by Sam Rutherford

The Court of Criminal Appeals of Texas, that state’s highest court of review in criminal cases, held that a trial court violated a defendant’s right to be present at a probation revocation hearing conducted via Zoom by muting the defendant during the hearing. This case challenges yet another aspect of procedures implemented during the COVID-19 pandemic by trial courts across the country.

Background

Darren Trammel Hughes pleaded guilty to tampering with a governmental instrument. The trial court deferred adjudication and placed him on three years of community supervision. Two years and 10 months later, the State filed a motion to adjudicate guilt, alleging that Hughes violated the terms of community supervision by committing two forgery offenses and by failing to pay a required supervision fee, court cost, and drug testing fee.

The revocation hearing, called a deferred adjudication hearing, was conducted via Zoom due to COVID-19. Only defense counsel and the trial judge were physically present in the courtroom. The prosecutor, its witnesses, and Hughes appeared via Zoom. Although Hughes was in the local jail and available to appear, he was not permitted to attend the hearing in person because he had been exposed to COVID-19.

The State called two witnesses in support of its application—Brianna Jones, who was assigned to monitor Hughes’ community supervision, and Detective Mezegabe, who investigated one of the forgery charges. Hughes tried to speak at several points during the hearing, and each time, the trial court instructed the court clerk to mute him. The court revoked Hughes’ community supervision and sentenced him to 10 years in prison. When Hughes tried to say that he wanted to appeal the court’s ruling, the judge said: “Stop. Please mute him. Thank you. He’s disruptive.”

Hughes timely appealed to the Court of Appeals of Texas, Fourteenth District, arguing that the trial judge violated his right to be present in the courtroom during the revocation hearing. The Court of Appeals agreed in a split decision, ruling that Hughes had a right under the Confrontation Clause to be present at the hearing and that this right was violated by muting him during the hearing. The error required reversal because it prevented Hughes from communicating with his attorney about how best to cross-examine the State’s witnesses. The dissenting judge believed that the issue should have been resolved under the Due Process Clause, not the Confrontation Clause, and that the record failed to establish a due process violation. The State sought and was granted discretionary review.

Analysis

At the outset, the Court noted that both the Sixth Amendment Confrontation Clause and the Fourteenth Amendment Due Process Clause guarantee a defendant the right to be present during trial court proceedings. Lira v. State, 666 S.W.3d 498 (Tex. Crim. App. 2023) (quoting Kentucky v. Stincer, 482 U.S. 730 (1987)). The Sixth Amendment applies “at every stage of trial,” while the Fourteenth Amendment “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.’” Id.; Snyder v. Massachusetts, 291 U.S. 97 (1934). The issue was which of these constitutional provisions applied to Hughes’ revocation hearing.

The U.S. Supreme Court has long held that probation and parole revocation proceedings must comport with due process protections. See Morrissey v. Brewer, 408 U.S. 471 (1972) (parole); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation). Revocation proceedings of both types can result in the loss of liberty. Gagnon. And both the Supreme Court and the Texas Court of Criminal Appeals have held that an essential component of due process during revocation proceedings, including deferred adjudication hearings, is the defendant’s right to be heard in person and to present witnesses and documentary evidence. See Ex parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006); Black v. Romano, 471 U.S. 606 (1985). Thus, the Court declared that it is the Due Process Clause, not the Confrontation Clause, that affords the defendant a right to be present at a deferred adjudication proceeding because the hearing “would not be fair and just if the defendant is excluded.”

The State argued that Hughes, by not objecting, forfeited his right to challenge the trial court’s action of muting him during the hearing as a violation of his due process right to be present. Resolving this issue required the Court to determine what type of right Hughes’ right to be present qualifies as. The Court explained that there are three types of rights a litigant possesses: “rights that are mandatorily enforced, rights subject to waiver, and rights subject to forfeiture.” Peyronel v. State, 465 S.W.3d 650 (Tex. Crim. App. 2015).

A mandatory right is not optional and therefore may not be waived or forfeited, and a violation of a mandatory right may be challenged on appeal even if the litigant does not object at trial. A waivable right also must be implemented by the trial court unless the litigant specifically and knowingly waives it and, like the violation of a mandatory right, may be raised on appeal even if the litigant did not request implementation of it. Finally, forfeitable rights are implemented only upon request, and a litigant’s failure to request implementation forfeits his or her ability to complain about a violation of this right on appeal. See Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).

The Court held that a defendant’s right to be present, whether it emanates from either the Confrontation Clause or the Due Process Clause, is a waivable right that must be plainly, freely, and intelligently waived on the record. This is so because waivable rights are those that are “considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.” Marin. As the U.S. Supreme Court has recognized, “the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Snyder. Notably, this right is “not extinguished by inaction alone.” Marin. Thus, because Hughes did not waive his right to be present at the revocation hearing, and because the right is critical to a fair hearing, he could raise a violation of that right for the first time on appeal, according to the Court.

The next issue was whether Hughes’ right to be present was violated by the trial court’s actions in this case. Although Hughes argued that his mere participation via Zoom by itself violated his due process rights, the Court declined to reach this issue and instead held that it was the trial court’s decision to mute Hughes that violated his right to be present.

As the Court explained, Hughes’ “ability to somehow communicate with counsel was lost when the trial court had him muted.” Even a disruptive defendant who is physically present in the courtroom and has been ordered to be quiet can still pass notes to his or her attorney or “otherwise indicate[] to counsel that he want[s] to talk.” But by muting Hughes, the trial court “reduced [him] to a silent portrait of a man.” Thus, the Court held that Hughes’ right to be present at his deferred adjudication hearing was violated.

The final issue, of course, was whether this violation required a new hearing or whether it was harmless error. Under Texas law, the violation of a defendant’s right to be present requires reversal “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a). This assessment is “performed in a neutral manner, not in the light most favorable to the prosecution.” Love v. State, 543 S.W.3d 835 (Tex. Crim. App. 2016). The State, not the defendant, bears the burden of proving that the error is harmless beyond a reasonable doubt. Haggard v. State, 612 S.W.3d 318 (Tex. Crim. App. 2020).

The right to be present is not reviewed solely under a harmless error analysis. Instead, the violation must also be assessed under the reasonably substantial relationship test. Adanandus v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993). The Court explained, “[w]hile both tests review for harm, they are not interchangeable. The harmless error test, in the context of the right to be present, seeks to determine the effect of the defendant’s absence on the outcome of the proceeding, whereas the reasonably substantial relationship test seeks to determine the effect of the defendant’s absence on the advancement of his defense.”

The State argued that under either analytical approach, the error was harmless in this case because the record is silent as to what Hughes would have said if he had been able to communicate with his attorney during the hearing. But “the silent record works against the State because when the error is constitutional, the State has the burden to show the error was harmless.” The State’s argument, if accepted, would have placed the burden of showing harm on Hughes, which the law does not allow, the Court explained. Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001).

What the record did show is that Hughes attempted to interject during Detective Mezegabe’s testimony that he was lying, but the trial court muted him before he could utter more than a few words. Because the detective’s testimony was the sole evidence against Hughes, muting him “bore a reasonably substantial relationship to his opportunity to defend against the charge,” the Court concluded.

Moreover, the record did not conclusively establish that the trial court’s act of muting Hughes had no impact on the outcome of the hearing because nothing in the record established what Hughes was trying to say. All the Court could tell from the record was that Hughes wanted to explain why he believed the detective was lying but was unable to do so because the trial court muted him. This error was not harmless beyond a reasonable doubt because the Court could not be certain that Hughes did not have “information to share with counsel to rebut [Mezegabe’s] testimony.”

Conclusion

Accordingly, the Court affirmed the Court of Appeals’ decision granting Hughes a new deferred adjudication hearing and remanded the matter to the trial court for further proceedings. See: Hughes v. State, 691 S.W.3d 504 (Tex. Crim. App. 2024).   

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