Dies v. State, 05-20-00951-CR

CourtCourt of Appeals of Texas
Writing for the CourtOpinion by Justice Myers
Citation649 S.W.3d 273
Parties Joel Thomas DIES, Appellant v. The STATE of Texas, Appellee
Docket Number05-20-00951-CR
Decision Date04 August 2022

649 S.W.3d 273

Joel Thomas DIES, Appellant
v.
The STATE of Texas, Appellee

No. 05-20-00951-CR

Court of Appeals of Texas, Dallas.

Opinion Filed August 4, 2022


Joel Thomas Dies, Pro Se.

John L. Schomburger, Law Office of John Schomburger, Allen, for Appellant.

Greg A. Willis, Collin County District Attorney, John R. Rolater Jr., Second Assistant District Attorney, Lisa Smith Braxton, Collin County District Attorney's Office, Chief of the Appellate Division, Mckinney, for Appellee.

Before Justices Myers, Carlyle, and Goldstein

OPINION

Opinion by Justice Myers

A jury convicted appellant Joel Thomas Dies of continuous sexual abuse of a child under the age of fourteen and assessed punishment at sixty years in prison. Appellant raises two issues, arguing he was denied his constitutional right to confront adverse witnesses and the trial court erred in admitting extraneous offense evidence. We affirm.

DISCUSSION

1. Right to Confrontation

In his first issue, appellant argues he was denied his constitutional right to confront

649 S.W.3d 276

two adverse witnesses that the trial court allowed to testify remotely.

Appellant was charged with continuous sexual abuse of a child under the age of fourteen.1 The trial court held a pretrial hearing on Thursday, October 15, 2020, four days before the start of trial. The State notified the court and defense counsel that it was experiencing difficulties with two of its witnesses’ appearing in person. The first witness, Eli Molina, who conducted complainant's forensic interview, was in quarantine because of his exposure to the COVID-19 virus, and he would not be out of quarantine until the following Wednesday.

The second witness was AD, the extraneous child abuse victim, who was now an adult. The State explained that she was thirty-eight weeks pregnant; she lived two hours away; and she had been advised not to travel. The trial court proposed calling Molina out of order or having him testify remotely by "Zoom," which is a type of teleconferencing software. The defense objected to both suggestions. The State requested that AD be permitted to testify via Zoom given her medical condition and the threat of exposure to COVID-19, and defense counsel again objected. The State argued that if it was not going to be able to reach an agreement with the defense, it would request a continuance based on a material witness not being available. The trial court denied the State's request. Jury selection took place the following day, Friday, October 16, 2020.

On Monday, October 19, before the start of trial, the State notified the court that, following the prior hearing, Molina had again tested positive for COVID-19. He would therefore not be ready to testify by Wednesday, as previously expected. The State asked the court to allow Molina to testify remotely by video conferencing, and it pointed to the Office of Court Administration's (OCA's) guidelines permitting remote testimony during the pandemic. Defense counsel objected to the witness's testifying remotely based on confrontation grounds, citing Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), and he also objected to a continuance. The State replied that the witness's upper body would be visible on videoconferencing, and that the screen was large enough that defense counsel would be able to see, hear, and cross-examine the witness as though he were testifying in person.

The court ruled that Molina could testify remotely. In doing so, the court noted the need to "get the cases moving" and the defendant's right to a speedy trial, as well as the defense's rejection of a continuance.

649 S.W.3d 277

The court observed that the pandemic had made it "very difficult for the Court to balance the different interests between criminal cases, specifically, between the State and the Defense, trying to get the cases moving, having the Defense have a speedy trial."

The court then took up the question of the admissibility of AD's testimony under article 38.37 of the Code of Criminal Procedure,2 and whether she would be allowed to testify remotely. During that part of the hearing, AD testified remotely that the defendant was her uncle; she lived in Bowie County; she was pregnant with her second child, which was due in two weeks; and she had been advised by her doctor not to travel out of town. She also recounted how, years before, appellant had sexually abused her. AD testified that the abuse occurred when she and appellant were both living in the same house in Louisiana with AD's grandparents. Appellant was an adult; AD was about 5 years old. AD recalled two incidents, first testifying how she remembered lying on a futon in appellant's bedroom on her back with appellant on top of her and their pants down. Appellant kissed her and his breath tasted like powdered milk. He touched her vagina with his hand and his penis, and she felt very uncomfortable. The assault ended when AD's grandfather knocked on the locked bedroom door. AD also recalled that one morning, when her grandparents were sleeping, appellant had her squat outside of his doorway with her pants down, and appellant spanked her on her buttocks.

After the parties argued over whether AD's testimony was admissible under article 38.37, and the court ruled AD could testify, the State again urged the court to allow her to testify remotely. The State reiterated how dangerous it would be for AD to travel and appear in-person because of her late-stage pregnancy and the pandemic. The State also argued for the materiality of AD's testimony and its need for her testimony, given the absence of physical evidence or eyewitness testimony corroborating complainant's account of the abuse. As with Molina, the defense objected to AD's remote testimony on confrontation grounds and restated its objection to a continuance. The court ruled that AD could testify remotely and "appear by Zoom."

The following morning, Tuesday, October 20, defense counsel moved for a continuance. Counsel informed the trial court he decided to ask for a continuance after conferring with his client following the previous day's hearing and discussing with appellant how turning down the opportunity to continue the case would impact his confrontation clause claim on appeal. Defense counsel told the court that after discussing matters such as "waivers and constitutional rights" with appellant, "he informed me that he understands that there could be certain appellate issues if you're giving him a remedy to something for which I am objecting to." Counsel also stated:

But ultimately, at the end of the day, it's [appellant's] decision. It's not [defense counsel's] decision, his attorney. I explained to him that the Court was giving him a remedy and allowing him to rectify something that I was objecting to, i.e., the Zoom—witnesses being able to testify via Zoom.

He understood that. He understands he does have a United States Constitutional right and the Supreme Court has provided he does have a right of confrontation. And after me explaining that to him again, he informed me that he does hereby request a continuance of his case
649 S.W.3d 278
in order that we do not have to go forward and he does not have to give up his constitutional right of confrontation of these witnesses.

The trial court then questioned the court administrator for Collin County, Kim Alvarado, who was described by the court as "our go-to person for the technology it takes to call a witness via Zoom." She testified regarding the videoconferencing technology that would be used for remote testimony, explaining that the courtroom was equipped with a sound system that included microphones at each of the counsel tables and the bench. She also stated that audio from the videoconferencing system would be broadcast over the courtroom's audio system. In addition, a laptop would be set up at each counsel table so that the attorneys and the defendant could see the witness, and the witness and the attorneys could, in turn, see each other. The video would be displayed on two large TV screens in the courtroom (a 90-inch TV screen and a 75-inch screen), and Alvarado agreed that the witness would appear "larger than life in the courtroom." Alvarado also explained that the equipment had been tested to ensure it was functioning properly. The State pointed out that the witnesses would be positioned on camera so that they were visible to the jury from the waist up. The State also said it would be willing to provide Molina's notes to defense counsel in advance of his testimony. The trial court observed that the same Zoom videoconferencing technology had been used when AD testified remotely during the pretrial hearing. Although the audio was not connected to the courtroom's audio system, the court noted that it was able to see the witness from the waist up and it had no difficulties hearing her on the court's computer.

The trial court judicially noticed the following:

The Court takes judicial notice of the Supreme Court's emergency orders dealing with Covid. The Court will note too they have charged the OCA, the Office of Court Administration, to come up with guidelines on how to
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