Haggard, James Ray ( 2020 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0635-19
JAMES RAY HAGGARD, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
LIBERTY COUNTY
YEARY, J., filed a concurring opinion.
CONCURRING OPINION
We have observed many times that this Court’s discretionary review capacity is
typically limited to reviewing “decisions” of the courts of appeals, subject to very limited
exceptions. E.g., Davison v. State, 405 S.W.3d 682, 691 (Tex. Crim. App. 2013). In the
instant case, the court of appeals “assumed without deciding” that the Confrontation Clause
was violated in this case, without engaging in any analysis of that question. Haggard v.
State, Nos. 09-17-00319-DR & 09-17-00320-CR, 2019 WL 2273869, at *7 (Tex. App.—
Beaumont May 29, 2019) (mem. op., not designated for publication). It then determined
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that any error that may have occurred was harmless. Id. It rendered no “decision” at all
regarding whether the Confrontation Clause was violated.
The Court today reaches and extensively discusses the merits of the Confrontation
Clause issue, although the court of appeals never decided that question. (That may explain
why the Court’s opinion does not even mention the court of appeals’ opinion until it comes
to address that court’s harm analysis; and why the Court never seems to articulate a definite
holding with respect to Confrontation Clause error.) The Court never explains why it is
appropriate to do so. And I do not agree that the Court’s opinion should address the merits
of whether Confrontation Clause error occurred.
I concur in the Court’s judgment to send the case back for further proceedings with
respect to the court of appeals’ harm analysis. Should the court of appeals determine on
remand that error, if any, was not harmless after all, it will be obliged to address the merits
of the Confrontation Clause issue at that time. We can then review that determination, if
that seems appropriate, in due course.
Having said that, I am compelled to make one observation about the Court’s
competing opinions in this case touching on whether Confrontation Clause error occurred,
superfluous though I regard my observation to be. The dissenting opinion takes the position
that two-way video testimony is in all things consistent with core Confrontation Clause
principles requiring the appearance of the accuser face-to-face; that literal, physical
presence in the courtroom is not an indispensable feature of true confrontation. See
Dissenting Opinion, at 8 (“Two-way video allows this face-to-face meeting and, with
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today’s technology, usually allows each party to see and hear the other better than if they
were across the courtroom from each other.”). But I agree with the Court that binding
United States Supreme Court precedent seems squarely to the contrary. Majority Opinion
at 8–10 & 12.
I would only add to this debate that the founders of our country could not have
thought that some then-undreamed-of technological advancement, such as testimony by
two-way video, could take the place of literal face-to-face confrontation, no matter how
faithfully it might mimic the perceived truth-finding advantages of physical presence in the
courtroom. Such technology did not exist when the Sixth Amendment was adopted, and
thus it could not have resided within the people’s common understanding of the language:
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. CONST., amend. VI. Literal, physical, face-to-face
confrontation, live in the courtroom, is the procedure the Sixth Amendment mandates—
not some other procedure that might be thought by us today to secure the objectives of
confrontation at least as efficaciously, if not more so. See Crawford v. Washington, 541
U.S. 36, 61 (2004) (“To be sure, the [Confrontation] Clause’s ultimate goal is to ensure
reliability of evidence, but it is a procedural rather than a substantive guarantee. It
commands, not that evidence be reliable, but that reliability be assessed in a particular
manner[.] * * * The Clause thus reflects a judgment . . . about how reliability can best be
determined.”). We are not at liberty to accept some alternative procedure just because, in
our belated judgment, we think it might work as well as, or better than, the constitutionally
required one.
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FILED: December 9, 2020
PUBLISH