“The Fourteenth Court erred by holding that the Sixth Amendment Confrontation Clause applied to probation revocation proceedings. This holding conflicts with published holdings from four Texas courts of appeals and nine federal circuit courts, and with the federal Supreme Court’s explicit statement that revocation proceedings are not ‘criminal prosecutions.’”
At Hughes’ deferred-community-supervision revocation hearing, Hughes and a prosecution witness appeared via Zoom. After acting out during the hearing, Hughes was muted for some time. The trial court adjudicated guilt and sentenced Hughes to imprisonment.
On appeal, Hughes argued that he was denied his right to be present in the courtroom in violation of the Confrontation Clause. Absent a waiver of the right, the trial court was required to have him present, and he was harmed because he could not communicate with counsel. Relying on Ex parte Doan’s statement that revocation proceedings are judicial, not administrative, and thus governed by those rules, 369 S.W.3d 205 (Tex. Crim. App. 2012), the court of appeals’ majority held that the Confrontation Clause applies to revocations. The majority stated that the several other courts of appeals’ decisions holding otherwise neglected to give Ex parte Doan proper consideration. The majority went on to agree with Hughes that the Confrontation Clause right is waivable only under Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), and that Hughes was denied the right to be present. Hughes “was relegated to being a distant observer with no opportunity to confront or cross-examine as envisioned by the Confrontation Clause.” Finally, the majority concluded that Hughes was harmed because he could not communicate with his attorney about the witness who testified against him.
Justice Wise, in dissent, remarked that the majority’s opinion is too broad. In Trevino v. State, the court held that an extra-judicial, testimonial statement admitted at a straight-probation revocation hearing did not violate the Confrontation Clause. 218 S.W.3d 234 (Tex. App.―Houston [14th Dist.] 2007, no pet.). It is thus not necessary to undermine Trevino; deferred is different. Justice Wise also asserted that the record is insufficient to support the majority’s decision. There are no facts supporting the contention that Hughes could not communicate with his attorney or was prevented from speaking to counsel (even if muted for a period of time), and Hughes bears the burden of producing a record that supports his claim. Hughes had the opportunity to develop a record through a motion for new trial.
The State takes issue with the majority’s reliance on Ex parte Doan because it declared revocations as judicial in the context of collateral estoppel, not due process. Thus, the majority should not have disregarded other courts’ holdings that the Confrontation Clause does not apply to revocations. Further, the Confrontation Clause does not apply to other judicial proceedings like competency or preliminary hearings.
The majority was also wrong, in the State’s view, to imply that if due process applies, the Confrontation Clause also applies. The latter right to be present is more limited and flexible than the former. And where the record does not show harm, that means no due process violation has been shown. The majority, therefore, erred to use harm to justify a reversal.
Further, the majority incorrectly identified the right as “waivable only.” Ordinary rules of preservation apply to the right to be present under pandemic-era Zoom cases where there is not a total absence of presence; it makes sense to remedy a partial violation on the spot. Therefore, it should be a Category 3, forfeitable, Marin right. Without any objection, as Justice Wise pointed out, it is speculative that Hughes was denied the opportunity to communicate with counsel.