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Full Opinion
In the Court of Criminal
Appeals of Texas
══════════
No. PD-0634-22
══════════
TAYTON SETH FINLEY,
Appellant
v.
THE STATE OF TEXAS
═══════════════════════════════════════
On Petition for Discretionary Review
On Court’s Own Motion
From the Second Court of Appeals
Tarrant County
═══════════════════════════════════════
YEARY, J., filed a dissenting opinion.
Appellant was charged by information with misdemeanor assault.
He was tried in county court, during the second year of the Covid-19
pandemic, in July of 2021. The trial court permitted the complaining
FINLEY – 2
witness to testify against Appellant while wearing a surgical mask that
covered her nose and mouth. In doing so, it overruled Appellant’s
objection that testimony given in this manner violated his Sixth
Amendment right to confrontation.
The Second Court of Appeals agreed with Appellant that a Sixth
Amendment violation occurred, and it reversed his conviction. Finley v.
State, 655 S.W.3d 504 (Tex. App.—Fort Worth 2022). We granted
discretionary review on our own motion to examine the propriety of the
court of appeals’ ruling. TEX. R. APP. P. 66.1, 67.1. I would vacate the
court of appeals’ judgment and remand the case to that court for further
proceedings.
I. BACKGROUND
A. At Trial
The information alleged that Appellant assaulted T.G., 1 his
sometime girlfriend and mother of his child, on June 29, 2019. By the
time the case came to trial, in July of 2021, the Covid-19 pandemic was
well into its second year, with the Delta variant of the virus gaining
prevalence. Even so, the County Criminal Court was not, at that point,
mandating that all participants and spectators wear masks to protect
from the virus, and there is no indication in the record that many of
them were. 2
When T.G. appeared to testify, she was wearing a surgical mask
1 The court of appeals referred to the complaining witness only by her
initials, and, like the Court, I will follow suit. Finley, 655 S.W.3d at 506 n.1.
2 Appellant did not object that any other witness testified while masked
during the three-day trial.
FINLEY – 3
that covered her nose and mouth. Appellant requested the trial court to
instruct her to remove the mask for the duration of her testimony,
arguing that the social distancing protocols in place should provide
sufficient protection. 3 The prosecutor replied that, in view of “the
situation in the world[,]” “if she wants to wear a mask, I’d ask that she
be allowed to wear a mask.” The trial court judge agreed, remarking that
“if [T.G.] wants to wear a mask, I’m not going to tell her she can’t.” He
then overruled Appellant’s objection. 4
B. On Appeal
On direct appeal, Appellant complained that his Sixth
3 As of July of 2021, the Texas Supreme Court’s thirty-eighth pandemic-
related emergency order was in effect. See Thirty-Eighth Emergency Order
Regarding COVID-19 State of Disaster, 629 S.W.3d 900 (Tex. 2021) (effective
May 26, 2021, to expire August 1, 2021). As the court of appeals noted:
This order required that, “subject 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.
Finley, 655 S.W.3d at 507 n. 2 (emphasis added). At the time of Appellant’s
trial, as the court of appeals observed, “[m]asks were voluntary for anyone in
the courtroom including witnesses.” Id. at 506.
4 It is unnecessary to disposition of the issues before us to recount the
facts of the offense as developed at trial. The court of appeals summarized the
State’s evidence. Finley, 655 S.W.3d at 507−08. Suffice it to say that Appellant
was convicted, and the trial court sentenced him to 300 days in jail and a
$4,000 fine. The trial court also entered an affirmative finding that the offense
involved family violence, under Article 42.013 of the Texas Code of Criminal
Procedure. TEX. CODE CRIM. PROC. art. 42.013.
FINLEY – 4
Amendment confrontation right was violated by the fact that T.G. was
permitted to wear a mask while testifying. In reversing the conviction,
the court of appeals implicitly treated the wearing of a surgical mask as
a sufficient impediment or impairment to the Sixth Amendment’s
preference for “face-to-face” confrontation as to call into play the
requirements of Maryland v. Craig, 497 U.S. 836 (1990). Finley, 655
S.W.3d at 512−13. In Craig, the United States Supreme Court decided
that, “absent a physical, face-to-face confrontation at trial,” a trial court
must make a “case-specific” finding detailing why dispensing with the
right of a defendant to meet “face-to-face” with his accuser is necessary
to further an important public policy interest. Id. at 857−58.
Considering that the Covid-19 protocols then in place did not
include a strict mask requirement, the court of appeals found that the
public health emergency presented by the virus could not, by itself,
provide the particularized-need showing that Craig requires. Id. at
514−15. As the court of appeals explained:
[B]ecause the trial court did not mandate face coverings
during [Appellant’s] trial, it apparently believed that all
participants were adequately protected in the courtroom
without needing to wear masks. We are given no
explanation as to why T.G. herself needed the protection of
a mask when others did not. At no point in these
proceedings—not at any pretrial hearing, at trial, on
appeal, or upon abatement of the appeal—has any evidence
been adduced to explain why T.G. needed this special
protection. 5
5 Prior to issuing its opinion, the court of appeals had abated the case
to permit the trial court to make specific findings, if any, with respect to why
T.G.—in particular—required the additional protection of a face mask while
testifying. The trial court returned lengthy findings, as set out verbatim in the
FINLEY – 5
Id. at 514. In the absence of a case-specific showing of a particular need
for T.G. to wear a mask while testifying, the court of appeals concluded
that Appellant’s Sixth Amendment confrontation right was violated. Id.
at 515. Finding that the State also failed to establish that the error was
harmless beyond a reasonable doubt, the court of appeals reversed
Appellant’s conviction. Id. at 517.
C. On Discretionary Review
In its petition for discretionary review, the State presented a
single ground: “Did the trial court need to make explicit particularized
findings on the record regarding T.G.’s need to wear a COVID-19 face
mask while she testified even though T.G. was testifying during a global
pandemic?” 6 This Court refused the State’s petition, but then granted
court of appeals’ opinion. Finley, 655 S.W.3d at 509−12. But the court of
appeals concluded that simply invoking the general public-health exigencies of
a global pandemic, as it perceived the trial court had done, was not enough. It
said:
Simply put, T.G. should not have been permitted to testify while
wearing a mask unless the trial court could articulate, from the
evidence before it, a justifiable reason why she specifically, in
this particular trial, needed to wear a mask in a courtroom
where masks were not otherwise required.
* * *
[T]he State invites us . . . to fashion a COVID-19-pandemic
exception which would alleviate the need for the trial court to
enter the requisite [case-specific] findings. We decline the
invitation.
Id. at 513−15.
6 In its petition for discretionary review, the State did not challenge the
court of appeals’ holding regarding harm. Nor did we grant review of the issue
of harm on our own motion. That issue is therefore not before us, and we do
FINLEY – 6
discretionary review on its own motion, ordering the parties to brief the
following questions:
(1) If a witness testifies at a criminal trial while wearing a
surgical mask that covers the witness’s nose and mouth, is
a defendant’s Sixth Amendment right to face-to-face
confrontation denied?
(2) Is there a general exception during a global pandemic
to the Sixth Amendment Confrontation Clause and in-
person confrontation?
(3) If there is a global pandemic exception, at what point
does a global pandemic begin, and at what point does a
global pandemic end?
(4) If particularized findings are necessary, were the
findings in this case sufficient to dispense with face-to-face
confrontation because doing so was necessary to further an
important public policy, and the reliability of the testimony
was otherwise assured?
Finley v. State, No. PD-0634-22 (Tex. Crim. App. Mar. 8, 2023) (order
not designated for publication). The parties have now briefed these
issues, and the case has been submitted to the Court without oral
argument. 7
not need to address it in the present proceedings. That the Court today
addresses it anyway is, in my view, at least an anomaly.
7 In this case, the State requested oral argument, but this Court, as it
has done in so many cases before, denied oral argument—much to my chagrin.
I am of the opinion that this Court should only very, very rarely deny oral
argument when it is requested by a party to litigation before this Court. But
since 2015, this Court has never permitted oral argument in more than 51% of
granted discretionary review cases where argument was requested. And in
most years since 2015, we have permitted oral argument in only from 26% to
FINLEY – 7
42% of the cases in which it was requested. The chart below shows the
disturbing trend that over half of the litigants who seek permission to appear
before this Court for oral argument are regularly turned away.
Year Granted PDRs PDRs Percentage
PDRs Requesting Granted Requesting
Oral with Oral Argument
Argument Argument Granted
2015 63 43 18 41.860%
2016 69 51 26 50.980%
2017 64 35 15 42.875%
2018 50 34 9 26.471%
2019 52 32 12 37.500%
2020 53 40 14 35.000%
2021 50 29 10 34.483%
2022 32 23 8 34.783%
2023 32 25 11 44.000%
Why do we turn away so many litigants who seek to appear before us to
present oral argument? Are we too busy? By my rough count, our sister court—
the Supreme Court of Texas—heard sixty-three oral arguments in 2023 alone.
By contrast, in the same year, this Court heard just eleven arguments in
discretionary review cases.
Even more troubling is the fact that, in 2023, just twenty-five petitions
for discretionary review (PDR) requested oral argument—meaning we could
have permitted argument in every case in which it was requested and still we
would have heard only half the number of cases argued as our sister court
entertained. Why do more attorneys not request argument when having their
cases heard in the Court of Criminal Appeals of Texas—the high court of our
state for all criminal matters? Presumably, if a case makes it all the way to
this Court, the issues involved are at least worthy of discussion in oral
argument. They often involve important questions of constitutional law, or of
statutory construction, or at least questions about which lower appellate courts
(or appellate court justices), have had some disagreement. Has our now widely-
known reluctance to grant oral argument resulted in fewer litigants even
requesting oral argument in the first place?
And it gets worse. In 2023, we granted review of just thirty-two PDRs,
indicating that we could have permitted oral argument in every case in which
we granted discretionary review and still we would have heard only half the
FINLEY – 8
II. CONFRONTATION
The Sixth Amendment provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him[.]” U.S. CONST. amend. VI. 8 As long ago as
1895, when the Supreme Court of the United States decided Mattox v.
United States, 156 U.S. 237 (1895), 9 it described “[t]he primary object”
of the Confrontation Clause to be:
to prevent depositions or ex parte affidavits, such as were
sometimes admitted in civil cases, being used against the
prisoner in lieu of a personal examination and cross-
examination of the witness, in which the accused has an
opportunity, not only of testing the recollection and sifting
the conscience of the witness, but of compelling 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
cases orally argued as our sister high court heard in the same year. And, I
might add that this Court could have heard argument in every case in which
argument was requested over the two-year span between 2022 and 2023 and
still heard fewer arguments than the Supreme Court of Texas did in 2023
alone.
In 2024, this Court is on track to have permitted fewer than sixteen oral
arguments by the end of the year. It disturbs me that we so commonly deny
oral argument when it is: (1) such a central part of the process of appellate
litigation, (2) the only opportunity for the litigants to converse with this Court
face-to-face before we decide their case (perhaps ironically, given the
Confrontation Clause issues presented in this case), and (3) the only part of
our internal process—other than the actual issuance of our decisions and
judgments—that can be openly viewed by the public at large. The practice of
oral arguments in this Court has been dying a slow death for a long time. I
hope the Court will consider reversing the trend.
8 The Sixth Amendment Confrontation Clause has been held to apply to
the states as well as to the federal government. Pointer v. Texas, 380 U.S. 400,
406 (1965).
9 Mattox constitutes the Supreme Court’s “earliest case interpreting the
[Confrontation] Clause[.]” Craig, 497 U.S. at 845.
FINLEY – 9
manner in which he gives his testimony whether he is
worthy of belief.
Id. at 242−43. To simply read witness testimony from a transcript of a
previous trial, the Supreme Court observed, would potentially deprive
the accused “of the advantage of that personal presence of the witness
before the jury which the law has designed for his protection.” Id. But
even such protections, said the Supreme Court, “however beneficent in
their operation and valuable to the accused, must occasionally give way
to considerations of public policy and the necessities of the case.” Id.
In Coy v. Iowa, 487 U.S. 1012 (1988), the Supreme Court gleaned
from its previous precedents “two types of protections” that the
Confrontation Clause confers upon a criminal defendant: (1) “the right
physically to face those who testify against him,” and (2) “the right to
conduct cross-examination.” Id. at 1017 (quoting Pennsylvania v.
Ritchie, 480 U.S. 39, 51 (1987)). The first of these protections, the
Supreme Court recounted, embodied “the ‘literal right to “confront” the
witness at the time of trial[.]’” Id. (quoting California v. Green, 399 U.S.
149, 157 (1970)). The Supreme Court also observed that it had
characterized this right as “the core of the values furthered by the
Confrontation Clause.” Id. (quoting Green, 399 U.S. at 157).
The prosecution in Coy had placed a screen between the
complaining witnesses and the defendant that “was specifically
designed to enable the complaining witnesses to avoid viewing [the
defendant] as they gave their testimony[.]” Id. at 1020. The Supreme
Court left little doubt that it concluded the screen violated the
defendant’s right to confrontation. In fact, it described the violation this
FINLEY – 10
way: “It is difficult to imagine a more obvious or damaging violation of
the defendant's right to a face-to-face encounter.” Id.
The Supreme Court acknowledged its previous recognition “that
[the] rights conferred by the Confrontation Clause are not absolute, and
may give way to other important interests.” Id. at 1021. But the
Supreme Court side-stepped that issue there and did not identify what
the interests were that might overcome the right to face one’s accuser.
Instead, the Supreme Court observed, “[s]ince there have been no
individualized findings that [the] particular witnesses [in that case]
needed special protection, the judgment [t]here could not be sustained
by any conceivable exception.” Id. at 1021.
In Maryland v. Craig, which was decided four years after Coy, the
Supreme Court did squarely address the circumstances under which a
public-policy-based necessity exception to the right of confrontation
would apply. In that case, the trial court had approved the State’s
invocation of a Maryland statutory procedure permitting a court “to
receive, by one-way closed[-]circuit television, the testimony of a child
witness who [was] alleged to be a victim of child abuse.” Id. at 840. But
the “[t]he Court of Appeals of Maryland reversed and remanded for a
new trial” after it found that “the showing made by [Maryland] was
insufficient to reach the high threshold required by [Coy]” Id. at 43.
The Supreme Court went on in Craig to explain that “the face-to-
face confrontation requirement is not absolute.” Id. at 850. Addressing
the issues raised in that case, the Supreme Court stated that the
preferred face-to-face encounter may be dispensed with only: (1) “where
denial of such confrontation is necessary to further an important public
FINLEY – 11
policy[,]” and (2) “where the reliability of the testimony is otherwise
assured.” 10 Id. The Supreme Court observed that “a State’s interest in
the physical and psychological wellbeing of child abuse victims may be
sufficiently important to outweigh, at least in some cases, a defendant’s
right to face his or her accusers in court.” Id. at 853. It also explained
that “it [was] confident that use of the one-way closed-circuit television
procedure, where necessary to further an important state interest, [did]
not impinge upon the truth-seeking or symbolic purposes of the
Confrontation Clause.” Id. at 852.
Finally, in Craig, the Supreme Court “vacate[d] the judgment of
the Court of Appeals of Maryland and remand[ed] the case for further
proceedings.” Id. 860. But along the way the Supreme Court reiterated
that
10 Whether the reliability of T.G.’s testimony is otherwise assured is not
an issue in this case in the posture that it comes before us, since the court of
appeals did not pass upon that question. In Craig itself, the Supreme Court
found that reliability of the testimony of the child witnesses was otherwise
assured because the statutory procedure utilized there preserved every
confrontation right except the defendant’s right to a procedure that would not
prevent the witness from seeing him while testifying. 497 U.S. at 851. The
witnesses in Craig were competent, testified while under oath, and were
subject to contemporaneous cross-examination, and the factfinder was able to
view their demeanor as they testified (albeit remotely). Id. These other aspects
of the confrontation right, the Craig court held, were adequate to assure that
the witnesses’ testimony was “otherwise reliable” notwithstanding the fact
that they could not see the defendant as they testified. Id.
Here, there was no question about T.G.’s competence, and she was
under oath and subject to lengthy and rigorous cross-examination. Most
importantly, the jury was not wholly incapable of judging her demeanor, even
assuming their ability to do so was at least partially blocked by the surgical
mask. Thus, it is hard to imagine that this second aspect of the Craig exception
to the “preference for face-to-face confrontation” has not been satisfied, and
Appellant does not contend otherwise.
FINLEY – 12
[t]he central concern of the Confrontation Clause is to
ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context
of an adversary proceeding before the trier of fact.
Id. at 845.
III. ANALYSIS AND DISPOSITION
The first question that we ordered the parties to brief in this case
involves an issue that the court of appeals did not explicitly address in
its opinion: whether allowing a witness to testify while wearing a
surgical mask that covers her nose and mouth actually constitutes a
violation of the “core” face-to-face confrontation right to begin with. 11 If
the answer to that question is no, then there would be no need to fall
back on the Craig criteria at all, which apply only where the procedure
utilized actually denies the defendant the core aspect of confrontation
altogether. See Craig, 497 U.S. at 850 (“[A] defendant’s right to confront
accusatory witnesses may be satisfied absent a physical, face-to-face
confrontation at trial only where denial of such confrontation is
necessary to further an important public policy and only where the
reliability of the testimony is otherwise assured.”) (emphasis added).
Does the wearing of a surgical mask altogether “deny” the fact-finder’s
11 It is arguable that even the core “face-to-face” component of the
Confrontation Clause requires no more than simple physical presence within
the same location and without physical barriers that would prevent person to
person observations. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
OF THE ENGLISH LANGUAGE UNABRIDGED (2002) at 812 (defining “face-to-face”
to mean “1 : within each other’s sight or presence : involving close contacts : in
person”). Even assuming that “face-to-face” confrontation requires more than
just physical presence without barriers and includes exposure of at least some
part or parts of the face, it arguably may not require exposure of the entire face.
FINLEY – 13
ability to evaluate the witness’s demeanor and comportment for
truthfulness to such a degree that the witness may only testify if the
Craig criteria are satisfied?
Earlier this year, the Idaho Supreme Court identified a similar
question in relation to a criminal trial that was held during the Covid-
19 pandemic. That court explained: “Whether a mask that covers part of
a witness’ face while testifying in-court at trial amounts to an ‘absence’
of a ‘physical, face-to-face’ confrontation begs the difficult question of
what constitutes a ‘full’ or sufficient ‘physical, face-to-face’ confrontation
under the Confrontation Clause.” State v. Cuenca, 524 P.3d 882, 886
(Idaho 2023). The Idaho court was able to side-step this predicate
question, however, because it decided that, even “[a]ssuming that masks
on witnesses at Cuenca’s trial caused the ‘absence’ of a ‘physical, face-
to-face’ confrontation, the balancing test under Craig for such absences
shows that Cuenca’s confrontation right was not violated by the district
court’s mask order.” Id.
In the instant case, in contrast, the court of appeals found that
the Craig criteria were not satisfied, and on that basis, it concluded that
Appellant’s confrontation rights had not been preserved. But by jumping
directly to the Craig factors, the court of appeals avoided first resolving
the logical predicate question, as identified by the Idaho court: whether
the mask worn in this case constituted a sufficient denial of the core
confrontation right in the first instance, so as to then require
satisfaction of the Craig criteria at all. As a result, in this case, that
predicate question remains unaddressed, and its resolution appears
necessary to a full and satisfactory disposition of the claims presented.
FINLEY – 14
A mask is, after all—at its core—simply one example of an article
of apparel. Undergarments are commonly worn underneath
overgarments. Shirts are often adorned with ties or scarves. Pants and
skirts are often adorned by belts and sashes. Some people wear hats.
Other people wear glasses, some more glamorous than others—the
glasses worn by the musician Elton John in some of his live
performances comes to mind. Some people wear earrings, nose rings or
studs, necklaces, other kinds of jewelry and adornments, and even
dental grills on their teeth. Some religious people are also known to wear
objects that cover all or part of their heads. And others are known to
wear face-coverings. Doctors and nurses frequently wear scrubs, gloves,
and masks. And sometimes ordinary citizens wear various kinds of
masks as well to cover up injuries or other aspects of their appearance—
the “eye-patch” comes to mind.
Most articles of apparel have some purpose. Sometimes that
purpose is modesty or fashion. At other times it might be to protect one
from injury, from the cold, from disease, or from embarrassment. Indeed
it is conceivable that a witness might even wear an adornment of
apparel with a specific and intended purpose at odds with the rights
guaranteed to criminal defendants by the Confrontation Clause—to
conceal from the defendant and fact-finder their identity, or even their
demeanor and comportment for truthfulness in a trial. 12 Every piece of
apparel worn by a witness covers up that witness to some extent and
12 Such a witness could certainly be questioned about their motive for
wearing such an article of apparel and be subjected to the crucible of cross-
examination about that choice.
FINLEY – 15
impedes a fact-finder’s ability to observe at least that part of the witness
that is covered by the article of apparel worn. But do all or any of these
articles of apparel actually bring about a denial of the right to
confrontation guaranteed by the Sixth Amendment such that the
articles must be removed before the witness may testify unless the Craig
criteria are satisfied?
In Coy the Supreme Court addressed a scenario in which a
physical barrier, unattached to either the defendant or his accusers,
impeded the ability of each of them to see the other. In Craig, that same
Court addressed a scenario in which the accuser was permitted to
appear and testify remotely, not even in the courtroom in the physical
presence the defendant at all, but by closed-circuit television. In both of
those cases, the Supreme Court addressed circumstances involving a
complete denial of some undeniable aspect guaranteed by the Sixth
Amendment right to confront one’s accuser.
This Court has also addressed a circumstance in the past in which
a witness was permitted to appear and testify in what seems to have
been a complete disguise. Romero v. State, 173 S.W.3d 502 (Tex. Crim.
App. 2005). In that case, the witness in question was “wearing dark
sunglasses, a baseball cap pulled down over his forehead, and a long-
sleeved jacket with its collar turned up and fastened so as to obscure
[his] mouth, jaw, and the lower half of his nose.” Id. at 503. According to
this Court, “[t]he net effect and apparent purpose of [the witness’s]
‘disguise’ was to hide almost all of his face from view.” Id. (emphasis
added). The circumstances were such that one could scarcely discern a
difference from those circumstances present in Coy, in which the witness
FINLEY – 16
and the defendant were completely separated by a barrier.
But the circumstances present in this case seem much closer to
those at issue in Morales v. Artuz, 281 F.3d 55 (2d Cir. 2002). In that
case, only a part of the witness’s face and eyes were obscured by dark
sunglasses. Id. at 56. Albeit examining only whether the state court
decision to permit the witness to wear dark sunglasses violated clearly
established federal law, the Second Circuit concluded: “[W]e doubt that
permitting [the witness] to testify behind dark sunglasses was contrary
to constitutional law established by the Supreme Court.” Id. at 62.
The question seems fairly presented here whether only a partial
obstruction of T.G.’s face—caused by her wearing of a surgical mask—
constituted such an impediment as to require consideration of the
criteria set forth in Craig. Both the parties and the court of appeals seem
to have assumed that use of the surgical mask altogether denied the
fact-finder’s ability to evaluate the witness’s demeanor and
comportment for truthfulness to such a degree that the witness could
only have been properly permitted to testify wearing the mask if the
Craig criteria were satisfied. The parties have proceeded in their
briefing on that assumption. But in my view, that assumption is
premature.
The United States Supreme Court has yet to set the precise
parameters for what constitutes the “core” face-to-face confrontation
right. Craig stands for no more than the proposition that when it can be
definitively concluded that that core right has been denied, the
persistence of other aspects of the confrontation right may compensate
for that denial. But Craig did not purport to define the absolute limit
FINLEY – 17
beyond which a clear violation has occurred, or to what extent (if any) a
mere impairment of that core confrontation right would amount to the
kind of denial that would trigger the application of the Craig criteria.
So, the question remains: Does a witness’s wearing of a surgical mask
that covers her nose and mouth so impede a fact-finder’s evaluation of
her demeanor and comportment for truth as to constitute a denial of the
core right to confrontation and therefore violate the Sixth Amendment,
at least absent satisfaction of the criteria described in Craig?
Rather than address that question for the first time on
discretionary review, it would be more appropriate for this Court to
remand the case to the court of appeals to address it in the first instance.
As a discretionary review court, this Court does not (or maybe I should
say: “should not”) ordinarily reach the merits of an issue not “decided”
by a lower appellate court. See Menefee v. State, 287 S.W.3d 9, 18 (Tex.
Crim. App. 2009). When resolution of that issue is necessary to a proper
disposition of the case, we should remand the case for the court of
appeals to consider and resolve the issue, subject to our own later
discretionary review. Id. All of that said, I do not believe the court of
appeals could properly reverse the conviction in this case based on its
application of the Craig criteria without first addressing the predicate
question of whether the core confrontation right at issue was actually
denied to begin with.
Accordingly, I would vacate the judgment of the court of appeals
and remand this case to that court with instructions to consider the first
issue we asked to be briefed in this case; and I would invite the court of
appeals to solicit additional briefing to the extent that it may find that
FINLEY – 18
the briefs of the parties up to this point have not adequately addressed
that issue. What I would not do is reach the merits of that issue in the
first instance, as the Court does today, having failed to obtain the input
of the court of appeals. I respectfully dissent.
FILED: November 27, 2024
PUBLISH
Case Information
- Court
- Tex. Crim. App.
- Decision Date
- November 27, 2024
- Status
- Precedential