Jennifer Lynn Robello v. the State of Texas

NUMBER 13-26-00094-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JENNIFER LYNN ROBELLO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 19TH DISTRICT COURT
OF MCLENNAN COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Peña, West, and Fonseca
Memorandum Opinion by Justice Fonseca

After her deferred-adjudication community supervision was revoked, appellant

Jennifer Lynn Robello was convicted of theft of a person, a state-jail felony, and was

sentenced to twenty-four months in state jail. See TEX. PENAL CODE § 31.03(e)(4)(B). On

appeal, Robello argues by one issue that her due process rights were violated because
she appeared at the adjudication hearing via videoconference. We affirm.1

I. BACKGROUND

A McLennan County grand jury returned an indictment accusing Robello of

committing aggravated robbery, a first-degree felony, see id. § 29.03, on or about June

30, 2022. On January 23, 2024, pursuant to an agreement with the State, Robello pleaded

guilty to theft of a person. The trial court deferred adjudication and placed Robello on four

years’ community supervision.

The State filed a “Motion to Adjudicate Guilt” on August 13, 2025, alleging that

Robello violated the terms and conditions of her community supervision by, among other

things, committing three new criminal offenses, failing to submit to drug testing, failing to

remain in Bell County, and failing to pay various costs and fees. The State later filed an

amended motion adding allegations that Robello had committed three other new criminal

offenses.

A hearing was held on the State’s amended motion to adjudicate on December 11,

2025. At the outset of the hearing, the trial court noted that Robello was “appearing via

Zoom” but that her counsel was present in the courtroom. Robello confirmed that she had

reviewed all thirteen allegations set forth in the State’s amended motion with her attorney,

and that she understood the allegations. The following colloquy then occurred on the

record:

THE COURT: You have a right to plead true or not true. Listen as the
State reads the allegations.

[Defense counsel]: Your Honor, we will waive the reading.

1 This appeal was transferred from the Tenth Court of Appeals in Waco pursuant to an order issued

by the Texas Supreme Court. See TEX. GOV’T CODE § 73.001. We are required to follow the precedent of
the transferor court to the extent it differs from our own. TEX. R. APP. P. 41.3.

2
And, Ms. Robello, can you hear me?

[Robello]: Yes, sir.

[Defense counsel]: We’ve got a plea agreement with . . . the State to
recommend 20 months if you’ll plead true to 1 through
13. So that’s what I would recommend as opposed to
pleading true to the ones we had previously discussed.
Is that agreeable?

[Robello]: No, sir.

[Defense counsel]: Okay. And, Judge, we’ll waive the reading. And she
would like to plead true to 4, 6, 7 and 9 through 13.

The trial court then reviewed each alleged violation in the State’s amended motion and

asked Robello whether they were true. Robello pleaded true to allegations number four

(that she failed to remain in Bell County), six (that she committed the offense of resisting

arrest in Bell County on or about October 20, 2025), seven (that she committed the

offense of interference with public duties in Bell County on or about October 20, 2025),

nine (that she failed to pay $1,269 in court costs), ten (that she failed to pay $1,240 in

monthly probation fees), and twelve (that she failed to pay $500 in restitution). She

pleaded not true to the remaining allegations.

The trial court found allegations four, six, seven, nine, ten, and twelve true; granted

the State’s amended motion to adjudicate; and sentenced Robello as set forth above.

This appeal followed.2

II. APPLICABLE LAW

The right to be present in the courtroom at every stage of trial is guaranteed by the

Confrontation Clause of the Sixth Amendment and the Due Process Clauses of the Fifth

2 On April 7, 2026, Robello filed with this Court a “Motion to Disregard the Trial Court’s April 6, 2026

Judgment Adjudicating Guilt Nunc Pro Tunc.” The motion did not include a copy of the alleged nunc pro
tunc judgment, nor did it explain whether or how the nunc pro tunc judgment differed from the judgment on
appeal. In any event, there is no nunc pro tunc judgment in the appellate record. We deny the motion.

3
and Fourteenth Amendments. Hughes v. State, 691 S.W.3d 504, 513 (Tex. Crim. App.

2024). A defendant has a due process right to be present at a proceeding “whenever his

presence has a relation, reasonably substantial, to the ful[l]ness of his opportunity to

defend against the charge.” United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting

Snyder v. Massachusetts, 291 U.S. 97, 105–106 (1934)). This right has been held to

apply to a hearing, like the one at issue here, on a motion to adjudicate guilt following the

imposition of deferred-adjudication community supervision. See Hughes, 691 S.W.3d at

514 (“Although a hearing on a motion to adjudicate guilt is not a formal, independent

prosecution of an offense, charges are nevertheless levied against the defendant, and

the hearing on the motion to adjudicate guilt is his one opportunity to defend against the

charges. A hearing on a motion to adjudicate guilt would not be fair and just if the

defendant is excluded.”).

A defendant may waive her due process right to be present, but the right will not

be forfeited by mere inaction or silence, and a violation thereof may be raised for the first

time on appeal. Id. at 519 (holding that the due process right to be present is a “Marin

category two waivable right”); see Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.

1993) (categorizing rights as either (1) mandatorily enforced, (2) subject to waiver, or

(3) subject to forfeiture).

Constitutional error must be reversed unless we determine “beyond a reasonable

doubt that the error did not contribute to the conviction or punishment.” TEX. R. APP. P.

44.2(a). It is the State’s burden to show harmlessness. Haggard v. State, 612 S.W.3d

318, 328 (Tex. Crim. App. 2020). In evaluating harm from the violation of a defendant’s

due process right to be present at a proceeding, we consider both the “harmless error

4
test,” which “seeks to determine the effect of the defendant’s absence on the outcome of

the proceeding,” and the “reasonably substantial relationship test,” which “seeks to

determine the effect of the defendant’s absence on the advancement of his defense.”

Hughes, 691 S.W.3d at 523.

III. DISCUSSION

Robello relies entirely on Hughes, in which the appellant also appeared at an

adjudication hearing via Zoom and then complained on appeal that his constitutional right

to be present was violated. Id. at 508. At the hearing, only defense counsel and the trial

court were physically present in the courtroom, and “[s]everal times when Appellant tried

to speak during the hearing, the trial court ordered that Appellant be muted.” Id. On one

occasion, the trial court ordered appellant to be muted after appellant had remarked that

a witness was lying. Id. at 510.

The Texas Court of Criminal Appeals held that appellant’s due process right to be

present was violated, reasoning as follows:

Ordinarily, when all of the parties are physically present, a defendant’s
disruptions would earn rebukes and orders to be quiet, such as those that
Appellant twice earned over the Zoom teleconference without being muted.
The difference however is that in the ordinary case a defendant that is told
to be quiet would be physically next to defense counsel and could have
quietly talked to counsel or poked and prodded counsel, passed notes, or
otherwise indicated to counsel that he wanted to talk. Even a defendant that
must be bound and gagged can still find a way to make his desire to talk to
counsel known.

But in Appellant’s Zoom teleconference, that ability to somehow
communicate with counsel was lost when the trial court had him muted.
Appellant was reduced to a silent portrait of a man. When the trial court
muted Appellant he was effectively removed from the virtual courtroom and
placed into a separate virtual courtroom where he could only watch a stream
of the proceedings. He became little more than a spectator in a proceeding
that could—and in fact did—result in his loss of liberty.

Id. at 522; see id. at 523 (“Mere presence—physical or virtual—without an ability to

5
participate in the proceeding is hardly the presence required by the Constitution.”). The

Court then proceeded to conclude that appellant was harmed by the error, specifically

citing the instance where appellant was muted after audibly disputing the credibility of a

witness. Id. at 522 (“There was no showing that whatever Appellant was trying to say

would not have aided counsel in objecting to [the witness]’s testimony or in cross-

examining [the witness]. Rather, if Appellant had information to show [the witness] was

lying, that would have helped contradict [the witness]’s version of events or impeach [his]

credibility.”).

The State argues that Robello’s due process right to be present at the adjudication

hearing was satisfied by her Zoom appearance. It further argues that, to the extent her

appearance via videoconference constituted error, the error was harmless beyond a

reasonable doubt.

Even assuming the court erred by not requiring Robello to be physically present in

the courtroom, we agree with the State that the error would not be reversible. After

summarizing Hughes, Robello sets forth her entire argument, as to both error and harm,

as follows:

Neither the Clerk’s Record nor the Supplemental Clerk’s Record herein
includes a written waiver by Robello of her right to be physically present at
her adjudication hearing. Nor did she orally waive that right at the hearing.
Robello argues that the State cannot show harmless error. She asked to be
continued on probation. Yet the trial court adjudicated her guilt and
assessed the highest sentence possible.

Robello did not cite any portion of the record in arguing that she was harmed. See TEX.

R. APP. P. 38.1(i). In her reply brief, Robello argues that due to her remote appearance,

she “was forced to disagree with her trial counsel in front of the judge and opposing

counsel,” and she speculates that her “open disagreement with trial counsel negatively

6
predispose[d] the judge” and “affect[ed] the judge’s decision to sentence her to the

maximum possible sentence.”

We conclude the State met its burden to show beyond a reasonable doubt that

Robello was not harmed by the alleged error. See id. R. 44.2(a); Haggard, 612 S.W.3d at

328. As the State observes, Robello was able to freely communicate with her counsel at

the December 11, 2025 hearing, was able to reject a proposed plea agreement, and was

permitted to address the trial court directly with respect to the allegations she disputed.

Importantly, unlike in Hughes, Robello was never muted, and the record demonstrates

that neither her ability to confer with counsel nor her ability to defend against the charges

were ever compromised in any way. See Hughes, 691 S.W.3d at 523 (noting “[p]resence

is a means to an end—a defendant’s right to be present is important because it accords

him a full opportunity to defend against the charges against him”).

Finally, Robello pleaded true to several violations of her probation conditions, and

she has never suggested any reason for why her physical presence at the adjudication

hearing would have changed that result. See, e.g., Garcia v. State, 387 S.W.3d 20, 26

(Tex. Crim. App. 2012) (noting that “proof of a single violation will support revocation”);

Fenner v. State, 571 S.W.3d 892, 894 (Tex. App.—Waco 2019, pet. ref’d).

We overrule Robello’s issue on appeal.

7
IV. CONCLUSION

The trial court’s judgment is affirmed.

YSMAEL D. FONSECA
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
4th day of June, 2026.

8