crim. App. 2005)).
In Johnson v. United States, the Supreme Court set forth its most recent list of
structural errors: the total deprivation of counsel at trial, lack of an impartial trial
judge, the unlawful exclusion of members of the defendant’s race from a grand jury,
the denial of the right to self-representation at trial, the denial of the right to a public
trial, and an instruction that erroneously lowers the burden of proof for conviction
below the “beyond a reasonable doubt” standard.
Johnson, 169 S.W.3d at 235 (quoting Johnson, 520 U.S. at 468–69).
“All structural errors must be founded on a violation of a federal constitutional right, but
not all violations of federal constitutional rights amount to structural errors.” Schmutz v. State,
440 S.W.3d 29, 35 (Tex. Crim. App. 2014). In fact, “[m]ost constitutional errors are not
‘structural.’” Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004). “For federal
constitutional error that is not structural, the applicable harm analysis requires the appellate court
to reverse unless it determines beyond a reasonable doubt that the error did not contribute to the
defendant’s conviction or punishment.” Lake v. State, 532 S.W.3d 408, 411 (Tex. Crim. App.
2017) (citing TEX. R. APP. P. 44.2(a)).
Here, the State contends that Villarreal did not suffer structural error, that is, he did not
suffer a total deprivation of counsel, and thus a harm analysis is required. I disagree. The Supreme
Court likened a Geders violation to the “actual or constructive denial of the assistance of counsel
altogether” and:
simply reversed the defendant’s conviction without pausing to consider the extent
of the actual prejudice, if any, that resulted from the defendant’s denial of access to
his lawyer during the overnight recess. That reversal was consistent with the view
we have often expressed concerning the fundamental importance of the criminal
defendant’s constitutional right to be represented by counsel.
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Perry, 488 U.S. at 279–80 (emphasis added) (citation omitted). Moreover, in United States v.
Cronic, 466 U.S. 648 (1984), the Supreme Court cited Geders as an example of where it had
“found constitutional error without any showing of prejudice when counsel was either totally
absent, or prevented from assisting the accused during a critical stage of the proceeding.” Id. at
659 n.25; see also Johnson, 169 S.W.3d at 231 (likening the “denial of counsel at a critical stage”
to “the deprivation of a trial and the deprivation of an appeal” and reasoning both errors “would
clearly be reversible without a showing of harm”).
Additionally, having already found that Villarreal was denied his Sixth Amendment right
to assistance of counsel, “it would be anomalous if defendant was also forced to relinquish the
right to have his discussions with his lawyer kept confidential” because “[t]he only way that a
defendant could show prejudice [in this context] would be to present evidence of what he and
counsel discussed, what they were prevented from discussing, and how the order altered the
preparation of his defense” and would thus improperly infringe upon the defendant’s attorney-
client privilege. See Mudd, 798 F.2d at 1513.
Here, the trial court’s order, much like the order in Geders, prevented Villarreal from
consulting with his lawyer during a 24-hour overnight recess. As the Supreme Court held in
Geders, an order that prohibits the appellant from consulting with his counsel during a 24-hour
overnight recess is unconstitutional and “impinge[s] upon [the appellant’s] right to the assistance
of counsel guaranteed by the Sixth Amendment.” See Geders, 425 U.S. at 91. Moreover, the trial
court’s order effectively denied Villarreal the constitutional right to discuss trial-related matters
with his attorney and it prohibited Villarreal and his counsel from further developing Villarreal’s
defense during the overnight recess; thus, Villarreal was denied the “guiding hand of counsel at
every step in the proceedings against him.” See id. at 88–89 (quoting Powell v. Alabama, 287 U.S.
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45, 68–69 (1932)). Because the trial court’s order, like the order held impermissible in Geders,
constructively denied Villarreal “assistance of counsel altogether,” the error is “structural” and
thus reversible without a showing of harm or prejudice. See Perry, 488 U.S. at 280.
Alternatively, if the trial court’s error were subjected to a harm analysis, I cannot say
“beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” See
TEX. R. APP. P. 44.2(a). Thus, in the alternative, reversal is also required under Rule 44.2(a).
Under Texas Rule of Appellate Procedure 44.2(a), a non-structural federal constitutional error
must be reversed “unless the court determines beyond a reasonable doubt that the error did not
contribute to [Villarreal’s] conviction or punishment.” Id. Under this standard, the State has the
burden to prove the error is harmless beyond a reasonable doubt. Davis v. State, 195 S.W.3d 311,
316–17 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see Chapman v. California, 386 U.S. 18,
26 (1967) (finding, under the “harmless-constitutional-error” test, that the State did not
demonstrate to the Court, beyond a reasonable doubt, that the error did not contribute to
petitioner’s conviction). “Unless the error could not possibly have contributed to the conviction
or punishment, we must reverse.” Davis, 195 S.W.3d at 316–17 (citing Wall, 184 S.W.3d at 746).
A reviewing court may consider “the source and nature of the error, the extent to which the State
emphasized it, its probable collateral implications, [and] the weight the jury would probably give
it,” though these factors are neither exhaustive or dispositive. Id. (citing Harris v. State, 790
S.W.2d 568, 587 (Tex. Crim. App. 1989)). “If, after such analysis, the harm of the error simply
cannot be assessed, then ‘the error will not be proven harmless beyond a reasonable doubt,’ and
reversal is required.” Morris v State, 554 S.W.3d 98, 124 (Tex. App.—El Paso 2018, pet. ref’d)
(quoting Lake, 532 S.W.3d at 411).
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Here, the State argues “if depriving a defendant of his ability to discuss his testimony with
counsel during a short break is not even error . . ., then it is hard to see how the restriction is not
‘obviously’ harmless under the circumstances.” However, an overnight recess is of an entirely
“different character” and while it is “appropriate to presume that nothing but the testimony will be
discussed” in a short recess, in the context of a long recess, “[i]t is the defendant’s right to
unrestricted access to his lawyer for advice . . . that is controlling,” even if “such discussions will
inevitably include some consideration of the defendant’s ongoing testimony.” See Perry, 488 U.S.
at 284. Moreover, “[t]he only way that a defendant could show prejudice [in this context] would
be to present evidence of what he and counsel discussed, what they were prevented from
discussing, and how the order altered the preparation of his defense,” which are private discussions
reasonably protected by the attorney-client privilege. See Mudd, 798 F.2d at 1513. Further, given
the ambiguous nature of the trial court’s order to Villarreal, 2 we cannot say beyond a reasonable
doubt that Villarreal understood he could still, in fact, communicate with his attorneys, nor can we
determine whether Villarreal refrained from consulting with his attorneys for fear of violating the
trial court’s order. Cf. Geders, 425 U.S. at 88–89 (“The right to be heard would be, in many cases,
of little avail if [the defendant] did not comprehend the right to be heard by counsel. . . . [A
defendant] is unfamiliar with the rules of evidence. . . . He lacks both the skill and knowledge
adequately to prepare his defense, even though he [may] have a perfect one. He requires the
guiding hand of counsel at every step in the proceedings against him.” (quoting Powell, 287 U.S.
at 68–69)). Certainly, counsel expressed such a concern. Accordingly, I would conclude, in the
alternative, that if the trial court’s error were subjected to a harm analysis, I cannot say beyond a
reasonable doubt that the error did not contribute to the conviction or punishment.
2
For example, the trial court first directed its order to Villarreal: “And so I’d like to tell you [Villarreal] that you can’t
confer with your attorney but [at] the same time you have a [Sixth] Amendment right to talk to your attorney.”
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For the reasons stated above, I respectfully dissent.
Rebeca C. Martinez, Justice
PUBLISH
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