PD-0486-23 09/06/2023
1. “The lower court erred when it ignored existing case law so that it could create, in a publish opinion, a new waivable-only right to physical presence under Article 33.03 that conflicts with decisions of the Court of Criminal Appeals, the lower court, and other courts of appeals.”
2. “The lower court erred when it misappropriated this Court’s analysis in Lira to rationalize creating, in a published opinion, a new requirement that a defendant must affirmatively waive this new waivable-only right to physical presence under Article 33.03 which conflicts with the Texas Supreme Court’s Emergency Orders and decisions of other courts of appeals.”
Tates was convicted by a jury, elected judge-punishment, and had a date set for a punishment hearing when COVID hit. The trial court heard punishment via videoconference. Tates never objected to appearing remotely (even though he had the opportunity during his testimony). But he didn’t affirmatively waive his in-person attendance, either.
For the first time on appeal, he contended his constitutional and statutory rights to personal presence had been violated. The State argued he forfeited any error by failing to object. The court of appeals rejected that argument, relying on Lira v. State, 666 S.W.3d 498 (Tex. Crim. App. 2023), to hold that the right to in-person presence at the punishment phase implicates the legality of his sentence and must be affirmatively waived. It observed that, under Lira, appearing remotely didn’t satisfy the Code of Criminal Procedure’s requirements of in-person appearance. Also, nothing in the record indicated that Tates had voluntarily absented himself. “Because Tates was not present for sentencing in a manner recognized or permitted by the code…the trial court abrogated his substantive right to be present at punishment and sentencing” and, like Lira, Tates was thus entitled to a new hearing.
The State argues that the court of appeals ignored cases specifically requiring an objection to preserve a due-process or Art. 33.03 personal-presence complaint. The decision leads to the absurd result that a defendant who is wholly absent (and thus cannot object) enjoys less protection than a defendant who appears remotely but, like Tates, says nothing. The State contends that the legality of sentence should not have been used to contravene Tates’ obligation to object, is not the issue, and mixes up the requirement (and remedy) for presence during pronouncement of sentence and the punishment hearing. It points out that if there indeed had been no sentencing, the appeal should have been dismissed. The State also argues that the court of appeals “misappropriated” Lira’s discussion about remote appearance not satisfying the statute’s requirement of “in person” appearance since Lira involved a different statute that expressly required a defendant to waive physical appearance. It contends that Tates’ participation in the hearing, testifying, consulting with his attorney, and failing to ever complain (either at the hearing or at the motion-for-new-trial stage) suggests his de facto consent to proceeding remotely. According to the State, the court of appeals has established a per se denial of due process violation that is at odds with the rule followed in other cases—that the record must affirmatively demonstrate such a violation.
