Lira, Eluid

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0212-21
ELUID LIRA, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
JONES COUNTY
NO. PD-0213-21
SCOTT HUDDLESTON, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
JONES COUNTY
Lira & Huddleston --- 2
NEWELL, J., delivered the opinion of the Court in which
HERVEY, RICHARDSON, WALKER and MCCLURE JJ., joined. KELLER, P.J.,
filed a dissenting opinion in which KEEL and SLAUGHTER, JJ., joined.
YEARY, J., concurred.
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
Lira & Huddleston --- 3
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.
Lira & Huddleston --- 4
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. 1 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
1
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 & Huddleston --- 5
hearing over his objection. 2 First, the court of appeals cited to this
Court’s recent decision in In re State ex. Rel. Ogg 3 for the proposition
that neither Section 22.0035(b) nor the Seventeenth Emergency Order
purported to authorize a trial court to modify substantive rights. 4 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. 5 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. 6 Finally, the court of appeals held that the plea was voidable
because of the trial court’s lack of authorization. 7
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
2
Lira, 630 S.W.3d at 441; Huddleston, 630 S.W.3d at 438.
3
618 S.W.3d 361 (Tex. Crim. App. 2021) (orig. proceeding).
4
Lira, 630 S.W.3d at 442; Huddleston, 630 S.W.3d at 438.
5
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).
6
Lira, 630 S.W.3d at 442; Huddleston, 630 S.W.3d at 439.
7
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. 2012)); Ogg, 618 S.W.3d at 365; Lilly v. State,
365 S.W.3d 321, 328, 333 (Tex. Crim. App. 2012)).
Lira & Huddleston --- 6
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. 8
In Lilly, we rejected the argument that the defendant’s public trial claim
had been waived by acceptance of the plea bargain. 9 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. 10
8
Lilly v. State, 365 S.W.3d 321, 324-25 (Tex. Crim. App. 2012).
9
Id. at 328.
10
Id.Lira & Huddleston --- 7
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
Lira & Huddleston --- 8
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. 11 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
11
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Lira & Huddleston --- 9
time of its enactment. 12 Our duty is to try to interpret the work of our
legislature as best we can to fully effectuate the goals they set out. 13
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. 14 We do not
focus solely upon a discrete provision; we look at other statutory
provisions as well to harmonize provisions and avoid conflicts. 15
Accordingly, time-honored canons of interpretation, both semantic and
contextual, can aid interpretation, provided the canons esteem textual
interpretation. 16 Statutory construction is a question of law that we
review de novo. 17
12
Id.13
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.”).
14
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).
15
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).
16
Watkins, 619 S.W.3d at 272.
17
Id. at 273.
Lira & Huddleston --- 10
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
Lira & Huddleston --- 11
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. 18 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:
(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. 19
The new section was spurred by a string of natural disasters that had
impacted Texas in the preceding two years. 20 It sought to address the
difficulties that events such as Hurricane Ike posed for courts attempting
18
See Acts 2009, 81st Leg., ch. 1281, § 1, eff. June 19, 2009.
19
TEX. GOV’T CODE § 22.0035(b).
Senate Research Center, Bill Analysis, Tex. H.B. 1861, 81st Leg. at 1 (“Author’s / Sponsor’s
20
Statement of Intent”).
Lira & Huddleston --- 12
to maintain schedules and meet statutory deadlines. 21 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.” 22 By its own terms, the statute
does not authorize the suspension or modification of substantive rights.
On March 4, 2020, the State of Texas reported its first case of
COVID-19. 23 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.” 24
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. 25
The Texas Supreme Court has renewed this Order multiple times, with
many orders superseding prior orders. 26
21
Id.
22
Id.
23
In re State of Texas, 602 S.W.3d 549, 550 (Tex. 2020).
24
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,
25
Misc. Docket Nos. 20-9042, 596 S.W.3d 265, 265–66 (Tex. 2020).
26
Ogg, 618 S.W.3d at 364.
Lira & Huddleston --- 13
On May 26, 2020, the Texas Supreme Court issued its Seventeenth
Emergency Order Regarding the COVID-19 State of Disaster (the
Emergency Order). 27 The Emergency Order provided, in pertinent part:
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;
[ . . . ]. 28
This Emergency Order was in place at the time of both pleas underlying
this case.
Supreme Court of Texas, Seventeenth Emergency Order Regarding the COVID-19 State of
27
Disaster, Misc. Docket No. 20-9071, 609 S.W.3d 119 (Tex. 2020).
28
Id. at (3)(a-c).
Lira & Huddleston --- 14
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.” 29 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. 30 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.” 31 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. 32
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.” 33 Instead, we regarded it as a procedure necessary
29
Ogg, 618 S.W.3d at 364.
30
Id. at 362.
31
Id. at 362–63.
32
Id. at 366.
33
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
Lira & Huddleston --- 15
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.
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.
Lira & Huddleston --- 16
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). 34 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.” 35 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. 36
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. 37 The State sought
mandamus relief. 38 We relied on our prior decision in State ex rel. Turner
for the proposition that the trial court did “not have the discretion to
34
Id. at 363–64.
35
Id. at 364.
36
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)).
37
Curry, 847 S.W.2d at 562.
38
Id.
Lira & Huddleston --- 17
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. 39 Given the circumstances,
we held that the trial court had “a ministerial duty to conduct a jury
trial.” 40
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). 41 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.” 42 So also, “the trial judge was not authorized by law to pass
upon the culpability of the accused.” 43 Ultimately, similar to this case,
39
Id. (citing State ex. Rel Turner v. McDonald, 676 S.W.2d 371, 371–72 (Tex. Crim. App.
1984).
40
Id.41
George, 913 S.W.2d at 525.
42
Id. at 527.
43
Id.
Lira & Huddleston --- 18
the question we faced in Ogg was whether the Emergency Order could
change that underlying lack of authority. 44
First, we noted that the language of the Emergency Order
“presupposes a pre-existing power or authority over the case or the
proceedings.” 45 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.” 46 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.” 47
While we noted that the Emergency Order stated that it was “subject
only to constitutional provisions,” we reasoned that this was “still not an
44
Ogg, 618 S.W.3d at 365.
45
Id.
46
Id. at 364–65.
47
Id. at 365.
Lira & Huddleston --- 19
explicit statement that courts and judges have the ability to enlarge
their jurisdiction and authority over proceedings.” 48
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. 49 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. 50 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. 51
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
48
Id.
49
Id.
50
Id.
51
Id. (citing Davis, 956 S.W.2d at 557–58 and George, 913 S.W.2d at 525).
Lira & Huddleston --- 20
on the trial court the power to abrogate a defendant’s statutory right to
a jury trial at punishment.” 52 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.” 53
Notably, the Emergency Order at issue in Ogg purported to
authorize proceeding without the consent of the participants. 54 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. 55 With this understanding of Ogg in mind, we consider the
52
Id.
53
Id.
54
Id. at 364.
55
Id. at 365.
Lira & Huddleston --- 21
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.
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.” 56 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. 57 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]
56
Lewis v. United States, 146 U.S. 370, 372 (1892).
57
Crosby v. United States, 506 U.S. 255, 259 (1993).
Lira & Huddleston --- 22
with indulgence.’” 58 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. 59 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.” 60
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
58
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.”).
59
Illinois v. Allen, 397 U.S. 337, 338 (1970).
60
Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
Lira & Huddleston --- 23
Fourteenth. Second, is the right to trial by jury.
Third, is the right to confront one’s accusers. 61
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. 62
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.” 63 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. 64 Intermediate courts of appeals have recognized a
constitutional right to be present as well. 65 As we stated in Miller v.
61
Boykin v. Alabama, 395 U.S. 238, 243 (1969) (internal citations omitted).
62
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).
63
Garcia v. State, 149 S.W.3d 135, 140 (Tex. Crim. App. 2004).
64
Ex parte Miles, 26 S.W.3d 910, 915 (Tex. Crim. App. 2000) (citing United States v. Gagnon,
470 U.S. 522 (1985)).
65
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).
Lira & Huddleston --- 24
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.’” 66
Physical presence is personal to the accused and cannot be disregarded
or ignored by the courts without affirmative action or assent by the
accused. 67
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. 68
66
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)).
67
Baltierra, 586 S.W.2d at 556.
68
TEX. CODE CRIM. PROC art. 27.13 (emphasis added).
Lira & Huddleston --- 25
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 [ . . . ] 69
Both statutes establish a statutory requirement that the defendant be
present in person and in open court to enter a plea of guilty. 70 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:
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
69
TEX. CODE CRIM. PROC art. 1.15 (emphasis added).
70
See TEX. CODE CRIM. PROC arts. 1.15, 27.13.
Lira & Huddleston --- 26
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. 71
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. 72 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.
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
71
TEX. CODE CRIM. PROC. art. 33.03.
72
Miller, 692 S.W.2d at 91.
Lira & Huddleston --- 27
electronic means. 73 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.” 74 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[.]” 75
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 76 or because
of some other policy determination left squarely to the legislature, 77 the
legislature has made its intent plain through text, and we must accord
it respect. 78 Accordingly, we cannot read references to a defendant’s
73
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).
74
TEX. CODE CRIM. PROC. art. 15.17(a) (emphasis added).
75
TEX. CODE CRIM. PROC. art. 43.03(f) (emphasis added).
76
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.”).
77
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.”).
78
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.”).
Lira & Huddleston --- 28
“in person” status as anything other than a substantive guarantee of
personal presence prior to pleading.
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. 79 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. 80 It is equally absurd to
regard the same Emergency Order at issue in Ogg as conferring upon a
79
Lira, 630 S.W.3d at 442; Huddleston, 630 S.W.3d at 439.
80
Ogg, 618 S.W.3d at 365.
Lira & Huddleston --- 29
trial court the power to abrogate a defendant’s statutory right to be
personally present in open court to enter his plea.
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. 81
Our state Constitution mandates: “[t]he right of trial by jury shall remain
inviolate.” 82 Our Code of Criminal Procedure repeats this mandate
verbatim. 83 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.” 84
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
81
See TEX. CONST. art. I, § 15.
82
Id.
83
TEX. CODE CRIM. PROC. art. 1.12.
84
TEX. CONST. art. I, § 15.
Lira & Huddleston --- 30
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.” 85 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”. 86 Both statutes establish a statutory
requirement that the defendant be present in person and in open
court. 87
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. 88 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
85
TEX. CODE CRIM. PROC. art. 1.15 (emphasis added).
86
TEX. CODE CRIM. PROC. art. 27.13 (emphasis added).
87
See TEX. CODE CRIM. PROC. art. 1.15, 27.13.
88
See TEX. CODE CRIM. PROC. art. 1.15, 27.13.
Lira & Huddleston --- 31
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. 89
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.” 90 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”:
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
89
TEX. CODE CRIM. PROC. art. 1.13(a) (emphasis added).
90
See TEX. CODE CRIM. PROC. arts. 1.15, 1.13(a), 27.13.
Lira & Huddleston --- 32
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). 91
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:
91
TEX. CODE CRIM. PROC. art. 27.19(a) (emphasis added).
Lira & Huddleston --- 33
(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. 92
The legislature created an entire statutory scheme to accommodate a
defendant who desired to waive his right to jury other than “in person.” 93
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
92
TEX. CODE CRIM. PROC. art. 27.18(a) (emphasis added).
93
See TEX. CODE CRIM. PROC. arts. 1.13(a), 27.19(a), and 27.18(a).
Lira & Huddleston --- 34
without a jury. 94 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.
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.” 95 The Emergency Order simply could not abrogate Appellants’
substantive statutory right to be present in person in open court. Failing
94
Ogg, 618 S.W.3d at 365.
95
Ogg, 618 S.W.3d at 364.
Lira & Huddleston --- 35
to secure Appellants’ written consent resulted in the abrogation of the
Appellants’ substantive statutory right to be present.
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. 96 In this case, as in Ogg, the trial
court had no authority to proceed, and the Emergency Order could not
provide that authority.
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. 97 Absent the requirements in 27.18(a)(1-3), the
trial court simply does not gain the discretionary authority to hold the
remote proceeding. 98 Like the State’s consent requirement in Ogg, the
96
Id.
97
TEX. CODE CRIM. PROC. art. 27.18.
98
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.).
Lira & Huddleston --- 36
consent requirement under 27.18 is the type of procedure necessary to
authorize the trial court to proceed. 99 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. 100
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. 101 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). 102 In addition, a trial court cannot
99
See Ogg, 618 S.W.3d at 364.
100
Id.
101
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).
102
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
Lira & Huddleston --- 37
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. 103
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. 104 In addition, the base line
requirements of a defendant being “in person” and “in open court” are
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.”).
103
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).
See TEX. CODE CRIM. PROC. art. 1.13(a) (“. . . except as provided by Article 27.19, the waiver
104
must be made in person by the defendant . . . “).
Lira & Huddleston --- 38
repeated three separate times in three separate mandatory and
interrelated statutes. 105 And any departure from this requirement is
specifically addressed by two additional heavily-detailed and consent-
centric statutes. 106 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.
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. 107
105
See TEX. CODE CRIM. PROC. arts. 1.15, 1.13, 27.13.
106
See TEX. CODE CRIM. PROC. arts. 27.19(a), 27.18(a).
107
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
Lira & Huddleston --- 39
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.” 108 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.” 109
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. 110 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. 111 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.
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.
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.”).
108
Casias, 503 S.W.2d at 263.
109
Id. at 265.
110
Id.111
See TEX. CODE CRIM. PROC. art. 1.13.
Lira & Huddleston --- 40
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. 112 We acknowledge that there are cases in which we
have held that lack of compliance with Article 1.13 can be harmless. 113
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. 114 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.
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. 115 And by casting the State’s
112
Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).
113
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).
114
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.
115
Ogg, 618 S.W.3d at 365.
Lira & Huddleston --- 41
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.” 116 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.” 117 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. 118 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
Id. The reason for the lack of authority in Ogg is the same one in this case, the lack of a
116
valid waiver of a jury trial.
117
George, 913 S.W.2d at 527.
118
TEX. CODE CRIM. PROC. art. 1.15.
Lira & Huddleston --- 42
without a valid waiver of Appellants’ respective rights to a jury trial. 119
Accordingly, the court of appeals was correct to find those pleas
voidable.
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
119
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.”).
Lira & Huddleston --- 43
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.
Filed: January 11, 2023
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