Tayton Seth Finley v. the State of Texas ( 2022 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-21-00112-CR
    ___________________________
    TAYTON SETH FINLEY, Appellant
    V.
    THE STATE OF TEXAS
    On Appeal from County Criminal Court No. 5
    Tarrant County, Texas
    Trial Court No. 1607688
    Before Kerr, Bassel, Walker, JJ.
    Opinion by Justice Walker
    OPINION
    Appellant Tayton Seth Finley appeals from his conviction for misdemeanor
    assault causing bodily injury to his ex-girlfriend, T.G.1 Finley argues that the trial
    court denied him his Sixth Amendment Right to Confrontation by allowing T.G. to
    testify at trial while wearing a mask. We will reverse the trial court’s judgment and
    remand the case for a new trial because the trial court erred in allowing T.G. to testify
    behind a mask without making any findings related to T.G.’s particular need to wear a
    mask, and because such error was harmful.
    I. BACKGROUND
    A. TRIAL PROCEEDINGS
    1. T.G. Testifies While Wearing a Mask
    Finley’s jury trial took place in late July 2021. Masks were voluntary for anyone
    in the courtroom, including witnesses. T.G.—the sole complainant and eyewitness to
    the alleged assault—took the witness stand while wearing a surgical mask that covered
    her nose and mouth. Finley’s counsel requested that the trial court require T.G. to
    remove her mask while she testified, citing Finley’s Sixth Amendment right to face-to-
    face confrontation. Specifically, he worried that the mask would interfere with the
    jury’s ability to evaluate T.G.’s facial expressions and demeanor.
    1
    In their appellate briefs, both parties refer to the complaining witness by her
    initials, T.G. We will follow their lead.
    2
    The State countered that Finley’s request was nothing more than an attempt to
    “harass and annoy the victim” and pointed to the “situation in the world” as the basis
    for allowing T.G. to keep her mask on. The State proffered that the issue boiled
    down to one of T.G.’s comfort amidst the COVID-19 pandemic:
    [I]f [T.G.] feels most comfortable testifying with a mask on in a room
    with many[,] many people in it and . . . she doesn’t know their
    background and whether or not they are coughing. I believe it is entirely
    within her right and it does not affect Crawford or the 6th Amendment
    right to confront witnesses. I believe actually the Supreme Court orders
    from Texas have been very clear [that] we should do as much as possible
    to protect people during in-person proceedings. So for that reason, if
    she wants to wear a mask, I’d ask that she be allowed to wear a mask.
    Finley’s attorney responded that, in his estimation, proper social distancing
    accommodations had been made in the courtroom in accordance with then-current
    CDC guidelines and Texas Supreme Court COVID-19 emergency orders.2 He did,
    however, concede that he might need to approach T.G. while she testified “to show
    her some documents.”
    The trial court denied Appellant’s request, citing the emergency orders:
    But I think that [the State] is correct. The overall tenure of these orders
    has been that we do whatever we can to protect each other, the
    2
    At the time of Finley’s trial, the supreme court’s thirty-eighth emergency order
    was in effect. See Thirty-Eighth Emergency Order Regarding COVID-19 State of Disaster,
    
    629 S.W.3d 900
    , 900 (Tex. 2021). This order required that, “[s]ubject only to
    constitutional limitations,” courts should take all “reasonable action to avoid exposing
    court proceedings and participants to the threat of COVID-19.” 
    Id.
     Further, a trial
    court was permitted to conduct jury proceedings if the local administrative judge had
    adopted “minimum standard health protocols for court proceedings” to include
    “masking, social distancing, or both.” 
    Id. at 901
    .
    3
    community, from the Covid virus. So if [T.G.] wants to wear a mask,
    I’m not going to tell her she can’t.
    2. T.G.’s Testimony
    T.G. testified that, after a night out drinking, she and Finley had gotten into an
    argument on their drive to his house. The argument escalated when they arrived at
    the house and Finley purposefully crashed his vehicle into a fence outside his house.
    He then pulled T.G. out of the car by her hair, and he beat her with his fists.
    According to T.G., Finley then dragged her into the house and continued to beat her
    with his fists which caused her to lose consciousness. After two days of persistent
    pain and swelling from the assault, T.G. went to the hospital. She initially reported
    that she sustained her injuries after falling from a horse. But after examining her
    injuries, hospital staff asked the police to come to the hospital to speak with T.G.
    Though reluctant, T.G. eventually explained to police that she had been assaulted by
    Finley.
    3. Additional State’s Evidence
    A nurse testified that she had helped treat T.G. at the hospital. Her testimony
    consisted mainly of reading from T.G.’s medical records because, at the time of trial
    nearly two years after the incident, the nurse did not specifically remember treating
    T.G. The medical records showed that T.G. had indicated to the nursing staff that
    her injuries were caused by Finley beating her. These injuries included deep bruises to
    her chest and shoulder.
    4
    The State also called multiple police officers who had interviewed T.G. about
    the assault allegations. One of the officers who spoke with T.G. at the hospital
    noticed bruising on her arm and described her as “anxious” and “concerned.”
    Another officer who spoke with T.G. on the phone testified that he had viewed
    photographs of T.G. after the alleged assault and that her injuries appeared consistent
    with those obtained during an assault. He also viewed photographs of the driveway
    where Finley reportedly crashed his vehicle and testified that “the ground appeared to
    be chewed up” and that part of the fence was missing its panels.
    Finally, a victim assistance specialist for the police department testified as an
    expert about the various cycles of domestic violence. She testified that she did not
    know any details about Finley’s case but that it was common for victims of domestic
    violence to be fearful of talking to law enforcement or of prosecuting an assault
    allegation.   She also testified that it was common for victims to have trouble
    remembering certain details of a traumatic event.
    4. The Verdict
    During deliberations, the jury informed the trial court that it could not reach a
    unanimous decision. However, after receiving an Allen charge from the trial court,
    the jury returned a guilty verdict. See Allen v. United States, 
    164 U.S. 492
    , 501, 
    17 S.Ct. 154
    , 157 (1896). Finley was sentenced to 300 days in jail and fined $4,000. This
    appeal followed.
    5
    B. APPEAL ABATED FOR PARTICULARIZED FINDINGS
    Beyond the non-evidentiary arguments of the parties, no evidence was offered
    to explain T.G.’s need to wear a mask, and the trial court failed to announce on the
    record or file any findings related to T.G.’s particular need to wear a mask.
    Accordingly, and on our own motion, we abated this appeal and ordered that the trial
    court supply us with “case-specific, evidence-based findings pertaining to whether it
    was necessary for T.G. particularly to wear a mask while she testified.” See Maryland v.
    Craig, 
    497 U.S. 836
    , 855, 
    110 S. Ct. 3157
    , 3169 (1990) (holding that the trial court
    must hear evidence and make case-specific findings that use of special courtroom
    procedure that permitted a child to testify in the absence of face-to-face confrontation
    of defendant was necessary “to protect the welfare of the particular child witness”);
    Haggard v. State, 
    612 S.W.3d 318
    , 325–28 (Tex. Crim. App. 2020) (applying Craig
    necessity-findings rule in Texas case involving an adult witness); see also Romero v. State,
    
    136 S.W.3d 680
    , 684–85 (Tex. App.—Texarkana 2004), aff’d, 
    173 S.W.3d 502
     (Tex.
    Crim. App. 2005) (same).
    In response to our order, the trial court did not supply any particularized
    findings but rather supplemented the clerk’s record with three documents devoid of
    any explanation: (1) a COVID-19 operating plan for the Tarrant County judiciary
    implemented by the local administrative judge, (2) an order of assignment showing
    6
    that Finley’s case had been assigned for all purposes to a retired judge, and (3) a case
    docketing sheet.3
    The operating plan, which went into effect on June 7, 2021, permitted in-
    person proceedings but required judges to take “reasonable steps to protect judges
    and court staff from contracting COVID-19.” People who had been exposed to or
    were showing COVID-19 symptoms were prohibited from entering court facilities.
    Further, courts were ordered to establish policies and procedures to minimize the
    likelihood that court participants would violate social distancing rules. The plan did
    not address the wearing of masks.
    II. ANALYSIS
    The Confrontation Clause is an important facet of the United States
    Constitution. It is imperative that defendants have the opportunity to confront their
    accusers face-to-face. When that accuser is masked while testifying at a jury trial
    against the defendant, the Confrontation Clause is implicated because the jury is
    denied the opportunity to read the accuser’s face and fully judge their credibility. This
    is particularly true when the accuser is the sole eyewitness to the alleged crime. There
    is good reason, after all, why we have expressions in American parlance such as “bald-
    faced lie,” or the older expression of “bare-faced truth”—because much can be
    3
    The docketing sheet, which already existed in the original clerk’s record before
    this court, merely recited basic information about Finley’s case such as plea, verdict,
    and punishment details.
    7
    gleaned about a person’s demeanor and truthfulness from their unobstructed facial
    expressions.
    In a single issue, Finley argues that his Sixth Amendment right to face-to-face
    confrontation was violated when T.G. was permitted to testify while wearing a mask
    that covered her nose and mouth. Among several sub-issues, Finley posits that
    reversal is required because the trial court made no case-specific findings as to why it
    was necessary for T.G., in particular, to wear a mask at trial.
    The State responds that Finley’s confrontation right was not violated because
    the trial court’s decision to allow T.G. to wear a mask furthered an important public
    policy—“ensuring the safety of everyone in the courtroom during a global
    pandemic”—and because the reliability of T.G.’s testimony was not impaired by
    doing so. On the issue of particularized findings, the State argues that particularized
    findings are not required in the COVID-19 context. In any event, says the State in its
    appellate brief, the trial court’s pronouncement at trial that courts shall “do whatever
    we can to protect each other, the community, from the Covid virus” satisfied any
    such need for particularized findings.4
    Notably, the attorney for the State conceded outright at oral argument before
    4
    this court that the trial court had not, in fact, made any such findings particular to
    T.G.
    8
    A. PARTICULARIZED FINDINGS
    1. Applicable Law
    The Sixth Amendment protects an accused’s right to confront, face-to-face,
    any witness that testifies against him. U.S. CONST. amend. VI; Coy v. Iowa, 
    487 U.S. 1012
    , 1017, 
    108 S. Ct. 2798
    , 2801 (1988); Haggard v. State, 
    612 S.W.3d 318
    , 324 (Tex.
    Crim. App. 2020). The primary aim of this confrontation right is to not only test a
    witness’s memory and conscience but to compel him “to stand face to face with the
    jury in order that they may look at him, and judge by his demeanor upon the stand
    and the manner which he gives his testimony whether he is worthy of belief.” Mattox
    v. United States, 
    156 U.S. 237
    , 242–43, 
    15 S. Ct. 337
    , 339 (1895). A jury’s ability to view
    a witness’s facial expressions is paramount to the confrontation right because the face
    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 v. State,
    
    173 S.W.3d 502
    , 505–06 (stating that allowing a witness to testify while disguising his
    face would “remove the ‘face’ from ‘face-to-face confrontation’”).
    However, “[a]lthough face-to-face confrontation forms the core of the values
    furthered by the Confrontation Clause, [the Supreme Court] has nevertheless
    recognized that it is not the sine qua non of the confrontation right.” Craig, 
    497 U.S. at 847
    , 
    110 S. Ct. at 3165
     (internal citations and quotations omitted).            Instead, a
    defendant’s confrontation right may be satisfied absent a physical, face-to-face
    confrontation “only where denial of such confrontation is necessary to further an
    9
    important public policy and only where the reliability of the testimony is otherwise
    assured.” 
    Id. at 850
    . To show such necessity, the trial court must hear evidence and
    then make a case-specific, evidence-based finding that the departure from the face-to-
    face confrontation right is necessary to protect the well-being of the particular
    witness. Id.; see Haggard, 612 S.W.3d at 324–26; Romero, 
    136 S.W.3d at
    690–91.
    2. No Findings Made
    The record here does not contain any individualized, evidence-based findings
    that T.G. needed to wear a mask to protect her particular well-being—a fact that the
    State ultimately conceded at oral arguments before this court. Because the trial court
    did not mandate face coverings during Finley’s trial, it apparently believed its
    participants were adequately protected in the courtroom without needing to wear
    masks. But we are given no explanation as to why T.G. herself needed special
    protection when others did not. Neither a generalized pronouncement by the trial
    court that courts were to protect against COVID-19 exposure nor the existence of a
    governing, county-level COVID-19 operating plan met this case-specific burden. See
    Romero, 
    136 S.W.3d at
    690–91 (“Satisfaction of this general standard requires more
    than a mere showing that public policy would be served; instead, it demands that trial
    courts make case-specific findings of necessity, justifying the infringement of a
    defendant’s right to confront his or her accusers face to face.”)
    The State argues that this is not an issue of concern because the trial court was
    imbued with the authority to allow masked testimony by Texas Supreme Court
    10
    COVID-19 emergency orders that ordered trial courts to take all reasonable action to
    protect participants from the virus. See, e.g., Thirty-Eighth Emergency Order Regarding
    COVID-19 State of Disaster, 
    629 S.W.3d 900
     (Tex. 2021).
    We are not persuaded by this argument for two reasons.              Chiefly, the
    reasonable-action mandate from those orders was specifically made “subject only to
    constitutional limitations.” See, e.g., 
    id. at 900
    . In other words, trial courts were
    ordered to take protective steps against COVID-19 only if those steps did not infringe
    upon a defendant’s constitutional rights—such as his Sixth Amendment right to
    confrontation. See 
    id.
     Additionally, the order effective in July 2021 at the time of
    Finley’s trial did not contain a face covering mandate, which shows an evolution away
    from the stricter directives of previous orders that did require face coverings in the
    courtroom. Compare 
    id.
     (containing no face-covering requirement) with Thirty-Sixth
    Emergency Order Regarding COVID-19 State of Disaster, 
    629 S.W.3d 897
    , 898 (Tex. 2021)
    (requiring face coverings to be worn over the nose and mouth).
    Finally, the State argues that particularized findings as to the individually
    masked witnesses are not required in the COVID-19 context given the important
    public-policy need for courts to protect their participants from the disease. The State
    points us to several non-Texas cases to support this contention.5 We are not swayed
    5
    See United States v. James, No. CR-19-08019-001-PCT-DLR, 
    2020 WL 6081501
    ,
    at *1 (D. Ariz. Oct. 14, 2020); United States v. Crittendon, No. 4:20-CR-7 (CDL),
    
    2020 WL 4917733
    , at *6 (M.D. Ga. Aug. 21, 2020); State v. Modtland, 
    970 N.W.2d 711
    ,
    720 (Minn. Ct. App. 2022).
    11
    by these cases largely because they either ignore or outright abandon—without
    precedent—the clear directive from Craig that courts make such findings. Instead, the
    State invites us to follow suit and to fashion a COVID-19-pandemic exception which
    would obviate the need for the trial court to enter the requisite findings. We decline
    the invitation.
    We have found no pandemic-era Texas cases applying the Craig factors to a
    masked-witness situation. However, one of our sister courts was recently asked to
    determine whether a defendant’s confrontation right was violated when two witnesses
    were permitted to testify at trial via two-way Zoom teleconferencing technology. See
    Dies v. State, No. 05-20-00951-CR, 
    2022 WL 3097816
    , at *6 (Tex. App.—Dallas
    Aug. 4, 2022, no pet. h.). In Dies, the trial court heard evidence that one witness had
    just tested positive for COVID-19 and that the other was 38 weeks pregnant, lived
    two hours away, and had been advised by her doctor not to travel. 
    Id.
     at *1–2. The
    trial court found that these conditions warranted allowing the witnesses to testify
    remotely. Id. at *4. The Fifth Court of Appeals held—after explaining that Texas
    courts indeed must make evidentiary, case-specific findings before dispensing with the
    face-to-face right—that the Craig factors had been satisfied by the trial court. Id. at *6.
    We will follow the Dies court’s lead in declining to abandon the Craig
    particularized-findings requirement in the pandemic context. Accordingly, we hold
    that the trial court erred when it allowed T.G. to testify while wearing a mask without
    making any particularized findings as to her particular need to do so.
    12
    B. HARM ANALYSIS
    Having held that the trial court erred, we must determine whether such error
    was harmful. See Haggard, 612 S.W.3d at 328.
    1. Applicable Law
    A denial of physical, face-to-face confrontation is reviewed for harmless error.
    Coy, 
    487 U.S. at 1021
    , 
    108 S. Ct. 2798
    ; see Chapman v. California, 
    386 U.S. 18
    , 23,
    
    87 S. Ct. 824
    , 827–28 (1967). Constitutional error is harmful unless a reviewing court
    determines beyond a reasonable doubt that the error did not contribute to the
    conviction. Tex. R. App. P. 44.2(a). The State has the burden to prove that the error
    is harmless beyond a reasonable doubt. Haggard, 612 S.W.3d at 328. That is, if we are
    unable to conclude beyond a reasonable doubt that the error did not contribute to the
    conviction, we must reverse and order a new trial. Langham v. State, 
    305 S.W.3d 568
    ,
    582 (Tex. Crim. App. 2010).
    In the context of the denial of face-to-face confrontation, the harm analysis
    “cannot include consideration of whether the witness’ testimony would have been
    unchanged, or the jury's assessment unaltered, had there been confrontation” because
    “such an inquiry would obviously involve pure speculation.” Coy, 
    487 U.S. at
    1021–22,
    
    108 S.Ct. at 2803
    . Instead, harm must be determined based on “the remaining
    evidence.” 
    Id.
     While our determination should consider “any circumstance apparent
    in the record that logically informs the harm issue,” a number of factors can aid our
    analysis: (1) importance of the witnesses’ testimony to the prosecution’s case,
    13
    (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, 612 S.W. at 329.
    2. Error Not Harmless Beyond a Reasonable Doubt
    Arguing that any error was harmless here, the State focuses on factors three,
    four, and five. According to the State, many of the details testified to by T.G. were
    corroborated by other evidence at trial, such as medical records and police interviews.
    Further, the State argues that the extent and duration of T.G.’s cross-examination—
    which spanned nearly three hours—bears in favor of the error being harmless.
    Finally, the State contends that its case was strong because T.G.’s testimony itself was
    strong.
    We see it differently than the State. Having found error in allowing T.G. to
    testify while wearing a mask, we must set aside her testimony and analyze harm based
    on the remaining State’s evidence. See Haggard, 612 S.W.3d at 628. Materially, that
    evidence consisted of:
    1. the nurse’s testimony, derived mainly from medical records,
    concerning T.G.’s injuries;
    2. testimony from multiple police officers describing T.G. as
    “anxious” and “concerned” two days after the alleged assault,
    characterizing her injuries as consistent with an assault, and indicating
    that pictures showed that the ground near Finley’s driveway appeared
    “chewed up” and that his fence was missing some panels;
    14
    3. pictures of T.G. taken at the hospital that showed bruising; and
    4. expert testimony from the victim assistance specialist that
    domestic violence victims are often reluctant to report their abuse and
    often have trouble remembering details of their trauma.
    Viewing this evidence, and considering the significance of T.G.’s testimony to
    the State’s case, we are unable to conclude beyond a reasonable doubt that the trial
    court’s error did not contribute to Finley’s conviction. T.G. was the purported victim
    and sole eyewitness to the alleged assault. Thus, she was not only important to the
    State’s case; she was its main witness. Without her testimony, the State’s case would
    have been severely weakened because it had no other first-hand account of the
    offense.    Such weakness is accentuated by the fact that—even with T.G.’s
    testimony—the jury was initially unable to reach a unanimous decision, returning its
    guilty verdict only after receiving an Allen charge.
    Accordingly, we hold that the State failed to meet its burden establishing from
    other evidence that the error was harmless beyond a reasonable doubt. Id.
    III. CONCLUSION
    A defendant’s Constitutional right to face-to-face confrontation—which
    includes allowing the jury to analyze the facial expressions of each witness—cannot be
    easily dispensed with. Safeguards have been constructed to ensure that the right is
    infringed upon only when there exists an important and articulated reason to do so.
    And it is easy to see why: a witness’s face conveys vital information to the jury about
    the veracity and reliability of their testimony. See Mattox, 
    156 U.S. at
    242–43, 
    15 S. Ct. 15
    at 339. Allowing a witness’s face to be obscured from the jury would, as the Court of
    Criminal Appeals has stated, “remove the ‘face’ from ‘face-to-face confrontation.’”
    Romero, 
    173 S.W.3d at
    505–06. It is for these reasons that we cannot overlook the trial
    court’s failure to make findings explaining why Finley was not entitled to have the jury
    fully analyze T.G.’s facial expressions when she testified.
    Thus, having held that the trial court erred by failing to make particularized
    findings explaining why T.G. needed to wear a mask during her testimony and that
    such error was not harmless, we reverse and remand for new trial.
    /s/ Brian Walker
    Brian Walker
    Justice
    Publish
    Delivered: September 22, 2022
    16