Leif Epperson-Gonzalez v. the State of Texas

NO. 12-21-00201-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LEIF EPPERSON-GONZALEZ, § APPEAL FROM THE 411TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § TRINITY COUNTY, TEXAS

MEMORANDUM OPINION
Leif Epperson-Gonzalez appeals his convictions for assault family violence - impeding
breath or blood, attempted burglary of a habitation, and evading arrest or detention with a
vehicle. In three issues, Appellant argues that the trial court violated his constitutional right to be
present at all phases of trial under the Confrontation Clause. We affirm.

BACKGROUND
Appellant was charged by indictment with assault family violence - impeding breath or
blood, attempted burglary of a habitation, and evading arrest or detention with a vehicle. By
notice of enhancements, the State further alleged that Appellant had two, prior felony
convictions. Appellant pleaded “not guilty” to each charge, and the matter proceeded to a jury
trial. After the jury found Appellant “guilty” of each charged offense, the matter proceeded to a
trial on punishment, which upon Appellant’s counsel’s suggestion, the trial court ordered
Appellant to observe remotely via Zoom video conferencing due to his inability to control his
disruptive behavior. Ultimately, the jury found the enhancement allegations each to be “true”
and assessed Appellant’s punishment at imprisonment for life for each conviction. The trial
court sentenced Appellant accordingly, and this appeal followed.
CONFRONTATION CLAUSE - RIGHT TO BE PRESENT AT ALL PHASES OF TRIAL
In his first issue, Appellant argues that the trial court abused its discretion in ordering that
he observe remotely his trial on punishment because doing so violated his right to be present at
all phases of trial under the Confrontation Clause. In his second issue, he contends that he did
not waive his right to be present in court. In his third issue, he argues that the trial court’s abuse
of discretion was harmful and amounts to reversible error.
Standard of Review and Governing Law
We review a trial court’s decision to exclude a criminal defendant from trial for an abuse
of discretion. See Monreal v. State, 546 S.W.3d 718, 733 (Tex. App.–San Antonio 2018, pet.
ref’d); Kessel v. State, 161 S.W.3d 40, 44 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d); see
also Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 1060–61, 25 L.Ed.2d 353 (1970) (courts
must be given sufficient discretion to determine appropriate manner of handling disruptive
defendant in courtroom). We will uphold the trial court’s ruling so long as it is “within the zone
of reasonable disagreement.” Monreal, 546 S.W.3d at 733.
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. See TEX. CONST. art. I, § 10; Monreal, 546 S.W.3d at 733; Sanchez v.
State, 702 S.W.2d 258, 259 (Tex. App.–Dallas 1985, pet. ref’d) (criminal defendant has a
fundamental right be present at every stage of his trial). However, a court may, in its discretion,
find it necessary to remove a defendant from the courtroom for acting in a disruptive,
obstreperous, or contemptuous manner. Monreal, 546 S.W.3d at 733; see also Morrison v.
State, 480 S.W.3d 647, 656 (Tex. App.–El Paso 2015, no pet.). Recognizing the need for
flexibility in dealing with such defendants, the Supreme Court in Allen held a trial court may
deal with a disruptive defendant in at least “three constitutionally permissible” ways: (1) allow
the defendant to remain in the courtroom, but have the defendant bound and gagged; (2) cite the
defendant for contempt, which could require the court to discontinue the trial and imprison the
defendant until such time as the defendant promises to behave himself; or (3) remove the
defendant from the courtroom “until he promises to conduct himself properly.” Monreal, 546
S.W.3d at 733 (citing Allen 397 U.S. at 344–45, 90 S. Ct. at 1061–62) (emphasis added).

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Discussion
In the instant case, while the jury was deliberating on the matter of Appellant’s innocence
or guilt, the following exchange occurred in open court:

THE COURT: Constable Cole has indicated Mr. Gonzalez is acting very belligerent out there.
Just want to bring up -- asking if y’all want him to be excluded for the rest of the trial.

[PROSECUTING ATTORNEY 1]: That’s up to you. I don’t know if you have an objection to
that at this point.

[DEFENDANT’S ATTORNEY]: Judge, I -- I -- legally, I’ll be honest. I don’t know what my
recourse is at this point. I want the record to note that I have dealt with Mr. Gonzalez throughout
the duration of this appointment. I have tried to represent Mr. Gonzalez to the best of my legal
ability. I don’t know that going forward I will have any better luck trying to restrain and control
Mr. Gonzalez.

[PROSECUTING ATTORNEY 1]: I’ve asked [PROSECUTING ATTORNEY 2] to hurry himself
back over here. We have a little bit of time, I would think, before we hear something from them.
But when they come out, they will have a verdict. So whatever situation he’s in is not going to
affect the verdict at that point.

THE COURT: The question is, does he need to be here when the verdict is read?

[PROSECUTING ATTORNEY 1]: I don’t know about that. I know that there is --

[DEFENDANT’S ATTORNEY]: I think the confrontation clause allows him to confront his
accusers. I think that has happened, your Honor. I think we have met that burden.

THE COURT: What if we get to the punishment phase?

[PROSECUTING ATTORNEY 1]: Well, the punishment phase will be different. I believe in the
punishment phase -- I mean, he can be restrained at that point, right?

[DEFENDANT’S ATTORNEY]: I think that’s going to -- I think any attempt to restrain him,
number one, is not going to be successful with his outbursts; number two, I don’t think -- I think
that will prejudice the jury. My only other suggestion -- my only other suggestion is we allow
them to take him back.

....

[DEFENDANT’S ATTORNEY]: My only other suggestion for the Court is to allow him to be
taken back and put him on Zoom and mute him.

[PROSECUTING ATTORNEY 1]: I think we might be able to do something like that. I mean,
we’ve -- courts have had Zoom court. I don’t know what all of the particulars were about where
they put the defendant and where they had the jury and all of that stuff. I will let the esteemed
[PROSECUTING ATTORNEY 2] take it from here.

THE COURT: [PROSECUTING ATTORNEY 2], the issue has come up of Mr. Gonzalez’s
outburst and behavior out in the hallway. We removed him from the courtroom. Just we need to
know if we can exclude him permanently through the rest of the trial if we have a punishment
phase.

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[DEFENDANT’S ATTORNEY]: What I have recommended -- and I’ll repeat for the record -- is
several things. Number one, I’ve done the best to my ability to control and contain Mr. Gonzalez
throughout this trial and have been somewhat successful until right here. I do not think, since he’s
opened that door, that his outbursts are going to quit. I think once they start, they’re going to
continue. I think if we restrain him at the table, it’s going to be prejudicial to the jury during
sentencing. What I have recommended to Judge -- I don’t know if it’s legal. What I have
recommended is take him back to the jail where there are jailers who know how to take care of
him, put him on Zoom, and mute him.

[PROSECUTING ATTORNEY 2]: I think Zoom would be fine.

THE COURT: Okay. Let’s take him back to the jail, Houston County. Have him, I guess, stand by
or wait on Zoom.

[PROSECUTING ATTORNEY 2]: The only, maybe, caveat I would say to that is somehow
having communication with his attorney, whether it’s through a phone there and phone here or
something. I don’t know. Because that’s -- that may be the only problem with this.

[DEFENDANT’S ATTORNEY]: I don’t think so.

Appellant makes no argument that his behavior was not disruptive as was described by
the trial court. Instead, he argues only that the trial court violated his rights under the
Confrontation Clause, which are not forfeitable by a failure to object, by placing him in a
separate room where he was unable to communicate with his trial counsel. However, an accused
may waive his Sixth Amendment right to be present throughout trial. See, e.g., Miller v. State,
692 S.W.2d 88, 90–91 (Tex. Crim. App. 1985) (waiver may occur by defendant’s voluntarily
absenting himself after trial has “commenced” with defendant in attendance).
In Monreal, the court was faced with a similar scenario. There, the defendant was
disruptive during his trial on punishment while his trial counsel cross examined a witness and, as
a result was removed from the courtroom. See Monreal, 546 S.W.3d at 732. During the ensuing
recess in proceedings, the trial court asked the defendant’s counsel if he wanted the defendant
brought back to the courtroom or if he believed it was better for defendant not to be present. See
id. The defendant’s counsel responded that he believed that the defendant was so passionate
about the testimony that he simply would continue his previous outbursts, which would delay
proceedings and may prejudice him in front of the jury. See id. The court of appeals held that
the trial court did not abuse its discretion in removing the appellant from the courtroom because
he acted in a disruptive, obstreperous, or contemptuous manner. See id. (citing Ramirez v. State,
76 S.W.3d 121, 129–30 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d) (holding that “[w]here
both the trial judge and appellant’s counsel agree that appellant should be removed from the

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courtroom, we presume appellant’s tone, volume, or demeanor must have been highly
disruptive” and “[a]s the trial court lacked reason to believe appellant’s misbehavior would
cease, appellant’s expulsion was not constitutionally improper”).
Here, Appellant’s trial counsel did more than merely agree that Appellant should be
removed from the courtroom for the remainder of the proceedings; he was the first to suggest it.
In so doing, he conveyed to the trial court that despite his best efforts, Appellant’s disruptive
behavior likely would continue and that Appellant’s viewing the proceedings remotely would
likely be preferable to the traditional alternative of Appellant’s remaining in the courtroom under
restraint. See, e.g., Allen, 397 U.S. at 344–34, 90 S. Ct. at 1061–62. Moreover, he suggested the
manner in which Appellant would be able to observe the proceedings remotely and declined to
provide a means whereby Appellant could communicate with him. Therefore, we conclude that
Appellant’s expulsion from the courtroom was not constitutionally improper and that his not
returning to the courtroom for the remainder of the proceedings was not due to any abuse of
discretion on the trial court’s part. See Moreal, 546 S.W.3d at 733; Ramirez, 76 S.W.3d at 129–
30.
Further still, it was not the trial court’s determination that Appellant should not return to
the courtroom. That decision was made by defense counsel on Appellant’s behalf because
counsel believed Appellant’s disruptive conduct would continue. See Monreal, 546 S.W.3d at
733. The right to be present in the courtroom “must be implemented by the judicial system
unless expressly waived.” Id. at 733–34; see Kessel, 161 S.W.3d at 44 n.1; cf., e.g., Hill v. State,
No. 02-06-00094-CR, 2007 WL 866476, at *8 (Tex. App.–Fort Worth Mar. 22, 2007, pet. ref’d)
(mem. op., not designated for publication) (“Here, the trial court agreed to Appellant’s trial
counsel’s request that the record reflect that Appellant had decided to voluntarily absent himself
from trial [by intentionally ingesting drugs he purchased from other inmates], implicitly finding
that Appellant's absence was voluntary.”). Thus, we further conclude Appellant’s trial counsel
“expressly waived” Appellant’s right to return to the courtroom. See Monreal, 546 S.W.3d at
734. Appellant’s first and second issues are overruled. 1

1
Because we have overruled Appellant’s first and second issues, it is unnecessary to conduct a harm
analysis in response to Appellant’s third issue. See TEX. R. APP. P. 47.1.

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DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.
GREG NEELEY
Justice

Opinion delivered August 10, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 10, 2022

NO. 12-21-00201-CR

LEIF EPPERSON-GONZALEZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 411th District Court
of Trinity County, Texas (Tr.Ct.No. 11080)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.