HUGHES, DARREN TRAMELL v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0164-22

DARREN TRAMELL HUGHES, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY

KELLER, P.J., filed a dissenting opinion in which KEEL and SLAUGHTER,
JJ., joined.

The Court concludes that Appellant did not forfeit his due-process by claim failing to object.

In doing so, the Court treats this case the same as one in which the defendant is completely absent

from the proceedings. But Appellant was not completely absent—he was present via electronic

video-conferencing and in fact participated in his trial. I would hold that this was at most a partial

infringement on his right to be present and that he was required to object to preserve his claim.

I. BACKGROUND
HUGHES DISSENT — 2

A. Trial -Level Proceedings

Concerned that Appellant had been exposed to COVID-19 and might have tested positive

for it,1 the trial court required that Appellant participate in his adjudication and sentencing hearing

via Zoom video-conferencing from the county jail. Appellant’s attorney was physically present in

the courtroom.

The State read the forgery allegation, and Appellant pled “false” to it.2 Several times during

the adjudication hearing, Appellant interrupted witnesses and interrupted the trial court itself, and

the court ordered him muted when he did so. For instance, during cross-examination of the detective

who arrested Appellant, Appellant interrupted, “And you drew your gun on me, man. You pulled

your gun on me, man. You lying, man. You drew a gun on me, man. Hey –.” The trial court

responded, “Mute the defendant. Do not let him leave. He is in court.”

Appellant interrupted proceedings during cross-examination of the State’s first witness,

during direct examination of the State’s second witness, during cross-examination of the State’s

second witness, during redirect examination of the State’s second witness, and during the trial

court’s remarks after closing arguments. He was muted each time. In addition, at the close of

testimony and twice during closing arguments, the trial court admonished Appellant to be quiet

without muting him. From the fact that Appellant was muted several times, it is evident that each

time he was muted, it was only temporary.

Appellant testified on his own behalf. He denied that he forged checks but claimed that he

1
Later, during his testimony, Appellant conceded that he had been told that he had tested
positive.
2
The trial court asked him to plead “true” or “false.”
HUGHES DISSENT — 3

received them from someone else. At the conclusion of the hearing, the trial court adjudicated

Appellant’s guilt and sentenced him to ten years in prison.

Defense counsel then noted some pro se motions drafted by Appellant, and the trial court

explained it would not rule on those motions since Appellant was represented by counsel. Defense

counsel expressed agreement, and the trial court said, “All right. Thank you, sir.” Then Appellant

said, “I want to appeal. And I objected to this hearing last time you gave it. So you still did it

anyway. I want to appeal.” The trial court responded, “Stop. Please mute him. Thank you. He’s

disruptive.” Then the hearing concluded.

Nothing in the court reporter’s record or the clerk’s record reveals an objection to requiring

Appellant to participate remotely by video-conferencing.

B. Appeal

The court of appeals found that trial court violated Appellant’s constitutional right to be

present and that this right was not forfeited by a failure to object.3 The court of appeals declined to

make a blanket statement that presence via video-conferencing was constitutionally insufficient but

concluded that it was insufficient in Appellant’s case because the trial judge muted Appellant several

times, and from those occurrences, the appellate court inferred that Appellant could not confer with

his attorney.4 Conducting a constitutional harm analysis, the court of appeals determined that it

could not conclude beyond a reasonable doubt that the error did not contribute to the trial court’s

judgment revoking Appellant’s community supervision.5

3
Hughes v. State, 651 S.W.3d 461, 470 (Tex. App.—Houston [14th Dist.] 2022).
4
See id. at 470 & n.5.
5
Id. at 471.
HUGHES DISSENT — 4

Justice Wise dissented.6 Among other things, he took issue with the court’s conclusion that

Appellant had no possibility to communicate with his counsel in private.7 Justice Wise said that the

burden of producing a record showing a confrontation violation was on Appellant and that nothing

in the record established that he met that burden by showing that he lacked the opportunity to consult

with counsel.8 The dissent concluded that, even if Appellant was muted, that did not mean he was

prevented from speaking with his attorney, “either through typed messages or a separate [digital]

breakout room.”9

II. ANALYSIS

Preservation of error is a systemic requirement that a court of appeals must address, even if

not raised by the parties.10 And even when a preservation issue is not addressed by the court of

appeals, this Court “can and should do so when confronted with a preservation question.”11

Although the State argues that the correct preservation framework depends on whether Appellant’s

right to be present was rooted in the Confrontation Clause or the Due Process Clause, I conclude that

it does not matter which constitutional right is implicated in this case. Regardless of the

constitutional source of the right to presence at issue here, the type of constitutional “presence” claim

before us is one that must be preserved by a trial objection.

6
Id. at 471-74 (Wise, J., dissenting).
7
Id. at 472.
8
Id. at 472-73.
9
Id. at 473.
10
Ex parte Nuncio, 662 S.W.3d 903, 913 (Tex. Crim. App. 2022).
11
Id.
HUGHES DISSENT — 5

Under our Marin jurisprudence, “[a]ll but the most fundamental rights are thought to be

forfeited if not insisted upon by the party to whom they belong.”12 And the Supreme Court has

recognized that “once a defendant has the assistance of counsel[,] the vast array of trial decisions,

strategic and tactical, which must be made before and during trial rests with the accused and his

attorney.”13 So, when confronted with a novel issue of whether a particular claim must be preserved,

we should start with the general rule that a claim is forfeited by a failure to object. The constitutional

rights of confrontation and due process are not exceptions to that principle. Our Court has generally

stated that the right to confrontation is “subject to procedural default.”14 We have likewise generally

stated that “[d]ue process challenges can be forfeited by failure to object in the trial court.”15 A

conclusion that a right falling within one of those categories is not forfeited by a failure to object

must turn, not on the constitutional source of the claim, but on the aspect of the trial process the

claim involves.

At common law, the right to be present at the beginning of trial in a felony case was

unwaivable.16 Once trial had begun, a defendant could waive his right by voluntarily absenting

himself from the proceedings17 or by acting in a disruptive manner that impeded the trial after being

12
Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
13
Estelle v. Williams, 425 U.S. 501, 512 (1976).
14
Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).
15
Garcia v. State, 663 S.W.3d 92, 95 (Tex. Crim. App. 2022).
16
Crosby v. United States, 506 U.S. 255, 259 (1993).
17
Id. at 259, 261 (The defendant’s voluntary absenting of himself after trial had begun was
considered to be a knowing waiver of his continued presence.).
HUGHES DISSENT — 6

warned that he would be removed if he continued his disruptive behavior.18 Those rules were later

codified at the federal level in Federal Rule of Criminal Procedure 43,19 and in Crosby v. United

States, the Supreme Court held that “the trial in absentia of a defendant who is not present at the

beginning of trial” was absolutely prohibited.20 But in United States v. Gagnon, when the defendant

was present at trial with his attorney but was absent from an in-chambers conference, the Supreme

Court held that an objection was required to preserve a right-to-presence claim under Rule 43.21 And

in a later case, when explaining that “[t]he most basic rights of criminal defendants” can be forfeited

by the failure to object, Gagnon was the first case the Court cited for that proposition.22 These

Supreme Court cases suggest that there is a significant difference between being completely absent

from trial and being only partially absent.

In the due process arena, when dealing with the right to notice, our Court has similarly drawn

a distinction between the complete lack of notice and a partial lack of notice. In Ex parte Patterson,

we held that the complete absence of notice of the State’s intent to seek a deadly weapon finding

18
Illinois v. Allen, 397 U.S. 337, 343 (1970) (The defendant could lose his right to be present
“if, after he has been warned by the judge that he will be removed if he continues his disruptive
behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with him in the courtroom.”).
19
FED. R. CRIM. P. 43(c); ADV. COMM. NOTES, FED. R. CRIM. P. 43, cmt. 2 and cmt. on 1974
amend.; Crosby, 506 U.S. at 258-61.
20
Crosby, supra at 262.
21
470 U.S. 522, 527-28 (1985) (“We disagree with the Court of Appeals that failure to
object is irrelevant to whether a defendant has voluntarily absented himself under Rule 43 from an
in camera conference of which he is aware. . . . A defendant knowing of such a discussion must
assert whatever right he may have under Rule 43 to be present.”).
22
Peretz v. United States, 501 U.S. 923, 936 (1991) (citing Gagnon for the proposition that
“absence of objection constitutes waiver of right to be present at all stages of criminal trial”).
HUGHES DISSENT — 7

until the issue was submitted in the jury charge was fundamental error, requiring reversal even absent

an objection.23 But in Whatley v. State, when the claim was that the deadly-weapon notice was not

specific enough, this Court held that there was no due-process violation absent an objection.24 This

Court distinguished Patterson as involving a defendant who was “blindsided” by the complete lack

of notice, while the defendant in Whatley at least had notice that there would be a deadly-weapon

issue and could have requested additional specificity.25

Garcia, the right-to-interpreter case relied upon by the court of appeals, involved a situation

analogous to a defendant’s complete absence from trial. In that case, the defendant had difficulty

understanding the English language and was not given an interpreter.26 Although a member of the

defense team was bilingual, this Court said that the case involved “no interpreter” rather than an

“ineffective interpreter” because the bilingual individual did not in fact act as an interpreter at the

trial.27 We held that, once he was aware that the defendant needed an interpreter, a trial judge had

a duty to ensure that one was provided, regardless of whether the defense requested one.28 A person

who sits in “total incomprehension” of his trial29 might as well not have been there. But that is not

like what happened in Appellant’s case.

23
740 S.W.2d 766, 776-78 (Tex. Crim. App. 1987).
24
946 S.W.2d 73, 75-76 (Tex. Crim. App. 1997).
25
Id. at 75.
26
Garcia, 149 S.W.3d 135, 145-46 (Tex. Crim. App. 2004).
27
Id. at 142-43.
28
Id. at 145.
29
See id. at 146.
HUGHES DISSENT — 8

It is beyond dispute that Appellant’s situation was different from that of a defendant who is

wholly absent from the proceedings. A defendant who is wholly absent, as envisioned by Crosby,

does not get to watch the proceedings as they are occurring or participate in any way. By contrast,

Appellant watched the entire proceedings, and he participated in substantial ways by pleading to the

motion-to-adjudicate and testifying. And while the defendant in Garcia did not understand the

testimony of the complaining witness,30 Appellant was under no such disability and was in a position

to respond to the State’s witnesses during his own testimony. It is true that Appellant was not

physically present for any of the proceedings, and that does make his case factually different from

Gagnon. But this case appears to me to be far closer to Gagnon than it is to Crosby or Garcia. In

fact, in some ways, Appellant’s position was better than Gagnon’s: Gagnon did not watch all of the

proceedings, but Appellant did.

When the right to be present first developed at common law, there was no possibility of

viewing and participating in proceedings remotely. The defendant was either physically present at

trial, or he was absent. Given that technology has affected a defendant’s constitutional rights by

allowing for the possibility of witnesses testifying via video-conference,31 it stands to reason that it

could affect constitutional rights with respect to the defendant’s own presence at trial. The fact that

the right to physical presence itself can be denied under certain circumstances where non-physical

presence is available at least opens the possibility that the requirement for preserving a right to

physical presence may also be affected.

Moreover, treating a person who is present by video-conference as completely absent under

30
Id. at 145.
31
See e.g. Maryland v. Craig, 497 U.S. 836 (1990).
HUGHES DISSENT — 9

the common law creates anomalous results. It would mean that the common law would absolutely

forbid presence by videoconference at the beginning of trial. So even if all the parties agreed to trial

by video-conference, the defendant would have to come into the courtroom at the beginning of trial,

leave, and then participate via video-conference. A common-law rule of that sort would seem

irrational, but at least the legislature could overturn it. If such a rule were deemed to be a

constitutional imperative, though, the legislature would be stuck with it, a result that seems absurd.

The absurdity flows at least partly from the fact that a defendant’s complete absence from

trial is different in kind from his physical absence but presence via video-conference. When a

defendant simply walks out of a courtroom and does not return in the middle of a trial, the law

considers that a bad outcome but tolerates it because of the interest of continuing a trial that has

already started.32 In fact, part of the reason for finding that a defendant who absents himself during

trial waives his right to presence is to discourage the defendant from “gambling on an acquittal

knowing that he can terminate the trial if it seems that the verdict will go against him.”33 The same

concerns do not arise when a defendant participates in a trial via video-conference.

The court of appeals seems to have recognized as much when it declined to make a blanket

holding that a defendant is “not present” for constitutional purposes if he is present via video-

conferencing. Nevertheless, that court found a constitutional violation because the trial judge muted

Appellant several times, leading the court to conclude that Appellant was not given the opportunity

32
Crosby, 506 U.S. at 261 (“As a general matter, the costs of suspending a proceeding
already under way will be greater than the cost of postponing a trial not yet begun. If a clear line is
to be drawn marking the point at which the costs of delay are likely to outweigh the interests of the
defendant and society in having the defendant present, the commencement of trial is at least a
plausible place at which to draw that line.”).
33
Id. at 262.
HUGHES DISSENT — 10

to consult with counsel. But it does not follow from the fact that Appellant was muted at times that

he was deprived of the ability to interact with counsel. Justice Wise was correct in concluding that

this was speculation on the part of the court. Appellant interrupted witnesses during testimony and

interrupted the trial judge during his comments, and the trial judge had the authority to enforce

courtroom decorum. It simply does not follow from the muting of some of Appellant’s public

comments, that Appellant was denied the opportunity to consult with counsel privately. It is entirely

possible that Appellant was sending written electronic communications to defense counsel or that

he had the ability to do so, whether or not he chose to exercise it. Nothing in the record shows

otherwise.

More importantly, if defense counsel believed that muting Appellant was problematic, he

could have objected to it, and if he and Appellant were not in fact given the ability to communicate

with each other, defense counsel could have complained about that. And if Appellant believes that

his attorney should have objected on one of these bases, Appellant can raise an ineffective-assistance

claim in a habeas proceeding and produce evidence about the communication setup at trial and about

what actually happened.34 Even if it were shown that the trial judge improperly limited Appellant’s

ability to interact with counsel, that does not equate to a total denial of the right to be present. As

the record makes clear, Appellant’s participation in the trial was substantial—he pled to the motion

to adjudicate, watched the State’s witnesses testify, and testified himself after hearing their

testimony. Appellant did not suffer a total denial of his right to be present. At worst, his right to be

present was infringed upon, and he forfeited a complaint about that infringement by failing to raise

34
See Strickland v. Washington, 466 U.S. 668, 686 (1984) (recognizing that the right to
counsel includes the right to the effective assistance of counsel).
HUGHES DISSENT — 11

it.35

I would reverse the judgment of the court of appeals and remand the case for it to address

Appellant’s remaining issue. I respectfully dissent.

Filed: May 22, 2024
Publish

35
I recognize that Lira v. State said that various statutes “support[] 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.” 666 S.W.3d 498, 512-13 (Tex. Crim. App. 2023). But Appellant
did not rely upon statutory authority for his complaint, and the court of appeals analyzed only the
constitutional right to be present. And whether a right to be present is based on a constitutional or
statutory source affects the applicable harm analysis. Here, the court of appeals applied the more
lenient “beyond a reasonable doubt” harm analysis applicable to constitutional errors.