Romero v. State

136 S.W.3d 680, 2004 WL 884895
CourtCourt of Appeals of Texas
DecidedMay 18, 2004
Docket06-03-00072-CR
StatusPublished
Cited by14 cases

This text of 136 S.W.3d 680 (Romero v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Romero v. State, 136 S.W.3d 680, 2004 WL 884895 (Tex. Ct. App. 2004).

Opinion

OPINION

Opinion by

Chief Justice MORRISS.

When subpoenaed State’s witness, Cesar Hiran Vasquez, appeared at Israel G. Romero’s aggravated assault trial wearing dark sunglasses, a baseball cap pulled low over his eyes, and a jacket with an upturned collar, leaving visible only Vasquez’s ears, the tops of his cheeks, and the bridge of his nose, the trial court, over defense counsel’s objection, allowed Vasquez to testify in the “disguise.” We must decide whether that violated Romero’s rights under the Confrontation and Due Process Clauses. We hold it did.

Romero was indicted for aggravated assault after a May 2002 shooting incident outside a Harris County nightclub. On the first day of trial, it became clear one of the State’s witnesses, Vasquez, was reluctant to testify. Although Vasquez was in the building, he simply refused to enter the courtroom even after the trial court ordered him to pay a $500.00 fine for refusing to comply with the State’s subpoena. Vasquez finally entered the courtroom — sometime between one and a half to three hours after arriving at the courthouse — only after the State agreed he could testify in his disguise.

When Vasquez entered dressed in his disguise, and while still outside the presence of the jury, Romero’s counsel objected to Vasquez’s appearance, arguing he should not be permitted to testify in disguise on the grounds that it would be highly prejudicial and a violation of Romero’s constitutionally protected rights. Although Vasquez stated he was afraid to testify against Romero because he had witnessed how dangerous Romero could be and feared Romero would seek revenge, he admitted he had neither seen Romero since the incident nor been threatened by Romero in any way. Nevertheless, citing his own safety, Vasquez maintained he would not testify in front of Romero without being able to wear his disguise.

After hearing both Romero’s and the State’s arguments on the issue, and without further commenting on its ruling, the trial court simply stated it would allow Vasquez to testify as he was. At the close of the evidence, including Vasquez’s eyewitness testimony, the jury found Romero guilty of aggravated assault and assessed punishment at ten years’ confinement. Romero now appeals, contending the trial court erred by (1) allowing Vasquez to testify in disguise, violating Romero’s rights to confront one of the State’s witnesses and to be presumed innocent, and (2) admitting evidence of an unadjudicated extraneous offense during the punishment phase of the trial. Right to Confrontation

Applicable to the states through the Due Process Clause, Pointer v. Texas, 880 U.S. 400, 403-06, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Confrontation Clause 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. Normally, the right to confront one’s accuser is satisfied if defense counsel is given wide latitude to question an adverse witness; but the Confrontation Clause provides a criminal defendant not only the right to cross-examination, but also the right to physically face those who testify against him. Pennsylvania v. Ritchie, 480 U.S. 39, 51-53, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Romero contends the latter right was violated.

Addressing a similar issue in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), the United States Supreme Court reversed and remanded a *683 decision allowing two child witnesses to testify behind a large screen separating them from the defendant accused of sexually abusing them. Noting there has never been any doubt “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact,” the Court pointed out “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’” Id. at 1016-17, 108 S.Ct. 2798 (quoting Pointer, 380 U.S. at 404, 85 S.Ct. 1065). Considering that this concept “traces back to the beginnings of Western legal culture,” the Court found it interesting that the phrase “Look me in the eye and say that” still persists and bears considerable significance. Id. at 1015, 1018, 108 S.Ct. 2798. With this understanding, “the right of confrontation ‘contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails.’” Id. at 1018-19, 108 S.Ct. 2798 (quoting Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)).

Unlike the present case in which a witness concealed his face from the defendant, judge, and jury, the screen employed in Coy was designed to enable the defendant to dimly perceive the complaining witnesses, at the same time lessening the witnesses’ unease by blocking the defendant from their view. Id. at 1014-15,1020, 108 S.Ct. 2798. Under those circumstances, the Court stated: “It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.” Id. at 1020, 108 S.Ct. 2798. The violation in this case is worse than in Coy because Yasquez’s disguise was aimed at blocking not his view of Romero, but Romero’s view of him.

The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss — the right to cross-examine the accuser; both “ensur[e] the integrity of the factfinding process.”

Id. at 1019-20, 108 S.Ct. 2798 (quoting Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)). While the Coy Court conceded that “rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests,” it declined to identify any such exception because there were no individualized trial court findings that the witnesses in that case needed special protection. Id. at 1020-21,108 S.Ct. 2798. In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court was once again asked to address a defendant’s right to confront adverse witnesses face to face. This time, however, in light of the trial court’s individualized findings that the child witness involved needed special protection, the Court was required to decide the question reserved in Coy. Id. at 845, 110 S.Ct. 3157.

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Bluebook (online)
136 S.W.3d 680, 2004 WL 884895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romero-v-state-texapp-2004.