Christi Gail Cathey v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-20-00235-CR
CHRISTI GAIL CATHEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 413th District Court
Johnson County, Texas
Trial Court No. F47250, Honorable William C. Bosworth, Presiding
April 12, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Christi Gail Cathey, appeals the trial court’s judgment revoking her
community supervision and sentencing her to prison for possessing a controlled
substance. She had been convicted of the offense and sentenced earlier. However, the
trial court suspended the sentence and placed her on community supervision.
Subsequently, the State moved to revoke her supervision because she allegedly violated
various conditions of same. The trial court scheduled a live hearing on the motion,
changed its mind, set the motion for hearing a week sooner, and directed that it be
conducted via Zoom, i.e., a service through which live meetings may be held via the
internet. When the hearing began, appellant moved for a continuance and also objected
to adjudicating the motion through Zoom. The trial court denied the former and overruled
the latter. And, upon hearing evidence which included appellant’s confession evincing
that she had committed another criminal offense, it granted the motion and sentenced her
to eight year’s imprisonment. She now proffers three issues dealing with the sufficiency
of the evidence underlying the decision to revoke, hearing the motion through Zoom, and
the denial of a continuance. We affirm.1
Issue Three – Insufficient Evidence
Though it is appellant’s third issue, we address her sufficiency argument first.
Allegedly, the trial court had insufficient evidence before it upon which to find she violated
a condition of her community supervision. We overrule the issue.
One condition of appellant’s supervision consisted of forgoing the commission of
other crimes. The State said she violated it and other conditions. The accuracy of the
allegation was confirmed through appellant’s own confession. She admitted to driving an
individual to buy “dope” at various times around April 24, 2020. This occurred after having
had her sentence suspended and being placed on community supervision. The
circumstance made her a party to another’s possession of a controlled substance. See
TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011) (stating that one is criminally responsible
for an offense committed by the conduct of another if “acting with intent to promote or
assist the commission of the offense, he solicits, encourages, directs, aids, or attempts
1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply
its precedent when available in the event of a conflict between the precedents of that court and this Court.
See TEX. R. APP. P. 41.3.
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to aid the other person to commit the offense”). Moreover, proving one violation of the
conditions of probation was enough to support revocation. Busby v. State, No. 07-20-
00001-CR, 2021 Tex. App. LEXIS 1891, at *5 (Tex. App.—Amarillo Mar. 11, 2021, no
pet. h.) (mem. op., not designated for publication).
Issue One – Zoom Hearing
In her first issue, appellant contends that her constitutional right to confront
witnesses and to the effective assistance of counsel was denied her by conducting the
hearing via Zoom. So conducting the hearing per an emergency order of the Texas
Supreme Court also allegedly violated the precept of separation of powers. We overrule
the issue.
The substance of appellant’s right-to-confront complaint consists of the absence
of opportunity to confront her accusers in person. See Haggard v. State, 612 S.W.3d
318, 324 (Tex. Crim. App. 2020) (recognizing that the Confrontation Clause protects a
criminal defendant’s right to physically confront those who testify against him). Assuming
arguendo that the right to confront witnesses applies to revocation proceedings, see
Taylor v. State, No. 09-19-00171-CR, 2020 Tex. App. LEXIS 8669, at *19–20 (Tex.
App.—Beaumont Nov. 4, 2020, no pet.) (mem. op., not designated for publication)
(holding that it does not), the “denial of physical, face-to-face confrontation is reviewed
for harmless error.” Haggard, 612 S.W.3d at 328. Additionally, the harm analysis does
not “include consideration of whether the witness’ testimony would have been unchanged,
or the jury’s assessment unaltered, had there been confrontation.” Id. Rather, harm is
determined based on the remaining evidence. Id. If nothing else, the remaining evidence
includes appellant’s confession alluded to above and damning admissions. Given it and
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them, we cannot say, beyond reasonable doubt, that the purported Sixth Amendment
violation contributed to the result. See id. (stating that constitutional error is harmful
unless a reviewing court determines beyond a reasonable doubt that the error did not
contribute to the conviction).
As for the allegation concerning the denial of effective assistance of counsel, it too
is based on the court’s decision to conduct the hearing via Zoom. The indicia evincing
such a denial consisted of the purported inability to converse with appellant, the inability
to accurately assess a witness’s demeanor, the inability to obtain the report from which a
witness was reading due to the logistics of being in different locations, and “glitches”
inherent in meetings conducted over the internet. Regarding the report from which the
witness was reading, we find nothing of record illustrating that it could not be sent to
appellant’s counsel during the hearing had he asked for it.
Nor does the record illustrate that the “glitches” affected appellant’s defense or her
ability to exam witnesses in any substantive way. They may have been frustrating, but
frustration is the byword in these times of growing technology.
That appellant may not have been able to communicate with her attorney may be
significant had the record established the allegation. Instead, it illustrated that the trial
court had the means to place her and her legal counsel in a separate room, so to speak,
in which they could converse in private. That opportunity was also extended to appellant
and her counsel by the trial court. Neither sought it. Given all of the foregoing, we cannot
say either that appellant was denied the effective assistance of counsel or that any
supposed denial caused harm.
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As for the allegation that conducting a hearing via Zoom by order of the Supreme
Court violated separation of powers, that argument went unmentioned below. Thus, it
was not preserved for review. Moreover, and contrary to appellant’s suggestion, the
Texas legislature enacted a statute authorizing the Texas Supreme Court to modify or
suspend procedures applicable to court proceedings. See TEX. GOVT CODE ANN.
§ 22.0035(b) (West Supp. 2020) (stating that “[n]otwithstanding 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”). The Texas governor had declared such a disaster, and the Supreme Court
acted in response to it.
Issue Two – Continuance
The last issue we address is appellant’s complaint about being denied a
continuance. It was sought because the trial court rescheduled the hearing to occur one
week earlier than the previous setting. So too had the State recently indicted her for drug
offenses which offenses (and facts underlying them) would be used as basis to revoke
her probation. Appellant’s counsel sought time to investigate them and otherwise
prepare. Denying a continuance under those circumstances constituted an abuse of
discretion resulting in harm, purportedly. We overrule the issue.
Assuming arguendo that rescheduling the hearing for an earlier date constituted
an abuse of discretion, Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007)
(stating that we review a trial court’s ruling on a motion for continuance for abused
discretion), we find no harm. Appellant’s counsel had been appointed on June 17, 2020,
which was at least one month before the July 23rd hearing. And, though he sought,
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through the motion, additional time to prepare, we were directed to and found nothing of
record suggesting what additional preparations reasonably could have been done.
Instead, we are left to speculate on them and their likelihood, if any, of affecting the
outcome, which speculation we cannot engage. Henderson v. State, No. 14-18-00926-
CR, 2020 Tex. App. LEXIS 7868, at *16–17 (Tex. App.—Houston [14th Dist.] Oct. 1, 2020,
no pet.) (mem. op., not designated for publication) (noting that Henderson failed to identify
a witness who might have been called to testify, evidence that might have been offered,
or information that might have been beneficial to his case and stating that speculation,
without any demonstration of actual harm, is insufficient to establish that the trial court
reversibly erred in denying appellant’s pretrial motion for continuance).
The record also illustrates that the State’s amended motion to revoke was filed on
June 9, 2020, and the hearing held about six weeks later. It references various of the
acts for which appellant would be indicted later. So, despite the rescheduled July 23,
2020 hearing date, appellant’s counsel had more than ten days 1) prior notice of the
motion and 2) to prepare to address the allegations therein. See TEX. CODE CRIM. PROC.
ANN. art. 1.051 (e) (West Supp. 2020) (stating that appointed counsel is entitled to 10
days to prepare for a proceeding).
Also of import is the quantum of evidence establishing that she violated a condition
of her supervision. See Williams v. State, No. 05-19-00664-CR, 2020 Tex. App. LEXIS
3496, at *9 (Tex. App.—Dallas Apr. 24, 2020, no pet.) (mem. op.) (stating that in
determining harm, the court considers everything in the record, “including any testimony
or physical evidence admitted for the jury’s consideration, the nature of the evidence
supporting the verdict, and the character of the alleged error and how it might be
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considered in connection with other evidence in the case”); accord Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002) (stating the same). As illustrated earlier, the
evidence of a violation is rather overwhelming.
In sum and irrespective of whether we condone the trial court’s decision to
reschedule the hearing for an earlier date and thereby reduce the period available to
appellant to prepare her defense, we fail to see how it affected a substantial right of hers.
Finding such an affect is a prerequisite to finding harm authorizing reversal. See Williams,
2020 Tex. App. LEXIS 3496, at *7–8 (stating that we disregard the error unless it affected
appellant’s substantial rights and a substantial right is affected if: 1) the error has a
substantial and injurious effect or influence in determining the jury’s verdict or 2) leaves
one in grave doubt whether it had such an effect).
Having overruled each of appellant’s issues, we affirm the judgment of the trial
court.
Brian Quinn
Chief Justice
Do not publish.
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