Justin Wayne Ortego v. the State of Texas

• Court: Texas Court of Appeals, 1st District (Houston)
• Decided: April 14, 2026
• Docket: 01-24-00879-CR
• Status: Published

Opinion

Opinion issued April 14, 2026

In The Court of Appeals For The

First District of Texas ———————————— NOS. 01-24-00878-CR 01-24-00879-CR 01-24-00880-CR 01-24-00881-CR ——————————— JUSTIN WAYNE ORTEGO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 253rd District Court Chambers County, Texas Trial Court Cases 22DCR0030, 22DCR0031, 22DCR0032, and 22DCR0033

OPINION

The appellant was indicted for seven charges of sexual abuse of his minor

daughter. A jury convicted him of continuous sexual abuse of a young child (which

subsumed three charges related to touching her genitals) and three charges of indecency by contact. The jury assessed punishment at the maximum periods of

confinement for each offense: Life for the continuous charge and twenty years for

each of the indecency charges.

The appellant raises four points of error. Two points relate to the appellant’s

claim that his wife obtained evidence from his phone unlawfully. The other two

points relate to the trial court’s denial of his request to have two witnesses testify via

Zoom.

We affirm.

The Offenses

The appellant and Jennifer1 had an on-and-off relationship for over two

decades. The couple had four daughters. In 2012, one of the older daughters, then

aged 12, made an outcry that the appellant had tried to watch her shower. The couple

divorced. They lived separately for about two years, but then resumed cohabitating.

In December 2021, Jennifer looked through the appellant’s phone and found

sexual messages between him and their youngest daughter, Jane Doe. In one

conversation the appellant asked Jane Doe to “get naked, wrap yourself in a blanket,

and come up here quietly so we can get it done. . . . Or get naked and stay on the

couch and I will come down there.” Jennifer confronted the appellant with these

1 The record uses the name “Jane Doe” for the complainant. To protect Jane Doe’s privacy, we refer to her mother by a pseudonym, Jennifer.

2 messages and asked what he had done and how many times he did it. He replied,

nonchalantly, “If you know I did it, what does it matter how many times I did it?”

Jane Doe testified she was molested on many occasions when she was 12-13

years old in 2021. She said the appellant would touch her whenever he was home

from work, which was about every other week. She said that on multiple occasions

the appellant showed her pornography, touched her both over and under her clothing,

took her clothing off, and kissed her breasts and vaginal area.

Points One and Three

The appellant moved to suppress the evidence Jennifer obtained from his cell

phone. The appellant argued that Jennifer’s search of his phone was a crime, thus

any evidence she obtained was inadmissible under the Fourth Amendment and

Texas’s statutory exclusionary rule, Code of Criminal Procedure Article 38.23. The

trial court held a pretrial hearing and denied the motion. In his first point of error,

the appellant argues the trial court erred by denying his motion to suppress.

The appellant asked the trial court to instruct the jury, under Article 38.23, to

disregard any evidence for which it had a reasonable doubt as to whether it was

obtained legally. The trial court denied this request. In his third point of error, the

appellant argues that ruling was error.

3 I. Factual Background

A. The Suppression Hearing

The appellant’s pretrial motion to suppress alleged that Jennifer’s search of

his phone was illegal and that admitting any evidence she obtained would violate the

Fourth Amendment and Article 38.23. The State filed a brief in opposition, arguing

that the authority the appellant relied on—primarily State v. Granville, 423 S.W.3d

399 (Tex. Crim. App. 2014)—related to searches conducted by police. The State

argued that Jennifer was acting as a private individual when she searched the

appellant’s phone, thus Granville and similar cases were off point.

At the suppression hearing, Jennifer testified about her relationship with the

appellant. She said that a couple of years after their divorce he wanted to get back

together. She did not trust the appellant so she made him agree to certain conditions

before he could move back in with the family. One condition was that she have

access to his phone.

The State admitted into evidence a handwritten document titled, “A

Commitment to You.” It’s a numbered list of eleven commitments. Commitment 8

is: “To let u if u have any concerns to look at my phone for any reasons [sic.].”

Jennifer testified the appellant gave her this document “one of the times [they] got

back together.” She didn’t remember exactly when he wrote it, but she said it was

2018 or 2019. She said that because of the trust issues she had with the appellant,

4 her ability to look through his phone was a necessary condition of their relationship.

The appellant stipulated it was his handwriting. Jennifer testified that the appellant

never stopped her from looking at his phone and did not hide his passwords from

her.

As to the discovery of the text messages, Jennifer said that before she looked

through the appellant’s phone “something seemed off.” At one point she saw the

appellant and Jane Doe in the pool and “he was real close to her.” Jennifer also said

she routinely checked the appellant’s phone to monitor his habits for cocaine,

pornography, and talking with other women. She testified that one night when the

appellant was showering she looked through his phone and saw in the trash folder

sexual conversations between the appellant and Jane Doe. When the appellant got

out of the shower, Jennifer asked if he had touched Jane Doe and he said he had.

Jennifer took screenshots of the conversations and texted them to her own phone.

She kicked the appellant out of the house. When he left, an hour or two later, she

gave him his phone back.

Defense counsel argued to the trial court that Jennifer’s search of the

appellant’s phone violated the law in several ways. First, it was an unconstitutional

search. Defense counsel argued that Jennifer’s search of the phone exceeded the

scope of the appellant’s consent because the texts were in the “trash” folder and the

appellant was in the shower at the time of the search. Second, defense counsel argued

5 that Jennifer’s taking the phone and not giving it back until the appellant left meant

the evidence was obtained through a theft. Third, defense counsel argued Jennifer

violated Penal Code Section 33.02, Breach of Computer Security, because she

accessed his phone without his effective consent.

The prosecutor argued that Article 38.23 did not make the constitutional

restrictions on law enforcement applicable to private citizens, so suppression was

required only if Jennifer had obtained the evidence in violation of a criminal law.

The prosecutor also argued that Jennifer did not commit Breach of Computer

Security because she had consent to search the appellant’s phone: “He could have

told her, ‘Don’t look in the trash on my phone,’ but he didn’t.”

The trial court found it was “uncontroverted that [Jennifer] had consent to

look at his phone.” It also found that no law enforcement agency was involved with

her initial search. It denied the appellant’s motion to suppress.

B. The Supplemental Suppression Hearing

About nine months after the suppression hearing the appellant filed a

supplemental motion to suppress based on a newly released opinion, State v.

Holloway, 714 S.W.3d 153 (Tex. App.—Austin 2024, no pet.). In Holloway, the

defendant explicitly forbade his wife from looking through his phone, so she waited

until he was asleep and used his thumb to unlock it. Id. at 154–55. She found a video

of the defendant being sexually inappropriate with the couple’s daughter. Id. at 155.

6 The trial court held that the wife had committed Breach of Computer Security and

suppressed her testimony about what she saw on the phone. Id. The prosecution

appealed and the Third Court, applying the deferential review that goes with rulings

on motions to suppress, affirmed. Id. at 158–59.

At the hearing on the appellant’s supplemental motion, defense counsel

argued that Jennifer’s waiting until the appellant was in the shower before searching

his phone was analogous to Holloway’s wife waiting until he was asleep to use his

thumb to unlock his phone. The prosecutor argued that Holloway was not controlling

because Jennifer had consent to search the appellant’s phone. The trial court agreed

with the State. It noted its prior finding that Jennifer had consent, held that fact

sufficiently distinguished this case from Holloway, and overruled the appellant’s

supplemental motion.

C. Trial Testimony

Jennifer’s trial testimony about finding the text messages largely mirrored her

testimony at the pretrial hearing. She testified she had permission to look at the

appellant’s phone, and the State admitted the “Commitment to You” letter into

evidence. The trial court admitted the screenshots of the text conversations, subject

to the appellant’s pretrial objections.

At the charge conference, defense counsel asked that the jury being instructed

to disregard any evidence it believed Jennifer obtained through the commission of

7 “theft, tampering [with evidence], breach of computer security, and violations of

[Code of Criminal Procedure] Article 1.06[2], the Fourth Amendment, and Article 1,

section 9 [of the Texas Constitution][3].” The trial court denied this request.

II. Legal Background

Evidence may not be admitted at trial over objection if it was obtained in

violation of the constitution or laws of the State of Texas or the federal government.

TEX. CODE CRIM. PROC. art. 38.23(a). If the evidence was obtained by a police officer

or other government official, it is inadmissible if it was obtained in violation of a

constitutional provision, such as the Fourth Amendment’s prohibition on

unreasonable warrantless searches and seizures. But because constitutional

provisions regarding searches do not limit the conduct of individuals acting in a

private capacity, evidence obtained by a private individual is inadmissible under

Article 38.23 only if it was obtained in violation of a criminal law. State v. Ruiz, 577

S.W.3d 543, 546 (Tex. Crim. App. 2019) (“The Constitution is a restraint on

government. Other laws restrain individuals.”); Rosales v. State, No. --- S.W.3d ---,

2 Article 1.06 states: “The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches. No warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation.” 3 Article 1, Section 9 of the Texas Constitution is practically identical to Article 1.06: “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.”

8 No. 01-23-00876-CR, 2025 WL 3275147, at *4 (Tex. App.—Houston [1st Dist.]

Nov. 25, 2025, pet. filed).

We review a trial court’s ruling on a motion to suppress under a familiar

bifurcated standard. We give almost total deference to the trial court’s findings of

fact, explicit and implicit, that are supported by the record. Guzman v. State, 955

S.W.2d 85, 88 (Tex. Crim. App. 1997). We afford the same deference to the trial

court’s application of the law to facts if the resolution of those ultimate questions

turns on an evaluation of credibility. Id. at 89. We review the trial court’s legal

determinations de novo only if they do not turn on credibility. Id. If the trial court’s

ruling is reasonably supported by the record and is correct under any applicable

theory of law, we must uphold the ruling. Young v. State, 283 S.W.3d 854, 873 (Tex.

Crim. App. 2009).

If the trial court denies a motion to suppress but, during trial, “the legal

evidence raises an issue” that the challenged evidence was obtained in violation of

law, at the defendant’s request the jury should be instructed to disregard any

evidence it “believes, or has a reasonable doubt … was obtained” in violation of law.

TEX. CODE CRIM. PROC. art. 38.23. Before such an instruction becomes law

applicable to the case, a defendant must show three prerequisites:

(1) The evidence heard by the jury must raise an issue of fact; (2) The evidence on that fact must be affirmatively contested; and

9 (3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). The possibility that

the jury might disbelieve certain evidence is not enough to create a question of

material fact; there must be an actual conflict in the evidence to justify a 38.23

instruction. Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d).

III. Analysis for Point One

On appeal, the appellant claims the trial court abused its discretion by denying

his motion to suppress. He claims the evidence showed Jennifer violated the Fourth

Amendment, Article 1 Section 9 of the Texas Constitution, and Article 1.06 of the

Code of Criminal Procedure. He also claims the evidence was obtained through

Jennifer’s commission of breach of computer security and theft.

A. Jennifer did not violate the Fourth Amendment.

Much of the appellant’s point is based on his claim that Article 38.23 makes

the restrictions on government action applicable to private individuals. The appellant

argues consent using Fourth Amendment case law regarding police conduct.

In response, the State points out these authorities are off point because

Jennifer conducted the search as a private individual acting in a private capacity. We

agree with the State. The Court of Criminal Appeals addressed this argument

directly: “We disavow the idea that Article 38.23 extends the Fourth Amendment to

10 private citizens acting in a private capacity. We reaffirm that the Fourth Amendment

is a restraint on government and that it does not apply to private individuals who are

acting as such.” Ruiz, 577 S.W.3d at 547.

The appellant also claims Jennifer violated Article I, Section 9 of the Texas

Constitution and Code of Criminal Procedure Article 1.06. But both in the trial court

and on appeal the appellant has relied on Fourth Amendment cases and has not

discussed the Texas Constitution or Article 1.06 on their own terms. The appellant

forfeited any argument that these state laws offer greater or different protections than

the Fourth Amendment by not raising a specific argument in the trial court. See Pena

v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (holding that defendant failed

to preserve claim that state constitution offered more protection than federal

constitution by not explaining argument in trial court); TEX. R. APP. P. 33.1(a)(1)(A)

(before raising complaint on appeal, complaining party must have made trial

objection that “stated the grounds for the ruling that the complaining party sought

from the trial court with sufficient specificity to make the trial court aware of the

complaint . . . .”).

B. Evidence supports the trial court’s finding that Jennifer did not commit breach of computer security because she had the appellant’s consent to search his phone.

The appellant next argues that Jennifer violated Penal Code Section 33.02,

“Breach of Computer Security,” by searching his phone. As applied here, that

11 section makes it an offense to “knowingly access[] a computer, computer network,

or computer system without the effective consent of the owner.” TEX. PENAL CODE

§ 33.02(a).

But the trial court found that Jennifer had consent to search the appellant’s

phone, and the record supports that finding. The appellant presented no evidence that

controverted Jennifer’s testimony, or the appellant’s own handwritten letter stating

that Jennifer had permission to search his phone.

On appeal, the appellant claims the circumstances of the search show Jennifer

exceeded the bounds of his consent. The appellant notes that Jennifer searched his

phone while he was in the shower, and the text messages were found in the “trash”

folder of his phone. Even assuming those circumstances created an inference that

Jennifer’s search somehow went beyond what the appellant consented to, the trial

court was the finder of fact, and it was not obliged to credit this inference in the face

of clear evidence of consent. The trial court’s finding of consent was based on

credibility determinations, to which we give great deference. See Crain v. State, 315

S.W.3d 43, 48 (Tex. Crim. App. 2010).

As he did in the trial court, the appellant directs us to the Third Court’s opinion

in Holloway. As the State notes in its brief, “the facts in that case are . . . distinct

from the facts in this case in critical ways.” Most importantly, in Holloway there was

testimony that the husband had explicitly denied the wife consent to search his

12 phone. 714 S.W.3d at 154–55. There was no such testimony here. Instead, as the

finder of fact, the trial court credited the uncontradicted testimony that Jennifer had

consent to search the appellant’s phone. Holloway is distinguishable on the facts

alone.

C. The evidence supports the trial court’s finding that Jennifer did not commit theft.

The appellant’s claim that Jennifer committed theft is based on testimony that

she kept his phone until he left the house. Jennifer testified she had the phone for

“[m]aybe an hour, two hours.” On a police officer’s bodycam video taken shortly

after Jennifer found the text messages, Jennifer could be heard stating, “I took his

phone and I wouldn’t give it back.” That said, at the hearing she explicitly denied

any intent to steal or keep the phone and said she gave the appellant his phone back

when he left.

A person commits theft if he unlawfully appropriates property with intent to

deprive the owner of property. TEX. PENAL CODE § 31.03(a). The Penal Code gives

three definitions of “deprive” in the Theft chapter:

(A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner; (B) to restore property only upon payment of reward or other compensation; or (C) to dispose of property in a manner that makes recovery of the property by the owner unlikely.

13 TEX. PENAL CODE § 31.01(2).

Jennifer testified she did not intend to keep the phone, and she testified she

gave the phone back within an hour or two. Based on a credibility determination, the

trial court could have found Jennifer did not have the intent to deprive as defined by

Section 31.02. See Flores v. State, 888 S.W.2d 187, 190–91 (Tex. App.—Houston

[1st Dist.] 1994, pet. ref’d) (discussing “temporary use” doctrine and noting that

intent to deprive must be inferred “from the words and acts of the accused”). The

appellant has not shown that this finding, which is supported by the record, was an

abuse of discretion.

The appellant has not shown the trial court abused its discretion by denying

his motion to suppress. We overrule the appellant’s first point.

IV. Analysis for Point Three

In his third point the appellant complains about the trial court’s denial of his

request for a jury instruction on Article 38.23. The appellant asked the trial court to

instruct the jury regarding Jennifer’s supposed commission of the offenses of theft,

breach of computer security, and tampering with evidence, and with her supposed

violations of the Fourth Amendment, Texas Constitution Article I, Section 9, and

Code of Criminal Procedure Article 1.06.

As we have already held, there is no evidence Jennifer violated the Fourth

Amendment. See State v. Ruiz, 577 S.W.3d 543, 546 (Tex. Crim. App. 2019). And

14 the appellant forfeited any complaint that Article I, Section 9 or Article 1.06 provide

different or greater protections by failing to make specific arguments in the trial court

(or in this Court). See Pena, 285 S.W.3d at 464. The trial court did not err by denying

these requested instructions.

Regarding theft and breach of computer security, it is, at least, questionable

whether the matter is preserved for our review. The appellant did not direct the trial

court to specific evidence that raised a fact question for these offenses. See Williams

v. State, 662 S.W.3d 452, 460–61 (Tex. Crim. App. 2021) (holding ordinary rules of

preservation apply to “defensive-type” jury instructions and finding defendant’s

request for lesser-included instruction unpreserved because defendant did not direct

trial court to specific evidence that would warrant instruction). The extent of the

appellant’s request was to claim there was “at least a scintilla of evidence”

supporting the instructions without specifying which scintilla or scintillae that was.

Presuming this matter is preserved, the appellant has not directed this Court

to evidence justifying the instruction. The extent of his appellate argument is to point

to Jennifer’s trial testimony that she had the appellant’s permission to search his

phone, and to a police officer’s trial testimony that the officer did not believe Jennifer

“acted inappropriately or illegally.” The appellant claims this “interjected the issue

of the legality of [Jennifer’s] conduct.” But as the State points out, uncontroverted

testimony that Jennifer acted lawfully does not create a fact question. The trial court

15 did not err in denying the requested instruction based on this evidence. See Shpikula

v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

The appellant requested an instruction on tampering based on his claim that

Jennifer gave police “only portions” of certain text exchanges she had with the

appellant, “not allowing the defendant to see the entire conversation.” Even if

excerpting text message conversations could count as tampering with evidence—a

proposition the appellant does not support with argument or authority—an Article

38.23 instruction is appropriate only if there was a fact question as to whether

evidence was “obtained” in violation of law. TEX. CODE CRIM. PROC. art. 38.23(a).

If Jennifer tampered with evidence already in her possession, she did not obtain the

evidence in violation of law; obtaining the evidence and tampering with the evidence

were separate events. See Reeves v. State, 969 S.W.2d 471, 487 (Tex. App.—Waco

1998, pet. ref’d) (defendant’s claim that lawfully obtained evidence was

inadmissible because of subsequent unlawful transfer from county to county did not

implicate Article 38.23 because it did not allege evidence was “obtained” in

violation of law). The trial court did not err in denying this requested instruction.

We overrule the appellant’s third point.

16 Points Two and Four

Near the end of trial, the appellant asked to have two witnesses testify

remotely via Zoom. The trial court denied this request. In his second point the

appellant claims this was error.

The appellant filed a motion for new trial based on this denied request. The

trial court held a hearing and denied this motion. In his fourth point the appellant

claims this denial was error.

I. Factual Background

A. The trial court denied the appellant’s request to have two witnesses testify via Zoom.

The State presented witnesses across three days, August 27, 28, and 29. On

the 28th, Jane Doe testified to several instances of abuse, including one instance that

occurred inside the appellant’s camper trailer. She gave no information about the

camper.

After the State passed the witness, the trial court dismissed the jury for the

rest of the day. The trial court asked when the State expected to be done with its

evidence. The prosecutor said the next day. The Court emphasized to defense

counsel the importance of having his witnesses ready when the State rested. Defense

counsel responded by asking the State to make sure all the witnesses it had

subpoenaed were available.

17 The next day, on cross-examination, Jane Doe said the appellant used a

camper when he was away working in Louisiana but he brought the camper with

him whenever he came home. Defense counsel asked a series of questions to clarify

if Jane Doe was testifying that the appellant brought his camper home every single

time; her answer to the final question in this series was that “[i]f [the appellant] was

home for a long period of time, that’s when he would bring [the camper] home.”

After Jane Doe testified, the State called four more witnesses then rested. The

defense called the appellant’s mother to testify. When the mother stepped down,

defense counsel informed the trial court for the first time that he had a witness “from

Louisiana that we’re trying to set up a Zoom with.” The trial court interjected:

“We’re not going to do a Zoom. That ain’t going to happen.” The trial court added,

“I don’t even think I have the ability [to have a witness testify via Zoom].” The trial

court said it was aware of a case from Liberty County that was reversed because a

witness testified via remote video.4

Defense counsel responded by distinguishing the Liberty County case, saying

that reversal was because a State’s witness testified remotely in violation of the

defendant’s Confrontation Clause rights, but here it was a defendant trying to call

4 At the motion-for-new-trial hearing the trial court identified the case as Haggard v. State, No. 09-17-00319-CR, 2021 WL 2557955 (Tex. App.—Beaumont June 23, 2021, pet. ref’d) (mem. op., not designated for publication).

18 the witness to testify remotely and the State did not have confrontation rights. The

trial court said it would treat the State with the same rules as the defense.

Defense counsel said the defense was missing another witness, who had not

been subpoenaed and who was still at his home and “maybe not coming out.” The

trial court told defense counsel to proceed with his next witness, and if at the end of

that witness’s testimony there were no more witnesses present, “the evidence is

going to be closed.” The defense called the appellant’s sister to testify. After that

testimony, the defense said it had no more witnesses present. The trial court told the

jury “the evidence is closed” and dismissed them for the day.

Defense counsel made a proffer regarding two proposed Zoom witnesses. The

first was a witness to rebut part of Jane Doe’s testimony. Defense counsel said that

based on pretrial discovery he believed Jane Doe would testify that only one instance

of abuse occurred in the trailer. Then defense counsel inaccurately claimed that Jane

Doe had testified to “numerous times . . . in the camper.” Defense counsel said that

Jane Doe’s testimony surprised him, which is why he did not have the Louisiana

witness ready.

Defense counsel explained that the Louisiana witness worked at the front

office of the RV park where the appellant stayed while working. The Louisiana

witness would testify that many workers kept their campers at the RV park but they

left them there when making short return trips home. Defense counsel said the

19 witness was aware of comings and goings at the RV park. Defense counsel said this

witness would produce the appellant’s rental records for several months when the

appellant was alleged to be abusing Jane Doe. Defense counsel explained that the

witness’s testimony would rebut Jane Doe’s testimony that the appellant brought the

trailer home every time, which would “put [Jane Doe’s] credibility in absolute

doubt.” The prosecutor said the State objected to this witness testifying via Zoom

and the trial court denied the appellant’s request.

The second proposed witness was Bruce Horn. Defense counsel said Horn

was elderly and could not get around on his own. Defense counsel said Horn was an

expert who would testify that police had violated protocol by not getting the

appellant’s phone records, and that the State’s expert witness had mishandled the

data dump of the appellant’s phone.

Defense counsel said that Horn was prepared to testify in person or via Zoom,

but he was not there that day. The trial court pointed out that the State’s witnesses

had been present throughout trial, and the trial court had advised the defense to have

its witnesses at the courthouse on the 29th. The trial court asked the prosecutor if the

State objected to Horn testifying via Zoom. The State objected. The trial court said

it would not allow Zoom testimony unless both parties agreed.

Legally, defense counsel claimed denying his request to have witnesses testify

via Zoom “denies [the appellant] his right to a [fair] trial under the Sixth

20 Amendment. It denies him his right to due process under the Fourteenth

[Amendment], and due course of law under [Texas Constitution] Article I, Section

9.”

B. The appellant moved for a new trial based on the denial of his request to call witnesses via Zoom. The trial court heard testimony from one proposed Zoom witness and received an affidavit from another, then denied the motion.

The appellant moved for a new trial based on his denied request to call Zoom

witnesses. In addition, the appellant’s motion cited Harper v. State, 2024 WL

3579499, No. 08-23-00106-CR (Tex. App.—El Paso, July 29, 2024, pet. ref’d)

(mem. op., not designated for publication). In that case, decided a month before the

appellant’s trial, the Eighth Court of Appeals overturned a conviction due to the trial

court’s refusal to let a defense witness testify via Zoom.

Attached to the motion was an affidavit from Patricia Livings. Livings said

she worked at the Colonial RV Park in La Place, Louisiana. She said she would

testify that it would be very unusual for the oil field workers who stayed at the RV

park to take their campers home for short trips, and she believed the appellant did

not take his camper home with him during his stay at the RV park. She said that

defense counsel contacted her “in late August” regarding the appellant’s stay at the

RV park. She said she told defense counsel she would be able to testify the next

morning via Zoom. The affidavit made no mention of whether she could have

attended trial.

21 At the hearing on this motion, defense counsel presented testimony from

Horn. Horn said he was a forensic investigator with over thirty years’ experience.

He said that screenshots of text messages could be manipulated, and he was

concerned by the lack of metadata to validate some of the State’s evidence. He said

his testimony would have explained these concerns to the jury. He said his testimony

would have taken two to three hours on direct examination.

Regarding his availability, Horn said that he could have testified via Zoom on

August 29th, and he would have been available to testify in person on the 30th if the

trial court had allowed the defense to call him. Horn said that defense counsel had

asked him to be “available” during the trial but had not asked him to be physically

present.

After testimony, the trial court and defense counsel had several exchanges.

The trial court made clear it believed defense counsel made an intentional decision

to not have Horn present. The trial court said it would have allowed Horn to testify

on the 30th if defense counsel had made clear Horn would have been there in person,

but defense counsel “hung [his] hat” on presenting witnesses via Zoom. The trial

court said it believed defense counsel was aware of Harper at the time and made a

“tactical decision” to get an adverse ruling on presenting testimony via Zoom.

Defense counsel denied knowing of Harper before he made his proffer on the

afternoon of the 29th.

22 In his closing argument defense counsel noted that the facts of his situation

were like those in Harper and argued for the importance of Horn’s and Living’s

testimony. In response, the State argued that the issue relating to the camper was not

as important as defense counsel was making it. The State also pointed to Code of

Criminal Article 38.076, which has specific provisions for remote testimony from

certain types of forensic analysts. The State noted that defense counsel had not

followed the procedures of that article, which requires agreement by the parties and

approval by the trial court. The trial court denied the motion and reiterated its belief

that defense counsel made a tactical decision not to have Horn at the courthouse.

II. Analysis for Point Two

In his second point the appellant complains about the trial court’s denial of his

original Zoom request. He relies on Harper, which is, as best we can tell, the only

Texas case to hold that a defendant had an enforceable right to present live remote

testimony. The State argues the trial court’s ruling was a lawful application of Rule

of Evidence 611, which gives the trial court considerable discretion to control the

questioning of witnesses. But Harper allocates the burdens of proof and persuasion

in ways that are inconsistent with the sort of traditional Rule 611 analysis the State

urges. So we must first look at Harper and determine whether we will follow its

approach, as the appellant urges.

23 A. Harper held that a trial court abuses its discretion by excluding the defense’s Zoom testimony if the State does not state a legal basis for objecting.

Harper was charged with injury to a four-month-old child. Harper, 2024 WL

3579499, at *1. The child’s injuries were uncontroverted. The question was whether

Harper was criminally liable or whether it was an accident.

Before testimony began, the trial court spoke to the parties about their

intentions to call witnesses via Zoom. The State said it had one proposed Zoom

witness: a CPS investigator who had interviewed the appellant. The defense agreed

to this testimony. Defense counsel declined to say whether the defense intended to

call any witnesses via Zoom. Id. at *9.

After the State rested, the defense said it wished to call an expert witness to

testify via Zoom. The prosecution objected without stating a legal reason. The trial

court denied the request. The defense proffered that the expert would have testified

the child’s injuries were more consistent with accident than abuse. Id. at *10.

On appeal, Harper complained of the trial court’s refusal to allow his Zoom

witness. Harper claimed this violated his right to present a defense under the Sixth

and Fourteenth Amendments. The State argued this was unpreserved because Harper

did not make a constitutional argument in the trial court. The Eighth Court held that

Harper’s request to present Zoom testimony was sufficient to preserve error. The

Eighth Court held that whether it was constitutional went only to a harm analysis

24 under Rule 44.2(b), which makes reversal more likely for constitutional errors than

non-constitutional errors. Id. at *10.

The Eighth Court began its merits analysis by discussing “the guiding rules

and principles that govern the admission of testimony by Zoom.” Id. at *11. First, it

noted that much of the caselaw about remote testimony involved defendants raising

Confrontation Clause objections to remote testimony from prosecution witnesses.

Those cases were inapplicable because the State does not have confrontation rights:

“[T]he State, lacking confrontation clause rights, must therefore assert some other

ground for exclusion.” Id.

Next, the Eighth Court discussed Rule of Evidence 611, which provides:

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.

TEX. R. EVID. 611(a). The Eighth Court noted that a trial court must exercise its

discretion “in a way ‘which is (1) reasonable and (2) in the pursuit of justice as well

as efficiency.’” Harper, 2024 WL 3579499, at *11 (quoting Dang v. State, 154

S.W.3d 616, 619 (Tex. Crim. App. 2005)). The Eighth Court cited two civil cases

for the proposition that there is no per se prohibition on remote video testimony. Id.

(citing In re J.C., 582 S.W.3d 497 (Tex. App.—Waco 2018, no pet.) and Nikolenko

25 v. Nikolenko, No. 01-20-00284-CV, 2022 WL 479988 (Tex. App.—Houston [1st

Dist.] Feb. 17, 2022, pet. denied) (mem. op)).

The final source of authority the Eighth Court analyzed was the Texas

Supreme Court’s COVID-era emergency order. See Harper, 2024 WL 3579499,

at*12. The order in effect at the time of Harper’s trial stated that “all courts in Texas

may . . . allow or require . . . a witness . . . to participate remotely, such as by

teleconferencing, video conferencing, or other means.” Fifty-Fifth Emergency Order

Regarding COVID-19 State of Disaster, 660 S.W.3d 106, 107 (Tex. 2022) (emphasis

added).

The Eighth Court stated that “[w]hether under Rule 611 or the [Emergency

Order], we review the trial court’s refusal to allow Appellant’s witnesses to testify

remotely for an abuse of discretion.” Harper, 2024 WL 3579499, at *12. The Eighth

Court noted that the only reason the trial court gave for excluding the Zoom

testimony was that the State objected. The Eighth Court noted that “[a] trial court

might consider a host of factors in deciding whether remote testimony is appropriate

. . . [b]ut the trial court here was not presented with any factor weighing against

[admitting the Zoom testimony].” Id. (emphasis in original). The Eighth Court held

that excluding the evidence based on an objection that did not state a legal basis was

an abuse of discretion:

In summary, if there existed a per se rule preventing the use of Zoom testimony, then the State’s refusal to waive that objection, even without 26 stating a reason at all, might be valid. But there is no per se prohibition, and a refusal to allow the Zoom testimony must be based on something more than the “State objects.” The trial court effectively delegated the exercise of its discretion to the State, making the State the keeper of the keys to expert testimony for the case. The denial of [the expert’s] testimony was neither reasonable nor in the pursuit of justice and efficiency.

Id.

The Eighth Court’s harm analysis revisited whether the right to present Zoom

testimony was constitutional. Id. at *13. It discussed two cases that held exclusion

of in-person expert testimony rose to the level of a constitutional violation if it

deprived the defendant the ability to present a defense. Id. (discussing Cuadros-

Fernandez v. State, 316 S.W.3d 645, 664–65 (Tex. App.—Dallas 2009, no pet.) and

Stephenson v. State, 226 S.W.3d 622, 628 (Tex. App.—Amarillo 2007, no pet.)).

But it ultimately declined to answer whether the error in Harper’s case was

constitutional because the error was sufficiently harmful it required reversal even

under the standard for non-constitutional error. Id. at *14.

B. We decline to follow Harper.

Harper is an unpublished criminal opinion from a different intermediate court.

We are not bound by its holdings.

Harper observed that there is no “per se prohibition” on remote testimony and

inferred that trial courts were required to admit remote testimony unless a party

stated a valid legal objection. If Harper had based its holding on the COVID-era

27 emergency orders we would disregard it as a product of its time with little continuing

impact. But Harper was ambiguous about the basis for its holding—invoking not

just the emergency order but Rule 611 and multiple constitutional provisions as

possible bases for its holding.

We find no basis for Harper’s holding in these other sources of authority.

When we review the limits placed on remote testimony, it is clear that the ordinary

form of evidence in a criminal trial is in-person testimony. Any time a party has an

enforceable right to admit other types of testimony it is based on an exception found

in a rule or statute. Because there is no statutory or rule-based exception for the

remote testimony the appellant sought to admit here, we conclude he had no

enforceable right to its admission and the trial court did not err by excluding it.

1. The Rules of Evidence and the Code of Criminal Procedure do not create an enforceable general right to present live remote testimony.

While it is tempting to view the issue in Harper and this case as one created

by modern technology, the ability to introduce testimony from individuals not

present in a courtroom has always existed. Affidavits, prior testimony, and

depositions are all types of remote testimony, and they are not generally admissible

in a criminal trial. Affidavits and prior testimony are hearsay that may become

admissible only if the proponent shows an exception applies. See TEX. R. EVID. 801,

802, 803. Depositions in criminal cases are authorized only in narrow, statutorily

28 defined circumstances and are admissible only in narrower, statutorily defined

circumstances. See TEX. CODE CRIM. PROC. arts. 39.02, 39.12; see also George Dix

& John Schmolesky, 42 TEX. PRAC., CRIMINAL PRACTICE & PROCEDURE § 27:106

(3d ed.) (“The Court of Criminal Appeals commented in 1996, ‘A deposition under

Article 39.02 is of such an extraordinary nature that little jurisprudence exists to

govern its application.’ That is still the case.”) (quoting Janecka v. State, 937 S.W.2d

456, 468 (Tex. Crim. App. 1996)).5

The Code of Criminal Procedure has three provisions allowing live remote

trial testimony in three very specific situations. The first is for child witnesses. See

TEX. CODE CRIM. PROC. art. 38.071. This is limited in many ways: The child must

be under the age of 13; the trial court must make a finding the child would be

“unavailable to testify in the presence of the defendant;” and the trial must be for an

offense specified in the statute (all of which are serious assaultive and sexual

offenses). Id. § 1.

Article 38.071 has a long list of procedural and substantive requirements for

remote testimony. See id. §§ 3–5. Furthermore, any use of remote testimony under

Article 38.071 must comply with Maryland v. Craig, 497 U.S. 836 (1990), which

held that to overcome a Confrontation Clause objection to the remote testimony of

5 This contrasts with civil practice, where depositions are an ordinary form of discovery and a deposition “may be used for any purpose in the same proceeding in which it was taken.” TEX. R. CIV. P. 203.6(b). 29 a child witness, the prosecution must show that the remote testimony procedure was

necessary to prevent trauma to the child. Gonzales v. State, 818 S.W.2d 756, 761–

64 (Tex. Crim. App. 1991) (citing Craig, 497 U.S. at 855–56).

Second, Article 38.073 allows for remote testimony and deposition of an

inmate in the custody of the Texas Department of Criminal Justice. TEX. CODE CRIM.

PROC. art. 38.073. That article requires compliance with Article 27.18, which allows

incarcerated defendants to enter pleas or waive rights by videoconferencing. See id.

art. 27.18. That article has certain procedural requirements and, importantly, requires

consent from both the defendant and the attorney representing the State. See id. art.

27.18(a)(1).

Third, Article 38.076 allows for remote testimony via video teleconference

for certain forensic analysts in certain circumstances. Id. art. 38.076. The section

applies only to forensic analysts employed by an accredited crime laboratory. Id.

arts. 38.01 § 4-a(2), 38.076(a).6 And use of the remote testimony requires approval

from the trial court and all parties. Id. art. 38.076(b)(1). 7

6 There is no record evidence the appellant’s proposed expert witness, Horn, was so employed. The appellant did not invoke Article 38.076 in the trial court or on appeal. 7 Harper held that because “there is no per se prohibition [on live remote testimony], a refusal to allow the Zoom testimony must be based on something more than the ‘State objects.’” Harper v. State, 2024 WL 3579499, No. 08-23-00106-CR, at *12 (Tex. App.—El Paso, July 29, 2024, pet. ref’d) (mem. op., not designated for publication). However, two of the three statutory provisions for live remote testimony (Articles 38.073 and 38.076) require the agreement of the parties, so “State objects” is sufficient to prevent a defendant from presenting live remote 30 Aside from these three narrow provisions, “[w]e are aware of no provision in

the Code of Criminal Procedure that speaks to the admissibility of trial testimony of

an ordinary witness via telephone or video link.” Frangias v. State, 450 S.W.3d 125,

139 (Tex. Crim. App. 2013). Harper did not cite any such provision. Except where

allowed by rule or statute, live remote testimony is an “unregulated method” of

presenting testimony to which neither party has an enforceable right. See id. (holding

defense counsel ineffective for not using statutory procedure to depose remote

witness after trial court denied counsel’s request to have remote witness testify via

phone).

To the degree Harper held that Rule 611 required the trial court to admit live

remote testimony in the absence of a legal objection, we disagree. Rule 611 gives a

trial court broad discretion in controlling the mode and order of interrogation of

witnesses and presentation of evidence. Dang, 154 S.W.3d at 619. We review a trial

court’s rulings under Rule 611 for an abuse of discretion. Caron v. State, 162 S.W.3d

614, 617 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

Harper looked only at the stated reason for excluding evidence, but on abuse-

of-discretion review we must uphold a trial court’s ruling if it is correct under any

testimony under those provisions. Harper did not explain why parties have a greater right to present live remote testimony in situations where it’s not allowed for by statute than in situations where it is. Under Harper’s reasoning, Articles 38.073 and 38.076 are restrictions on the use of live remote testimony.

31 applicable legal theory. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.

2009). This is true even if the trial court gave no reason or an incorrect reason. Id.

Abuse-of-discretion review does not hinge on the trial court’s stated reason. Instead,

it hinges on whether the complaining party gave the trial court a legally correct basis

for its desired ruling at the time it sought the ruling. Martinez v. State, 91 S.W.3d

331, 336 (Tex. Crim. App. 2002).

Although the parties and trial court did not have an extensive discussion, the

universal preference for in-person testimony in criminal trials is well-known, as are

the downsides of live remote testimony. Relative to in-person testimony, live remote

testimony reduces the ability of the jury to assess credibility. Live remote testimony

introduces the possibility of the witness reading answers from an unseen document

or being fed answers by someone off screen. Live remote testimony introduces the

possibility of a witness modifying his or her appearance or voice through filters or

other technology. Live remote testimony introduces the prospect of technological

errors affecting a trial; if, for instance, an attorney objects but the witness does not

hear the objection or the trial court’s instruction to stop testifying, prejudicial

statements may come before the jury.8

8 The three statutory allowances for live remote testimony apply to situations that ameliorate some of these concerns. Child witnesses and inmate witnesses will be in a location controlled by officers of the court or prison guards and will likely use technology provided by the government. Forensic analysts will be testifying about test results or reports the parties already have, and personal demeanor is less 32 Aside from these general problems, live remote testimony presents a special

problem in criminal trials because of the Confrontation Clause. The Confrontation

Clause allows a defendant to demand in-person confrontation except in very narrow

circumstances. See Haggard v. State, 612 S.W.3d 318, 325 (Tex. Crim. App. 2020)

(explaining Craig’s requirement that prosecution make case-specific showing that

remote testimony is necessary to further public interest, like protecting child from

trauma, to allow remote testimony over Confrontation Clause objection). Thus, a

default rule allowing the general use of live remote testimony in criminal trials

would, in practice, be a one-sided rule that only defendants could use.

It is not just that remote testimony has disadvantages, but in-person testimony

has virtues. When the Federal Rules of Civil Procedure were amended to allow live

remote testimony for civil cases, the amendment specified such testimony could

occur only with “good cause in compelling circumstances and with appropriate

safeguards.” FED. R. CIV. P. 43(a). While the rule allowed live remote testimony, the

Advisory Committee noted it should be the exception:

The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition.

important for assessing an analyst’s credibility than for an eyewitness’s. These situations contrast with what the appellant and Harper seem to have had in mind, which is a private individual using his or her own personal device and account to testify from wherever he or she happens to be.

33 FED. R. CIV. P. 43 advisory committee’s note to 1996 amendment. The Advisory

Committee went on to note that a trial court could insist on in-person testimony even

if the parties agreed to live remote testimony. Id.

We do not limit our abuse-of-discretion review to the trial court’s stated

reason for its ruling. The concerns with live remote testimony and the virtues of in-

person testimony are obvious enough that the objecting party and the trial court need

not explain them on the record to justify the universal preference for in-person

testimony. As with other exceptions to the in-person testimony requirement, the

proponent of live remote testimony has the burden to show entitlement to present

testimony in the requested manner. Absent a statutory or rule-based right to present

testimony in a particular manner, a trial court does not abuse its discretion by

denying the request based on the preference for in-person testimony. As with other

evidentiary rulings, the trial court need not state or discuss the underlying rationale

for its ruling for its decision to be upheld on appeal. To the degree the appellant

relied on Rule 611 as a basis for requiring the admission of proposed Zoom

testimony, the trial court did not abuse its discretion in denying his request.

2. The federal constitution does not give a general right to present live remote testimony.

The appellant also raises claims under the Sixth and Fourteenth Amendments

to the federal constitution. Harper listed these amendments as possible bases for its

34 holding. See 2024 WL 3579499, at *10, *13–14 (noting that defendant raised

constitutional claims, then explaining in harm analysis it would not specify whether

error was constitutional).

“Whether rooted directly in the Due Process Clause of the Fourteenth

Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth

Amendment, the Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319,

324 (2006) (cleaned up). This right is violated when evidence rules “infringe upon a

weighty interest of the accused and are arbitrary or disproportionate to the purposes

they are designed to serve.” Id. (cleaned up).

The Supreme Court has invoked this right to strike down state rules that did

not serve a legitimate purpose and were outliers compared to the federal courts and

other states. For instance in Holmes, the South Carolina Supreme Court had

“radically changed and extended” a traditional rule of evidence to make it so a

defendant could not admit evidence of an alternative perpetrator if the trial court

believed there was “strong evidence” of the defendant’s guilt. Id. at 328–39. The

Supreme Court struck down this rule because it was arbitrary and did not serve the

same, legitimate purpose as the traditional rule, which excluded only “evidence that

has only a very weak logical connection to the central issues.” Id. at 330.

35 The preference for in-person testimony in criminal cases is neither arbitrary

nor unusual. It is the traditional rule of all American jurisdictions and the current

practice of the federal courts. The federal courts, like Texas courts, have a rule

allowing and regulating the general use of live remote testimony in civil cases, but

not in criminal cases. Compare FED. R. CIV. P. 43(a) (“For good cause in compelling

circumstances and with appropriate safeguards, the court may permit testimony in

open court by contemporaneous transmission from a different location.”) to FED. R.

CRIM. P. 26 (making no such provision); see TEX. R. CIV. P. 21d(b). This is not an

accidental omission: In 2002 the Supreme Court declined to forward to Congress a

proposed amendment to Rule 26 that would have allowed live remote testimony in

criminal trials. Order of the Supreme Court, 207 F.R.D. 89, 91 (2002).

The result is that in federal courts, except for a narrow exception allowing

child witnesses to testify remotely in certain situations, see 18 U.S.C. § 3409(b), the

use of live remote testimony in a criminal trial is an unregulated practice, just as in

Texas courts. Examples can be found of federal courts denying defendants’ requests

outright based on the lack of a rule allowing live remote testimony,9 denying requests

9 See, e.g., United States v. Diaz, 356 Fed. Appx. 117, 128 (10th Cir. 2009), as amended on reh’g in part (Jan. 28, 2010); United States v. Adeoye, No. 4:21-CR- 253(13), 2024 WL 113765, at *2 (E.D. Tex. Jan. 8, 2024); United States v. Young, No. 3:21-CR-0417-X, 2024 WL 2141959, at *1 (N.D. Tex. May 13, 2024).

36 based on failure to make an adequate showing of need and reliability,10 and granting

requests where the court believed the defense had shown need and reliability.11

In light of the Supreme Court’s explicit refusal to recommend a rule allowing

remote testimony, and the unregulated federal practice on remote testimony, we

cannot declare that the “right to present a complete defense” requires trial courts

always to allow defense witnesses to testify remotely in a criminal trial. The

Supreme Court has invoked this right to strike down only rules that were inconsistent

with federal practice and the practice of other states. See, e.g., Crane v. Kentucky,

476 U.S. 683, 687–89 (1986) (declaring unconstitutional state rule excluding

defendant’s evidence about circumstances of confession, and noting Kentucky rule

10 See, e.g., United States v. Pritchard, No. CR-23-00232-001-PHX-KML, 2024 WL 4347815, at *3 (D. Ariz. Sept. 30, 2024) (denying request but stating subsequent request might be granted if it explained why witnesses would suffer hardship travelling to trial, and “address[ed] the locations from which the witnesses will testify, the stability of their internet connections, provisions for cameras that will reflect the witnesses’ demeanor in a manner akin to live testimony, the witnesses’ ability to see counsel and the courtroom . . . and measures taken to ensure the witness is not being coached or influenced during testimony, and that the witness is not improperly referring to documents.” (quotation omitted)); United States v. Banki, No. 10 CR. 08 (JFK), 2010 WL 1063453, at *4 (S.D.N.Y. Mar. 23, 2010) (denying request because defendant’s only claim of necessity was that depositions would take too long). 11 See, e.g., United States v. Babichenko, No. 1:18-CR-00258-BLW, 2021 WL 1759851, at *2 (D. Idaho May 4, 2021) (granting motion to allow fact witnesses to testify remotely from Brazil based on COVID-era restrictions on travel from Brazil); United States v. Fox, No. CR16-0100-JCC, 2018 WL 1517674, at *2 (W.D. Wash. Mar. 28, 2018) (granting motion to allow incarcerated witness to testify remotely).

37 conflicted with federal case law, federal rules, and “the decisions of every other state

court to have confronted the issue”); Rock v. Arkansas, 483 U.S. 44, 57–59, 62

(1987) (declaring unconstitutional state rule that placed limitation on defendant’s

right to testify not found in other jurisdictions). The Supreme Court has emphasized

that states are not prohibited from excluding defense evidence under ordinary, “well-

established” rules. Holmes, 547 U.S. at 326 (noting constitutionality of Rule of

Evidence 403). And the Supreme Court has upheld a challenged rule when federal

and state practice on the subject was mixed. See United States v. Scheffer, 523 U.S.

303, 311–12 (1998) (upholding rule of evidence that prohibited all evidence of

polygraphs, where state courts and federal circuits had varied approaches to subject,

some of which were consistent with challenged rule).

The universal preference for in-person testimony is not an arbitrary rule and

Texas practice is not an outlier. To the degree the appellant relied on the Sixth and

the Fourteenth Amendments as a basis for admitting live remote testimony, the trial

court did not abuse its discretion by denying his request.

C. The appellant forfeited his state constitutional claims by not explaining how the Texas constitution offered different or greater protections than the federal constitution.

Both in the trial court and in this Court the appellant has invoked the Texas

constitution’s “due course of law” guarantee. TEX. CONST. art. I, § 13. However,

neither in the trial court nor this Court has he presented argument or authority for

38 how that provision offers different or greater protections than the federal

constitutional provisions he has invoked. He has forfeited this claim. See Pena, 285

S.W.3d at 464.

Having addressed the appellant’s claimed bases for admitting remote

testimony, we overrule his second point of error.

III. Analysis for Point Four

The only claims in the appellant’s motion for new trial related to the trial

court’s decision not to allow his witnesses to testify via Zoom. Based on our holdings

related to the appellant’s second point, we conclude the trial court did not abuse its

discretion in denying the appellant’s motion for new trial. We overrule his fourth

point.

Conclusion

We affirm the trial court’s judgments.

Clint Morgan Justice

Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.

Publish.