PD-0467-23 09/27/2023
1. “Does the Confrontation Clause require a trial court to detail the legal and factual underpinnings for its finding that a necessity under Haggard v. State, 612 S.W.3d 318 (Tex. Crim. App. 2020), warrants dispensing with in-person confrontation for a witness?”
2. “If so, did the defendant forfeit more detailed findings by not objecting, or should the case be abated for these?”
3. “Is fear of retaliation from the defendant’s associates and responsibility for caring for a family member the kind of state-interest necessities that permit videoconference testimony in place of in-person confrontation?”
Shortly after reporting McCumber’s child-sex offense to police, the outcry witness’s home was broken into multiple times. McCumber’s friends and family drove by the witness’s home and said she and her family “were fixing to die.” She and her husband packed a few belongings, left the state, and avoided creating any public record of their whereabouts. After voir dire but before evidence began, the DA’s Office investigator located the witness in Colorado. The State asked that she be able to testify remotely. At a Zoom hearing on the issue, she testified: “because of those past threats, I’m literally in a bit of fear to show up in person because of the family and friends that he does have in the area and how far we’ve had to go to stay away from them and them not be able to find us.” She testified she could not come to trial for two more reasons: (1) her injured husband was unable to care for himself and she had been unable to find replacement care; and (2) she had her own court date later that day in Colorado. The trial court found that there was a necessity for her to appear remotely. McCumber was ultimately convicted based, in part, on her testimony.
On appeal, McCumber challenged her remote appearance under the Sixth Amendment. The court of appeals held that the trial court’s findings were conclusory and not case-specific but also that none of the offered reasons for her absence from trial established what the Supreme Court requires: necessity to further an important public policy.
The State argues that the trial court’s findings were necessarily specific to the witness’s circumstances and implicitly included all that Maryland v. Craig, 497 U.S. 836 (1990), requires. Neither the federal constitution nor Texas caselaw require the judge to specify which of the witness’s reasons it credited. Further, McCumber did not preserve that claim, and any inadequacy should be corrected by abatement. The State also contends the court of appeals implied credibility findings contrary to the trial court’s ruling. Finally, it argues that—either alone or in combination with the other interests—the need to protect witnesses from retaliation justified her remote testimony.
