Montgomery v. State

1

Beecher Montgomery, Appellant v. The State of Texas

Nos. 02-21-00002-CR, 02-21-00003-CR

Court of Appeals of Texas, Second District, Fort Worth

October 6, 2022

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from the 396th District Court Tarrant County, Texas Trial Court Nos. 1591282D, 1627542D.

Before Sudderth, C.J.; Birdwell and Bassel, JJ.

MEMORANDUM OPINION

Dabney Bassel, Justice.

I. Introduction

This is an appeal from a hearing on the State's petition to proceed to adjudication at which Appellant Beecher Montgomery appeared via Zoom. Montgomery argues in two issues that his constitutional right to due process under the Fourteenth Amendment and his Sixth Amendment right to confront witnesses were violated when he was not allowed to be physically present in the same room with his attorney during the virtual hearing on the State's petition to proceed to adjudication. With regard to Montgomery's due process right to be physically present, he failed to bring forward a sufficient record to demonstrate how he was denied due process when the record shows that he appeared, participated in the trial, and testified on his own behalf. Further, the record does not support his claim that the virtual technology that was used actually impaired his ability to participate in the hearing and confer with his counsel. As to Montgomery's right to confront witnesses, we stand by our prior opinions in which we have held that the Confrontation Clause does not apply to a revocation proceeding because that is not a stage of a criminal prosecution. See Flores v State, No. 02-21-00028-CR, 2022 WL 3097287, at *8 (Tex App.-Fort Worth Aug. 4, 2022, pet. filed) (mem. op., not designated for publication); White v. State, No. 02-21-00059-CR, 2022 WL 623450, at *6-7 (Tex. App.-Fort Worth Mar. 3, 2022, no pet.) (mem. op., not designated for publication); Pickins v. State, No. 02-17-00050-CR, 2018 WL 3468359, at *4 (Tex. App.-Fort Worth July 19, 2018, no pet.) (mem. op., not designated for publication). Accordingly, we affirm.

II. Background

In June 2020, Montgomery pleaded guilty to the offenses of evading arrest and theft and pleaded true to having been previously convicted of a felony. The trial court deferred a finding of guilt and placed Montgomery on deferred-adjudication community supervision for ten years. The terms of Montgomery's community supervision required that he "[c]ommit no offense against the laws of this State."

Two months later, the State filed a petition to proceed to adjudication alleging, among other things, that Montgomery had violated the terms and conditions of his community supervision by being arrested for the offenses of injury to a child, elderly person, or disabled person and possession of a controlled substance. The State later filed a first amended petition to proceed to adjudication alleging, among other things, that Montgomery had violated the terms and conditions of his community supervision by being arrested for the offense of injury to a child, elderly person, or disabled person and by admitting to using illegal drugs.^[1]

In October 2020, Montgomery filed an "Objection to Virtual Proceeding" arguing that "such a hearing is[] (1) [n]ot specifically approved; (2) [v]iolates constitutional protections of effective assistance of counsel and confrontation; (3) [v]iolates statutory protections of confrontation for [Montgomery] and the [v]ictim; and (4) [i]s contrary to the positions taken by the Tarrant County Criminal District Attorney in other cases."^[2] The State filed a response arguing that the Supreme Court's 26th Emergency Order and the Office of Court Administration's guidelines supported a virtual hearing. The State in its response set forth the relevant guidelines showing that in-person proceedings were reserved for essential proceedings and stated that "[a] hearing on a motion to adjudicate, such as the one scheduled in the present case, is not an essential proceeding."

The hearing on the State's petition to proceed to adjudication took place in January 2021-ten months into the COVID-19 pandemic. The record noted that "ALL PARTIES AND WITNESSES APPEARED VIA VIDEOCONFERENCE." Montgomery appeared from jail via Zoom. At the outset of the hearing, the trial court heard Montgomery's objection to holding a virtual proceeding and denied the motion. After Montgomery pleaded "not true" to paragraphs one through four and paragraph six in the State's first amended petition to proceed to adjudication, the trial court then proceeded to hear testimony.

During the adjudication phase of the hearing, the State put on four witnesses, including Montgomery's mother (the victim of his new charge for injury to an elderly person), Montgomery's community supervision officer, Montgomery's sister, and a police officer who was dispatched to the home after Montgomery injured his mother. All four witnesses identified Montgomery for the record during the proceeding because they could see him in one of the Zoom screens. Shortly after the State began questioning Montgomery's mother, the record reflects the following:

[DEFENDANT]: [Defense counsel], something real quick. [Defense counsel], can I ask you something real quick?

[DEFENSE COUNSEL]: Yeah, can you put us in a room, Judge?

THE COURT: Hang on just a minute.

(Defendant and counsel confer out of presence of Zoom)

At the conclusion of defense counsel's cross-examination of Montgomery's mother, the following transpired:

[DEFENSE COUNSEL]: Judge, it's at this time that I always like to ask my client if he's got anything else he wants me to ask whatever witness. So can I have just a short breakout room to see if there's anything that Mr. Montgomery feels like I forgot?

THE COURT: Hang on just a minute.

[DEFENSE COUNSEL]: Okay.

(Defendant and counsel confer out of presence of Zoom)

[DEFENSE COUNSEL]: Okay. Judge, I just have a few more questions.

THE COURT: Back on, so go ahead.

Later, before excusing Montgomery's sister, defense counsel again asked the trial court to put him and Montgomery into a "private room" away from the Zoom proceedings so that he could confer with his client, and the trial court agreed to do so. Similarly, before beginning his cross-examination of the police officer, defense counsel asked for a short break with his client, and the record notes, "Defendant and counsel confer out of presence of Zoom."

After the trial court denied the motion for instructed verdict, defense counsel asked to be put in a room to discuss the proceedings with Montgomery, and the trial court agreed to do so. Montgomery then took the stand to testify.

Although there were brief interruptions throughout the hearing when technical difficulties occurred, the trial court took measures to pause the proceedings and, when necessary, to reestablish the electronic connection with all participants and have the attorneys or witnesses repeat any questions or responses that were unable to be heard the first time that they were spoken.

After hearing the evidence, the trial court found the five remaining allegations in the State's first amended petition to proceed to adjudication to be true, as well as the repetition allegation for a prior felony conviction.

The sentencing portion of the proceeding then took place. After hearing testimony from the State's six witnesses and the defense's two witnesses, one of whom was Montgomery, the trial court sentenced Montgomery to twenty years' confinement for each of the underlying offenses and ordered the sentences to run concurrently.

Montgomery filed a motion for new trial in each case, and the motions were overruled by operation of law. These appeals followed.

III. Due Process Claim

In his first issue, Montgomery argues that he was denied due process under the Fourteenth Amendment when he was not allowed to be physically present at the hearing on the State's petition to proceed to adjudication. His true complaint, however, appears not to be the use of Zoom in general but that "there were several instances in which the virtual technology utilized [was] inadequate and therefore did not truly provide a vehicle in which Appellant could be present at this hearing and sentencing." Based on the record before us, we cannot say that Montgomery was denied his right to due process when he appeared, participated, and testified via Zoom at the hearing on the State's petition to proceed to adjudication and where the record does not support his claim that the virtual technology that was used actually impaired his ability to participate in the hearing and confer with his counsel.

It is an appellant's burden to present a record demonstrating reversible error. See Newman v. State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011); see also Ortiz v State, 144 S.W.3d 225, 230 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) (en banc) (holding that an appellant has a "burden of presenting a record to show error requiring reversal insofar as he is required to develop the record to show the nature and source of an error and, in some cases, its prejudice to him"). As with other claims of error, when an appellant claims technology impaired his ability to participate and communicate with counsel, the record must establish proof of the allegation based on the inability to communicate with counsel as a result of utilizing remote videoconferencing. See Broussard v. State, No. 09-20-00259-CR, 2022 WL 2056388, at *7, *9 (Tex. App.-Beaumont June 8, 2022, no pet.) (mem. op., not designated for publication) (overruling appellant's issue-arguing that conducting his trial by remote electronic means denied him his "Sixth Amendment right to counsel, his right of confrontation, and his Fifth and Fourteen[th] Amendment rights to due process" by making him unable "to...