PD-0212-21 05/19/2021
“If a defendant has to accept the benefit of a negotiated plea agreement via videoconferencing, has he lost a substantive right or been harmed?”
Lira was indicted for assault on a public servant committed while in prison. In accordance with the Texas Supreme Court’s Seventeenth Emergency Order Regarding COVID-19 (the Order), Lira’s plea hearing was set to be conducted via Zoom. Lira objected to a videoconference proceeding without his waiver under TEX. CODE CRIM. PROC. arts. 27.18 and 27.19. His objections were overruled, and the trial court accepted Lira’s plea and sentenced him according to the terms of the plea agreement.
The court of appeals reversed on the heels of In re State ex rel. Ogg, 618 S.W.3d 361 (Tex. Crim. App. 2021). In Ogg, the Court of Criminal Appeals held that emergency orders cannot be used to modify or suspend substantive rights and that a trial court has no authority to conduct a bench trial in the absence of the State’s waiver under Art. 1.13. The court of appeals similarly concluded a trial court has no authority to conduct a plea hearing without the defendant’s physical presence without that defendant’s consent. It remanded for a new plea hearing.
The State makes two arguments. First, the right to be physically (rather than virtually) present at a negotiated plea hearing is not a substantive right. Unlike when a party is deprived of a jury trial, it is plain that the proceeding and outcome occurred the same as it would have had Lira been standing in the courtroom. Second, and for the same reason, Lira was not harmed if there was a violation of his statutory right. The court of appeals erred by concluding, implicitly, that the violation was structural error or otherwise immune to harm analysis under, in this case, Tex. R. App. P. 44.2(b).
