ELUID LIRA, Appellant v. THE STATE OF TEXAS; SCOTT HUDDLESTON, Appellant v. THE STATE OF TEXAS
NO. PD-0212-21; NO. PD-0213-21
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
ON STATE‘S PETITION FOR DISCRETIONARY REVIEW FROM THE ELEVENTH COURT OF APPEALS JONES COUNTY
Does the Texas Supreme Court‘s “Seventeenth Emergency Order Regarding the COVID-19 State of Disaster” authorize
Background
The State charged both Appellants with second-degree felony assault on a public servant. The State alleged in Lira‘s indictment that he had previously been convicted twice for felony possession of a controlled substance and twice for felony possession of a controlled substance with intent to distribute. The State alleged in Huddleston‘s indictment that he had previously been convicted for murder. Both Appellants were represented by the State Counsel for Offenders.
Both Appellants reached plea agreements with the State and their cases were set for back-to-back pleas via a “zoom/video-conference plea docket.” Prior to the hearing, counsel for Appellants filed identical motions objecting to the trial court‘s setting the cases for plea hearings via a Zoom videoconference. In the motions, Appellants argued that pleading by videoconference would violate their constitutional right to counsel, right to public trial, and statutory rights under Articles
When the day for the videoconference arrived, the trial court heard arguments regarding the Appellants’ motions and overruled them. Appellant Lira was sentenced to eight years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. Appellant Huddleston was sentenced to eight years and a fine of $3,000. The parties agreed that Appellants would retain their right to appeal “on constitutional issues, public trial issues, the 27.18 all of those issues, the right to counsel . . .”
Appeal
On appeal, the Appellants argued that their statutory right to enter a guilty plea in person in open court was a substantive right. Because of this, it was not subject to the Texas Supreme Court‘s emergency orders regarding the modification or suspension of deadlines and procedures. The State argued that, if preserved, Appellants’ arguments failed because the Texas Supreme Court had the authority to modify or suspend “the act of criminal defendants appearing live in live courtrooms[.]”
The court of appeals agreed with the Appellants.1 It held that paragraph 3(c) of the Seventeenth Emergency Order could
Petitions for Discretionary Review
In its petition for review to this Court, the State Prosecuting Attorney (SPA) raised one ground: “If a defendant has to accept the benefit of a negotiated plea agreement via videoconferencing, has he lost a substantive right or been harmed?” We note at the outset that the SPA‘s framing of its issue lacks precision. This is not a situation in which the Appellants consented to appear via videoconference in exchange for a plea bargain recommendation. Rather, the Appellants objected to the videoconference proceeding and refused to provide written consent to that procedure before formally entering a plea and accepting a plea bargain. As mentioned above, the parties аgreed, 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
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
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
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 time of its enactment.12 Our duty is to try to intеrpret 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
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 cоurt proceedings. And finally, we set out the textual mechanisms for the waiver of a defendant‘s right to trial by jury, a defendant‘s plea of guilty or no contest without a jury, and the mechanisms for a videoconferenced plea proceeding.
Ultimately, we agree with the court of appeals that the trial court had no authority to preside over a videoconferenced plea hearing where the Appellants had not waived in person or in writing their right to be present. As we held in Ogg, the Supreme Court‘s Emergency Orders cannot suspend procedures designed to protect substantive rights, nor can they create authority for a trial court to preside over proceedings over which it has no authority. Under the plain text of the relevant statutes, the trial court would not have had authority to proceed to the videoconferenced plea absent the Appellants’ consent. The Supreme Court‘s emergency order could not provide a trial court with authority that did not previously exist.
Texas Govеrnment 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
(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 to maintain schedules and meеt 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
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
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.
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 wаiver 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
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 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
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
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
serve as a factfinder in the trial of a misdemeanor case absent the consent and approval of the State as prescribed by Article
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
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
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
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 cоnfer
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
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] with indulgence.’
The plea proceeding is a stage at which a defendant‘s presence is critical to the outcome. As the United States Supreme Court noted of plea proceedings,
Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the
Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one‘s accusers.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 рlea 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. 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
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.
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
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 during thе 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
And the
We cannot overlook the legislature‘s obvious textual determinations. Whether because of concern for the constitutionality of remote plea proceedings without the defendant‘s consent76 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 “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
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
As set out above, our legislature, made clear that a trial court simply lacks authority to enter a felony conviction unless a defendant appears in person and waives his rights in full compliance with the statutes that set out the conditions for a valid wаiver.
In addition, both cite to required compliance with
The defendant in a criminal prosecution for any offense other than a capital felony case in which the state notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, except as provided by Article 27.19, the waiver must be made in person by the defendant in writing in open court with the consent and approval of the cоurt, 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
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 сounsel, and is provided a reasonable opportunity to request a court-appointed lawyer;
(B) if the defendant elects to proceed without counsel, the defendant must waive the right to counsel in accordance with Article 1.051;
(C) the defendant must waive the right to be present at the taking of the plea or to have counsel present, if the defendant has counsel; and
(D) if the defendant is charged with a felony, judgment and sentence are rendered in accordance with the conditions and the procedure established by Article 42.14(b).91
(a) Notwithstanding any provision of this code requiring that a plea or a waiver of a defendant‘s right be made in open court, a court may accept the plea or waiver by broadcast by closed circuit video conferencing to the court if:
(1) the defendant and the attorney representing the state file with the court written consent to the use of closed-circuit video tele-conferencing;
(2) the closed-circuit video teleconferencing system provides for a simultaneous, compressed full motion video, and interactive communication of image and sound between the judge, the attorney representing the state, the defendant, and the defendant‘s attorney; and
(3) on request of the defendant, the defendant and the defendant‘s attorney are able to communicate privately without being recorded or heard by the judge or the attorney representing the state.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
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
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 аuthority 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
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
While the requirement of
Accordingly, the trial court was not authorized to proceed without a jury because
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 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. The State‘s point is well taken. We have held before that no error, except those labeled as structural error is categoricаlly 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
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 written consent to a jury waiver as a procedure necessary for the trial court‘s authority tо 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,
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 videoсonferenced plea hearing when the defendant has not consented. As we held in Ogg, the Texas Supreme Court‘s Emergency Order cannot grant authority where none exists. Accordingly, we will affirm the judgment of the court of appeals and remand the cause to the trial court for further proceedings.
Filed: January 11, 2023
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