PD-0230-24 01/22/2025
(1) “Whether the lower court misapplied Romero v. State, 173 S.W.3d 502 (Tex. Crim. App. 2005), in finding that the trial court’s masking policy violated the Confrontation Clause.”
(2) “Whether the lower court improperly presumed harm simply because the State ‘did not substantively address the issue of harm in its brief.’”
Smith and her two sisters (one of whom wielded a socket wrench) badly beat up a woman and her partner. Smith was charged with aggravated assault against the woman. Both the woman and her partner testified against Smith. Both wore “normal surgical Covid masks” in compliance with the trial court’s policy during the January 2023 trial in Harris County. Smith was ultimately convicted by a jury.
On appeal, Smith complained that the trial court had not made findings that requiring witnesses to wear masks furthered public policy, resulting in a violation of her right to face-to-face confrontation. The court of appeals agreed. It held that the masking policy inhibited the jury’s ability to assess demeanor and credibility and wasn’t justified by an important public policy in January 2023, as revealed through publicly-available resources. The court noted that the State, as the beneficiary of the error, had the burden to prove the constitutional error was harmless beyond a reasonable doubt. Because the State’s brief did not substantively address harm, the court of appeals reversed the judgment.
The State contends it is debatable whether the balancing that Maryland v. Craig, 497 U.S. 836 (1990), required for testimony over closed-circuit television would extend to a witness testifying in the defendant’s presence, albeit while wearing a mask. It argues the court of appeals undervalued the health concerns still present in January 2023 and overvalued the impact of masks on the jury’s ability to assess demeanor. It challenges the court of appeals’s resolution of harm based on the State’s failure to brief that issue. It questions (1) the applicability of evidence-law burdens and requirements to a harm analysis, and (2) whether the State can be said to be the “beneficiary” of any error in requiring witnesses to wear a mask. It suggests that references in the caselaw to a party’s burden are, at most, a stand-in for describing which party bears the risk of doubt and do not justify a party losing “simply because [it] did not supply its own harm analysis in its brief.”
