Lira, Eluid

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0212-21

ELUID LIRA, Appellant

v.

THE STATE OF TEXAS

NO. PD-0213-21

SCOTT HUDDLESTON, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
JONES COUNTY

KELLER, P.J., filed a dissenting opinion in which KEEL and SLAUGHTER,
JJ., joined.
 LIRA & HUDDLESTON DISSENT — 2

DISSENTING OPINION

In 2018, Appellant Huddleston was in prison for murder and Appellant Lira was in prison

for felony possession of a controlled substance with intent to distribute when they each committed

the current charged offense of assault on a public servant.1 On March 13, 2020, at the beginning of

the COVID-19 pandemic, the Supreme Court of Texas and this Court entered a joint emergency

order which said, in relevant part:

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. Modify or suspend any and all deadlines and procedures, whether prescribed by
statute, rule, or order, for a stated period ending no later than 30 days after the
Governor’s state of disaster has been lifted;

b. Allow or require anyone involved in any hearing, deposition, or other
proceeding of any kind—including but not limited to a party, attorney, witness, or
court reporter, but not including a juror—to participate remotely, such as by
teleconferencing, videoconferencing, or other means.2

By late May of 2020, the Supreme Court had issued its Seventeenth Emergency Order, which—with

the exception of jurors and the time frame for the order—included the above language virtually

word-for-word. The trial court set a Zoom hearing on Appellants’ negotiated guilty pleas, to which

Appellants objected. Relying explicitly on the emergency order, the trial court overruled the

objections. Appellants reserved the right to appeal the Zoom issue. The Court now concludes that

the trial court erred to require Appellants to resolve their cases by Zoom. It further concludes that

1
I assume that the convictions listed in the indictment are the offenses for which the
Appellants were incarcerated.
2
First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket Nos.
20-9042 (SC) & 20-007 (CCA), 596 S.W.3d 265, Section 2 (Tex. March 13, 2020) (emphasis
added).
 LIRA & HUDDLESTON DISSENT — 3

the error was not harmless. In arriving at its conclusions, the Court principally relies upon In re

State ex rel. Ogg.3 I disagree with both of the Court’s conclusions, and I disagree that Ogg supports

them.

A. Remote proceedings were authorized.

1. The Emergency Order authorized it.

The Supreme Court’s Seventeenth Emergency Order provided in relevant part:

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;
***
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.4

Only Subsection (a) of the Emergency Order was at issue in Ogg.5 The question in Ogg was

whether the term “procedures” in that subsection encompassed waiving a jury trial against the wishes

of a party entitled to one.6 We held that the power to alter a “procedure” does not allow a court to

“create authority to preside over proceedings over which the judge would otherwise be barred from

3
618 S.W.3d 361 (Tex. Crim. App. 2021).
4
Seventeenth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket
No. 20-9071, 609 S.W.3d 119, 120, Section 3 (Tex. May 26, 2020) (emphasis added).
5
618 S.W.3d at 364.
6
Id.
 LIRA & HUDDLESTON DISSENT — 4

presiding.”7 We further concluded that the requirement that the State consent to waiving a jury was

“not merely procedural” but implicated “the trial court’s authority to preside over a particular type

of proceeding”—a “bench trial.”8 In our discussion, we explained, “If the Supreme Court’s

Emergency Order were really intended . . . to permit trial judges to enlarge the types of proceedings

over which they have authority, we would expect a provision to explicitly say so.”9 A “generically

framed right to modify statutory . . . procedures” could not abrogate a statutory right to a jury trial.10

But in the present case, Subsection (c) of the Emergency Order is also at issue. As outlined

above, Subsection (c) explicitly authorized the trial judge to “require” any person “to participate

remotely.” The Emergency Order subjected this explicit authorization only to “constitutional

limitations.” So the present cases differ from Ogg because (in the absence of a constitutional

violation) the Emergency Order explicitly authorized what the trial court did here—in fact it

demanded it. By contrast, the Emergency Order did not explicitly authorize a trial court to deny a

party a jury trial.

2. The Constitution did not forbid it.

The constitutional right to presence is largely rooted in the Confrontation Clause of the Sixth

Amendment, but when witnesses and evidence are not being confronted, the right to presence is

protected only by Due Process.11 Even the right to physical (“face-to-face”) confrontation is not

7
Id.
8
Id. at 365.
9
Id.
10
Id.
11
United States v. Gagnon, 470 U.S. 522, 526 (1985).
 LIRA & HUDDLESTON DISSENT — 5

absolute.12 Physical confrontation can be denied when “denial of such confrontation is necessary to

further an important public policy and . . . where the reliability of the testimony is otherwise

assured.”13 In Maryland v. Craig, the Supreme Court held that circumstances could permit a child

complainant to testify by one-way closed circuit television, with defendant observing the testimony

remotely.14 For a due-process inquiry, the question is simply whether the defendant’s “presence has

a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.”15

Here, an important public policy counseled in favor of denying face-to-face confrontation.

Impeding the spread of COVID-19 during the pandemic was an important public policy interest, and

the prevailing thought at the time was that preventing physical gatherings was necessary to further

that policy interest.16 In a letter addendum to its motion opposing the Zoom hearing, Lira’s counsel

alleged that the Allred Unit, where Lira resided, was on lockdown and that within the entire prison

system:

2214 prisoners and 742 staff employees have tested positive with 457
prisoners and 145 staff members recovered. There have been 32
prisoner deaths connected to COVID-19 with an additional 27 under
investigation. And there have been seven staff member deaths from
COVID-19.

The prosecutor argued that it was safer to keep an offender in the Unit than “transporting

12
Maryland v. Craig, 497 U.S. 836, 844 (1990).
13
Id. at 850.
14
Id. at 851-52.
15
Gagnon, 470 U.S. at 526 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)).
16
Appellants’ plea proceedings, on May 27, 2020, occurred just one day after the
Seventeenth Emergency Order issued.
 LIRA & HUDDLESTON DISSENT — 6

them onto a bus, transporting them into a courthouse, taking them from the facility and all the way

back again the exposure is far greater than having a hearing using this method . . . it not only assures

their health is better but it also assures the safety of everyone involved is better protected.” The

record supports a conclusion that holding a Zoom hearing would better protect Appellants, prison

personnel, and court personnel than an in-person hearing would.

And the reliability of the proceedings was otherwise assured. Appellants’ proceedings were

guilty plea proceedings, pursuant to plea agreements. Appellants were permitted to fully participate

in those proceedings via videoconference. Given that the plea agreements were followed, Appellants

received the sentences that they not only expected, but bargained for. Appellants’ physical presence

would not have made these proceedings more reliable, nor could it have given them a better outcome

with respect to their charges than what they received. The trial court’s proceedings did not run afoul

of any constitutional provisions.

Although the Emergency Order could not trump constitutional protections even if it purported

to do so, the conclusion that no constitutional limitations are at issue disposes of the only remaining

question about the Emergency Order’s language. Given the explicit language of the “remote

participation” provision of the Emergency Order and the fact that constitutional limitations were not

implicated, the Emergency Order’s express terms authorized the trial court’s actions in the cases

before us.

3. Statute authorized the Emergency-Order provision.

The next question is whether the provision in the Emergency Order was lawful: whether the

Emergency Order lawfully overrides statutes that would otherwise guarantee the defendant a right
 LIRA & HUDDLESTON DISSENT — 7

to physical presence. Article 1.13 states that a waiver of the defendant’s right to a jury trial must “be

made in person by the defendant in writing in open court with the consent and approval of the court,

and the attorney representing the State.”17 Article 1.15 provides that, to be convicted of a felony on

anything other than a jury verdict, a person must have “in open court in person waived his right of

trial by jury in writing in accordance with Articles 1.13 and 1.14.”18 Article 27.13 says that a plea

of guilty “must be made in open court by the defendant in person.”19 Article 27.18 allows a court

to accept a plea or waiver by video conference if both parties consent.20

Government Code Section 22.0035 allows the Texas Supreme Court to suspend, during an

emergency, procedures dictated by other statutes:

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. An order under this section may not
extend for more than 90 days from the date the order was signed unless renewed by
the chief justice of the supreme court.21

The important limitation here is that the statutory mandates that may be suspended are those that

17
TEX. CODE CRIM. PROC. art. 1.13(a).
18
Id. art. 1.15
19
Id. art. 27.13.
20
Id. art. 27.18(a)(1) (“Notwithstanding any provision of this code requiring that a plea or
a waiver of a defendant’s right be made in open court, a court may accept the plea or waiver by video
conference to the court if . . . the defendant and the attorney representing the state file with the court
written consent to the use of video conference.”). The statute has other requirements, none of which
have been alleged to have been violated here. See id. art. 27.18, passim. Under another statute, a
defendant confined in a penal institution may plead guilty under the procedures outlined in Art. 27.18
or may plead guilty in writing if certain other procedures are followed. Id. art. 27.19.
21
TEX. GOV’T CODE § 22.0035(b).
 LIRA & HUDDLESTON DISSENT — 8

prescribe “procedures for the conduct of any court proceeding.” If the “in person” presence

requirement in the statutes cited earlier qualify as “procedural” under this language, then suspension

of that requirement is permitted.

Ogg did not address whether “deadlines and procedures” under Subsection (a) of the

Emergency Order meant the same thing as “procedures for the conduct of any court proceeding” in

the Government Code provision.22 The Court did say that “neither Section 22.0035(b) nor the

Emergency Order purport to authorize courts to modify substantive rights” and that “[b]oth the

statute and the order address procedural matters.”23 But the Court then focused on the “deadlines

and procedures” language of the Emergency Order and said that such language “presupposes a

pre-existing power or authority over the case or the proceedings.”24 And, as explained above, the

Court said that it would expect an explicit provision permitting a court to enlarge its own authority

before it would construe the Emergency Order to do so.25

An explicit provision is at issue in this case, and so the question becomes: Is the requirement

of in-person presence at a plea and waiver proceeding a “procedure for the conduct of a court

proceeding?” Just from looking at the language of the statute, the answer would seem to be “yes.”

Ogg does not require us to hold otherwise. As explained above, Ogg did not address whether

the Supreme Court could use an emergency order to temporarily override the statutory requirement

22
See 618 S.W.3d at passim.
23
Id. at 364.
24
Id.
25
Id. at 365.
 LIRA & HUDDLESTON DISSENT — 9

that the State consent to a jury waiver. It simply held that the Emergency Order at issue did not do

so. But even if Ogg had held that the Government Code provision would not have permitted the

Emergency Order to authorize what the trial court did in that case, the present case is still

distinguishable.

Ogg pointed out that the trial court does not have the authority to conduct a bench trial unless

both parties have given consent to do so.26 That is a different thing than talking about how the

parties must consent. Whether both parties consent to a bench trial addresses the trial court’s power

to proceed, but how both parties consent to a bench trial is a matter of procedure.

It is true that the State-consent language is in the same sentence as the “in person” language

in Article 1.13. That does not mean that the two provisions share the same character as either

involving the power to proceed or involving mere procedure. First, substantively, the two provisions

are different, as explained above. Second, Article 1.13 also outlines how the State consents (“in

writing, signed by that [prosecuting] attorney, and filed in the papers of the cause”). So Article 1.13

recognizes that the defendant and the State have to consent to a bench trial, and it provides

procedures for how each party consents. This is consistent with the fact of consent going to the core

power of the trial court to proceed and the method of consent being a matter of mere procedure,

which could be overridden in an emergency. Third, Article 27.18 allows the “in person” requirement

to be overridden, by consent, in favor of presence by videoconference. This suggests that the “in

person” requirement is procedural despite any proximity of that requirement to the State-consent

requirement. Fourth, the “in writing” requirement for the defendant’s waiver is also in the same

26
Id.
 LIRA & HUDDLESTON DISSENT — 10

sentence as the State-consent requirement, but we have held the failure to comply with that

requirement to be a mere statutory violation that is not cognizable on habeas corpus, at least absent

a showing of harm.27 We likened this to the requirement that the State’s consent to a jury waiver be

in writing.28 And we pointed out that there was no constitutional requirement that a waiver be in

writing.29 Likewise, although there is ordinarily a constitutional right to physical presence, there was

not one in the present case due to circumstances of the pandemic.

Finally, nothing in Article 1.15 requires a different result. It is true that the article says, “No

person can be convicted of a felony except” if waiver of a jury occurs in open court and in person

in accordance with Article 1.13.30 This language does not mean that a trial court lacks the power to

preside over the proceedings, only that obtaining a conviction would be improper absent adherence

to the statutory procedures. As explained above, the failure to meet the writing requirement does

not render a conviction a nullity. And the “No person can be convicted” sentence also contains a

proviso that the State must introduce evidence in support of a guilty plea,31 which we have held is

a state-law requirement for which relief cannot be obtained on habeas.32

27
Ex parte Sadberry, 864 S.W.2d 541, 542-43 (Tex. Crim. App. 1993).
28
Id. at 542.
29
Id. at 543.
30
TEX. CODE CRIM. PROC. art. 1.15.
31
Id. (“provided, however, that it shall be necessary for the state to introduce evidence into
the record showing the guilt of the defendant and said evidence shall be accepted by the court as the
basis for its judgment and in no event shall a person charged be convicted upon his plea without
sufficient evidence to support the same”).
32
Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988).
 LIRA & HUDDLESTON DISSENT — 11

This discussion confirms that the Court has treated various requirements of 1.13 and similar

statutes either as purely procedural or as relating to the power to proceed in accordance with the kind

of requirements they are (the fact of waiver versus the procedures surrounding the waiver), rather

than according talismanic significance to the position of those requirements in the text of the various

statutes. Because the right to physical presence to waive a jury and enter a plea of guilty is merely

procedural—as opposed to the fact of waiving a jury or the fact of pleading guilty—Section 22.0035

authorized the Supreme Court to issue an order overriding that procedural requirement.

B. Appellant was not harmed

1. If there is error, it is subject to a harm analysis

In Cain v. State, we held, “Except for certain federal constitutional errors labeled by the

United States Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, voluntariness

of a plea, or any other mandatory requirement, is categorically immune to a harmless error

analysis.”33 I have already explained that there was no federal constitutional violation in this case.

Under Cain, a state-law claim cannot be structural.34 As Cain indicates, that is true even if the claim

is jurisdictional. Even if constitutional error had occurred, only a very limited class of constitutional

errors have been labeled by the Supreme Court as “structural,”35 and the right to presence during plea

or trial proceedings is not one of those.36

33
947 S.W.2d 262, 264 (Tex. Crim. App. 1997).
34
See also Do v. State, 634 S.W.3d 883, 897 (Tex. Crim. App. 2021) (“But only federal
constitutional errors can be structural, and most are not.”).
35
Greer v. United States, 141 S. Ct. 2090, 2099 (2021).
36
See Neder v. United States, 527 U.S. 1, 8 (1999) (list).
 LIRA & HUDDLESTON DISSENT — 12

And any error was obviously harmless under any standard. The constitutional standard

requires that an error be deemed harmless only if “the court determines beyond a reasonable doubt

that the error did not contribute to the conviction or punishment.”37 Even under that least forgiving

standard, we can conclude that any error was harmless. Appellants here received exactly what they

wanted: the sentences they bargained for. They were able to attend the proceedings via

videoconference and had the ability to consult with their attorneys and interact personally with the

trial judge. Even beyond a reasonable doubt, we can and should conclude that nothing would have

changed had the proceedings been conducted in person.

I respectfully dissent.

Filed: January 11, 2023
Publish

37
TEX. R. APP. P. 44.2(a).