Beecher Montgomery v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 24, 2022
• Docket: 02-21-00003-CR
• Status: Published

Opinion

[pic]

In the Court of Appeals Second Appellate District of Texas at Fort Worth

No. 02-21-00002-CR No. 02-21-00003-CR

|Beecher Montgomery, Appellant | | | |v. | | | |The State of Texas |

the?

On Appeal from the 396th District Court Tarrant County, Texas Trial Court Nos. 1591282D, 1627542D

ORDER

Appellant’s appointed appellate counsel has filed a motion to withdraw and supporting brief stating that, in his opinion, this appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Once appointed counsel does so, we must examine the appellate record, the Anders brief, and any pro se response. See In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503, 510–11 (Tex. Crim. App. 1991). If we determine that any arguable ground for appeal exists, we must grant the attorney’s motion to withdraw, abate the appeal, and instruct the trial court to appoint new appellate counsel “with directions to file a merits brief.” Schulman, 252 S.W.3d at 409. After performing our independent review, we conclude that there is at least one arguable issue in this case: whether the trial court reversibly erred by denying appellant’s Objection to Virtual Proceeding, in which he objected generally to proceeding with the State’s motion to adjudicate remotely and then specifically to his appearance via Zoom rather than physically in the courtroom. Clerk’s R. at 74; 3 Reporter’s R. at 9–15. Included in this issue is whether appellant’s Fourteenth Amendment due- process right to be physically present at the proceeding was violated and whether such an argument was preserved. See, e.g., Black v. Romano, 471 U.S. 606, 611–12, 105 S. Ct. 2254, 2258 (1985); Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761 (1973); Ex parte Carmona, 185 S.W.3d 492, 495 (Tex. Crim. App. 2006) (citing Gagnon for proposition that probationer is entitled to “an opportunity to be heard in person” at a revocation hearing); Whisenant v. State, 557 S.W.2d 102, 104–05 (Tex. Crim. App. 1977) (describing Gagnon as setting forth “minimum requirements” of revocation proceeding, noting that “[t]he proceeding to revoke probation, although not the same as a criminal trial, requires substantially all the same procedure,” and describing hearing as “[a]n adversary proceeding . . . in which almost all of the rules of evidence and criminal procedure” apply); Hughes v. State, No. 14-20-00628-CR, 2022 WL 778980, at *3–4 (Tex. App.––Houston [14th. Dist.] Mar. 15, 2022, no pet. h.) (concluding, without citing Black or Gagnon, that Sixth Amendment right to be present in the courtroom at every stage of trial applies in deferred-adjudication community-supervision revocation hearing); see also Tex. R. App. P. 47.7(a) (providing that unpublished criminal opinions have no precedential value); cf. Warr v. State, 591 S.W.2d 832, 835 (Tex. Crim. App. 1979) (“Similarly, an accused must be present at a hearing on motion to revoke where the punishment initially assessed was confinement in jail because of the likelihood that sentence will be imposed”); Cantu v. State, 339 S.W.3d 688, 690–91 (Tex. App.––Fort Worth 2011, no pet.) (mem. op.) (concluding that it is unclear whether Sixth Amendment confrontation right applies in deferred- adjudication community-supervision revocation hearing). This is not to say that there are no other arguable issues that could be raised in this appeal or that we have determined that the identified issue ultimately has merit. But because we have identified an arguable issue, we grant appointed appellate counsel’s motion to withdraw. We abate the appeal for the trial court to appoint a new attorney and direct that attorney to file a brief on the merits. See Schulman, 252 S.W.3d at 409. The trial court shall make the appointment and ensure that a supplemental record is filed in this court no later than Monday, April 25, 2022. The appeal will be automatically reinstated, and this court will set a new briefing schedule, when the supplemental record appointing new counsel is filed. We direct the clerk of this court to send a notice of this order to the attorneys of record, appellant, the trial court judge, the trial court clerk, and the court reporter. Dated March 24, 2022.

Per Curiam