No. 05-04-00505-CR
Opinion Filed July 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 1, Dallas County, Texas, Trial Court Cause No. F-0371537-RH. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
DOUGLAS S. LANG, Justice.
Virgil Antwanne Slay, appellant, appeals the trial court's judgment convicting him for failing to stop and render aid after a vehicular accident resulting in death. See Tex. Transp. Code Ann. § 550.021 (Vernon 1999 Supp. 2004-05). In his sole issue on appeal, appellant argues he was denied his constitutional and statutory rights to be present at a critical stage of his criminal proceeding, which he claims bear a reasonably substantial relationship to his ability to defend himself. The event he claims prejudiced his rights occurred after the trial court recessed the pretrial hearing and appellant and his counsel left for the day. Then, the trial court held a hearing in the presence of the State, during which the trial court questioned a witness for the State. For the reasons set forth below, we decide appellant's sole issue against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dwayland Leffall, Debora Johnson, and James Wynn, were standing at the curb in a residential neighborhood in the very early morning, when a car hit and fatally injured Leffall. Leffall was thrown onto the windsheild and then rolled off the car hitting the curb. Johnson yelled for someone to call 9-1-1. Then, the car stopped and the driver, who appeared to be dazed, got out. Johnson ran to the car and told the driver "you hit him." The driver told Johnson, "I didn't know I hit no one." The driver did not attempt to help the victim or give the other witnesses his personal information. Johnson left the scene and Wynn saw the man get back into his car and drive away with his headlights off. Wynn was able to read the three letters appearing on the right side of the license plate. He provided the information about the license plate to the police. The next day, Johnson met with the police and identified appellant from a photographic lineup as the man driving the car. Also, she identified a car, to which appellant had access, as the vehicle that hit Leffall. Appellant's vehicle had damage to the windshield consistent with a pedestrian striking it. Appellant was indicted for failing to stop and render aid after a vehicular accident resulting in death. Appellant was arraigned and the trial court held a pretrial hearing on the admissibility of the photographic lineup identification. The hearing was concluded and appellant and his counsel left. The record shows the conclusion of the pretrial hearing and the ex parte hearing following it: COURT: All right. Anything further? DEFENSE: Nothing further from the defense. STATE: Nothing. COURT: I will see y'all at no later than 9:00 in the morning and we will get started.
(Proceedings recessed for the evening.) (Out of the presence of the defendant and attorney.) (Witness brought in the courtroom.) COURT: Okay ma'am, what is your name? JOHNSON: Debora Johnson. COURT: Okay. You're a witness I guess in this failure to stop and render aid case.
JOHNSON: Yes, ma'am. COURT: I understand that [appellant] came up to you or went up to you out in the hall and said something, is that correct?
JOHNSON: Yes, ma'am. COURT: Would you try as best as possible to tell me exactly what [appellant] said?
JOHNSON: [Appellant] said that I was paid to say that he did it.
COURT: Is that all he said? JOHNSON: No, he said a bunch of more [sic] things. COURT: Like tell me. JOHNSON: First he said — he asked one of them did either one of them [sic], the mother, they told him no. Then he said that I was lied on [sic]. I swear I was lied on, that I didn't do this. Then he said whoever said that I did do it must have been paid to say to say [sic] that he did do it.
COURT: Are these groups of friends of yours? JOHNSON: That's Dwayland's. STATE: The victim's family. COURT: And you were out there close to them. JOHNSON: I was sitting on the end. COURT: Did [appellant] in any way threaten you? JOHNSON: No, ma'am. COURT: He just goes and tells them? JOHNSON: He was walking up and down, you know, the walkway, just saying that out loud, talking to us.
COURT: I will talk to [appellant] in the morning — JOHNSON: Okay. COURT: — when he gets back here and tell him he's not to bother any of you all in any way.
JOHNSON: That's why didn't [sic] any of us say a thing.
COURT: Y'all just don't want [appellant] talking to you.
JOHNSON: No. No. COURT: In the morning I will talk to [appellant] and tell him that he's not to talk to you all. If anybody — if there's any reason that you all need to be talked to he can go through his attorney, if there's any need. Okay. But you know, if [appellant] bothers you in any way you tell the [State], okay.
JOHNSON: Okay. COURT: Thank you very much. (Proceedings recessed for the evening.) There is nothing in the record showing that the trial court ever instructed appellant or appellant's counsel that appellant was not to speak with Johnson or the victim's family members. Also, there is nothing in the record showing that appellant or appellant's counsel were ever made aware of the ex parte hearing. During the trial, Johnson and two members of the victim's family testified. The State did not question these witnesses about what occurred with Johnson in the hallway during the pretrial hearing. Appellant testified on his own behalf. He admitted driving a car on the street where Leffall was hit, and that he briefly stopped there and then left. He denied he hit appellant and that Johnson ran up to him at the scene of the accident. He explained that the windshield was previously damaged and there were other moving cars on the road at the time of the accident. During cross-examination, the State questioned appellant about whether he confronted Johnson in the hallway on the day of the pretrial hearing as follows: STATE: Now, isn't it also true, sir, that a couple of days ago when we were having a pretrial hearing regarding this case, and [Johnson] was here on another issue, you approached her out in the hall?
APPELLANT: No. STATE: And confronted her and told her that you're being paid to say this stuff.
APPELLANT: That's not true. STATE: You accused her of lying on you, is that right?
APPELLANT: No, it's not right. At the conclusion of the trial, the jury found appellant guilty. The trial court heard evidence on punishment and sentenced appellant to five years of imprisonment, the maximum term of imprisonment allowed. II. RIGHT TO BE PRESENT AT A PRETRIAL HEARING
In his sole issue on appeal, appellant argues he was denied his statutory right to be present at trial and his Fourteenth Amendment rights when the trial court held an ex parte hearing. A. Statutory Right to Be Present at Trial
Appellant contends his right to be personally present at trial under Texas Code of Criminal Procedure article 33.03 was violated when the trial court held an ex parte hearing. The State responds that Texas Code of Criminal Procedure article 33.03 applies only to the trial, which had not commenced. The State also responds that appellant has not raised an argument under Texas Code of Criminal Procedure article 28.01, which addresses appellant's right to be present during pretrial proceedings. Further, the State posits that the ex parte "discussion" was not a pretrial proceeding because pretrial proceedings had ended for the day, the trial court made no ruling, and the trial had not commenced. 1. Applicable Law
Texas Code of Criminal Procedure article 33.03 provides criminal defendants with a statutory right to be present during their trials. See Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2003); Routier v. State, 112 S.W.3d 554, 575 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 1040 (2004). Trial begins when the jury is impaneled and sworn. See Sanchez v. State, 138 S.W.3d 324, 329 (Tex.Crim.App. 2001). 2. Application of the Law to the Facts
Appellant complains about an ex parte hearing that was held after the trial court recessed the pretrial hearing. Voir dire did not begin until the following morning. At the time of the ex parte hearing, trial had not yet commenced because the jury had not been impaneled and sworn. See Sanchez, 138 S.W.3d at 329. Texas Code of Criminal Procedure 33.03 only concerns a criminal defendant's right to be present during his trial. See Tex. Code Crim. Proc. Ann. art. 33.03. Further, the State is correct in its assertion that appellant has not raised an argument under Texas Code of Criminal Procedure article 28.01, which addresses a defendant's right to be present during pretrial proceedings. We conclude appellant's right to be personally present at trial pursuant to Texas Code of Criminal Procedure article 33.03 was not violated when the trial court held an ex parte hearing. B. Fourteenth Amendment Rights
Appellant also broadly complains the trial court's ex parte hearing violated his rights under the Fourteenth Amendment. Appellant blends the legal concepts of due process and the right to assistance of counsel without explicitly arguing those rights or showing the authority for them. However, because appellant argues the legal principles of both rights, we will address each right separately. 1. Right to Assistance of Counsel
Appellant contends the ex parte hearing was a critical stage of the trial and that the absence of his counsel and himself denied him the opportunity to cross-examine Johnson. The State responds that the ex parte pretrial hearing was not a critical proceeding. a. Applicable Law
The Sixth Amendment provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e." U.S. Const. amend. VI. The Fourteenth Amendment makes the Sixth Amendment's guarantee of right to counsel obligatory upon the States. Gideon v. Wainwright, 372 U.S. 335 (1963). The right to the assistance of counsel extends to all "critical stages" of the criminal proceeding, not just the actual trial. Hidalgo v. State, 983 S.W.2d 746, 752 (Tex.Crim.App. 1999). A trial is unfair if the defendant is denied counsel at a critical stage of his trial. See U.S. v. Cronic, 466 U.S. 648, 659 (1984). Whether a particular stage is "critical" turns on an assessment of the usefulness of counsel to the accused at the time. Garcia v. State, 97 S.W.3d 343, 347 (Tex.App.-Austin 2003, no pet.). Whether a particular part of the criminal proceeding is a "critical stage" is determined by whether critical rights of the defendant can be lost at the stage in question, not whether the defendant suffered prejudice by the absence of the effective assistance of counsel. La Pointe v. State, 2005 WL 995371, at *9 (Tex.App.-Austin April 28, 2005, no pet. h.); Mann v. State, 134 S.W.3d 873, 875 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Medley v. State, 47 S.W.3d 17, 22 (Tex.App.-Amarillo 2000, pet. ref'd). Under certain circumstances, prejudice to the defendant is presumed. The United States Supreme Court has uniformly found constitutional error without any showing of prejudice when counsel was totally absent during a critical stage of a criminal proceeding. See Cronic, 466 U.S. at n. 25. No specific showing of prejudice is required where the defendant is denied the right of effective cross-examination because it is constitutional error of the first magnitude and it cannot be cured by a showing of no prejudice. See Cronic, 466 U.S. at 659 (discussing Davis v. Alaska, 415 U.S. 308 (1974)). Pretrial events may undercut the right of cross-examination. See United States v. Wade, 388 U.S. 218, 227 (1967) (counsel's presence during line-up necessary to preserve defendant's right to fair trial under right to effective assistance of counsel). If there is no presumption of prejudice, the dispositive question is whether appellant was prejudiced by the circumstances surrounding his representation. Cronic, 466 U.S. at 662. Various proceedings have been determined to be a "critical stage" in a criminal case as to a defendant's right to the assistance of counsel, including: (1) the taking of evidence on the defendant's guilt; (2) final summation or closing argument; (3) preliminary hearings; (4) arraignment; (5) jury selection; and (6) an in camera hearing on the admissibility of evidence. Medley, 47 S.W.3d at 22 (taking of evidence on defendant's guilt is critical stage); Herring v. New York, 422 U.S. 853 (1975) (final summation or closing argument is critical stage); White v. Maryland, 373 U.S. 59 (1963) (per curiam) (preliminary hearing is critical stage); Hamilton v. Alabama, 368 U.S. 52 (1961) (arraignment is critical stage); Medley, 47 S.W.3d at 23 (jury selection is a critical stage); LaPointe, No. 03-03-00460-CR, 2005 WL 995371, at *9-10 (in camera hearing to determine admissibility of evidence is critical stage). However, certain other proceedings have been determined not to be a "critical stage" of a criminal case: (1) discretionary appeals or writs of habeas corpus; and (2) post-sentencing right to request an exemption from the sex-offender registration requirement. Ex parte Graves, 70 S.W.3d 103, 110 (Tex.Crim.App. 2002) (no constitutional right to counsel on writ of habeas corpus); Mann, 134 S.W.3d at 875 (post-sentencing right to request exemption from sex-offender registration requirement is not a critical stage). b. Application of the Law to the Facts
The accuracy and truthfulness of Johnson's testimony were a key element of appellant's defense that another driver struck and killed the victim. Appellant asserts that his counsel was unable to cross-examine Johnson at the ex parte hearing or during the trial to support his assertion at trial that Johnson was biased. Also, appellant asserts that his counsel was unable to investigate the victim's family members' impressions of the alleged events where appellant talked to them in the hall, outside the court. Further, he complains that he could not effectively make a record at trial from which to argue Johnson's bias because he was not present at the ex parte hearing and he was not aware of Johnson's claims that appellant spoke to her and the victim's family in the hallway, accused her of lying, and claimed she was paid to give testimony against him. See Davis, 415 U.S. at 318-19. Therefore, appellant concludes the ex parte hearing was a "critical stage" because appellant's counsel's presence at the ex parte hearing would have been useful. See Garcia, 97 S.W.3d at 347. Typically, there is a presumption of prejudice and constitutional error when counsel was totally absent during a critical stage of a criminal proceeding. See Cronic, 466 U.S. at 658-59, n. 25. Further, typically where the defendant is denied the right of effective cross-examination, there is constitutional error of the first magnitude and there is a presumption of prejudice because the error cannot be cured by a showing of no prejudice. See Cronic, 466 U.S. at 659 (discussing Davis, 415 U.S. 308). However, although Johnson's bias was an element of appellant's defensive theory, her testimony at the ex parte hearing was not on the merits of the charge of failure to stop and render aid after a vehicular accident resulting in death. See generally, Mann, 134 S.W.3d at 875 ("critical stage" determined by whether critical rights of defendant can be lost and non-punitive proceeding is not "critical stage"). We conclude, on this record, the ex parte proceeding was not a "critical stage" of the proceeding. Accordingly, there is no presumption of prejudice that appellant was denied the right of effective assistance of counsel at either the ex parte hearing or at trial. Because there is no presumption of prejudice, the dispositive question is whether appellant was prejudiced by the circumstances surrounding his representation. Appellant does not allege he was denied counsel at any other stage in the criminal case against him or allege his counsel failed to represent him by acting as the State's adversary. See Cronic, 466 U.S. at 666. Accordingly, appellant was not prejudiced by his counsel's absence from the ex parte hearing. We conclude appellant's right to the assistance of counsel was not violated by his counsel's absence from the ex parte hearing. 2. Due Process
Appellant contends that his right to due process was violated when the ex parte hearing was held in his absence because the hearing had a reasonably substantial relationship to his ability to defend himself. He also contends that he or his counsel were unable to investigate by inquiring of the victim's family members whom Johnson stated were present in order to establish what they heard, if his comments had any impact on them, and whether their testimony would have shown that Johnson was biased. The State responds that there was overwhelming evidence that appellant struck the victim with his vehicle, appellant's counsel's absence at the ex parte "discussion" did not result in a detriment to his representation, and the ex parte "discussion" was no different from the trial court's standard instruction to witnesses about the Rule. a. Applicable Law
Section 1 of the Fourteenth Amendment commands that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. A constitutional liberty interest may arise from either a constitutional provision or a state statute. Garza v. State, 974 S.W.2d 251, 259 (Tex.App.-San Antonio 1998, pet. ref'd). A defendant should be allowed to be present at a pretrial proceeding to the extent that a fair and just hearing would be thwarted by his absence. Kentucky v. Stincer, 482 U.S. 730, 745 (1987); accord Adanandus v. State, 866 S.W.2d 210, 219 (Tex.Crim.App. 1993). Even in situations where the defendant is not actually confronting witnesses or the evidence against him, he has a due process right "to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Stincer, 482 U.S. at 745 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934), overruled in part on other grounds, Malloy v. Hogan, 378 U.S. 1 (1964)); accord Routier, 112 S.W.3d at 576 (adopting "reasonably substantial relationship" test to satisfy Fourteenth Amendment due process concerns); see also Sanchez v. State, 122 S.W.3d 347, 352 (Tex.App.-Texarkana 2003, pet. ref'd). The "reasonably substantial relationship" test focuses on the effect the defendant's absence had on the advancement of his defense. See Adanandus, 866 S.W.2d at 219; Sanchez, 122 S.W.3d at 352. If the defendant's presence would have furthered his defense, his presence bears a reasonably substantial relationship to the opportunity to defend. See Adanandus, 866 S.W.2d at 219; Sanchez, 122 S.W.3d at 352. b. Application of the Law to the Facts
Appellant contends that Johnson was Leffall's long-time friend and any bias or animus on her part was relevant to her testimony regarding how the accident occurred. At trial, appellant presented the defensive theory that he was not driving the vehicle that struck Leffall. Rather, he was also a witness to another car hitting the victim. As part of his defensive theory, appellant testified that Johnson lied when she testified she ran up to him at the scene of the accident, and that she and Wynn lied when they testified they saw him get out of the car and head toward the intersection like he was going to run away. This appeal differs from the case law addressing appellant's constitutional due process right to be present during the ex parte hearing because: (1) both appellant and his counsel were not at the ex parte hearing; and (2) appellant was questioned during the trial about the substance of Johnson's testimony at the ex parte hearing. In Adanandus and Sanchez, the reviewing courts concluded that the defendants' constitutional right to due process was not violated because there was "no evidence that [the defendants] had any information, not available to the attorneys or the court, regarding any of the matters discussed at the meeting." See Adanandus, 866 S.W.2d at 220; Sanchez, 122 S.W.3d at 352. However, in Adanandus and Sanchez, the defendants' counsel were present during the pretrial hearings. Here, appellant's counsel was not present at the ex parte hearing and there is nothing in the record to show that appellant's counsel had any knowledge of the matters discussed at the ex parte hearing. Further, appellant would have been able to assist his counsel, if his counsel had been present, at the ex parte hearing by giving his counsel information about what, if anything, took place in the hallway. Also, in Adanandus and Sanchez, the reviewing courts concluded that the defendants' constitutional right to due process was not violated because their presence could not have furthered their defense. See Adanandus, 866 S.W.2d at 220; Sanchez, 122 S.W.3d at 352. However, in Adanandus and Sanchez, the defendants were not questioned during the trial regarding the substance of the matters discussed during the pretrial hearings and the evidence presented at the pretrial hearings would not have provided a means of advancing their defensive theories. See Adanandus, 866 S.W.2d 210 (hearing on peremptory challenge of venire member); Sanchez, 122 S.W.3d 347 (hearing on defense counsel's need for second interpreter). Here, the State unsuccessfully attempted to impeach appellant during the trial with the substance of the matter discussed during the ex parte hearing. Once the State raised the substance of the ex parte hearing at trial, the matter affected the fullness of appellant's opportunity to defend himself. See Adanandus, 866 S.W.2d at 219; Sanchez, 122 S.W.3d at 352. It also resulted in a detriment to appellant's representation because his counsel, not knowing about the ex parte hearing, was unable to: (1) develop his client's testimony, and establish any possible bias on Johnson's part based on her claim that appellant spoke to her in the hall and that he accused her of lying and being paid for her testimony against him; or (2) investigate the perceptions of the victim's family members regarding appellant's actions in the hallway in an effort to advance appellant's defensive theory that Johnson was biased and someone else was the culprit. See Adanandus, 866 S.W.2d at 219-20. We conclude, on this record, the ex parte hearing bears a reasonably substantial relationship to appellant's opportunity to defend. See Adanandus, 866 S.W.2d at 219; Sanchez, 122 S.W.3d at 352. Accordingly, we conclude appellant's constitutional right to due process was violated when the trial court held an ex parte hearing in his and his counsel's absence, and in the State's presence. 3. Reversible Constitutional Error
Having identified that appellant's constitutional right to due process was violated, we must determine if the judgment of conviction against appellant warrants reversal because the error contributed to appellant's conviction. See Tex.R.App.P. 44.2(a). Appellant contends he was harmed because if he had known of the ex parte hearing, he might have changed his election to have the trial court set his punishment or, if he felt the trial judge was no longer impartial, he might have requested a mistrial. The State responds that appellant's claims of harm are speculative, he was only eligible for probation if the trial court assessed his punishment, and the evidence was overwhelming that appellant committed the offense and lied during the trial about his involvement. a. Applicable Law
If the appellate record reveals constitutional error that is subject to harmless error review, the court of appeals must reverse the judgment of conviction unless it determines beyond a reasonable doubt that the error did not contribute to appellant's conviction. See Tex.R.App.P. 44.2(a); Chapman v. California, 386 U.S. 18, 24 (1967); Brooks v. State, 132 S.W.3d 702, 707-07 (Tex.App.-Dallas 2004, pet. ref'd). In making this determination, we do not focus on the propriety of the outcome of the trial. See McCarthy v. State, 65 S.W.3d 47, 56 (Tex.Crim.App. 2001); Brooks, 132 S.W.3d at 708. Instead, our task is to "calculate, as nearly as possible, the probable impact of the error . . . in light of the other evidence." See McCarthy, 65 S.W.3d at 56; Brooks, 132 S.W.3d at 708 (discussing impact of error on jury). The United States Supreme Court has recognized that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant. Rushen v. Spain, 464 U.S. 114, 117-18 (1983). At the same time and without detracting from the fundamental importance of those rights, the United States Supreme Court has implicitly recognized the necessity for preserving society's interest in the administration of criminal justice. Id. Cases involving such constitutional deprivations are therefore subject to the general rule that remedies should be tailored to the injury suffered and should not unnecessarily infringe on competing interests. Id. at 118 (citing United States v. Morrison, 449 U.S. 361, 364 (1981); see also Rogers v. United States, 422 U.S. 35, 38-40 (1975)). In this spirit, the United States Supreme Court has noted that the Constitution does not require a new trial every time there is a potentially compromising situation. See generally Rushen, 464 U.S. 114, 118 (discussing ex parte communications between juror and the trial judge). b. Harm Analysis
The record shows that appellant received the maximum term of imprisonment allowed by law. The record also shows that the indictment was not enhanced, but during the hearing on punishment appellant agreed to stipulate to his prior felony conviction for possession of a controlled substance and three misdemeanor convictions for theft, two of which were dismissed. Further, the record shows that, although appellant was eligible for probation, he would not have been eligible for probation if he had elected to have his punishment set by the jury. Finally, the record shows the ex parte hearing and the punishment hearing were held approximately five days apart. The record does not show that appellant or his counsel were ever made aware of the ex parte hearing. Also, there is nothing in the record demonstrating that the trial judge sentenced appellant to the maximum term of imprisonment because of Johnson's testimony in the ex parte hearing. In fact, the record reflects that Johnson said she was not threatened by appellant. She just did not want appellant talking to her. Based on the record before us, we conclude beyond a reasonable doubt that appellant was not harmed by the ex parte hearing. Appellant's sole issue on appeal is decided against him. III. CONCLUSION
We conclude appellant's statutory right to be present at trial pursuant to Texas Code of Criminal Procedure article 33.03 was not violated. Also, we conclude appellant's right to the assistance of counsel was not violated. Although we conclude appellant's constitutional right to due process was violated when the trial court held a hearing in the absence of appellant and his counsel, we conclude beyond a reasonable doubt that appellant was not harmed. Accordingly, appellant's sole issue on appeal is decided against him. The trial court's judgment is affirmed.