KING, JUSTIN SHANE v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-1003-20

JUSTIN SHANE KING, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
FREESTONE COUNTY

NEWELL, J., filed a concurring opinion in which HERVEY and
WALKER, JJ., joined.

The court of appeals held that the error in this case—Appellant’s

absence from a pre-trial conference attended in full by his attorney—

was harmless under both the constitutional and statutory standards for
King — 2

determining harm. 1 Appellant primarily argues before this Court that

this is the rare case in which it is impossible for a reviewing court to

conduct a meaningful harm analysis because the record is silent

regarding a portion of that pre-trial conference. Specifically, he relies

upon our unanimous holding in VanNortrick v. State to support his

argument. Rather than analyze whether error occurred in this case or

even analyze the proper standard of harm, I would simply distinguish

VanNortrick and affirm the court of appeals.

In VanNortrick, we held that a trial court’s error in failing to

admonish the defendant regarding the immigration consequences of his

guilty plea (as article 26.13 of the Code of Criminal Procedure requires)

was not harmless. 2 We explained that analyzing harm requires a

reviewing court to conduct an independent examination of the record as

a whole. 3 Further, neither party carries a burden to prove harm or

harmlessness resulting from the error. 4

1
King v. State, 10-19-00354-CR, 2020 WL 5667148 at *3 (Tex. App.—Waco Sept. 23,
2020).

2
VanNortrick v. State, 227 S.W.3d 706 (Tex. Crim. App. 2007).

3
Id. at 708-709.

4
Id. at 709.
King — 3

But we also explained that the record was insufficient to establish

the defendant’s citizenship. 5 And, because of the silent, or nearly silent

record, we would be required to speculate about whether the defendant

would have changed his mind about his guilty plea had he been properly

admonished. 6 Ultimately, we held that a silent record on the issue of

citizenship or a record that is insufficient to determine citizenship

establishes harm for non-constitutional error. 7 Moreover, the record

was also silent, or at least insufficiently vocal, about the defendant’s

thought process in pleading guilty and what effect admonishments

regarding immigration consequences would have had on the defendant’s

decision to plead.

Appellant argues in this case that the silent record regarding the

portion of the pre-trial conference requires the same result as in

VanNortrick. But it doesn’t. Unlike in VanNortrick, in this case we can

still conduct an independent review of the record to determine if any

error (constitutional or non-constitutional error) flowing from

Appellant’s absence from the pre-trial proceeding resulted in harm.

5
Id. at 713.

6
Id. at 714.

7
Id.
King — 4

While we may not know what transpired during the off-the-record bench

conference, we can still look at the rest of the proceedings to see if, for

example, the discussion “impacted the trial court’s attitude towards the

defendant” as the dissent below suggested. 8

There is no indication from the remainder of the proceedings that

Appellant was precluded from advancing his preferred strategy,

involuntarily waived any rights, or even received any erroneous rulings

from the trial court. More generally, nothing in the remainder of the

proceedings indicates that the trial court or Appellant’s counsel deprived

Appellant of a fair trial. Unlike the situation in VanNortrick, we are not

left to speculate as to the effects of what occurred off the record

because, unlike in VanNortrick, we can judge the effects of what

occurred off the record in this case by looking at what occurred on the

record. We can independently examine the record as a whole (not

merely the record of the pre-trial conference) to determine whether

there is fair assurance that whatever occurred during the pre-trial

conference did not impact the rest of the proceedings adversely to

Appellant. It did not. Looking at the record as a whole, I see nothing

8
King, 2020 WL 5667148 at *4 (Gray, CJ., dissenting).
King — 5

that indicates that Appellant’s absence from the pre-trial conference

resulted in either constitutional or non-constitutional harm.

The court of appeals held that any error was harmless. I do not

believe this Court improves upon that analysis. We could easily just

dismiss this case as improvidently granted. Or we could remand the

case to the court of appeals to reconsider its analysis in light of

VanNortrick given that neither party addressed this issue below. But

since we granted discretionary review to essentially determine whether

the record is sufficient to conduct a meaningful harm analysis, I would

simply hold that it is and affirm the court of appeals’ harm analysis. The

rest of the Court’s analysis is unnecessary.

With these thoughts, I concur.

Filed: February 22, 2023

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