by Douglas Ankney

The Texas Court of Criminal Appeals (“TCCA”) held that permitting a witness to testify via two-way video based on reasons that did not further an important public policy violated the rights of James Ray Haggard under the Confrontation Clause.

Haggard was tried on charges related to alleged sexual intercourse with a 15-year-old female (“Victim”). Victim told Sexual Assault Nurse Examiner (“SANE”) Suzanne DeVore that Haggard licked her boobs and placed a “hickey” on her right breast. He licked her vagina and then engaged in sexual intercourse. When Haggard finished, he cleaned himself with her shirt. DeVore’s examination revealed no signs of trauma to Victim’s genitals, hymen, perineum, or anus. But she did have a bruise on her right breast. DeVore prepared a SANE kit that included swabs of Victim’s genitals, anus, and breasts. DeVore also collected Victim’s clothes.

DNA forensic examiner Andrea Smith issued a report that stated no semen was found on Victim’s clothes and only the Victim’s DNA was found on the swabs from Victim’s genitals and anus. But a partial DNA-profile consistent with a two-person mixture was detected from the swab of the bruise. Smith ultimately concluded that it was 219 trillion times more likely that Victim and Haggard contributed the DNA than Victim and some other unknown individual.

By the time of trial, DeVore had moved to Montana. Because she assured the State she would voluntarily return to Texas to testify, no subpoena was issued. But on the Friday afternoon before trial began, she informed prosecutors she would not voluntarily return to testify. The State moved the trial court to allow Devore to testify from Montana via FaceTime (two-way video), arguing that her testimony was essential to prove the chain of custody of the SANE kit, i.e., without DeVore’s testimony the DNA reports would be inadmissible. The video testimony was necessary because it was too late to issue a subpoena. Over Haggard’s objections, the court allowed her to testify via FaceTime.

DeVore testified that she decided not to voluntarily return to testify because she was a self-employed consultant, and the State wasn’t going to pay her to testify. She also testified the timing was inconvenient for her.

Apparently, Haggard was convicted of felonies, and the Ninth Court of Appeals of Liberty County affirmed. (The opinion states only that the case was before the TCCA from the court of appeals on Haggard’s petition for discretionary review – it doesn’t state any offenses for which Haggard was charged or convicted.)

The TCCA observed “[t]he Sixth Amendment Confrontation Clause provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]’” The Confrontation Clause protects a criminal defendant’s right to physically confront those who testify against him. Coy v. Iowa, 487 U.S. 1012 (1988). But in Maryland v. Craig, 497 U.S. 836 (1990), the U.S. Supreme Court held that it was permissible for a child sexual abuse victim to testify by way of a one-way, closed circuit television. While the victim couldn’t see Craig, the judge, jury, and Craig could see the victim as she testified under oath and was fully cross-examined. The trial court had earlier made a finding that “testimony by the child victim in the courtroom w[ould] result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” The Supreme Court reasoned that the closed-circuit testimony furthered the “important public policy [of protecting the] physical and psychological well-being of child abuse victims.” But the Craig Court emphasized that before the confrontation right may be dispensed with, the trial court must make a “finding of necessity” that is “case-specific” after hearing evidence. 

Since Craig, the TCCA – along with many federal circuits and state supreme courts – held that a finding of necessity is required in every case raising a Confrontation Clause violation based on witnesses testifying via two-way video systems. (See opinion for supporting citations.)

The trial court in the instant case made no necessity finding. Instead, the trial court erroneously told Haggard that Craig didn’t apply because DeVore was testifying only as an expert. The TCCA concluded it is not an important public policy to allow the State to procure a witness’ testimony remotely when the State had sufficient time to subpoena the witness beforehand but chose not to. And inconvenience to a witness doesn’t suffice as a valid reason to deprive a defendant of his right to confrontation, according to the TCCA.

Violations of the Confrontation Clause are subject to harmless error analysis. Coy. An error is not harmless unless the reviewing court concludes beyond a reasonable doubt the error did not contribute to the verdict, and the government, who is the beneficiary of the error, bears the burden to prove the error is harmless. Chapman v. California, 386 U.S. 18 (1967). The TCCA concluded that for purposes of harmless error analysis in this case, DeVore’s testimony must be excluded. Otherwise, the State would engage in speculation as to how her testimony would have been properly admitted.

Accordingly, the TCCA reversed the judgment of the Court of Appeals and remanded to that court to undertake harmless error analysis consistent with the Court’s opinion. See: Haggard v. State, 612 S.W.3d 318 (Tex. 2020).

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