Affirmed and Memorandum Opinion filed August 31 , 2023

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00637

- CR

ROY SHERES , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 16 52418

MEMORANDUM OPINION Appellant Roy Sheres appeals the revocation of his community supervision , contending the trial court committed reversible error by excluding him from the hearing and denying him the opportunity to testify in vio l ation of the Si xth
Amendment Confrontation Cl ause. We affirm.

B ACKGROUND

O n September 2, 2020, Appellant entere d a guilty plea for the second degree2 felony offense of aggravated assault with a deadly weapon

. 1 The trial court def erred an adjudi cation of guilt and plac e d Appellant under community supervision for five years. His deferred adjudication included many standard conditions, including the requirements (1) not to commit any other offenses , (2) not to use, possess , or consume an illegal drug , (3) to r eport to th e community supervision officer, and (4) to have suitable employ ment

. On January 3, 2022, t he trial court signed the State ’ s motion to adjudicate A ppellant’s guilt, alleging that Appellant violated the terms and conditions of his community supervi sion whe n he ( 1) committed the offenses of terroristic threat and retal iation, ( 2) used , possessed,
or consumed a n illegal drug , ( 3) failed to report as directed to the community supervision officer seven different times , and ( 4) failed to maintain employm ent sinc e September 2020

. The trial court held a revocation hearing on August 4, 2022. T he S tate first

presen ted testimony from Ginea Pride , who is the c ourt liaison officer for the
Harris Cou nty Community Supervision and Corrections Department

. R egardin g Appell a nt ’ s violation of his community supervision, Pride test ified that he tested positive for cocaine in April 2021 , he “ failed to provide verification or maintain employment beginning in S eptember of 2020 until ” the motion for adjudication

was filed , he faile d to report to his community supervision officer seven times, and
he was arrested for the o ffenses of terroristic th reat and retaliation on December 26, 2021.
Regarding the alleged offe nse s, t he State presented Houston Police Officer
O ’ Conno r ’ s tes timony. He was dispatched to Complain a n t ’ s apartment three times

1 Appell ant also ( 1) pleaded true to t wo enhancement (habitual offender) paragraphs in the indictment , which alleged two prior felon y convictions , and (2) initialed admonishments informing him th a t upon a guilty finding f or the c harged offens e of aggravated ass ault with a deadly weapon, his punishment range as a habitual offender will be “ for any term of not more than 99 years or less than 25 years

. ”3 during the night on December 26, 2021 . The first time O ’ Connor and his partner

came to the apartment , t he y encountered Appellant and Complai nant h aving a verbal argument. Complainan t and A ppellant were in a dating relationship.
O ’ Co nnor took Appellant “ to a family me mber ’ s apartment, and at that time
assumed that the situation had been handled. ” O ’ Connor again was dispatched to Complainant’s apartment at 1 :20 a.m . He testified he s poke t o Compl a i nant , who had stated that Appellant had “ returned to the apartment and had pushed his way
into the apartment and threatened to kill her. ” Appellant was no longer there.

O ’ Connor was dispatched to the scene a third time around 2:30 a.m. When
O ’ Connor a r rived , he saw Appellant “ was seated at the top of the stairs outside of the Complainant ’ s apartment. ” O ’ Connor testified that “ because of the previous

encounter knowing that he had threatened her, we did detain Mr. Shere s. ”
O ’ Connor testi fied th at Appel l ant at first was cooperative but then was uncooperative for the remainder of his detainment and later arrest. At that point in the hearing , Appe llant made an unintelligible outburst and the following exchange
occurred:

THE COURT: Mr. Sher es. THE DEFENDA N T: Don ’ t want to say nothing in my defense. THE COURT: Mr. Sheres, I ’ m instructing you to remain silent. THE DEFENDANT: You fired. THE COURT: Mr. Sheres, you ’ re disrupting the Court. Are you going to remain silent? THE DEFENDANT: You fired. Can you take me back? THE COURT: Are you

— THE DEFENDANT: No. I ’ m ready to go back. THE COURT: All right. Court has determined that Mr. Sheres is voluntarily abstained [sic] himself from these proceedings a nd will be taken back. We ’ ll continu e with the proc e eding in his absence.4 THE DEFENDANT: You don ’ t want to say nothing in my Goddamned defense, you old

- assed cracker. (Defendant excused to holding cell) THE COURT: You may proceed. O ’ Connor resumed his testimony, describing Appellant ’ s unco operat i ve behav i or. He also testified that Appellant threatened to kill Complainant and another officer
on the scen e , stating : So, initially, he made man y statements towards the Complainant, Ms. Denise, saying that he would kill her, that he swore on God and hi s daughte r that he would kill her, that he would burn down her apartment, and then, he began to make threats toward another officer

on scene, Officer Silva, claiming that he ’ s dead. And during the transport, he continued to make many threats to me a nd the officer

— and Officer England and our families. O ’ Connor further testified that Appellant during his transport in the police vehicle
made “ many unsolicited threats toward me and t he officer with me, Officer England, saying that he would find us, fin d our f amilies and kill them. Saying that
he would take our names from the police report and then find our families through
Facebook and harm them. Stating that he ’ s done it before. He w ill do it again. ”
O ’ Connor stated that he “ absolutely ” took Appell ant ’ s t hreats s e riously.

After O ’ Connor ’ s testimony, Appellant ’ s trial counsel mo ved “ to abate these proceedings until Mr. Sheres can be fixed to properly behave in the Court. ” The
trial court denied the motion and stat ed : “ I believe that the Defendant v olunta r ily
abse n ted himself from these proceedings and is able

— we are able to proceed in his absence for the purposes of the Motion to Adjudicate. He was here at the initial proceedings. ”

Houston Police Officer Silva then testified that he was d ispatched t o Co mplainan t ’ s apartment a round 2:30 a.m. When Silva arrived at the scene, he
observed O ’ Connor talking to Complainant while England was e scorting Appellant5 to the police car. Silva testified that Appel lant was uncooperative during his
det ent ion and untr uthfully cl a imed th at Silva and England were assaulting him. As
Silva and England tried to place Appellant in the police car, Appellant “ continued to shout and threaten [Silva] and the Com plainant. ”

The trial court also admitted the rec ordings from O ’ Connor ’ s and Si l va ’ s body camera s . The re cording s support the officers ’ testimonies that Appellant
threate ned Complainant a s well as O ’ Connor, England, and Silva

. T he State and Appellant ’ s counsel made their closing statements, and the trial c our t found that
th e State “ proved by a preponderance of the evidence all of the paragraphs contained in the Motion to Adjudicate in this case. ” The trial court adjudicated Appellant guilty of the second degree felony offense of aggravated assault with a
d ead ly weapon, revo ked his p robation, and sentenced him to 25 years ’
confinement. The trial court signed a judgment adjudicating guilt in accordance
with it s pronouncements on August 4 , 2022

. Appellant filed a motion for new trial on August 18 , 2022

. S ix days later, App ellant fi l ed a first amended motion for ne w trial , in which he asserted , among other things, that “ the evidence was insufficien t. New evidence material to the
Defense may be / may have been discovered. The trial court committed errors. T he
Defendant was d eprived o f a fair and impartial trial. The State did not prove each and every element of the offense beyond a reasonable doubt. ” The motion was overruled by operation of law. Appellant filed a timely appeal.

A NALYSI S In one issue, Ap p ellan t contends th at th e tr i al court erred by (1) excluding Appellant from his revocation hearing ; (2) “ n ot allowing him the opportunity to re

join the proceedings ” ; and (3) concluding that he voluntarily absented himself from
the hearing . Appellant cont e nds h e preserved h is Sixth A mendment Confrontation6 Clause argument when his trial counsel (1) aske d the trial court to abate t he proceedings un til Appella nt “ can be fixed to properly behave in the Court ” ; and (2) objected at the end of the hearing after a d judic ation of guil t to the t rial court ’ s
statement that Appellant voluntarily absented himself when he asked to leave the

courtroom.

The State counters th at Appellant failed to preserve his Confrontation Clause complaint because his counsel (1) “ di d not o b ject to Appellant leaving t h e
courtroom or continuing on with the proceeding ” after Appellant asked to leave during O ’ Connor ’ s testimony ; (2) waited until O ’ Connor finished testif ying to ask
the court to abate the hearing ; (3) objected after Appellant had been adjudicated

g uilty ; an d (4) in any of these instances never referred to or invoked t he
Confrontation Clause. The State also asserts that the trial court did not err in proceeding with the revocation hearing outside of Appellant ’ s presence because (1 )
the Confrontation Clause d o es not apply to probation revocation proceedings ; 2 (2 )
Texas Co de of Criminal Procedure article 33.03 only applies to trial; and (3) Appellant absented himself from the hearing.

The Confrontation Clause of th e Sixt h Amendment to the United States
Constitu t ion provides th at “[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 gu a rantees 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 th e courtroom a t ever y

2 We n ote that , c ontrary to t he State ’ s assert i o n, this court already he ld that t he constitutional guarantees of confrontation and due process of law apply to r evocation hearings. See Hughes v. State , 651 S.W.3d 461 , 4 67

- 68 (Tex. App.

— Houston [14th Dist.] 2022 , pet. granted)

.7 stage of his trial.” Id .; see also Gar c ia v. State , 149 S.W.3d 135, 140 (Tex. Crim. App. 2004).

A ssuming arguendo that the trial court violated Appellant ’ s right to be present in the courtroom during his revoc a tion hearing under the Conf rontation
Clause of the Sixth Amen dment and that su c h er r or i s preserved for appellate
review , we cannot conclude that the alleged error was harmful.

A t rial court ’ s violat ion of a defendant ’ s Sixth Amendment right to be

prese n t at his revocation hearin g constitutes constit utional error

. See Hughes v.
State , 651 S.W.3d 461 , 470 (Tex. App.

— Houston [14th Dist.] 2022, pet. granted) ;

see also Kessel v. State , 161 S.W.3d 40, 48 (Tex. App.

— Houston [14th Dist.] 2004, pet. ref ’ d)

. Co n stitutional error i s harmf ul unless a reviewing court determines beyond a reasonabl e doubt that the error did not contribute to the judgment

. S ee Tex. R. App. P. 44.2(a) ; Haggard v. State , 612 S.W.3d 318 , 328 (Tex. Crim. App. 2020)

. Therefore, a judgmen t adjudicating a def end an t ’ s guilt
must be reversed unless we determine beyond a rea s onable doubt that the trial

court ’ s error did not contribute to the j u d g m e n t

. See Tex. R. App. P. 44.2(a);
Garcia , 149 S.W.3d at 146; Hughes , 651 S.W.3d at 470

. Appellant argues that he “ was harme d by not being afforded the opportunity to testify in hi s o wn defense ” when he “ clearly had a lot to say about the events
that t ranspired with [Complainant] and Officers O ’ Connor and Silva, but the trial court did not even inquire as to whether he wa nted t o offer testimony in his own
defense when his outburst cle a rly sho w ed that he did. ”
Contrary to Appellant ’ s assertion, the record before us does no t support a finding of harmful error. First, i t is unclear how Appellant ’ s outburs t “ clearly
showed ” h e wanted to testify in his own defense , nor does Appellant provi d e an explanation for his contention

. Second, Appellant ’ s assertion that he wanted to8 testify in his own defense is belied and negated by the fact that he insiste d on leav i ng the hearing ; if Appellant “ clearly had a lot to say ” he would not have twice

re q u ested to leave.
Third, Appellant does not stat e what he would have testified to w ith respect

to “ the events that t ranspired with [Complainant] and Officers O ’ Connor and
S ilv a ” or how such test imony would have helped him in this case, especially when
O ’ C o nnor ’ s and Silva ’ s body camera recordings confirm ed the officers ’ testimony

. O ’ Connor an d Silva testified that , at the scene, Appellant not only threatened to kill Complainant but also threatened Sil va

. W h i l e Appellant was in the police car and during h i s transport , he continued to threaten Complainant, the officers , and
the officers ’ famil i es. The body camera rec ordings confirm that (1) at the scene, Appellant threatened to kill Complainant several times ; ( 2 ) Appellant cont inued to
threaten to kill Com p lainant and burn down her home whil e sitting in the police car
and then during the car r i de; (3) at the scene, Ap pellant threate ned to kill Silva and
harm the officers ; and (4) Appellant continued to threate n O ’ Connor , England , and
their families

. The of f

icers ’ testimony together with the body camera recordings
establishe d that Appellant commi t ted the offenses of “ terroris tic threat family/household ” 3 and retaliation 4 as alleged in the motion to adjudi cate, and

3 A person commits the o f f ense of making a terrori stic threat against a member of his family or household if he “threatens to commit any offense involving violence

. . . with intent to

.

. . place [the family or household member] in fear o f imminent serious bodily injury.” See T e x

. Penal Code Ann. § 22.0 7 ; see als o Argudo

- Rodriguez v. State , No. 03

- 09

- 00028

- CR, 2010 WL 1930092 , at *4 (Tex. App.

— Austin May 14, 2010, no pet.) (mem. op

. , not designated for publication )

. “ By making an e xpress t hreat to ‘ kill, ’ a reasonable fact find er could infer that appell ant had formed the intent to place the [person] in fear of imminent serious bodily injury. ” Willbanks v. State , No. 14

- 22

- 00109

- CR, 2023 WL 3750232 , at *2 (Tex. App.

— Houston [14th Dist.] Ju n e 1, 2023, no pet. h.) (mem. o p., not d es ignated for publication) ( citing Laster v. State , 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) ).

4 A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for the ser vi ce of another as a publi c servant, witness, prospective witness, or informant

. See Tex. Pe n al Code Ann. § 36.06 (a).9 A ppellan t does not sta t e what evidence h is a t torney could have presented through Appellant ’ s testimony or otherwise that could have con t roverted the officers ’
testim ony and body camera recordings

. Fourth, Appellant was present at the ti me Pride testified that Appellant had
violated three other condi t ions of his community supervision . Not only does Appellant not challenge the veracity of P ride ’ s testimony , but Appella nt acknowledge s in his brief that he tested positive for cocaine , he failed to maintain and/or provide proof of employment s ince S eptem b er 2020 , and he failed to report
to his probation officer numerous times

. The evidence therefore shows Appell ant violated the conditions of his community supervision as alleged in the motion to adjudicate

. 5

Based on the record before us , we cannot conc l ude Appellant ’ s partial
absence from the proceeding under these circumstances could have harmed him

. W h ile Appellant received 25 years of confinement , his status as a repeat felony
offender meant 25 years was the mini mum the trial court could assess

. S e e Tex.
Pen al Code Ann. § 12.42 (d) ( “ on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any ter m of not more than 99 years or less than 25 year s ” ).
Accordingly, w e conclu de beyond a re a s onable doubt that the trial court ’ s alleged error did not contribute to the j u d g m e n t

. C ONCLUSION

We affirm the trial court ’ s judgment.

5 To revoke probation, the State must prove a violation of a condition of probation by a preponder a nce of the evidence

. Bell v. State , 566 S.W.3d 398 , 40 1 (Tex. A pp.

— Houston [14th Dist.] 2018, no pet.)

. Evidence is sufficie nt to revoke probation if there is more than a scintilla of evidence

. Id

. Proof of a single violation is sufficient to support a revocation. Garcia v. State , 387 S. W.3 d 20, 26 (Tex. Crim. App

. 2012).10 /s/ M eagan Hassan Justice

Pan e l consists of Justices Bourliot, Hassan , a nd Poissa nt

. Do Not Publ ish

— Tex. R. App. P. 47.2(b).