Hughes v. State

691 S.W.3d 504

Darren Tramell HUGHES, Appellant

v.The STATE of Texas

NO. PD-0164-22

Court of Criminal Appeals of Texas.

Delivered: May 22, 2024

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

Patrick F. McCann, Houston, for Appellant.

Darren Tramell Hughes, Pro Se.

Clinton Morgan, Houston, for The State of Texas.

OPINION

Walker, J., delivered the opinion of the Court, in which Hervey, Richardson, Newell, and McClure, JJ., joined.

Appellant Darren Trammel Hughes’s deferred adjudication community supervision was revoked, and he was sentenced to ten years imprisonment, in a teleconfer- ence hearing conducted using Zoom. Several times when Appellant tried to speak during the hearing, the trial court ordered that Appellant be muted. On appeal, Appellant argued that his right to be present under the Due Process Clause was violated. The court of appeals reversed, holding that his right to be present under the Confrontation Clause was violated, even though Appellant did not raise the Confrontation Clause in his brief.

While the court of appeals unnecessarily relied on the Confrontation Clause, it correctly resolved Appellant’s point of error that his right to be present was violated. Setting aside whether the Confrontation Clause provides a right to be present in a hearing on a motion to adjudicate guilt, the right to be present under the Due Process Clause applies in those proceedings. The right to be present under the Due Process Clause is waivable under Marin, not forfeitable, and the court of appeals was able to review the trial court’s action despite the lack of an objection. The court of appeals correctly found that Appellant was converted into a passive observer unable to communicate with counsel and therefore unable to participate in his own defense. Reversal was required, and we affirm the judgment of the court of appeals.

I — Background

Appellant was charged with and pled guilty to tampering with a governmental record,¹ and the trial court deferred adjudication and placed Appellant on three years community supervision. Two years and ten months later, the State filed a motion to adjudicate guilt, alleging that Appellant had violated the terms of community supervision by committing two forgery offenses² and by failing to pay a required supervision fee, court cost, and drug testing fee. The trial court conducted the hearing on the motion to adjudicate guilt using Zoom because not all of the parties could attend in person due to the COVID-19 emergency. Specifically, only the trial court and defense counsel were physically present in the courtroom, while the State, the witnesses, and Appellant were connected through Zoom. The trial court noted at the outset that Appellant:

is not here -- he is on video in the jail and the reason he is not here in court is because he has been exposed to COVID-19 and may have even tested positive for it but those are people who are on the list not to come to court and are prohibited from coming to court for - because the administration is afraid they could expose other people to the virus.

The State proceeded only on one of the alleged forgery offenses and, after Appellant pled "false" to the allegation, the State called two witnesses. The first witness was Brianna Jones, who was assigned to monitor Appellant’s community supervision. Jones explained that Appellant was arrested for allegedly committing forgery, even though the conditions of his community supervision required him to not commit any offenses. Jones then went into what happened after she was notified of Appellant’s arrest, and Appellant tried to speak up:

Q And did you move forward at that time with that allegation and have the MAJ filed?

A Yes, I notified the Court.

THE DEFENDANT: You can’t stop me -- talking --

THE COURT: Can someone mute the defendant?

Q (By [defense counsel]) And after that, that’s all you have to do with it?

A I’m sorry. Can you repeat the question? I can’t really hear you.

The State’s second witness was Detective Y. Mezegabe, who was actually involved with the investigation that led to Appellant’s arrest. Mezegabe was working a forgery case in which the parts department at a car dealership in Fort Bend County was defrauded through the use of a fraudulent check. Mezegabe received a possible lead from the manager of the parts department of a dealership in Harris County. With the cooperation of the parts manager, Mezegabe set up a sting operation in which he came into contact with Appellant who came to pick up the parts and attempted to give Mezegabe a fraudulent check. Appellant interjected:

Q Okay. So --

THE DEFENDANT: What?

THE COURT: Would you mute the defendant again?

THE DEFENDANT: That man lying, man.

THE COURT: Okay. Do not let him leave the Zoom. We will continue.

Mezegabe then explained that the parts manager had been communicating by e-mail with a "Jimmy Martin" who was requesting car parts. On Mezegabe’s instructions, the manager set up a meeting with "Jimmy Martin" at which Mezegabe would deliver the requested car parts instead of the manager. On the date of the sting, Mezegabe waited in a vehicle at the location chosen by "Jimmy Martin." When Appellant drove up, Mezegabe rolled down his car window, and Appellant asked, "Are you the parts guy?" Mezegabe replied, "Yes," and Appellant told Mezegabe "to meet him around the back." Mezegabe followed Appellant "around the back of the building" where they exited their vehicles. Mezegabe asked if he was "Jesse Martin," but Appellant corrected him and said, "No, I’m Jimmy Martin."

At that point, Appellant was arrested, and a check was found in Appellant’s vehicle in which the dealership was the payee and "Tex Star Auto Repair" was the payor. The check was fraudulent.

Mezegabe interviewed Appellant, and Appellant denied knowing that the check was fraudulent and insisted he was working for somebody else. A "burner app," which would allow a caller to spoof his cell phone number, including the number that was used to contact the car dealership, was found on Appellant’s phone. Additionally, Mezegabe had the parts manager send an e-mail to "Jimmy Martin," and an e-mail notification popped up on Appellant’s phone.

On cross-examination, Mezegabe explained that he did not personally arrest Appellant, and Appellant interrupted:

Q You did not arrest him. There was another gentleman there. Some more cops arrested him; is that correct?

A Yes.

THE DEFENDANT: 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 COURT: Mute the defendant. Do not let him leave. He is in court.

Q Did you pull a gun on him?

A Yes.

After discussing the arrest, Mezegabe then stated that he did not see Appellant write the check, and Appellant did not give the check to him. Regarding the check itself, the routing number on the check was valid, but the account number was not. "Tex Star Auto Repair" did not exist, as confirmed by Mezegabe’s visit to the address on the check.

On re-direct examination, Mezegabe added that after Appellant’s arrest, "two more fraudulent checks that were filled out and multiple blank checks" were found. The State proceeded to have copies of the two additional checks admitted into evidence over defense counsel’s objections, which were overruled. Appellant interrupted:

THE COURT: Okay. Then your objections are noted. They’re overruled and they are admitted. Exhibit number - State’s Exhibit No. 3 is admitted over your objections.

THE DEFENDANT: - ruling on those objections. I got to use the bathroom.

THE COURT: Mute the defendant.

THE DEFENDANT: Got to use the bathroom, sir.

THE COURT: Mute the defendant.

THE DEFENDANT: 1 take pills.

THE COURT: Mute.

THE DEFENDANT: She trying to let me use the bathroom.

THE COURT: No, you’re in court right now.

Continue. Where are we at this point?

After Mezegabe's testimony, defense counsel called Appellant to testify, and the trial court instructed somebody to "Unmute him so he can speak." Appellant explained that somebody hired him to pick up the parts, and he would be paid $150. "A guy" met him and gave him the checks, but he could not remember where that transaction took place. Appellant was merely a middleman between buyer and seller. As for the e-mails, Appellant said that he did not send any e-mails but was given access to the "Jimmy Martin" e-mail account. And of the "burner app," Appellant thought its presence was unremarkable because "half the world has it on their phone," including Mezegabe.

Following argument, the trial court then began to announce its ruling, which Appellant took issue with:

THE COURT: All right. Thank you both. I agree with the State wholeheartedly. This is a no-brainer. First you give him a false name, Mr. Hughes.

THE DEFENDANT: I didn’t give him a false name. I took --I take --

THE COURT: Please mute the defendant.

Okay. You’re muted. Please do not try and cause any more disruption.

But it's clear from the testimony from Detective Mezegabe that you gave him a false name to begin with. I believe what the deputy said….

The trial court found the sole allegation true, revoked community supervision, and proceeded to adjudicate Appellant guilty and sentenced Appellant to ten years imprisonment. At the very end of the hearing, Appellant declared his desire to appeal:

THE DEFENDANT: 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 COURT: Stop. Please mute him. Thank you. He’s disruptive.

(Hearing concluded.)

On appeal, Appellant raised three points of error, the first of which contended that his right to be present in the courtroom during the hearing on the motion to adjudicate was denied. Hughes v. State, 651 S.W.3d 461, 463-64, 466 (Tex. App.—Houston [14th Dist] 2022). The divided court of appeals held that intermediate appellate case law—which had held that the right to be present under the Confrontation Clause...