by David M. Reutter

The Court of Criminal Appeals of Texas held that a witness who covered a significant part of the expressive portion of her face with a surgical mask for her “comfort” constituted the denial of the defendant’s Sixth Amendment right to fact-to-face confrontation.

The Court’s opinion was issued in a discretionary review proceeding, on the Court’s own motion, after the Second Court of Appeals found a Sixth Amendment violation and ordered a new trial. Tayton Seth Finley was found guilty of misdemeanor assault after a jury trial in Tarrant County. The trial occurred over a five-day period in late July 2021, which was “during the second year of the COVID-19 pandemic,” according to the Court.

The trial court operated on “shifting ground” from 40 Emergency Orders by the Texas Supreme Court to provide guidance in relation to handling pandemic issues. The most recent orders did not refer to or mandate the wearing of masks in the courtroom. Nor did orders from Tarrant County refer to masks. The victim, T.G., was the only witness to wear a surgical mask that covered her nose and mouth.

Finley’s counsel objected, arguing that the mask would affect his confrontation because his cross-examination would be impacted, based upon counsel’s experience, by his inability to view the T.G.’s facial expressions. The “State was incensed” and responded that defense counsel’s objection was meant only to harass and annoy T.G. The trial court overruled the objection, ruling that if T.G. “feels most comfortable testifying with a mask on” during the pandemic, it was within her rights to do so.

A jury found Finley guilty and sentenced him to 300 days’ confinement and fined him $4,000. Finley timely appealed. The Second Circuit Court of Appeals issued two opinions. The first explained that under Craig v. Maryland, 497 U.S. 836 (1990), face-to-face confrontation can be dispensed with only if the trial court makes a case-specific, evidence-based finding that doing so furthers an important public policy.

As the trial court failed to make such a finding, the Court of Appeals reversed. The second opinion affirmed the first, but it included matters raised by supplemental record submitted on the day remand was issued. The supplemental record included 36 oral findings the trial court reduced to writing. The Court of Appeals found the fact that T.G. was a healthcare worker with specialized knowledge of the alleged importance of wearing a surgical mask and that she was the victim of a crime were insufficient reasons to satisfy Craig.

On discretionary review, the Texas Court of Criminal Appeals noted that Craig provides for “four elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.” Denial of face-to-face confrontation does not violate the Confrontation Clause if the dispensing with it “further[s] an important public interest … and when the reliability of the testimony is otherwise assured.” Romero v. State, 173 S.W. 3d 502 (Tx. Crim. App. 2005). If the Confrontation Clause is implicated, the “trial court must hear evidence and determine whether use of [the special procedure] … is necessary [for] the particular [witness] who seeks to testify.” Haggard v. State, 612 S.W.3d 318 (Tx. Crim. App. 2020). The findings must be individualized to the witness. Id.

The Court determined that there is no general pandemic exception to the Confrontation Clause. While T.G. was present at trial and subject to cross-examination, the Court found that Finley’s right to face-to-face confrontation was denied by T.G. covering her nose and mouth with a surgical mask. Specifically, the Court reasoned that the mask worn by T.G. “significantly compromised” the physical presence and observation of demeanor elements of the right to confrontation because both Finley and the jury were unable to see a substantial portion of T.G.’s face, which “is the most expressive part of the body and something that is traditionally regarded as one of the most important factors in assessing credibility.” Romero.

The Court stated that even if it assumes that T.G.’s testimony was reliable, it was still not satisfied that the necessity findings were not sufficient. The trial court’s “general pronouncement about the state of the world” during the pandemic and the Emergency Orders authorizing safety measures are constitutionally insufficient, the Court determined.

The finding related to T.G.’s medical knowledge was “ex post facto and irrelevant,” according to the Court. However, had the trial court made specific findings as to why T.G. was different from everyone else in the courtroom and why she alone needed to wear a mask, that could have potentially satisfied the necessity finding. The only individualized reason provided for T.G. wearing a mask was for her comfort, which is an insufficient reason. See Coy v. Iowa, 487 U.S. 1012 (1988).

When considering denial of physical face-to-face confrontation, five factors are considered to determine harm: (1) the importance of the witness’ testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the prosecution’s case. Haggard (relying on Delaware v. Van Arsdall, 475 U.S. 673 (1986).

The Court determined that excluding T.G.’s testimony “leaves a large hole in the State’s case” and fails to establish guilt beyond a reasonable doubt. Additionally, the jury was initially unable to reach a verdict, and it did so only after being given an Allen charge (supplemental jury instruction given when a jury reports that it’s deadlocked). Thus, the Court held that the State failed to satisfy its burden of showing that the error of admitting T.G.’s testimony was harmless beyond a reasonable doubt.

Accordingly, the Court affirmed the judgment of the Court of Appeals. See: Finley v. State, 2024 Tex. Crim. App. LEXIS 985 (2024).  

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