Opinion filed March 25, 2021
In The
Eleventh Court of Appeals
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No. 11-20-00148-CR
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ELUID LIRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 012008
OPINION
Appellant, Eluid Lira, entered into a plea-bargain agreement, pleaded guilty
to the offense of assault on a public servant, and pleaded true to an enhancement
allegation. The trial court convicted Appellant, found the enhancement allegation to
be true, and assessed punishment pursuant to the terms of the plea agreement at
imprisonment for eight years in the Institutional Division of the Texas Department
of Criminal Justice and a fine of $5,000. In his sole issue on appeal, Appellant asserts
that he had a statutory right to enter his guilty plea in open court and that his right to
do so was a substantive right and was therefore not subject to the Texas Supreme
Court’s emergency orders authorizing a trial court to modify or suspend any and all
procedures. We agree with Appellant and, accordingly, reverse the judgment of the
trial court.
Appellant’s contention on appeal is that the trial court erred when it acted
under the guise of the emergency orders issued by the Texas Supreme Court in
response to the COVID-19 pandemic and required Appellant’s plea hearing to be
conducted via a Zoom videoconference. See Seventeenth Emergency Order
Regarding COVID-19 State of Disaster, 609 S.W.3d 119 (Tex. 2020). Prior to the
plea hearing, Appellant had filed a motion to rescind the order setting his case on a
Zoom videoconference plea docket. Appellant indicated that he did not consent to
the conducting of the plea hearing via Zoom or by other videoconferencing methods.
Appellant requested a continuance until he could appear in court in person and in the
physical presence of his attorney. Appellant asserted in his motion that requiring the
plea hearing to be conducted via videoconference violated his rights to counsel and
to a public trial and was contrary to state law, particularly Article 27.18 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 27.18(a) (West
Supp. 2020).
Appellant renewed his objections at the outset of the plea hearing. The trial
court overruled Appellant’s motion and objections and proceeded with the plea
hearing via videoconference. Appellant was incarcerated at the Allred Unit at the
time of the plea hearing and appeared via Zoom. Appellant’s attorney, who was not
present with Appellant at the prison unit, also appeared via Zoom. Before Appellant
entered his guilty plea, the trial court and the attorneys discussed the preservation of
Appellant’s right to appeal the matters that he had presented in his motion. Appellant
pleaded guilty subject to the reservation of his right to appeal. The trial court
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certified that, even though this was a plea-bargain case, it had given Appellant
permission to appeal.
The above-referenced Seventeenth Emergency Order was in effect at the time
of the plea hearing. That order provided in part as follows:
3. Subject only to constitutional limitations, all courts in Texas
may in any case, civil or criminal—and must to avoid risk to court staff,
parties, attorneys, jurors, and the public—without a participant’s
consent:
a. except as provided in paragraph (b), modify or suspend any
and all deadlines and procedures, whether prescribed by statute, rule,
or order, for a stated period ending no later than September 30, 2020;
b. [relates to Family Code and is not relevant here].
c. Allow or require anyone involved in any hearing, deposition,
or other proceeding of any kind—including but not limited to a party,
attorney, witness, court reporter, grand juror, or petit juror—to
participate remotely, such as by teleconferencing, videoconferencing,
or other means[.]
Seventeenth Emergency Order, 609 S.W.3d at 120. The order was enacted pursuant
to the authority granted to the supreme court in Section 22.0035(b) of the
Government Code. Id. at 120; see TEX. GOV’T CODE ANN. § 22.0035(b) (West Supp.
2020). Section 22.0035(b) provides: “Notwithstanding any other statute, the
supreme court may modify or suspend procedures for the conduct of any court
proceeding affected by a disaster during the pendency of a disaster declared by the
governor. . . .” (emphasis added).
Although Paragraph 3(c) appears on its face to authorize a trial court to require
any party to participate in a proceeding via videoconferencing, we cannot hold that
a defendant in a criminal case can be required, pursuant to the Seventeenth
Emergency Order, to appear via videoconferencing over the defendant’s objection.
As asserted by Appellant and as recently determined by the Court of Criminal
Appeals, neither Section 22.0035(b) nor the Seventeenth Emergency Order purports
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to authorize a court to modify substantive rights. In re State ex rel. Ogg, No. WR-
91,936-01, 2021 WL 800761, at *3 (Tex. Crim. App. Mar. 3, 2021) (orig.
proceeding). According to the court in Ogg, Section 22.0035(b) and the Seventeenth
Emergency Order both “address procedural matters.” Id. (emphasis added). In Ogg,
the State refused to consent to the defendant’s waiver of a jury trial, but the trial
court, citing the Texas Supreme Court’s COVID-19 emergency order, nonetheless
set the case for a bench trial. Id. at *1. The State sought mandamus relief, which
the Court of Criminal Appeals conditionally granted. Id. at *1, 4. The Court of
Criminal Appeals held that the emergency order did not “purport to authorize courts
to modify substantive rights” and did not confer authority on the trial court to
conduct a bench trial in violation of Article 1.13 because the consent requirement of
Article 1.13 was “not merely procedural.” Id. at *4; see CRIM. PROC. art. 1.13(a).
A defendant’s right to appear in person in open court is not merely a
procedural matter but, rather, is a substantive right provided for by statute. The
Texas Code of Criminal Procedure provides that a defendant in a criminal
prosecution (other than one involving the possibility of the death penalty) has the
right, upon entering a plea, to waive the right of trial by jury (1) if the waiver is made
in person by the defendant in open court with the consent of the prosecutor and the
trial court or (2) if the provisions of Article 27.19 have been met. CRIM. PROC.
art. 1.13(a). Article 27.19, in turn, provides that a court shall accept a guilty plea
from a defendant who is confined in a penal institution if the plea is made in
accordance with Article 27.18. Id. art. 27.19(a)(1). Article 27.18 permits a court to
accept a defendant’s “plea or waiver by videoconference” if certain conditions are
met. Id. art. 27.18. One such condition is that the defendant and the prosecutor “file
with the court written consent to the use of videoconference.” Id. art 27.18(a)(1).
In the case before us, that statutory condition was not met. Appellant did not
consent to the use of videoconference. In fact, he specifically objected to its use and
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cited Article 27.18. Like the consent requirement involved in Ogg, the consent
requirement in Article 27.18 is not merely procedural. Therefore, the Seventeenth
Emergency Order did not alter or affect Appellant’s statutory right to be personally
present at his guilty-plea hearing, to enter his plea in person and in open court, and
to refuse to consent to the disposition of his case via a videoconference hearing. See
Ogg, 2021 WL 800761, at *3. Because the condition set forth in Article 27.18(a)(1)
was not met, the trial court was not authorized to accept Appellant’s guilty plea. See
id. at *3–4. Furthermore, because the trial court was not authorized to accept
Appellant’s guilty plea, that plea is voidable. See Davis v. State, 956 S.W.2d 555,
557–58 (Tex. Crim. App. 1997); see also Ogg, 2021 WL 800761, at *3 (a judge’s
lack of authority may invalidate the proceeding itself); Lilly v. State, 365 S.W.3d
321, 328, 333 (Tex. Crim. App. 2012) (holding that issue related to failure to hold a
public trial was preserved for review despite guilty plea and that judgment should
be reversed and cause remanded for a new trial). We sustain Appellant’s sole issue.
Accordingly, we reverse the judgment of the trial court and remand the cause
to the trial court for further proceedings.
JOHN M. BAILEY
CHIEF JUSTICE
March 25, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J. 1
Williams, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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