Romero v. State

173 S.W.3d 502, 2005 Tex. Crim. App. LEXIS 1617, 2005 WL 2441921
CourtCourt of Criminal Appeals of Texas
DecidedOctober 5, 2005
DocketPD-0911-04
StatusPublished
Cited by47 cases

This text of 173 S.W.3d 502 (Romero v. State) is published on Counsel Stack Legal Research, covering Court of Criminal 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, 173 S.W.3d 502, 2005 Tex. Crim. App. LEXIS 1617, 2005 WL 2441921 (Tex. 2005).

Opinions

KELLER, P.J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY and COCHRAN, JJ„ joined.

The question before us is whether the defendant’s Sixth Amendment right to confront witnesses was violated when a witness testified in disguise. Although this is a very close issue, and one undecided by the United States Supreme Court, we answer that question “yes” and affirm the judgment of the Court of Appeals.

I. BACKGROUND

Appellant was indicted for aggravated assault.2 On the morning of trial, Cesar Hiran Vasquez, one of the State’s key witnesses, arrived at the courthouse but refused to enter the courtroom to testify. Vasquez, who had been subpoenaed by the State, notified the State that he “would rather go to jail than testify in this case” because of his fear of appellant.3 The State informed the trial court of Vasquez’s fear and his refusal to testify, and the trial court responded by threatening to fine Vasquez $500 for failing to obey the State’s subpoena.4 Vasquez persisted in his refusal to testify, however, stating that, because he was “worried for [himjself and [his] children,” he “would prefer to pay” the fine rather than testify. The trial court then imposed the fine. Shortly thereafter, Vasquez entered the courtroom 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 Vasquez’s mouth, jaw, and the lower half of his nose. The net effect and apparent purpose of Vasquez’s “disguise” was to hide almost all of his face from view.5 The record reflects that, at the time of trial, appellant was aware of Vasquez’s name and address.

Appellant objected to the “disguise” on the basis of his “right to confrontation” and, more generally, his “right to a fair trial.” The trial court overruled these objections.

The State then called Vasquez to the stand, outside the presence of the jury, to testify regarding appellant’s motion to suppress Vasquez’s in-court identification of appellant. Vasquez testified that he was operating a taxicab on May 10, 2002, at approximately 1:45 a.m., outside the Cosmos nightclub in Houston, when he saw appellant run toward the nightclub and, for no apparent reason, fire several shots in that direction. Given Vasquez’s proximity to the nightclub’s entrance, appellant’s shots came fairly close to him. A security guard at the nightclub returned fire and [504]*504hit appellant in the back. Appellant then retreated to a pickup truck and sped away, stopping once to fire again in the direction of the nightclub. Vasquez’s testimony continued:

Q: [DEFENSE COUNSEL] If the Court were to order you not to wear your sunglasses, your hat, [and] your jacket with my client present in the courtroom, are you still going to testify.
[[Image here]]
A: For my safety, I wouldn’t do it.
[[Image here]]
Q: [PROSECUTOR] Why are you afraid to testify against this defendant?
A: Because of the way that it could be seen that he was going to attack the security guard. It can be seen that he’s a person who’s dangerous on the street.
Q: And does it worry you or concern you if he was able to see your face?
A: Yes.
Q: What are you afraid that he would do?
A: To take revenge.
[PROSECUTOR]: I have no further questions.
Q: [DEFENSE COUNSEL] Well, my client’s never threatened you, has he?
A: No.
Q: All right. He’s given you no reason to be afraid of him, right?
A: Didn’t you see the way he’s looking at me?
[[Image here]]
Q: You’re just afraid, right?
A: For my safety.
[[Image here]]
Q: You just don’t like the way he’s looking at you, right, basically?
A: No.
Q: Then what is it?
A: The way I saw him attack with the gun.

At the conclusion of Vasquez’s testimony, appellant again objected to the disguise, and the trial court again overruled the objection. Vasquez later testified before the jury wearing his disguise. The jury found appellant guilty and assessed punishment at imprisonment for ten years.

On direct appeal, appellant brought three points of error. In his first two points, appellant complained that the trial court erred in permitting Vasquez to testify in his disguise. In point of error number one, appellant argued that the trial court’s ruling denied him his Sixth Amendment right to confrontation “[b]ecause [Vasquez’s] ball cap, large opaque sunglasses and mask [sic] prevented a face-to-face confrontation [and hindered] the jury’s ability to observe [Vasquez’s] demeanor and assess his credibility.” In point of error number two, appellant argued that the trial court’s ruling denied him his Fourteenth Amendment right to the presumption of innocence because Vasquez’s “use of a disguise ... could only have lead [sic] the jury to believe the defendant was guilty, dangerous and prone to vengeance.” The court of appeals sustained appellant’s first two points of error, reversed the judgment of the trial court, and remanded the case to the trial court for further proceedings.6

The State filed a petition for discretionary review, arguing, among other things, that Vasquez’s act of testifying in disguise did not violate appellant’s Sixth Amend[505]*505ment right to confront witnesses. Having granted review, we now turn to that issue.

II. Analysis

The Sixth Amendment’s Confrontation Clause7 reflects a strong preference for face-to-face confrontation at trial.8 An encroachment upon face-to-face confrontation is permitted only when necessary to further an important public interest and when the reliability of the testimony is otherwise assured.9

A. Reliability

Whether the reliability of the testimony is otherwise assured turns upon the extent to which the proceedings respect the four elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.10 In Maryland v. Craig, the Supreme Court found sufficient assurance of reliability in a procedure that denied one of these elements — physical presence— where the remaining three elements were unimpaired.11 In that case, a child witness testified in front of a one-way closed-circuit monitor that prevented her from seeing the defendant but permitted the judge, jury, and defendant to see the witness.12

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Cite This Page — Counsel Stack

Bluebook (online)
173 S.W.3d 502, 2005 Tex. Crim. App. LEXIS 1617, 2005 WL 2441921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romero-v-state-texcrimapp-2005.