Texas Courts of Appeals
No. 05-20-00952-CR 8/4/22
Were a defendant’s confrontation rights violated by allowing two witnesses (a SANE nurse and an extraneous offense witness) to testify at the beginning of the COVID-19 pandemic via Zoom?
No. The important elements of face-to-face confrontation were preserved by allowing the two witnesses to testify via Zoom. The court noted that at the time the case was tried, the only way to prevent the spread of COVID-19 was through preventative measures such as masking, social distancing, and certain hygiene practices, and there was no vaccine for COVID-19. The trial judge also made specific findings that allowing the SANE nurse, who had tested positive for COVID, to testify by two-way video “protected everyone associated with the trial, and allowing [the extraneous offense witness], who was in a late-stage pregnancy, to testify by two-way video protected her and her unborn child from possible exposure to the virus.” Read opinion.
This is a very thorough, well-researched, and well-reasoned decision with excellent work done by the State at trial and on appeal. However, the decision does not cite to Coronado v. State, 351 S.W.3d 315 (Tex. Crim. App. 2011) and other cases, in which the Court of Criminal Appeals has spoken very firmly about the need for the defendant’s personal presence with the witness to be cross-examined and the need for face-to-face confrontation. There is no doubt that COVID-19 has proved to be a devastating disease for a huge number of people, but it generally is not permanent or debilitating, as contrasted with the cases cited in the court’s opinion on pages 13 and 14. This is a very good decision, and every prosecutor should read it. Until the decision is reviewed by the Court of Criminal Appeals or the issue addressed by the U.S. Supreme Court, however, prosecutors should proceed cautiously in agreeing to a procedure that does not allow a defendant face-to-face confrontation with all witnesses at trial.
No. 08-22-00050-CR 8/3/22
Did the State properly challenge an improper award for jail time credit through a petition for writ of mandamus?
No. Noting that Code of Criminal Procedure Article 44.01(a)(2) allows the State to challenge any order that modifies a judgment, the Court concluded that credit for time served is an element of a judgment. Therefore, the State should have filed a direct appeal and, because it did not, waived its ability to file a petition for mandamus. Read opinion.
There are two requirements that a party must meet to be entitled to mandamus relief: (1) a clear right to relief, and (2) the absence of an adequate remedy at law. In this case, the State lost on the second part of that test. Since the State could appeal the trial court’s ruling under Article 44.01, the State had an adequate remedy at law. In this case, the court of appeals cited a 2007 decision of the Court of Criminal Appeals in support of its holding. That previous decision is not directly on point, but it could be close enough to allow this very short decision to hold up. The only way for the State to challenge this decision now is to file another petition for a writ of mandamus against the court of appeals, and that petition would have to be filed in the Court of Criminal Appeals.