Zubiate, Leroy Hilbert

            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 He was eventually released on parole, but his parole was revoked after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
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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).
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       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.
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       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
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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
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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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