JAMES RAY HAGGARD, Appellant v. THE STATE OF TEXAS
NO. PD-0635-19
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
December 9, 2020
HERVEY, J.
ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS, LIBERTY COUNTY. HERVEY,
OPINION
The
Because we conclude that admitting DeVore‘s remote testimony violated the Confrontation Clause, we will reverse the judgment of the court of appeals holding otherwise and remand the cause to the court of appeals to conduct a new harm analysis.
FACTS
On October 5, 2013, the victim‘s mother, Traci, took her two children, M.W. and A.W., to Haggard‘s house to play with his stepson and daughter and spend the night, something that happened often. Traci was life-long friends with Haggard, and her daughters referred to him as “uncle.” At the time of the alleged assault, M.W. (the victim) was fifteen years old and A.W. was ten years old. M.W. testified that there were only two bedrooms in the house and that A.W. slept in the living room with Haggard‘s daughter, that Haggard‘s stepson slept in the second bedroom, and that she slept in Haggard‘s room. M.W. told the DeVore that Haggard “pulled [her] back to his bedroom.”1 But at trial, she said that she slept in Haggard‘s bed because she did not want to sleep on the floor and did not think that Haggard would do anything “perverted.”
M.W. told DeVore that, shortly after they got in bed,2 Haggard asked her to take off her clothes,3 which she did, then he sexually assaulted her. M.W. said that Haggard digitally manipulated her breasts and put his mouth on them, that he put his mouth on her sexual organ, and that he penetrated her vagina with his penis. The assault ended, M.W. told DeVore, when Haggard told her to get dressed and leave because he thought he heard someone walking down the hallway towards his room. M.W. also told DeVore that Haggard “cleaned himself off with my shirt.” M.W. testified that, after she left Haggard‘s room, she made Haggard‘s stepson sleep in the living room with the girls and that she slept in the second bedroom bed by herself. She also testified that, after the
M.W. waited until the following morning to call her mother to pick her and her sister up. When she called, she was crying and upset, but did not tell Traci what happened. Traci testified that M.W. sounded distressed. M.W. called Traci multiple times, asking her to “hurry up,” so Traci called Linda Brackin-Barton (Barton), M.W.‘s aunt, to pick the kids up since she lived closer to Haggard.4 When Barton and the kids returned to Traci‘s house, Barton said that M.W. told her and Traci what happened. Barton said that M.W. went through the story several times with her and Traci and that “[M.W.] was just talking. She seemed to want to talk about what had happened and I think we were just kind of letting her talk . . . .” M.W. testified that Traci was in the room the entire time, but she also said that she never told her mother the complete story. At trial, Traci testified that she was only in and out of the room and only heard “bits and pieces.”
No one called the police, but Traci put M.W.‘s clothes in a Ziploc bag because she saw “stuff on them.” Later that day, Traci took M.W. to a friend‘s birthday party. The next day, Traci went to work and sent M.W. to school even though she did not want to go. M.W. testified that she was going to call her father and ask him to pick her up from school because she did not feel well, but Barton unexpectedly showed up and took her to the hospital for a SANE examination. Barton testified that she read that victims of sexual assaults should be physically examined. Barton said that she called Traci on the way to the school and that Traci did not go to the hospital until later in the day because she was at work.
DeVore performed the SANE examination and wrote down M.W.‘s account of what happened.5 According to DeVore‘s notes, M.W. was calm and cooperative and made good eye-contact. M.W. told DeVore that Haggard penetrated her vagina, but not her mouth or anus. She also said that she was not sure if Haggard ejaculated on her. DeVore physically examined M.W. and found no trauma to M.W.‘s labia majora, labia minora, hymen, vagina, cervix, perineum, or anus. She did, however, find a red and blue bruise approximately 1.5 centimeters by 1 centimeter on M.W.‘s right breast.
Later that evening, M.W. was examined by a forensic examiner at Bridgehaven Child‘s Advocacy Center. M.W. told the examiner that Haggard asked her to play with his penis before they had sex and that, after a while, “semen went everywhere.” She also said that she “felt wetness on my hand and on my face. So, I wiped it off with my shirt.” Sergeant Stephen Clappart, who was present for the interview, noted that M.W. was “jovial” when he spoke to her. He also noted that M.W. gave the examiner a slightly different account of events.
Jessica Lake, a serologist at the Department of Public Safety crime laboratory in Houston, examined the contents of the SANE kit. The kit contained vaginal swabs, labia majora swabs, labia minor swabs, anal swabs, swabs taken from M.W.‘s breasts, head-hair combings, a pair of underwear, a bra, a sports bra, and a shirt. Lake did not find the semen on the vaginal swabs, labia swabs, or anal swabs. Lake found areas of interest on the underwear and shirt to test, but both tests were negative for the presence of semen.
In 2017, Smith reinterpreted the DNA data using new testing guidelines and software.7 Her results were significantly more inculpatory. She found that it was 339 billion times more likely that M.W. and Haggard contributed to the mixed DNA on the right-breast swab than M.W. and some other unknown and unrelated individual.8 Smith was able to develop a partial DNA profile consistent with a two-person mixture from the left-breast swab data, but testing was inconclusive as to whether Haggard was a contributor. Smith was also able to develop a partial DNA profile from the right-breast swab data (without using a MiniFiler™ kit), which she was previously unable to do, and concluded that it is 219 quadrillion times more likely that M.W. and Haggard contributed to the mixture than M.W. and some other unrelated and unknown individual.9
CONFRONTATION CLAUSE
a. Background
By the time of trial, DeVore had moved to Montana, but she told the State that she would voluntarily travel to Texas to appear in court and testify. The State agreed to reimburse her expenses, but did not subpoena her. The Friday afternoon before trial began, however, DeVore notified prosecutors that she would not voluntarily appear and testify.
The following Monday, the State asked the trial court to allow DeVore to testify from Montana via FaceTime. According to the State, DeVore‘s testimony was essential because only she could prove-up the chain of custody of the SANE kit and its contents. If she did not testify, the State alleged, the DNA reports would be inadmissible. The trial court granted the State‘s motion, and DeVore testified the next day after the court overruled another defense objection.
The State brought up that it did not subpoena DeVore and that DeVore‘s husband was a lawyer and told her that she did not have to voluntarily appear and testify unless she was subpoenaed. But the State focused on how it had insufficient time to subpoena DeVore due to her late notification, even though it had ample time to subpoena her before trial but never did. We also note that the State never sought a continuance before asking the trial court to allow DeVore to testify remotely.
b. Applicable Law
The 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[.]”
For example, in Coy, the issue was whether allowing two child victims of sexual abuse to testify with a screen placed between the victims and Coy violated the Confrontation Clause. Id. at 1014. The victims could not see Coy, but he could hear them and see their faint outlines.10 Id. at 1014–15. The State argued that “the confrontation interest at stake . . . was outweighed by the necessity of protecting victims of sexual abuse,” but the Supreme Court held that the arrangement violated the Confrontation Clause. Id. at 1020. The majority agreed that physical, face-to-face confrontation might be properly dispensed with if doing so furthered an important public policy. Id. But it explained that it did not need to decide the issue because, even if such an exception existed, there were no individualized findings that the witnesses “needed special protection . . . .” Id. at 1021. Two years later, the Supreme Court was squarely presented with the exception question.
In Maryland v. Craig, 497 U.S. 836 (1990), the trial court allowed a child victim of sexual
Craig, however, was not without limits. The court emphasized that a trial court must make a “finding of necessity” that is “case-specific” and that the trial court must hear evidence,
[I]f the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant. The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify.
Id. at 855. In recognizing the need for a necessity finding, as the above quote shows, the Court acknowledged that the physical and psychological well-being of the child might not always be sufficient to outweigh a defendant‘s right to physical, face-to-face confrontation. Id. at 852.
Since Craig was decided, this Court has required a necessity finding in every case in which we have considered a Confrontation Clause challenge to the cross-examination of a witness via two-way video system. Marx v. State, 987 S.W.2d 577, 580–81 (Tex. Crim. App. 1999) (applying Craig to the use of a two-way video system and requiring a necessity finding); Gonzales v. State, 818 S.W.2d 756, 764 (Tex. Crim. App. 1991) (same). And we are not alone in doing so. Many federal circuit courts of appeals and state supreme courts have reached the same conclusion.11 See, e.g., United States v. Cotto-Flores, 970 F.3d 17, 25 (1st Cir. 2020) (applying Craig to two-way video and requiring a necessity finding); United States v. Carter, 907 F.3d 1199, 1206 (9th Cir. 2018) (same); United States v. Abu Ali, 528 F.3d 210, 240 (4th Cir. 2008) (same); United States v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (same); United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (same); Lipsitz v. State, 442 P.3d 138, 140 (Nev. 2019) (same); State v. Thomas, 2016-NMSC-024, ¶ 28, 376 P.3d 184, 194 (same); State v. Rogerson, 855 N.W.2d 495, 504 (Iowa 2014) (same); State v. Stock, 2011 MT 131, ¶¶ 25, 30, 256 P.3d 899, 904 (same); Bush v. State, 2008 WY 108, ¶¶ 52, 193 P.3d 203, 215 (same); Harrell v. State, 709 So. 2d 1364, 1369 (Fla. 1998) (same).
Forced to concede that this Court has applied the Craig test to two-way video, the dissent contends that those cases are outdated and that we should “focus on the realities of the world we live in today . . . .” Dissenting Op. at 10 n.11. Given that Gonzales, Marx, and this case all utilize live two-way video, apparently, the dissent means that the reality of the world we live in today is that there are more televisions and their screens are bigger. Id. at 9 (stating that the witness‘s image was projected onto video screens at both counsel‘s tables, on the judge‘s video screen, and on a 60-inch television for the jury); see id. at 8 (stating that Haggard “made no objections to the positioning of the camera or to the number and size of screens utilized.“). We are not aware of a reported decision, and the dissent does not cite one, in which the number of televisions projecting the witness‘s visage or the size of the televisions control a Confrontation Clause inquiry. Writing about two-way video and the Confrontation Clause, however, we note that Justice Scalia said,
I cannot comprehend how one-way transmission (which Craig says does not ordinarily satisfy confrontation requirements) becomes transformed into full-fledged confrontation when reciprocal transmission is added. As we made clear in Craig, . . . a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant‘s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant‘s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.
Order of the Supreme Court, 207 F.R.D. 89, 91 (2002) (statement of Scalia, J.) (emphasis added).
Later, the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 61–65 (2004), in which it abandoned its previous reliability-based approach (the second prong of the Craig test) and “adopted a fundamentally new interpretation of the confrontation right....” It said that the Confrontation Clause is “a procedural rather than a substantive guarantee [that] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 61. Although Crawford was about the admission of out-of-court statements, not the dispensation of face-to-face confrontation, some have argued that Crawford implicitly overruled Craig, or at least the reliability prong.12 See Coronado v. State, 351 S.W.3d 315, 321 (Tex. Crim. App. 2011) (discussing how post-Crawford cases have changed the Confrontation Clause landscape).
c. Analysis
There is no doubt that the role of reliability in a Confrontation Clause analysis
First, however, we must address the lack of a case-specific finding and the requirement that the court hear evidence. There was a discussion between the judge and attorneys and arguments were made, but the judge heard no evidence and made no case-specific finding. The closest thing to a necessity finding in the record is when the judge suggested that DeVore should be allowed to testify because the State did not have time to subpoena her given her late notice. The judge told defense counsel that Craig was inapplicable and that it was allowing DeVore to testify remotely because she was only testifying as an expert and because the procedures ensured the reliability of her testimony.14 But the fact that DeVore was testifying “only” as an expert does not demonstrate a necessity for the State to procure her testimony remotely.15 Further, we do not think it is an important public policy to allow the State to procure a witness‘s testimony remotely when the State had sufficient time and ability to subpoena the witness, and the witness was available to appear and testify, but the State chose not to.16 Not only is that scenario far afield from Craig, such an exception could be easily abused. Craig, 497 U.S. at 852–53, 855–58.
The next question is whether the reasons given by DeVore were sufficient to
The State cites numerous cases that it argues justify allowing DeVore to testify remotely, but those cases deal with child victims and child witnesses, witnesses who are too sick to travel and appear in court, witnesses who are overseas on active duty, or witnesses who are outside the subpoena power of the State.17
HARM
Having decided that the trial court committed constitutional error when it allowed DeVore to testify remotely, the next question is whether the court of appeals properly addressed harm and whether it was correct that any error was harmless.
a. The Law
A denial of physical, face-to-face confrontation is reviewed for harmless error. Coy, 487 U.S. at 1021; see Chapman v. California, 386 U.S. 18, 23 (1967). Constitutional error is harmful unless a reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction.
According to the court of appeals, the Van Arsdall harmless-error test applies. Haggard, 2019 WL 2273869, at *7 (citing Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (relying on Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986))). In Van Arsdall, the Supreme Court held that improper limitations on cross-examination that violate the Confrontation Clause are reviewed for constitutional harm and that the analysis begins with the presumption that the damaging potential of the cross-examination was fully realized. The Court then listed several factors to consider,
[(1)] 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, of course, [(5)] the overall strength of the prosecution‘s case.
Van Arsdall, 475 U.S. at 684.
The Van Arsdall presumption is inappropriate here where cross-examination is not at issue.19 But we think the factors set out by the Supreme Court are helpful in determining harm (except for the fourth one asking to what extent cross-examination was otherwise permitted). Ultimately, however, any circumstance apparent in the record that logically informs the harm issue should be considered. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).20
There is another issue that the court of appeals should have addressed in its analysis but did not: whether evidence admitted through the complained-of witness must also be excluded from the analysis?21 The issue is important here because, without DeVore to prove-up the chain of
For instance, even if we speculate that the State might have known another possible way to get the SANE kit, its contents, and the DNA evidence admitted, that changes the analysis from analyzing harm in the trial that actually happened to assessing harm at a theoretical trial.22 We would also have to speculate about whether the witness would have given the necessary testimony to admit the evidence—often an attorney believes that a witness will say one thing, but he says another—and whether the judge would have made the proper ruling at the hypothetical trial.
CONCLUSION
Having clarified the harm analysis for the denial of face-to-face confrontation, we reverse the judgment of the court of appeals and remand the cause to that court to reassess whether Haggard was harmed.
Delivered: December 9, 2020
Publish
Notes
M.W. told DeVore in a dictated statement (which we reproduce here without alteration) that,
He‘s my uncle & I didn‘t think he‘d do anything perverted. He told me to take my shirt off. I told him I felt uncomfortable. He wasn‘t forcing me but he took my bottoms off & started playing with my boobs with his fingers & started licking them. On my right boob, I have a hickey. He went down on me, his mouth inside & outside my vagina, & then started doing the ‘dirty deed‘, his penis in my vagina. He heard someone walking down the hall & said, ‘Hurry up & put on your clothes‘. He kept saying I better not tell because he‘d lose his baby & if anyone found out he‘d go to jail, & it would tear apart the whole family. “He said, ‘You‘d better not tell your mom‘. I had an hour of sleep. I woke up, called my mom, & told her to come get me. She asked if he tried to touch me & I said yes he did. My mom asked me because my sister who is 6 doesn‘t want to go over there anymore & my mom thinks my uncle‘s boy who is 10 touched her.”
Later in the report, DeVore noted that M.W. also told her that “[h]e cleaned himself off with my shirt.”
An Iowa statute provided for child-witness testimony via closed-circuit television or behind a screen. That statute read in relevant part,
The court may require a party be confined to an adjacent room or behind a screen or mirror that permits the party to see and hear the child during the child‘s testimony, but does not allow the child to see or hear the party. However, if a party is so confined, the court shall take measures to insure (sic) that the party and counsel can confer during the testimony and shall inform the child that the party can see and hear the child during testimony.
Haggard argues that the court of appeals also erred because it undertook a legal-sufficiency analysis, not a denial-of-face-to-face-confrontation harm analysis. Haggard, 2019 WL 2273869, at *7. In particular, he points to the court of appeals‘s comment that the inculpatory evidence minus DeVore‘s testimony was “overwhelming.”
It is true that we have used the word “overwhelming” when referring to the sufficiency of the evidence, but also when determining whether a defendant was harmed by a constitutional violation. When we use “overwhelming” in a legal-sufficiency analysis, we mean that the issue is not a close call, i.e., the record evidence is more than sufficient for a rational jury to reasonably find each essential element of the offense beyond a reasonable doubt. But when we use the word “overwhelming” in a constitutional harmless-error analysis, we are referring to the diminished probability that a constitutional error materially affected the deliberations of the jury. “Overwhelming” evidence of guilt will always be legally sufficient to support a conviction, but constitutional error could be harmful even though the evidence of guilt is “overwhelming.” The distinction is important.