In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-23-00105-CR ___________________________
JARVIS FRANKLIN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1580073
Before Kerr, Birdwell, & Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
In one point, Appellant Jarvis Franklin contends that the trial court erred by
overruling his Confrontation Clause objection to an officer’s testimony, which was
admitted via Zoom. We agree that the trial court erred, but we hold that the error was
harmless. We overrule Franklin’s point and affirm the trial court’s judgment.
I. BACKGROUND
Franklin entered a charge bargain in which he agreed to plead guilty to count
one of the indictment (the murder of Karen Finney) in exchange for the State’s
dropping counts two (aggravated assault on a family member) and three (unlawful
possession of a firearm by a felon) of the indictment. The indictment also included a
habitual offender notice alleging a 2013 manslaughter conviction and a 2005
conviction for aggravated assault with a deadly weapon.
The parties had no agreement as to punishment. At the punishment hearing,
the State introduced judgments showing Franklin’s prior convictions for manslaughter
and for aggravated assault with a deadly weapon. The trial court found the allegations
true and sentenced Franklin to life imprisonment. See Tex. Penal Code Ann.
§ 12.42(d). Franklin appealed.1
1 The trial court gave Franklin permission to appeal “as to sentence only.” See Tex. R. App. P. 25.2(a)(2)(B).
2 II. ERROR
The Texas Court of Criminal Appeals requires a necessity finding in every case
in which a defendant has raised a Confrontation Clause challenge to a witness
testifying via a two-way video system. See Haggard v. State, 612 S.W.3d 318, 325 (Tex.
Crim. App. 2020). In Franklin’s case, the State offered no evidence regarding why it
was necessary for Officer Ross McRee to testify via Zoom, and the trial court made
no finding regarding necessity. The State concedes this point in its brief. We agree
that the trial court erred. See id.
III. WAIVER
The State, however, argues that Franklin waived his complaint because he did
not brief how the error harmed him. We disagree.
When, as here, constitutional error is involved, the error requires reversal
unless the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment. Tex. R. App. P. 44.2(a); Allison v. State,
666 S.W.3d 750, 763 (Tex. Crim. App.), cert. denied, 144 S. Ct. 245 (2023); Sandoval v.
State, 665 S.W.3d 496, 515 (Tex. Crim. App. 2022), petition for cert. filed, No. 23-5618
(U.S. Sept. 20, 2023). And more specifically in the context of a denial of physical,
face-to-face confrontation, the Texas Court of Criminal Appeals has written that the
State, which benefited from the error, has the burden of persuasion to show that the
error was harmless beyond a reasonable doubt. Haggard, 612 S.W.3d at 328. In short,
constitutional error entails a rebuttable presumption of harm. See Clark v. State,
3 No. 14-16-00396-CR, 2017 WL 4320005, at *8 (Tex. App.—Houston [14th Dist.]
Sept. 28, 2017, pet. ref’d) (mem. op., not designated for publication) (“[The Rule
44.2(a)] standard creates a rebuttable presumption of harm.”); Casias v. State,
36 S.W.3d 897, 900 (Tex. App.—Austin 2001, no pet.) (“In the event of constitutional
error, Rule 44.2(a) effectively creates a rebuttable presumption of harm . . . .”).2
As a matter of advocacy, we might question Franklin’s failure to brief the harm
issue. See, e.g., Pinkston v. State, No. 02-22-00076-CR, 2023 WL 3017661, at *6 (Tex.
App.—Fort Worth Apr. 20, 2023, pet. ref’d) (mem. op., not designated for
publication); Salinas v. State, No. 02-18-00060-CR, 2019 WL 1574953, at 7 n.7 (Tex.
App.—Fort Worth Apr. 11, 2019, pet. ref’d) (mem. op., not designated for
publication). But when a party has no burden of persuasion, faulting the party for not
carrying that burden is a non sequitur.3
2 For the proposition that Franklin waived his complaint, the State relied on Kapperman v. State, No. 01-20-00127-CR, 2022 WL 3970081, at *27 (Tex. App.— Houston [1st Dist.] 2022), no pet.) (mem. op., not designated for publication). Kapperman relied on Cardenas v. State, a case involving charge error. 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). When Cardenas was decided, an appellant arguably had the burden of persuasion to show harm on charge error. See Warner v. State, 245 S.W.3d 458, 461–64 (Tex. Crim. App. 2008). But that is no longer true. See id. at 464; see also Alcoser v. State, 663 S.W.3d 160, 165 (Tex Crim. App. 2022); Mayfield v. State, 676 S.W.3d 244, 254 (Tex. App.—Fort Worth 2023, pet. ref’d). 3 In Sierra v. State, we faulted an appellant for not briefing both error and harm and held that he waived his complaint. 157 S.W.3d 52, 64 (Tex. App.—Fort Worth 2004) (op. on reh’g), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007). Error can be waived for lack of briefing. Thus, to the extent we faulted the appellant for not briefing harm, that statement was dictum.
4 In this case, Franklin has effectively relied on that presumption, and the State
has argued against it. As shown below, the State has successfully rebutted the
presumption and shown that the error is harmless.
IV. HARM
A. THE STANDARD OF REVIEW
When determining harm after a defendant’s confrontation rights have been
violated, factors to consider are (1) the importance of the witness’s testimony in the
prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points, and (4) the overall strength of the prosecution’s case. See Allison,
666 S.W.3d at 763–64; Haggard, 612 S.W.3d at 329.
In the context of the denial of physical confrontation, the harm analysis cannot
include consideration of whether the witness’s testimony would have been unchanged
or whether the jury’s assessment would not have been altered had the witness testified
in the courtroom. Haggard, 612 S.W.3d at 328. Such an inquiry would involve pure
speculation. Id. Rather, courts determine harm based on the remaining evidence. Id.
The emphasis of the harm analysis under Rule 44.2(a) is not on the propriety of
the trial’s outcome. Allison, 666 S.W.3d at 764. Put differently, the question is not
whether the evidence supports the factfinder’s verdict but whether it is likely that the
constitutional error was a contributing factor in the factfinder’s deliberations. See id.
The question is whether the error adversely affected the process’s integrity. See id.
5 B. DISCUSSION
1. Cumulative, Corroborating Evidence Came in Elsewhere without Objection
The officer in question, McRee, testified via Zoom that while in jail, Franklin
stabbed him in the neck with an unknown object.
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-23-00105-CR ___________________________
JARVIS FRANKLIN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1580073
Before Kerr, Birdwell, & Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
In one point, Appellant Jarvis Franklin contends that the trial court erred by
overruling his Confrontation Clause objection to an officer’s testimony, which was
admitted via Zoom. We agree that the trial court erred, but we hold that the error was
harmless. We overrule Franklin’s point and affirm the trial court’s judgment.
I. BACKGROUND
Franklin entered a charge bargain in which he agreed to plead guilty to count
one of the indictment (the murder of Karen Finney) in exchange for the State’s
dropping counts two (aggravated assault on a family member) and three (unlawful
possession of a firearm by a felon) of the indictment. The indictment also included a
habitual offender notice alleging a 2013 manslaughter conviction and a 2005
conviction for aggravated assault with a deadly weapon.
The parties had no agreement as to punishment. At the punishment hearing,
the State introduced judgments showing Franklin’s prior convictions for manslaughter
and for aggravated assault with a deadly weapon. The trial court found the allegations
true and sentenced Franklin to life imprisonment. See Tex. Penal Code Ann.
§ 12.42(d). Franklin appealed.1
1 The trial court gave Franklin permission to appeal “as to sentence only.” See Tex. R. App. P. 25.2(a)(2)(B).
2 II. ERROR
The Texas Court of Criminal Appeals requires a necessity finding in every case
in which a defendant has raised a Confrontation Clause challenge to a witness
testifying via a two-way video system. See Haggard v. State, 612 S.W.3d 318, 325 (Tex.
Crim. App. 2020). In Franklin’s case, the State offered no evidence regarding why it
was necessary for Officer Ross McRee to testify via Zoom, and the trial court made
no finding regarding necessity. The State concedes this point in its brief. We agree
that the trial court erred. See id.
III. WAIVER
The State, however, argues that Franklin waived his complaint because he did
not brief how the error harmed him. We disagree.
When, as here, constitutional error is involved, the error requires reversal
unless the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment. Tex. R. App. P. 44.2(a); Allison v. State,
666 S.W.3d 750, 763 (Tex. Crim. App.), cert. denied, 144 S. Ct. 245 (2023); Sandoval v.
State, 665 S.W.3d 496, 515 (Tex. Crim. App. 2022), petition for cert. filed, No. 23-5618
(U.S. Sept. 20, 2023). And more specifically in the context of a denial of physical,
face-to-face confrontation, the Texas Court of Criminal Appeals has written that the
State, which benefited from the error, has the burden of persuasion to show that the
error was harmless beyond a reasonable doubt. Haggard, 612 S.W.3d at 328. In short,
constitutional error entails a rebuttable presumption of harm. See Clark v. State,
3 No. 14-16-00396-CR, 2017 WL 4320005, at *8 (Tex. App.—Houston [14th Dist.]
Sept. 28, 2017, pet. ref’d) (mem. op., not designated for publication) (“[The Rule
44.2(a)] standard creates a rebuttable presumption of harm.”); Casias v. State,
36 S.W.3d 897, 900 (Tex. App.—Austin 2001, no pet.) (“In the event of constitutional
error, Rule 44.2(a) effectively creates a rebuttable presumption of harm . . . .”).2
As a matter of advocacy, we might question Franklin’s failure to brief the harm
issue. See, e.g., Pinkston v. State, No. 02-22-00076-CR, 2023 WL 3017661, at *6 (Tex.
App.—Fort Worth Apr. 20, 2023, pet. ref’d) (mem. op., not designated for
publication); Salinas v. State, No. 02-18-00060-CR, 2019 WL 1574953, at 7 n.7 (Tex.
App.—Fort Worth Apr. 11, 2019, pet. ref’d) (mem. op., not designated for
publication). But when a party has no burden of persuasion, faulting the party for not
carrying that burden is a non sequitur.3
2 For the proposition that Franklin waived his complaint, the State relied on Kapperman v. State, No. 01-20-00127-CR, 2022 WL 3970081, at *27 (Tex. App.— Houston [1st Dist.] 2022), no pet.) (mem. op., not designated for publication). Kapperman relied on Cardenas v. State, a case involving charge error. 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). When Cardenas was decided, an appellant arguably had the burden of persuasion to show harm on charge error. See Warner v. State, 245 S.W.3d 458, 461–64 (Tex. Crim. App. 2008). But that is no longer true. See id. at 464; see also Alcoser v. State, 663 S.W.3d 160, 165 (Tex Crim. App. 2022); Mayfield v. State, 676 S.W.3d 244, 254 (Tex. App.—Fort Worth 2023, pet. ref’d). 3 In Sierra v. State, we faulted an appellant for not briefing both error and harm and held that he waived his complaint. 157 S.W.3d 52, 64 (Tex. App.—Fort Worth 2004) (op. on reh’g), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007). Error can be waived for lack of briefing. Thus, to the extent we faulted the appellant for not briefing harm, that statement was dictum.
4 In this case, Franklin has effectively relied on that presumption, and the State
has argued against it. As shown below, the State has successfully rebutted the
presumption and shown that the error is harmless.
IV. HARM
A. THE STANDARD OF REVIEW
When determining harm after a defendant’s confrontation rights have been
violated, factors to consider are (1) the importance of the witness’s testimony in the
prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points, and (4) the overall strength of the prosecution’s case. See Allison,
666 S.W.3d at 763–64; Haggard, 612 S.W.3d at 329.
In the context of the denial of physical confrontation, the harm analysis cannot
include consideration of whether the witness’s testimony would have been unchanged
or whether the jury’s assessment would not have been altered had the witness testified
in the courtroom. Haggard, 612 S.W.3d at 328. Such an inquiry would involve pure
speculation. Id. Rather, courts determine harm based on the remaining evidence. Id.
The emphasis of the harm analysis under Rule 44.2(a) is not on the propriety of
the trial’s outcome. Allison, 666 S.W.3d at 764. Put differently, the question is not
whether the evidence supports the factfinder’s verdict but whether it is likely that the
constitutional error was a contributing factor in the factfinder’s deliberations. See id.
The question is whether the error adversely affected the process’s integrity. See id.
5 B. DISCUSSION
1. Cumulative, Corroborating Evidence Came in Elsewhere without Objection
The officer in question, McRee, testified via Zoom that while in jail, Franklin
stabbed him in the neck with an unknown object. The injury did not require stitches.4
Later, however, another witness—a psychologist who had visited Franklin and had
performed psychological testing on him—testified that she was aware that while
Franklin was incarcerated, he had committed six separate offenses for assault on a
public servant or on a peace officer and that the offenses involved stabbing,
punching, and threats. Consequently, the factfinder had evidence from a source other
than Officer McRee that Franklin had engaged in violence against jailers while
incarcerated. When comparable evidence comes in elsewhere without objection, any
error in admitting the disputed evidence is harmless. See Sanders v. State, 422 S.W.3d
809, 818 (Tex. App.—Fort Worth 2014, pet. ref’d). Because comparable evidence
was admitted elsewhere without objection, this suggests that the error relating to
Officer McRee’s testimony was harmless.5 See id.
4 Other than this incident, Officer McRee denied having any other problems with Franklin. 5 The record shows that even before the punishment hearing, the trial court was aware that Franklin was having difficulties in jail. At the end of the hearing on Franklin’s guilty plea, Franklin and the trial court had a brief dialogue about Franklin’s staying out of trouble while incarcerated.
6 2. The Strength of the State’s Case on Punishment and the Negligible Importance of Officer McRee’s Testimony
The strength of the prosecutor’s case on punishment was considerable. The
murder itself involved Franklin’s shooting Finney multiple times while she was in bed.
Some of the gunshot wounds were to Finney’s face and head and two were to her
upper shoulder. Three of Finney’s four children were in the house at the time.
And the murder was not Franklin’s only violent offense. He had prior
convictions for a second-degree-felony manslaughter and a second-degree-felony
aggravated assault with a deadly weapon, a knife. In the manslaughter offense, which
was originally charged as a murder, Franklin stabbed his mother’s boyfriend to death.
Officer McRee’s stabbing, which did not even require stitches, paled in importance
compared to the other evidence.
3. Ruling
Because the psychologist provided comparable evidence without objection
corroborating Franklin’s violence—including stabbing—while incarcerated, and
because Officer McRee’s testimony was but one small piece in a much larger puzzle,
we hold that the error in admitting Officer McRee’s testimony was harmless and
overrule Franklin’s sole issue. See Allison, 666 S.W.3d at 763-64; Haggard, 612 S.W.3d
at 329.
V. CONCLUSION
Having overruled Franklin’s issue, we affirm the trial court’s judgment.
7 /s/ Brian Walker
Brian Walker Justice
Delivered: March 7, 2024