Tates v. State

692 S.W.3d 628

Elijah TATES, Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-20-00280-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed May 25, 2023.

Discretionary Review Granted September 06, 2023

On appeal from the 85th District Court of Brazos County, Texas.

Jarvis J. Parsons, Ryan C. Calvert, Philip McLemore, for Appellee.

Lane D. Thibodeaux, Bryan, for Appellant.

Before Chief Justice Contreras and Justices Hinojosa¹ and Silva

OPINION

Opinion by Justice Silva

A jury convicted appellant Elijah Tates of evading arrest, a state jail felony enhanced to a second-degree felony due to prior convictions.² See Tex. Penal Code Ann. §§ 12.425(a); 38.04(b)(1)(A). The trial court assessed punishment at five years’ confinement following a punishment hearing held via videoconference. See id. § 12.34. On appeal, Tates argues the trial court erred (1) in failing to provide his requested jury instruction during guilt/innocence and (2) in conducting the punishment phase of trial by videoconference in violation of his federal and state constitutional and statutory rights. See U.S. Const. amends. V, VI, XIV; Tex. Const. art. I, §§ 10, 19; Tex. Code Crim. Proc. Ann. arts. 33.03, 38.23. Guided by a recent Texas Court of Criminal Appeals opinion, Lira v. State, 666 S.W.3d 498 (Tex. Crim. App. Jan. 11, 2023), we sustain Tates’s second issue and reverse and remand.

I. Charge Error

In his first point of error, Tates challenges the legality of the stop leading to his arrest and alleges the trial court erred in denying his request for an exclusionary rule instruction under Article 38.23 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23(a) ("No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.").

A. Standard of Review and Applicable Law

[1–3] Trial courts are obligated to instinct the jury on the law applicable to the case. Williams v. State, 662 S.W.3d 452, 460 (Tex. Crim. App. 2021); see Tex. Code Crim. Proc. Ann. art. 36.14. In evaluating alleged jury charge error, we first determine whether the trial court erred in refusing the requested instruction. Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020). If we find error, we then engage in a harm analysis. Id. The degree of harm necessary for reversal depends on whether the error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). Where, as here, the defendant preserved the alleged error, should we find error then we must reverse if we find "some harm." Jordan, 593 S.W.3d at 346 (" ‘Some harm’ means actual harm and not merely a theoretical complaint."); Almanza, 686 S.W.2d at 171.

[4–6] Article 38.23 is a statutory exclusionary rule which exists to prevent illegally obtained evidence from being used at trial. See Holder v. State, 639 S.W.3d 704, 707 (Tex. Crim. App. 2022); Day v. State, 614 S.W.3d 121, 128 (Tex. Crim. App. 2020) ("The text of Article 38.23 addresses the admissibility of evidence at trial when the law has been violated."). When evidence presented at trial directly pertains to a contested fact issue and raises a concern of whether it was legally obtained, the jury shall be instructed that "if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of [Article 38.23], then and in such event, the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. Ann. art. 38.23(a). The "contested fact issue must be material to the lawfulness of the challenged conduct in obtaining the evidence," and the burden is on the defendant to make the showing of materiality. Chambers v. State, 663 S.W.3d 1, 4 (Tex. Crim. App. 2022) (first citing Tex. Code Crim. Proc. Ann. art. 38.23; and then citing Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007)). "Where the issue raised by the evidence at trial does not involve controverted historical facts, but only the proper application of the law to undisputed facts, that issue is properly left to the determination of the trial court," and no Article 38.23 jury charge instruction is re- quired. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).

B. Analysis

[7] Tates was indicted on December 15, 2016, and the case was tried to a jury in January 2020. At trial, Bryan Police Department Officer Liam Stewart testified that he initiated a traffic stop after twice witnessing Tates fail to signal before turning.³ See Tex. Transp. Code Ann. § 545.104 (signaling turns). Officer Stewart stated Tates continued to drive before ultimately stopping his vehicle and fleeing on foot. Tates denied committing any traffic violation prior to stopping his vehicle but conceded to fleeing on foot because he had marijuana in his possession.⁴

During a charge conference, Tates requested the submission of an Article 38.23 jury instruction:

I want to make it clear for the record I’m requesting the 38.23; that my request in regard to 38.23 that the jury should be allowed to consider as part of that—the language in the 38.23 would be essentially that the officer’s initial reason for the stopping and detention was illegal because there’s a—the dispute should be as to whether or not the—my client made a legal turn—a legal versus an illegal turn. So, the exact language—but that would be the indication that the officer’s testimony is that he made an illegal turn and our contention that he did not and so the 38.23 language that the jury should be asked and be allowed to consider is did the officer attempt to stop him when he indicated that my client made an illegal turn, and that should be a dispute for that. So, the exact wording is that.

The trial court denied the requested Article 38.23 jury instruction, and the jury returned a guilty verdict.

[8] Even assuming the trial court erred, we observe that the lawfulness of Tates’s detention was already litigated as part of the State’s case at trial and subsumed in the jury’s consideration of whether the State had proven all the elements of the charged offense. See Day, 614 S.W.3d at 129 (observing that "when the validity of an arrest or detention is an element of the charged offense," the issue can "simply be litigated as part of the State’s case at trial"); cf. Woods v. State, 153 S.W.3d 413, 415–16 (Tex. Crim. App. 2005) (concluding motion to suppress evidence of an alleged unlawful detention was improper where appellant’s motion concerned the lawfulness of the detention). To obtain a conviction on the offense of evading arrest, the State was required to prove beyond a reasonable doubt that Tates intentionally fled from a person he knew was a peace officer who was "attempting lawfully to arrest or detain him," and the jury was instructed accordingly. See Tex. Penal Code Ann. § 38.04(a); Day, 614 S.W.3d at 130. The jury was entitled to find from the evidence before it that Officer Stewart was attempting to lawfully detain Tates, and in returning a guilty verdict, the jury necessarily did so. See Day, 614 S.W.3d at 130; Porter v. State, 255 S.W.3d 234, 243 (Tex. App.—Waco 2008, pet. ref'd) ("The trial court instructed that the jury could find Porter guilty only if the jury found that Porter ‘did flee from a peace officer who was attempting lawfully to arrest or de- tain’ Porter. Thus, in finding Porter guilty of evading arrest or detention, the jury necessarily found that the arrest or detention of Porter was lawful.") (cleaned up). Accordingly, even assuming the trial court erred in its exclusion of Tates’s requested instruction, reversal is not warranted as Tates did not suffer actual harm from the alleged error. See Jordan, 593 S.W.3d at 346; Almanza, 686 S.W.2d at 171; see also Tex. R. App. P. 44.2(b). We overrule Tates’s first issue.

II. Punishment

By his second issue, Tates argues that the trial court erred in proceeding remotely during the punishment phase of trial, in violation of his constitutional and statutory rights to be personally present.

[9] The Sixth Amendment to the United States Constitution and Article I, § 10 of the Constitution of Texas affords a defendant threatened with loss of liberty, as part of the right of confrontation, the right to be present at all phases of proceedings against him. See U.S. Const. amend. VI; Tex. Const. art. I, §§ 10, 19; Lira, 666 S.W.3d at 511 ("[T]he right to be present in the courtroom at every stage of trial is guaranteed by the Confrontation Clause of the Sixth Amendment."). The Texas Code of Criminal Procedure further ensures that "[i]n all prosecutions for felonies, the defendant must be personally present at the trial," Tex. Code Crim. Proc. Ann. art. 33.03, and "sentence shall be pronounced in the defendant’s presence." Id. art. 42.03; Sandoval v. State, No. AP-77, 665 S.W.3d 496, 510–11 (Tex. Crim. App. Dec. 7, 2022); Papakostas v. State, 145 S.W.3d 723, 726 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.) (applying Article 33.03 to punishment and sentencing proceedings).

Tates was physically present during the entire guilt-innocence phase of the jury trial. Following a guilty jury verdict, Tates elected for the trial court to assess punishment, and the punishment hearing was reset. The COVID-19 pandemic unfolded in the interim, and several months later, the trial court held a punishment hearing via videoconference. Tates, who was in custody at the time, made his appearance remotely from the county jail, while his counsel appeared in-person from the courtroom. Prior to the initiation of punishment proceedings, Tates’s counsel informed the trial court that he had been unable to communicate with Tates and was having technical difficulties setting up a virtual "private room." The trial court took a brief...