IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-95,541-01
EX PARTE LEROY HILBERT ZUBIATE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 13935-A IN THE 118TH DISTRICT COURT FROM HOWARD COUNTY
KEEL, J., delivered the opinion of the Court in which SCHENCK, P.J., and YEARY, MCCLURE, FINLEY, and PARKER, JJ., joined. NEWELL, J., filed a concurring opinion in which WALKER, J., joined. WALKER, J., filed a concurring opinion in which NEWELL, J., joined. RICHARDSON, J., concurred.
OPINION
This is a case about the right to confrontation in a parole-revocation hearing where
the witnesses testified via Zoom.
A jury convicted Applicant of aggravated assault and sentenced him to twelve
years in prison. He was eventually released on parole, but his parole was revoked after
two hearings where witnesses testified via Zoom over his objections. He argues that the
Zoom hearings violated his Sixth Amendment right to confrontation and that the Sixth Zubiate 2
Amendment right to confrontation is the same as his due process right. We hold
otherwise because the Sixth Amendment does not apply to parole hearings, and his due
process right to confrontation was fulfilled by the Zoom hearing.
I. Sixth Amendment Confrontation Clause
The Sixth Amendment’s Confrontation Clause says, “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”
U.S. Const. amend. VI. It “is basically a trial right[,]” Barber v. Page, 390 U.S. 719,
725 (1968), that is “essential to a fair trial in a criminal prosecution.” Pointer v. Texas,
380 U.S. 400, 404 (1965). It is “a ‘functional’ right designed to promote reliability in
the truth-finding functions of a criminal trial.” Kentucky v. Stincer, 482 U.S. 730, 737
(1987). It did not apply here for three reasons: parole hearings are not “criminal
prosecutions,” a parolee is not an “accused,” and witnesses who testify in such hearings
are not “against” the parolee.
First, parole hearings are not criminal prosecutions because they arise after
conviction. The Sixth Amendment right to confrontation comes into play at “the
initiation of criminal proceedings[.]” S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742
(1984). And it goes out of play after trial. See Betterman v. Montana, 578 U.S. 437,
439 (2016) (holding that the Sixth Amendment right to speedy trial does not apply after
conviction or guilty plea). Parole revocation comes after trial and deprives a person
“only of conditional liberty” and so “is not part of a criminal prosecution[.]” Morrissey
v. Brewer, 408 U.S. 471, 480 (1972). Zubiate 3
Second, a parolee is not an “accused” because that is “a status preceding
‘convicted.’” Betterman, 578 U.S. at 443. Before conviction, “the accused is shielded
by the presumption of innocence[.]” Id. at 442. A “major reason” for the Confrontation
Clause is “to give a defendant charged with a crime an opportunity to cross-examine the
witnesses against him.” Pointer, 380 U.S. at 406-407. Witnesses who testify “after
guilt is established are not accusers within the meaning of the confrontation clause.”
United States v. Fields, 483 F.3d 313, 332 (5th Cir. 2007) (quoting United States v.
Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 546 U.S. 1024 (2005). A parolee
facing revocation has already been convicted and sentenced, and he enjoys only
conditional liberty, so, he is not an “accused.”
Third, parole-hearing witnesses are not “against” a defendant because their
testimony is not used to convict. A witness is usually regarded as “‘against’ a defendant
for purposes of the Confrontation Clause only if his testimony is part of the body of
evidence that a jury may consider in assessing his guilt.” Cruz v. New York, 481 U.S.
186, 190 (1987). For example, forensic analysts testifying by affidavit in a drug trial
“provided testimony against” the defendant because they proved a “fact necessary for his
conviction—that the substance he possessed was cocaine.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 313 (2009). Parole-revocation witness testimony,
however, is not offered to convict, and so those witnesses are not “against” the parolee.
The Sixth Amendment did not apply to Applicant’s parole revocation hearing. Zubiate 4
But Applicant argues that his due process right to confrontation matches his Sixth
Amendment right and that he was entitled to in-person confrontation of the witnesses at
his parole revocation hearings. He does not claim that Zoom malfunctioned or that, for
example, he could not see or hear the witnesses, and he concedes that his attorney cross-
examined them. He complains only about the lack of in-person confrontation, and he
equates that lack with a complete denial of confrontation.
II. Due Process
The Fourteenth Amendment’s Due Process Clause says, “nor shall any State
deprive any person of life, liberty, or property, without due process of law[.]” U.S.
Const. Amend XIV § 1. Due process is flexible and situational. Morrissey, 408 U.S. at
481. It does not mean “ideal.” Snyder v. Massachusetts, 291 U.S. 97, 116-17 (1934).
It is not offended merely “because another method may seem to our thinking to be fairer
or wiser or to give a surer promise of protection to the prisoner at bar.” Id. at 105.
“Due process of law requires that the proceedings shall be fair, but fairness is a relative,
not an absolute, concept. It is fairness with reference to particular conditions or
particular results.” Id. at 116.
Due process affords the States “wide latitude” in designing parole-revocation
proceedings. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365 (1998). Such
hearings are not subject to the “full panoply of rights” attendant to criminal trials.
Morrissey, 408 U.S. at 488-89. They address “a narrow inquiry” and “should be flexible
enough to [allow consideration of] evidence including letters, affidavits, and other Zubiate 5
material that would not be admissible in an adversary criminal trial.” Id. at 489. States
may also develop “other creative solutions to the practical difficulties of
the Morrissey requirements.” Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973).
Compared with the Confrontation Clause, due process offers a limited right to confront
witnesses in parole hearings. U.S. v. Harris, 112 F.4th 624, 627 (8th Cir. 2024); U.S.
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-95,541-01
EX PARTE LEROY HILBERT ZUBIATE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 13935-A IN THE 118TH DISTRICT COURT FROM HOWARD COUNTY
KEEL, J., delivered the opinion of the Court in which SCHENCK, P.J., and YEARY, MCCLURE, FINLEY, and PARKER, JJ., joined. NEWELL, J., filed a concurring opinion in which WALKER, J., joined. WALKER, J., filed a concurring opinion in which NEWELL, J., joined. RICHARDSON, J., concurred.
OPINION
This is a case about the right to confrontation in a parole-revocation hearing where
the witnesses testified via Zoom.
A jury convicted Applicant of aggravated assault and sentenced him to twelve
years in prison. He was eventually released on parole, but his parole was revoked after
two hearings where witnesses testified via Zoom over his objections. He argues that the
Zoom hearings violated his Sixth Amendment right to confrontation and that the Sixth Zubiate 2
Amendment right to confrontation is the same as his due process right. We hold
otherwise because the Sixth Amendment does not apply to parole hearings, and his due
process right to confrontation was fulfilled by the Zoom hearing.
I. Sixth Amendment Confrontation Clause
The Sixth Amendment’s Confrontation Clause says, “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”
U.S. Const. amend. VI. It “is basically a trial right[,]” Barber v. Page, 390 U.S. 719,
725 (1968), that is “essential to a fair trial in a criminal prosecution.” Pointer v. Texas,
380 U.S. 400, 404 (1965). It is “a ‘functional’ right designed to promote reliability in
the truth-finding functions of a criminal trial.” Kentucky v. Stincer, 482 U.S. 730, 737
(1987). It did not apply here for three reasons: parole hearings are not “criminal
prosecutions,” a parolee is not an “accused,” and witnesses who testify in such hearings
are not “against” the parolee.
First, parole hearings are not criminal prosecutions because they arise after
conviction. The Sixth Amendment right to confrontation comes into play at “the
initiation of criminal proceedings[.]” S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742
(1984). And it goes out of play after trial. See Betterman v. Montana, 578 U.S. 437,
439 (2016) (holding that the Sixth Amendment right to speedy trial does not apply after
conviction or guilty plea). Parole revocation comes after trial and deprives a person
“only of conditional liberty” and so “is not part of a criminal prosecution[.]” Morrissey
v. Brewer, 408 U.S. 471, 480 (1972). Zubiate 3
Second, a parolee is not an “accused” because that is “a status preceding
‘convicted.’” Betterman, 578 U.S. at 443. Before conviction, “the accused is shielded
by the presumption of innocence[.]” Id. at 442. A “major reason” for the Confrontation
Clause is “to give a defendant charged with a crime an opportunity to cross-examine the
witnesses against him.” Pointer, 380 U.S. at 406-407. Witnesses who testify “after
guilt is established are not accusers within the meaning of the confrontation clause.”
United States v. Fields, 483 F.3d 313, 332 (5th Cir. 2007) (quoting United States v.
Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 546 U.S. 1024 (2005). A parolee
facing revocation has already been convicted and sentenced, and he enjoys only
conditional liberty, so, he is not an “accused.”
Third, parole-hearing witnesses are not “against” a defendant because their
testimony is not used to convict. A witness is usually regarded as “‘against’ a defendant
for purposes of the Confrontation Clause only if his testimony is part of the body of
evidence that a jury may consider in assessing his guilt.” Cruz v. New York, 481 U.S.
186, 190 (1987). For example, forensic analysts testifying by affidavit in a drug trial
“provided testimony against” the defendant because they proved a “fact necessary for his
conviction—that the substance he possessed was cocaine.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 313 (2009). Parole-revocation witness testimony,
however, is not offered to convict, and so those witnesses are not “against” the parolee.
The Sixth Amendment did not apply to Applicant’s parole revocation hearing. Zubiate 4
But Applicant argues that his due process right to confrontation matches his Sixth
Amendment right and that he was entitled to in-person confrontation of the witnesses at
his parole revocation hearings. He does not claim that Zoom malfunctioned or that, for
example, he could not see or hear the witnesses, and he concedes that his attorney cross-
examined them. He complains only about the lack of in-person confrontation, and he
equates that lack with a complete denial of confrontation.
II. Due Process
The Fourteenth Amendment’s Due Process Clause says, “nor shall any State
deprive any person of life, liberty, or property, without due process of law[.]” U.S.
Const. Amend XIV § 1. Due process is flexible and situational. Morrissey, 408 U.S. at
481. It does not mean “ideal.” Snyder v. Massachusetts, 291 U.S. 97, 116-17 (1934).
It is not offended merely “because another method may seem to our thinking to be fairer
or wiser or to give a surer promise of protection to the prisoner at bar.” Id. at 105.
“Due process of law requires that the proceedings shall be fair, but fairness is a relative,
not an absolute, concept. It is fairness with reference to particular conditions or
particular results.” Id. at 116.
Due process affords the States “wide latitude” in designing parole-revocation
proceedings. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365 (1998). Such
hearings are not subject to the “full panoply of rights” attendant to criminal trials.
Morrissey, 408 U.S. at 488-89. They address “a narrow inquiry” and “should be flexible
enough to [allow consideration of] evidence including letters, affidavits, and other Zubiate 5
material that would not be admissible in an adversary criminal trial.” Id. at 489. States
may also develop “other creative solutions to the practical difficulties of
the Morrissey requirements.” Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973).
Compared with the Confrontation Clause, due process offers a limited right to confront
witnesses in parole hearings. U.S. v. Harris, 112 F.4th 624, 627 (8th Cir. 2024); U.S. v.
Lloyd, 566 F.3d 341, 343 (3d Cir. 2009).
Applicant complains that the witnesses’ appearance via Zoom deprived him of his
right to confront them. But he did confront and cross-examine the witnesses, just not in
his preferred way—in person. He asserts that Morrissey required good cause for
allowing the witnesses to testify remotely. See Morrissey, 408 U.S. at 489. But that
passage requires good cause for denying confrontation; it does not require good cause for
allowing less-than-ideal confrontation. He argues that in-person confrontation is more
effective than confrontation via videoconference, but even assuming that to be so, it does
not show that his due process right to confrontation was violated. See Snyder, 291 U.S.
at 116-17 (noting that due process does not demand “ideal” process). As far as the
record shows, he could see, hear, and cross-examine the witnesses in real time, so his due
process right to confront the witnesses was honored. See Wilkins v. Timmerman-Cooper,
512 F.3d 768, 776 (6th Cir. 2008) (upholding conclusion that testimony in revocation
hearing held via videoconference was functional equivalent of live testimony). We
agree with the State that parole-revocation hearings held via Zoom are a creative solution Zubiate 6
that may address the practical difficulties of meeting Morrissey’s requirements. See
Scarpelli, 411 U.S. 782 at n.5.
III. Conclusion
The Sixth Amendment did not apply to Applicant’s parole revocation hearings,
and his limited due process right to confront the witnesses in those hearings was honored
by their appearance via Zoom. Accordingly, we deny relief.
Delivered: March 26, 2025
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