MAJORITY OPINION Darren Tramell Hughes appeals his conviction for tampering with a government record[1] following an adjudication of guilt after violating the terms and conditions of his community supervision. Appellant contends (1) the trial court denied his right to be present in the courtroom during his community supervision revocation hearing; (2) the evidence is insufficient to support the trial court’s adjudication of his community supervision; and (3) the trial court judgment should be reformed to correct several errors. We reverse and remand. Background Appellant was indicted for tampering with a government record in 2016. In March 2017, Appellant pleaded guilty without an agreed recommendation to punishment; the trial court deferred his adjudication of guilt and placed him on community supervision for three years. In January 2020, the State moved to adjudicate Appellant’s guilt and alleged, among other things, that Appellant committed forgery. The trial court held a hearing on the State’s motion to adjudicate on August 25, 2020. Although Appellant’s counsel was present in the courtroom at the hearing, the State, the witnesses, and Appellant attended via Zoom. The trial court stated Appellant is 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.” Appellant pleaded “false”, “i.e., ‘not true’” to the State’s allegation he committed forgery in January 2020. At the hearing, Appellant tried to speak or interject during witness testimony and the State’s closing argument, but the trial court instructed that Appellant be muted. Appellant was not given an opportunity to speak or communicate during the hearing except for when he testified in his defense. After hearing evidence and the parties’ closing statements, the trial court found the State’s allegation of forgery true, adjudicated Appellant guilty, and assessed his punishment at ten years’ confinement. The trial court certified Appellant’s right to appeal, and Appellant filed a timely notice of appeal. Analysis Sufficiency of the Evidence We begin by addressing Appellant’s second issue, in which he argues that the “evidence is insufficient to support the trial court’s adjudication of Appellant’s community supervision.” An order revoking community supervision must be supported by a preponderance of the evidence, meaning that the greater weight of the credible evidence would create a reasonable belief that the defendant has violated a condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006); see also Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013) and Black v. State, 411 S.W.3d 25, 28 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We review an order revoking community supervision under an abuse of discretion standard. Hacker, 389 S.W.3d at 865; Rickels, 202 S.W.3d at 763; Black, 411 S.W.3d at 28. In conducting this review, we view the evidence in the light most favorable to the trial court’s order. Moore v. State, 11 S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Greer v. State, 999 S.W.2d 484, 486 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). The trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony. Bell v. State, 566 S.W.3d 398, 401-02 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Moore, 11 S.W.3d at 498. The State alleged Appellant violated the terms and conditions of his community supervision by committing forgery on or about January 12, 2020. A person commits the offense of forgery if he “forges a writing with intent to defraud or harm another.” Tex. Penal Code Ann. § 32.21(b); see also Johnson v. State, 425 S.W.3d 516, 520 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). “Forge” means to “alter, make, complete, execute or authenticate any writing so that it purports . . . to be the act of another who did not authorize that act.” Tex. Penal Code Ann. § 32.21(a)(1)(A). “To prove the requisite intent, the trier of fact must be able to reasonably infer that Appellant knew the instrument was forged.” Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). In reviewing the evidence to determine whether the trier of fact reasonably could have made this inference, we look to the totality of the circumstances and weigh all of the facts. Leroy v. State, 512 S.W.3d 540, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Intent to defraud or harm may be established by circumstantial evidence. Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985) (en banc). “There is no bright-line rule establishing what the State must present to show intent to defraud or harm another.” Leroy, 512 S.W.3d at 543. Appellant argues that although the trial court is the sole judge of the credibility of the witnesses, “here the inconsistencies and lack of evidence beyond the testimony of a sole police officer lead to the determination that no rational trier of fact could have found the essential elements of forgery by a preponderance of the evidence” and in particular that “Appellant knew the check was forged.” We disagree and determine the evidence is sufficient to show Appellant committed forgery. At the adjudication hearing, Detective Mezegabe testified that he set up a sting operation after he was contacted by a car dealership parts manager regarding a potential forgery scheme. He testified that Appellant had requested car parts and communicated with the manager via email under the name Jimmy Martin. The manager set up a meeting with Appellant at which Mezegabe would deliver the requested car parts instead of the manager. On January 10, 2020, Mezegabe waited for Appellant at the location Appellant chose. When Appellant arrived, he rolled down his car window and asked Mezegabe if he was “the parts guy.” Mezegabe answered affirmatively and Appellant instructed Mezegabe “to meet him around the back.” Mezegabe followed Appellant “around the back of the building.” After Appellant exited his car, Mezegabe asked him if he was “Jesse Martin” but Appellant corrected him saying: “No, I’m Jimmy Martin.” Mezegabe identified Appellant during the hearing as the man who introduced himself as Jimmy Martin. Mezegabe testified that Appellant tried to pay for car parts giving Mezegabe a forged “check that was written out to Joe Meyers [sic] and it was from Tex Star Auto Repair” in the amount of $493.14. A copy of the forged check was admitted into evidence and identified by Mezegabe as “a copy of the check that was given to” him by Appellant. Mezegabe testified that his investigation showed the check Appellant gave him was fraudulent because the “account numbers, everything — the company is fraudulent.” Mezegabe also testified the following occurred during his interview with Appellant: [Appellant] stated he knew nothing about this and that he was working for somebody. And during the investigation we found that he had a[n] application on his phone that is a burner app which he used to — you come up with a phone number and it’s a spoof cell phone number. You can make phone calls and texts. And that’s the number that he was using to communicate with Joe Myers. And then also, the same e-mail address for Jimmy Martin, we had the parts manager e- mail him while we were here and we saw the notification on his phone, on his e-mail, pop up on his phone. Mezegabe testified that he did not see Appellant write the forged check and that several car dealerships sold parts to a person who identified himself as Jimmy Martin. “[T]he payments to those dealerships made by the person that identified himself as Jimmy Martin” were fraudulent and made “[w]ith similar checks.” Mezegabe further testified that when police searched Appellant’s car, they found “two more fraudulent checks that were filled out and multiple blank checks.” Appellant testified in his own defense. He claimed he did not write or sign the checks found in his car but that “[s]omewhere on the southwest side” “[a] guy met [him] and gave them to [him].” Appellant testified: “I was basically working for somebody. They told me they would pay me $150 to do a pickup. Once I dropped the parts off, whatever [the] situation may have been.” Appellant denied sending e-mails to the car dealership under a specifically alleged email address; he claimed that “the same burner app [Mezegabe] said I have on my phone, half the world has it on their phone and he got it on his phone, Detective Mezegabe.” Considering (1) the evidence shows that Appellant used a false name, used a spoof cell phone number to communicate with the dealership, lied to police about emailing the dealership, and had other forged and blank checks in his car; and (2) the trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony at the hearing on a motion to adjudicate, the court could have determined that Appellant knew the check he gave Mezegabe was forged and Appellant intended to defraud the dealership by trying to pay for parts with the forged check. Based on the record before us, we conclude the evidence is sufficient to support the trial court’s finding that Appellant committed the offense of forgery in violation of the terms and conditions of his community supervision. Accordingly, we overrule Appellant’s second issue. Presence at Revocation Hearing In his first issue, Appellant contends the trial court denied his right to be present in the courtroom during his community supervision revocation hearing and that, absent waiver by a defendant, a trial court has an independent duty to secure a defendant’s presence in the courtroom for his revocation hearing. He also contends there was no waiver and that he was harmed by the trial court’s denial of his right to be present in person at his revocation hearing because he was unable to communicate with his counsel in a meaningful way and “his attempts to interject during the hearing resulted in clear frustration on the part of the trial court.” The State acknowledges that the Sixth Amendment right to confrontation encompasses a right to be present but claims “the right to confrontation does not apply at probation revocation proceedings.” The State also claims that Appellant’s presence via Zoom satisfied due process requirements and that any error was harmless. We begin our analysis by addressing whether the constitutional guarantees of confrontation and due process of law apply to revocation hearings. Revocation Hearing and Constitutional Guarantees of Confrontation and Due Process The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const. amend. VI; Illinois v. Allen, 397 U.S. 337, 338 (1970). The Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Allen, 397 U.S. at 338. “One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.” Id.; see also Garcia v. State, 149 S.W.3d 135, 140 (Tex. Crim. App. 2004). The right of confrontation includes the right to face-to-face confrontation and the right to meaningful and effective cross-examination. Coronado v. State, 351 S.W.3d 315, 325 (Tex. Crim. App. 2011). “Indeed, it is that personal presence of the defendant and the right to ask probing, adversarial cross-examination questions that lies at the core of an American criminal trial’s truth-seeking function.” Id. The Texas Court of Criminal Appeals opinion in Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) controls. There, the Court of Criminal Appeals held that “[c]ommunity-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings.” Id. at 212. Although several intermediate appellate court cases (decided both pre- and post-Doan) have concluded that the Confrontation Clause does not apply to community supervision revocation proceedings,[2] we are not bound by cases that are contrary to high court pronouncements. These cases do not recognize the importance of Doan and, thus, neglect to give controlling weight to the Court of Criminal Appeals’s pronouncements therein. In Doan, the court laid out the differences and similarities in revocation hearings in federal and state courts in light of controlling United States Supreme Court precedent governing constitutional rights. Id. at 209-12. It acknowledged a distinction between a federal probation revocation hearing (which is an administrative proceeding requiring a preliminary hearing to determine probable cause to believe a probationer has violated a condition of his probation before proceeding to a hearing in front of the parole authority) and the Texas system, which is based in the courts and has only one hearing. Id. at 209-10. The court specifically pointed out that a Texas community supervision revocation proceeding “bears little resemblance” to the administrative hearing under the federal scheme, explaining: In Texas, the State is represented by a prosecutor, the defendant does have a right to counsel, the hearing is before the judge, formal rules of evidence do apply, and there may be [an] appeal directly to a court of appeals. They are conducted entirely within the judicial branch. The Rules of Evidence and the exclusionary rule to bar illegally seized evidence apply fully in a Texas probation revocation hearing. Indeed, aside from the burden of proof required to prove a community- supervision violation (preponderance of the evidence, which is lower than the burden of proof beyond a reasonable doubt that is required to prove a new criminal offense), there are few procedural differences between a Texas criminal trial and a Texas community-supervision revocation proceeding. Id. at 210. The Court of Criminal Appeals acknowledged that “in some respects” there is “an ‘administrative’ nature to a trial court’s decision in a revocation hearing” in that, “[e]ven if a community-supervision violation is proven, the trial court has the discretion to continue or modify the terms of community supervision rather than revoking it,” and the court “has the discretion to make this determination based on its weighing of policies, such as protecting the public and rehabilitating the offender.” Id. at 212. However, the court explained that the fact a decision includes some policy considerations does not turn a “distinctly judicial proceeding into an administrative one.” Id. In that regard, it noted that juries and trial courts weigh policy considerations with a great degree of discretion when deciding whether to sentence a defendant to community supervision, “but we would never characterize the punishment phase of a trial as an administrative proceeding.” Id. It further noted the difference between revocation proceedings and administrative proceedings: A Texas community-supervision revocation proceeding involves the application of law to past facts that remain static. It is conducted according to judicial rules before a trial judge, not an administrative agency. Applying administrative law—the law that governs the decision-making processes of administrative agencies—to revocation hearings has no basis in the Code of Criminal Procedure. Community-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings. Id. The “minimal requirements of due process” apply to Appellant’s community supervision revocation proceeding for the same reason they apply in federal administrative proceedings to revoke parole or probation, i.e., that the revocation of community supervision results in a loss of liberty—a right protected by the Due Process Clause. See Torres v. State, 617 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (Keyes, J., concurring). Given the Texas Court of Criminal Appeals’s holding in Doan, we conclude that due process safeguards apply at a community supervision revocation hearing. Violation of the Confrontation Clause Next, we must determine whether the trial court violated Appellant’s right to be present in the courtroom during his community supervision revocation hearing under the Confrontation Clause of the Sixth Amendment. Appellant contends that his constitutional complaint is not subject to procedural default under ordinary preservation of error rules because a defendant’s right to be present at his revocation hearing cannot be forfeited; instead, absent waiver by a defendant, a trial court has an independent duty to secure a defendant’s presence in the courtroom (regardless of whether his trial counsel requests same). Appellant argues that because he did not waive his right to proceed with his revocation hearing via Zoom, he was denied his Sixth Amendment right to be present at this critical proceeding to confront witnesses. To resolve whether Appellant’s trial counsel was required to object to preserve error, we must categorize the asserted error under the procedural default rules outlined in Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (en banc). In Marin, the Court of Criminal Appeals recognized three categories of rights: rights that are mandatorily enforced, rights subject to waiver, and rights subject to forfeiture. Peyronel v. State, 465 S.W.3d 650, 652 (Tex. Crim. App. 2015); Marin, 851 S.W.2d at 279. The first category, mandatorily enforced rights, involve absolute requirements and prohibitions. See Garcia, 149 S.W.3d at 144. The “[i]mplementation of these requirements is not optional and cannot, therefore, be waived or forfeited by the parties.” Marin, 851 S.W.2d at 279. The second category, rights subject to waiver, involve rights that must be implemented by the trial court unless expressly waived. Garcia, 149 S.W.3d at 144; Marin, 851 S.W.2d at 280. A defendant need not make such a request, and failure of the court to implement these second category rights at trial is an error that can be presented on appeal whether or not it was first urged in the trial court. Marin, 851 S.W.2d at 280. A defendant’s waiver of his right must amount to an intentional relinquishment or abandonment. See Peyronel, 465 S.W.3d at 652. The third category, rights subject to forfeiture, involve rights which are implemented upon request. Garcia, 149 S.W.3d at 144. “All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong,” and many constitutional rights fall into this third category. Marin, 851 S.W.2d at 279. The First Court of Appeals has already addressed this question. See Hayes v. State, 516 S.W.3d 649, 656 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). There, the defendant “was not ‘brought up’ from the jail on the day that his co- defendant, Amos, testified and presented his own punishment defense.”[3] Relying on the Court of Criminal Appeals’ opinion in Garcia, the court in Hayes concluded that the Sixth Amendment right to be present for trial to confront witnesses is a category two Marin right and cannot be forfeited by counsel’s failure to assert it on a defendant’s behalf. Id. at 655-56 (citing Garcia, 149 S.W.3d at 144-46 (finding that the right to have an interpreter, which it equated to a right to be present in the courtroom, is a category two right under Marin that must be implemented by a trial court absent a defendant’s waiver, and concluding that a trial court violates a defendant’s Sixth Amendment right to be present to understand and confront witnesses when it is aware the defendant has difficulty understanding English but fails to assure the proceedings are translated for him)). The court also stated that “[t]his conclusion is supported by the U.S. Supreme Court’s language in Allen, wherein it stated that ‘the privilege (of personally confronting witnesses) may be lost by consent or at times even by misconduct.’” Id. at 656 (quoting Allen, 397 U.S. at 342-43). We agree with the Hayes court’s holding and conclude that the Sixth Amendment right to be present to confront and cross-examine witnesses is a category two Marin 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. Here, Appellant did not waive his right to be present; therefore, he can challenge on appeal whether the trial court erred in securing his presence via Zoom (as opposed to securing his physical presence in the courtroom). However, we are neither prepared to make blanket pronouncements in this case nor conclude that a defendant is not present at a proceeding under the Sixth Amendment if he is present via video-conferencing. In this case, Appellant’s counsel appeared in the courtroom, but the trial court only allowed Appellant to attend his revocation hearing via video- conferencing “because he has been exposed to COVID-19 and may have even tested positive.”[4] Appellant was in a separate break-out room with no possibility to communicate with his counsel in private regarding how to confront and cross- examine Mezegabe—the sole witness the State called to prove its forgery allegations.[5] Without the possibility to speak to his counsel in confidence during witness testimony, Appellant was not truly present during his hearing. Instead, he was relegated to being a distant observer with no opportunity to confront or cross- examine as envisioned by the Confrontation Clause. We conclude that Appellant was not present at his hearing for Sixth Amendment purposes when he could not interact with his counsel regarding confrontation and cross-examination of the witness. Therefore, 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. “This error is of constitutional magnitude.” Kessel v. State, 161 S.W.3d 40, 48 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d); see also Garcia, 149 S.W.3d at 146. Having found this constitutional error, we must reverse the judgment adjudicating Appellant’s guilt unless we determine beyond a reasonable doubt that the trial court’s error did not contribute to the judgment. See Tex. R. App. P. 44.2(a); Garcia, 149 S.W.3d at 146; Kessel, 161 S.W.3d at 48. As we stated above, Appellant’s right to confront and cross-examine Mezegabe was severely affected by Appellant’s inability to communicate with his counsel either in person or in a private video-conference setting. Appellant did not have an opportunity to tell his counsel in confidence if Mezegabe was lying or if the events occurred differently than Mezegabe claimed during his testimony. Appellant was also unable to point out to his counsel any inconsistencies or inaccuracies in Mezegabe’s testimony. Had Appellant been able to interact with his counsel, his counsel might have elicited other testimony that would have cast doubt on Mezegabe’s version of events. We do not know what Appellant would have told his counsel if Appellant had been present in the courtroom or able to confidentially communicate with his counsel via video-conferencing, or how his counsel would have cross-examined Mezegabe. Any time Appellant tried to speak or interject during Mezegabe’s testimony or the State’s argument, the trial court instructed that Appellant be muted. Based on the record before us, we cannot determine beyond a reasonable doubt that the trial court’s violation of Appellant’s Sixth Amendment right to be present to confront and cross-examine witnesses did not contribute to the trial court’s judgment revoking Appellant’s community supervision. Because we conclude the trial court committed harmful error, we sustain Appellant’s first issue. Conclusion Having sustained Appellant’s first issue, we reverse the trial court’s judgment and remand the case to the trial court for further proceedings.[6] /s/ Meagan Hassan Justice Panel consists of Justices Wise, Spain, and Hassan. (Wise, J., dissenting). Publish — Tex. R. App. P. 47.2(b).
