In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00259-CR __________________
JORDAN JOSEPH BROUSSARD, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B200176-R __________________________________________________________________
MEMORANDUM OPINION
Jordan Joseph Broussard (Broussard or Appellant) was indicted for
aggravated robbery. See Tex. Penal Code Ann. § 29.03. Broussard entered a plea of
“guilty” and elected to have the trial court determine his punishment in open
sentencing. After a sentencing hearing in which the State presented witnesses and
Broussard testified on his own behalf, the trial court accepted Broussard’s guilty
plea, found Broussard guilty of aggravated robbery based on his plea of guilty, and
1 assessed punishment at twenty-five years of confinement. Broussard filed a notice
of appeal and raises two issues on appeal. We affirm the trial court’s judgment.
Background
At the plea hearing,1 the trial judge called the case and the following exchange
occurred:
THE COURT: …The case is set for a plea today. The court is conducting this proceeding through a video teleconference as ordered by the Supreme Court of Texas and the Court of Criminal Appeals. It’s
1 When the hearing occurred, the Supreme Court of Texas’s Eighteenth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 122 (Tex. 2020) provided, that 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: .... [] 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; [] consider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means[.] .... [] Courts must not conduct in-person proceedings contrary to the Guidance for All Court Proceedings During COVID-19 Pandemic (“Guidance”) issued by the Office of Court Administration, which may be updated from time to time, regarding social distancing, maximum group size, and other restrictions and precautions. Prior to holding any in-person proceedings, a court must submit an operating plan that is consistent with the requirements set forth in the Guidance. Courts must continue to use all reasonable efforts to conduct proceedings remotely. See 609 S.W.3d at 122-23. 2 being done through the Zoom platform. Present in the video courtroom [are] myself, the court reporter and court coordinator, the prosecutor, the defense attorney, and the defendant. .... For some reason, Mr. Broussard, your audio wasn’t connecting; but what we have is your lawyer has you on the telephone. He has you on speaker. So when you speak, we can hear you and you can hear us. So, it’s kind of a workaround; but you can see and hear and we can see and hear you. Is that okay?
THE DEFENDANT: Yeah.
THE COURT: Now, if you - -
THE DEFENDANT: Yes, sir.
THE COURT: - - if you have any objection to the way we’re doing it by video teleconference, I can reset it; and we can do it in the courtroom. So, this appears to me to be working fine; but I want to confirm with you that you’re okay with the way we’re doing it.
THE COURT: Okay. The proceedings are being streamed live through YouTube on the court’s YouTube channel, which channel is identified on the court’s web page, complying with the Open Courts Doctrine.
Broussard’s counsel confirmed that Broussard waived arraignment and the reading
of the indictment, and Broussard testified that he signed a waiver of jury trial.
Broussard then entered his “guilty” plea:
THE COURT: To the offense of aggravated robbery as alleged in the indictment, do you plead guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: Are you pleading guilty, Mr. Broussard, of your own free will? 3 THE DEFENDANT: Yes, sir.
THE COURT: Did anybody threaten you or promise anything to force you to plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Are you pleading guilty because you really are guilty?
THE DEFENDANT: Yes.
THE COURT: Did you understand the paperwork that you signed?
THE DEFENDANT: Yes. We went over it. Yes, sir.
THE COURT: I’m going to - - I’ll touch on the high points. I know [defense counsel] went over it with you. By signing the papers, in addition to giving up the right to a jury trial, you’re giving up the right to have the witnesses appear against you, to be confronted by the witnesses, to look at them while they testify and to have your lawyer cross-examine the witnesses. Do you understand you are giving up those rights?
THE COURT: And do you understand, Mr. Broussard, the range of punishment for the crime that you’re pleading guilty to?
THE COURT: It’s a first-degree felony, which means the range is not less than 5 years in prison nor more than 99 years in prison or life and up to a $10,000 fine. That’s the range for a first-degree felony. Do you understand that range?
THE COURT: And you understand the indictment alleges use of a firearm, if . . . my memory is serving me. . . . [Defense Counsel]: That’s correct, your Honor. Yes, sir. 4 THE COURT: So, if you are sentenced to a term of years in prison, Mr. Broussard, because of the firearm, you’ll have to serve one half of that prison sentence day for day without good-time credit before you can be considered for parole. Do you understand that?
THE COURT: Just to illustrate, if you were sentenced to 10 years in prison, you would serve 5 calendar years before the parole board could consider letting you out on parole. Do you understand that illustration?
....
THE COURT: So, you understand there’s no plea bargain in this case.
THE DEFENDANT: There’s no plea bargain.
THE COURT: Okay. So, it’s what’s called an “open plea.” It’s open - -
THE DEFENDANT: Yeah, open.
THE COURT: - - because there’s - - there’s no agreement between you and the prosecutor.
THE DEFENDANT: Right.
THE COURT: And if the State - - if the prosecutor made a plea offer to you, you’ve chosen not to accept a plea bargain that was offered; is that correct?
THE COURT: And you understand that it could turn out better than what they offered you.
THE DEFENDANT: Yes, sir. 5 ....
THE COURT: But you understand it could also turn out worse.
THE COURT: And whatever the State may have offered, that becomes irrelevant on an open plea. It’s only - -
THE COURT: - - relevant what I think is a fair and just punishment in the case. Do you understand?
Broussard was sworn in and agreed to the judicial confession he signed. The trial
court then admitted the State’s evidence, and after both sides rested, the trial court
ordered a pre-sentence investigation report be prepared and scheduled the date for
the sentencing hearing.
The trial court explained to Broussard as follows:
The case is set for sentencing on September 18, 2020, at 1:30 p.m. You will - - you are required to appear physically at the 163rd District Court courtroom for that sentencing. That does not mean - - some people will appear by Zoom. There’s a camera set up, a microphone set up. You have to physically be at the courthouse for sentencing. Your attorney has the option of being there or appearing by Zoom; and if he appears by Zoom and y’all need to talk privately, I can put you into a breakout room where the rest of the people in the courtroom - - the virtual courtroom can’t see or hear y’all.
Broussard then stated on the record that he had no questions regarding the sentencing
hearing procedure as explained by the trial court.
6 At the sentencing hearing,2 the trial court called the case and explained that
the court was conducting the proceeding through video teleconference as ordered by
the Court of Criminal Appeals and the Texas Supreme Court and it was being
conducted on the Zoom platform. The trial judge stated on the record that present in
the virtual courtroom were himself, the court reporter, the court coordinator, the
2 When the sentencing hearing occurred, the Supreme Court’s Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 135 (Tex. 2020)applied and 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: .... [] except as this Order provides otherwise, 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; [] consider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means[.] .... [] Courts must not conduct in-person proceedings contrary to the Guidance for All Court Proceedings During COVID-19 Pandemic (“Guidance”) issued by the Office of Court Administration, which may be updated from time to time, regarding social distancing, maximum group size, and other restrictions and precautions. Prior to holding any in-person proceedings, a court must submit an operating plan that is consistent with the requirements set forth in the Guidance. Courts must continue to use all reasonable efforts to conduct proceedings remotely. 609 S.W.3d at 135-36. Only “remote jury proceedings” in criminal cases required “appropriate waivers and consent obtained on the record from the defendant and the prosecutor.” See id. at 137.
7 prosecutor, defense counsel, and Broussard, and that Broussard was physically
present in the 163rd District courtroom and also appearing by Zoom. The trial court
also explained that the proceedings were being streamed live on the court’s YouTube
channel in compliance with the Open Courts Doctrine. The trial court took judicial
notice of the contents of the court’s file, including the presentence report.
The State presented testimony at the hearing from a witness who testified he
was shopping at the EZ Pawn Store in Orange, Texas, when he heard a “bashing
noise” and saw one man bashing the jewelry case with a hammer and another man
holding a pistol and blocking the door. He testified that the customers and managers
who were inside the store were scared. Officer Justin Kirkpatrick with the City of
Orange Police Department also testified for the State. According to Officer
Kirkpatrick, he was within a mile of the EZ Pawn Store when he received a call
regarding a potential robbery in progress. As he approached an alley near the EZ
Pawn Store he saw a dark-colored car occupied by two black males and it appeared
that they were taking off their clothing. He then observed the vehicle gain speed, he
activated his lights and attempted to conduct a stop, but the vehicle accelerated.
Officer Kirkpatrick continued to pursue the vehicle, which ultimately stopped, and
the two occupants jumped out of the vehicle and fled on foot. At some point, one of
the subjects gave up and the other suspect jumped a fence. The subject that finally
surrendered was the passenger. He told Officer Kirkpatrick his name was Broussard.
8 A white pillowcase, which police recovered from the floorboard of the passenger’s
side of the vehicle, contained a large amount of jewelry. According to Officer
Kirkpatrick, other officers apprehended the second suspect. Officer Kirkpatrick
testified that Broussard admitted in his statement to Detective Steele that
Broussard’s cousin, Elijah Traylor, picked Broussard up and drove him to the EZ
Pawn Store in Orange and Broussard willingly held a gun given to him by Traylor
and watched the door while his cousin Traylor robbed the EZ Pawn Store. Broussard
also testified on his own behalf. He testified that he had never been arrested, that his
involvement was out of character for him, that he did not know why he let his cousin
talk him into committing the crime, that he gave a statement to police admitting his
involvement in the crime, that he took responsibility for his involvement in the
crime, and that he was remorseful.
After closing arguments, the trial court accepted Broussard’s “guilty” plea,
found Broussard guilty of aggravated robbery based on his plea of “guilty,” and
assessed punishment at twenty-five years of confinement. Broussard appealed and
then filed a motion for new trial. The record does not reflect that Broussard requested
or obtained a hearing on his motion, which was overruled by operation of law.
Issues on Appeal
In issue one, Broussard argues he was denied the effective assistance of
counsel. In his second issue, Broussard argues “[f]undamental error occurred when
9 the trial was conducted by electronic technology in the absence of the physical
presence of the parties, defense counsel, the prosecutor, and the trial judge.”
Ineffective Assistance of Counsel
Broussard contends in his first issue that he had ineffective assistance of
counsel. According to Broussard, his counsel failed to adequately communicate with
him, promised him probation, misled him regarding the substance of the
proceedings, and was physically absent from the courtroom during the court
proceedings and only appeared via remote technology.
With respect to an ineffective assistance claim, our review of counsel’s
performance is highly deferential, and we make a strong presumption that counsel’s
performance fell within the wide range of reasonably professional assistance.
Strickland v. Washington, 466 U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011) (citing Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006)). To overcome that presumption, Appellant must satisfy the
two prongs established by Strickland v. Washington by demonstrating that (1)
counsel’s representation fell below an objective standard of reasonableness, and (2)
the deficient performance prejudiced the defense. Lopez, 343 S.W.3d at 142 (citing
Strickland, 466 U.S. at 687); see also Hernandez v. State, 726 S.W.2d 53, 55-57
(Tex. Crim. App. 1986) (adopting and applying the Strickland test). “Unless [an]
appellant can prove both prongs, an appellate court must not find counsel’s
10 representation to be ineffective.” Lopez, 343 S.W.3d at 142 (citing Strickland, 466
U.S. at 687). The record must contain evidence of counsel’s reasoning, or lack
thereof, to rebut that presumption. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim.
App. 2002) (“If counsel’s reasons for his conduct do not appear in the record and
there is at least the possibility that the conduct could have been legitimate trial
strategy, we will defer to counsel’s decisions and deny relief on an ineffective
assistance claim on direct appeal.”). “When such direct evidence is not available, we
will assume that counsel had a strategy if any reasonably sound strategic motivation
can be imagined.” Lopez, 343 S.W.3d at 143 (citing Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001)).
“An appellate court looks to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel.” Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ex parte Felton, 815
S.W.2d 733, 735 (Tex. Crim. App. 1991)). Allegations of ineffectiveness must be
shown in the record, and the record must affirmatively establish the alleged
ineffectiveness. See id. Ordinarily, on direct appeal, the record will not have been
sufficiently developed during the trial regarding trial counsel’s alleged errors to
demonstrate in the appeal that trial counsel provided ineffective assistance under the
Strickland standards. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App.
2012).
11 “To show prejudice, ‘the defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994) (quoting Strickland, 466 U.S. at 694).
A defendant is entitled under the Sixth Amendment to effective assistance of
counsel in guilty-plea proceedings. Padilla v. Kentucky, 559 U.S. 356, 373 (2010);
Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). A guilty plea
may be considered involuntary due to ineffective assistance of counsel. Ex parte
Moussazadeh, 361 S.W.3d 684, 688-89, 691-92 (Tex. Crim. App. 2012) (counsel’s
advice regarding parole eligibility was deficient); Harrington, 310 S.W.3d at 458-
59. “Competent counsel has a duty to render his best judgment to his client about
what plea to enter, and that judgment should be informed by an adequate and
independent investigation of the facts of the case.” Ex parte Reedy, 282 S.W.3d 492,
500 (Tex. Crim. App. 2009) (citation omitted). A defendant must demonstrate that
but for the erroneous advice of counsel, he would not have pled guilty and would
have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)
(holding that the two-part Strickland test applies to guilty pleas); Ex parte Moody,
991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (citations omitted).
12 Before accepting a guilty plea, a trial court is required to admonish a defendant
of the applicable range of punishment of the crime. Tex. Code Crim. Proc. Ann. art.
26.13(a)(1). “No plea of guilty…shall be accepted by the court unless it appears that
the defendant is mentally competent and the plea is free and voluntary.” Id. art.
26.13(b). In admonishing the defendant, “substantial compliance by the court is
sufficient, unless the defendant affirmatively shows that he was not aware of the
consequences of his plea and that he was misled or harmed by the admonishment of
the court.” Id. art. 26.13(c). The trial court may make the admonishments orally or
in writing. Id. art. 26.13(d). In this case, the trial court did both.
Complaints of a failure to adequately communicate, and being misled about probation and regarding the substance of the proceedings
On appeal and in his motion for new trial, Broussard argues his trial attorney
was ineffective because he had limited communications with Broussard, he misled
Broussard into believing that he would receive probation if he pleaded guilty, he
misled Broussard into believing that he was going to court for a pretrial hearing for
probation, and he misled Broussard into acquiescing to questions asked of him at the
proceeding in order to get probation. In support of these arguments, Broussard relies
on his own affidavit attached to his motion for new trial. An affidavit attached to a
motion for new trial is not evidence and it must be presented at a hearing on the
motion and admitted into evidence to be considered on appeal. See Rouse v. State,
300 S.W.3d 754, 762 (Tex. Crim. App. 2009); see also Lamb v. State, 680 S.W.2d 13 11, 13 (Tex. Crim. App. 1984) (“Motions for new trial are not self-proving. They
must be supported by affidavits and the affidavits must be offered into evidence.”)
(internal citations omitted); Jackson v. State, 139 S.W.3d 7, 20 (Tex. App.—Fort
Worth 2004, pet. ref’d) (quoting Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex.
Crim. App. 1973)) (explaining that an affidavit attached to a motion for new trial is
merely “‘a pleading that authorizes the introduction of supporting evidence’ and is
not evidence itself.”).
There is no indication in our appellate record that the trial court held an
evidentiary hearing on the motion for new trial. Nothing in the record reflects that
trial counsel ever had an opportunity to testify as to his communications with
Broussard. With a silent record, we must presume that counsel’s conduct falls within
the wide range of reasonable representation. See Strickland, 466 U.S. at 689; Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
The written plea admonishments signed by Broussard stated that he was
charged with the first-degree felony offense of aggravated robbery and faced a term
of life or any term of not more than 99 years or less than 5 years in TDCJ and a fine
not to exceed $10,000. In the Defendant’s Stipulations, Waivers and Judicial
Confession signed by Broussard, he stated that he understood the court’s plea
admonishments, he was aware of the consequences of his plea, he judicially
confessed to committing aggravated robbery as charged in the indictment or
14 information, and he admitted he was guilty as charged. The Punishment
Recommendations in the record were signed by Broussard in which he agreed there
was no agreed punishment recommendation. At the plea hearing, the trial court
orally admonished Broussard, and Broussard agreed that no one promised him
anything in return for his guilty plea, that his guilty plea was made of his own free
will and because he was guilty, that he understood the rights he was giving up like
the right to confront witnesses and a right to a jury trial, that he understood the range
of punishment he was facing, and that because it was an open plea the trial court
could sentence him to up to life in prison.
Broussard has failed to point to any evidence in the record that he was misled,
or that he did not want to plead guilty, nor has he demonstrated to this Court that he
received ineffective assistance of counsel. Broussard has also failed to demonstrate
a reasonable probability that, but for counsel’s alleged errors, the outcome would
have been different. See Bone, 77 S.W.3d at 833. Broussard must demonstrate that
but for the erroneous advice of counsel, he would not have pled guilty and would
have insisted on going to trial. See Hill, 474 U.S. at 58-59 (holding that the two-part
Strickland test applies to guilty pleas); Moody, 991 S.W.2d at 857-58 (citations
omitted). The record reflects that the court admonished Broussard and that he
admitted he entered his plea freely and voluntarily. Broussard has not directed us to
any evidence in the record to show that he did not want to plead guilty. He has not
15 shown this Court that but for counsel’s alleged ineffectiveness, he would not have
pleaded guilty, and there is nothing in the record before us to establish Appellant
was misled by his trial counsel. See Guidry v. State, 177 S.W.3d 90, 94 (Tex. App.—
Houston [1st Dist.] 2005, no pet.); Powers v. State, 727 S.W.2d 313, 316 (Tex.
App.—Houston [1st Dist.] 1987, pet. ref’d) (a record devoid of any evidence that
appellant was misled by his trial counsel provides no basis upon which an appellate
court may act). Furthermore, Broussard has failed to show that additional
communication between Broussard and his counsel would have changed the
outcome of the proceeding. See Bone, 77 S.W.3d at 833.
Complaint About His Attorney Being Physically Absent From the Courtroom And Appearing Via Remote Technology
Next, Broussard argues his counsel was ineffective because Broussard
“appeared for the proceedings in the physical absence of his counsel [and,] [e]ven
with the attempt at remote technological assistance, [Broussard] was left
incommunicado in the courtroom without any lawyer during a significant portion of
the proceedings.” At the plea hearing, neither Broussard nor his attorney made any
objection to the plea hearing being held via videoconference despite being given an
opportunity to object and having the option to have the hearing in the courtroom
instead of via remote technology. At the end of the plea hearing, the trial court
advised Broussard that at the sentencing hearing his counsel had the option of
appearing by Zoom, and if counsel appeared by Zoom and they needed to talk 16 privately, the trial court could put them in a breakout room where the rest of the
virtual courtroom could not see or hear Broussard and his counsel. For the reasons
explained above, we conclude that the record is silent regarding the reasoning of his
attorney, and Broussard has failed to show that the outcome would have changed if
he and his attorney had been present together in the courtroom rather than appearing
virtually. Id.
We overrule Broussard’s first issue.
Constitutional Claims
In his second issue, Broussard argues “[f]undamental error occurred when the
trial was conducted by electronic technology in the absence of the physical presence
of the parties, defense counsel, the prosecutor, and the judge.” Broussard argues that
the proceedings being conducted by remote electronic means pursuant to orders of
the Texas Supreme Court and the Texas Court of Criminal Appeals in response to
the COVID-19 pandemic denied him his “Sixth Amendment right to counsel, his
right of confrontation, and his Fifth and Fourteen Amendment rights to due process”
because he was unable “to reasonably confer, be prepared for, and participate in the
conduct of his trial.”
In support of his arguments, Broussard relies on his affidavit attached to his
motion for new trial. We have already explained that the affidavit was not admitted
into evidence at the trial court and therefore we cannot consider it on appeal. See
17 Rouse, 300 S.W.3d at 762. Again, Broussard has failed to identify at any point in the
record where he was denied the opportunity to speak with his attorney.
That said, Broussard places great emphasis on the pre-Covid19 Court of
Criminal Appeals case of Haggard v. State, 612 S.W.3d 318 (Tex. Crim. App. 2020),
in arguing that due process demands that the prosecutor, the State’s witnesses against
Broussard, the Judge, and defense counsel be physically present at the sentencing
hearing which he describes as his “trial.” In Haggard, a sexual assault nurse
examiner who had moved out of state testified at trial via FaceTime over defense
objections because she claimed that traveling back to Texas was inconvenient. 612
S.W.3d at 323-34. The Court of Criminal Appeals stated that since the decision in
Maryland v. Craig, 497 U.S. 836 (1990), the Court of Criminal Appeals has required
a “case specific” “necessity finding in every case in which [it has] considered a
Confrontation Clause challenge to the cross-examination of a witness via two-way
video system.” Id. at 325. In Haggard, the trial court heard no evidence and made
no case-specific finding before it allowed the SANE witness to testify via remote
technology, and the Court concluded that it did “not think it is an important public
policy to allow the State to procure a witness’s testimony remotely when the State
had sufficient time and ability to subpoena the witness, and the witness was available
to appear and testify, but the State chose not to.” Id. at 327. According to the Court,
the “right to physical, face-to-face confrontation” protected by the Confrontation
18 Clause “cannot be so readily dispensed with based on the mere inconvenience to a
witness.” Id. at 328.
Recently, in Jones v. State, Nos. 05-21-00019-CR & 05-21-00021-CR, 2022
Tex. App. LEXIS 1892 (Tex. App.—Dallas Mar. 23, 2022, no pet. h.) (mem. op.,
not designated for publication), the appellant relied on Haggard in arguing that he
was denied his Sixth Amendment right to confront adverse witnesses when the
State’s witnesses testified via Zoom under a COVID-19 order which was in effect.
See 2022 Tex. App. LEXIS 1892, **10-11. The Dallas Court of Appeals concluded
that unlike Haggard, the record did not reflect that the appellant made any complaint
about the remote nature of the proceeding. See id. at *11. The Dallas Court
determined that it did not read Haggard to abrogate the preservation requirement
because in Haggard not only did the defendant object to the remote testimony and
the court did not address waiver, but also the cases on which Haggard relied
involved trial court rulings over defense objections. See id. at *11. In Jones, the
Dallas Court held that the appellant failed to preserve error because he did not object
to the remote testimony of any of the State’s witnesses. See id. at **11-12 (citing
Tex. R. App. P. 33.1(a)(1)(A); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App.
2010) (“Confrontation claims are subject to this preservation requirement.”); Oliver
v. State, No. 03-19-00725-CR, 2020 Tex. App. LEXIS 6872, at **3-5 (Tex. App.—
Austin Aug. 27, 2020, pet. ref’d) (mem. op., not designated for publication)
19 (concluding appellant’s confrontation complaint about witnesses testifying via
teleconference was not preserved for appellate review when appellant did not raise
complaint in trial court); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas
2006, pet. ref’d) (“[T]he right of confrontation is a forfeitable right—not a waivable-
only right—and must be preserved by a timely and specific objection at trial.”)).
Here, Broussard did not make any objection to the Zoom proceedings in general or
to the remote testimony given by the State’s witnesses during the sentencing hearing.
Broussard also relies on Davis v. State, 195 S.W.3d 311 (Tex. App.—Houston
[14th Dist.] 2006, no pet.), in arguing that the absence of defense counsel except by
Zoom in essence “shackled” Broussard in his ability to confer with counsel during
critical stages of the proceedings. In Davis, a jury trial, counsel instructed the
defendant to communicate with him in writing to avoid trial distraction and to avoid
calling the jury’s attention to their communication. 195 S.W.3d at 317. When the
trial judge ordered that defendant be handcuffed, he also instructed the bailiff to
remove from the defendant’s hand the pen his attorney had given him to write notes.
See id. The Fourteenth Court of Appeals concluded that the defendant’s
communication with his attorney was in fact hindered. See id. Unlike the facts in
Davis, we have no evidence in our record indicating that Broussard’s ability to
communicate with his attorney was in fact hindered.
20 In the recent case of Hughes v. State, No. 14-20-00628-CR, 2022 Tex. App.
LEXIS 1725 (Tex. App.—Houston [14th Dist.] Mar. 15, 2022, pet. filed), the
Fourteenth Court examined a Zoom proceeding in a motion to adjudicate guilt. In
Hughes, the trial court held a hearing on the State’s motion to adjudicate guilt and,
although defense counsel was present in the courtroom, the prosecutor, the
witnesses, and Appellant attended via Zoom. 2022 Tex. App. LEXIS 1725, at *2.
The trial court stated the defendant was on “‘video in the jail and the reason he is
not here in court is because he has been exposed to COVID-19 and may have even
tested positive for it but those are people who are on the list not to come to court and
are prohibited from coming to court for – because the administration is afraid they
could expose other people to the virus.’” Id. At the hearing, the defendant tried to
speak or interject during witness testimony and the State’s closing argument, but the
trial court instructed the defendant be muted. Id. The defendant was not given an
opportunity to speak or communicate during the hearing except for when he testified
in his defense and at the conclusion of the hearing the trial court adjudicated the
defendant guilty and sentenced him to ten years of incarceration. Id. at **2-3. On
appeal, the defendant argued that he was denied his right to be present in the
courtroom during the revocation hearing and that, absent a waiver by him, a trial
court has an independent duty to secure a defendant’s presence in the courtroom for
his revocation hearing. Id. at **8-9.
21 The Fourteenth Court of Appeals, in a 2-1 decision, determined that the Sixth
Amendment right to be present to confront and cross-examine witnesses is a right
that, absent a waiver by the defendant, must be implemented by a trial court and that
failure to do so can be challenged on appeal regardless of whether it was first urged
in the trial court. See id. at *16. Although the Court concluded the defendant could
challenge on appeal whether the trial court erred in securing his presence via Zoom
instead of his physical presence in the courtroom because he did not waive his right
to be present, the Court declined to reach the issue of whether a defendant is present
at a proceeding under the Sixth Amendment if he is present via video conference.
See id. at **16-17. The Court determined that the defendant was not truly present at
his hearing for Sixth Amendment purposes because he was in a separate breakout
room with no possibility to communicate with his counsel in private regarding how
to confront and cross-examine the State’s sole witness as envisioned by the
Confrontation Clause. See id. at *17. The Court concluded that “under the
circumstances of this particular case, the trial court violated Appellant’s Sixth
Amendment right to be present to confront and cross-examine witnesses.” See id. at
**17-18.
Here, Broussard was present in the courtroom during his sentencing but he
complains that his counsel, the prosecutor, and the presiding judge were not
physically present with him in the courtroom. Like Jones, Broussard was physically
22 in the court room for his sentencing and Broussard did not object to the remote nature
of the proceedings. See Jones, 2022 Tex. App. LEXIS 1892, at **11-12. Unlike
Hughes, Broussard was physically present in the courtroom for sentencing,
Broussard does not claim that he was not “present” at trial, and the record lacks any
suggestion that the trial court denied any opportunity for him to interject or speak
with his counsel. See Hughes, 2022 Tex. App. LEXIS 1725, at **2, 17. Unlike
Hughes and Davis, the trial court here facilitated and explained to Broussard at the
plea hearing the procedure that would be used at the sentencing hearing and the
record indicates the trial court gave Broussard an opportunity to privately confer
with his attorney in a breakout room.
We disagree with Broussard’s description on appeal that he was unable to
confer with counsel at the time of the hearing because “unknown to defendant, the
hearing was to be conducted by Zoom technology.” The trial court fully explained
the Zoom procedure to Broussard before the hearing began. Broussard never made
a complaint to the trial court about being unable to speak to his attorney and nothing
in the record indicates he was denied an opportunity to participate or to speak with
his attorney. Broussard has not established why he could not have used the breakout
procedure identified by the trial court or why such procedure was insufficient. The
trial court at the plea proceeding explained to Broussard that he would have to
physically appear in the courtroom for sentencing, that some participants may appear
23 by Zoom, and if his attorney chose to appear by Zoom and they needed to talk
privately the trial court would put them in a breakout room where the rest of the
virtual courtroom could not hear or see them. Broussard responded that he did not
have any questions about the procedure. Although Broussard alleges on appeal that
“[w]hen the court was in recess prior to sentencing, appellant was left in the
courtroom with no ability to communicate with counsel in any way[,]” Broussard
has failed to provide a cite to the record for that allegation. Nothing in our record
shows that he ever had difficulty conferring with counsel, that he was not given the
opportunity to participate in the proceedings, or that he ever made his complaints
known to the trial court. We overrule Appellant’s second issue.
We affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on February 1, 2022 Opinion Delivered June 8, 2022 Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.