SMITH v. STATE (2025)

OPINION

This case addresses two issues. First, whether the trial court's masking policy violated the Confrontation Clause. Second, whether the Fourteenth Court of Appeals erroneously presumed harm when the State failed to substantively address the issue of harm in its brief. While the court of appeals was correct in finding that the trial court's masking policy violated the defendant's constitutional rights, the court of appeals erred in applying a rule of default on the question of harmlessness. We reverse the judgment of the Fourteenth Court of Appeals, and we remand the matter back to that court to consider harmlessness in the first instance.

I — Facts

Appellant, Champagne Smith, was indicted for a second-degree felony offense of aggravated assault. During Appellant's 2023 trial, the trial court required all persons to wear surgical masks throughout court proceedings, including voir dire and all witness testimony, except when necessary for in-court identification. Prior to voir dire, Appellant's trial counsel objected to the court's mask policy on Sixth Amendment grounds, arguing that witness credibility could not be assessed.¹ The State offered no response to the objection, and the trial court overruled it. As required by the trial court's policies, the only two first-hand witnesses to the assault wore surgical COVID masks during their testimony. Appellant was convicted of aggravated assault.

II — Procedural History

On appeal, the Fourteenth Court of Appeals reversed and remanded Appellant's conviction because her constitutional right to confrontation was violated by the trial court's mask mandate. Smith v. State, 693 S.W.3d 781, 784 (Tex. App.—Houston [14th Dist.] 2024). The court of appeals noted that concealing a witness's facial features affects the fact finder's capability to assess demeanor. Id. at 789 (citing Romero v. State, 173 S.W.3d 502, 505–06 (Tex. Crim. App. 2005)).

Next, considering whether the Confrontation Clause violation was harmless error, the court of appeals emphasized that the “State has the burden, as beneficiary of the error, to prove that the error is harmless beyond a reasonable doubt.” Id. at 794 (citing Deck v. Missouri, 544 U.S. 622, 635, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005); and Haggard v. State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020)).

When the State does not attempt [to show that the error was harmless] in its brief, the “default” is to reverse the judgment. See [Merritt v. State, 982 S.W.2d 634, 636 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd)]; Romero, 173 S.W.3d at 506–07 (state failed to show constitutional error was harmless beyond reasonable doubt); Lamb v. State, 603 S.W.3d 152, 162 (Tex. App.—Texarkana 2020, no pet.) (declining to independently conduct harm assessment of constitutional error when state failed to brief harm issue).

Id. at 794. Therefore, because Appellant argued in her brief that the witness masking requirement constituted harmful error, and the State did not substantively address the issue of harm in its brief, the court of appeals reversed the judgment.

III — Issue 1: The Trial Court's Masking Policy Violated the Confrontation Clause

III(a) — The Right to Confrontation

Any person accused of a crime has a fundamental right to confront their accusers. U.S. Const. amend. VI; Tex. Const. art. I, § 10. “[T]he Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The right to confrontation is paramount as it (1) includes a “personal examination” of the witness; (2) “insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury;” (3) “forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’;” and (4) “permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” Maryland v. Craig, 497 U.S. 836, 845–46, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (emphasis added) (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). The right to confrontation has been required not only for “testing the recollection and sifting the conscience of the witness, but [also for] 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 manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242–43, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

The face-to-face confrontation requirement should not be “easily dispensed with[,]” despite it not being absolute. Craig, 497 U.S. at 850, 110 S.Ct. 3157. It may only be minimally abridged when “necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id.; Coy, 487 U.S. at 1021, 108 S.Ct. 2798. Further, the trial court must hear evidence to make a case-specific finding of necessity of the deprivation. Craig, 497 U.S. at 855, 110 S.Ct. 3157.

III(b)—Application

The lower court correctly applied Romero v. State in finding that Appellant's Confrontation Clause rights were violated by the trial court's mask mandate.

III(b)(1) — Romero

In Romero, the appellant was indicted for aggravated assault. Romero, 173 S.W.3d at 503. During trial, one of the State's key witnesses refused to testify without wearing a “disguise” consisting of “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. This Court noted that “the presence requirement is motivated by the idea that a witness cannot ‘hide behind the shadow’ but will be compelled to ‘look [the defendant] in the eye’ while giving accusatory testimony.” Id. at 505 (quoting Coy, 487 U.S. at 1018, 108 S.Ct. 2798) (alteration in original).

Although in Craig, 497 U.S. at 851, 110 S.Ct. 3157, the Supreme Court determined that the testimony of a child through a one-way closed-circuit monitor was reliable even though the physical presence element was lacking, the facts in Craig are not analogous to Romero. “[U]nlike Craig, [Romero] also involve[d] a failure to respect a second element of confrontation: observation of the witness's demeanor.” Romero, 173 S.W.3d at 505 (emphasis in original). When more than two elements of confrontation are being compromised, this Court determined that the Confrontation Clause requirements can only be circumvented if the public policy interest being served is “truly compelling.” Id. at 506. We did not find the witness's fears compelling, noting differences between adults’ fears and children's fears and the fact that the defendant already knew the witness's name and address. Id.

III(b)(2) — Applying Romero to the Facts at Hand

The Confrontation Clause requires case-specific evidence showing an encroachment of the defendant's right to confrontation was necessary to further a public-policy interest for the encroachment to be allowed under the United States Constitution. Craig, 497 U.S. at 855, 110 S.Ct. 3157. Because a surgical mask affects the physical-presence element of the Confrontation Clause and the jury's ability to assess demeanor, the trial court was required to make case-specific showings of fact that the mask mandate was necessary to further a public-policy interest. Romero applied this same principle when it reversed a conviction where a single witness had covered his eyes, nose, and mouth and there was no important, let alone compelling, public-policy interest to justify the covering. Romero, 173 S.W.3d at 506. Therefore, the use of surgical masks in the case at bar—which is a significant impediment to viewing facial expressions due to the coverage of both the nose and mouth—is like Romero. A reversal of the conviction is warranted because (1) the trial court did not show case-specific evidence that the masks were necessary, and (2) the mask mandate was applied regardless of individual necessity.

The court of appeals did not misread Romero when applying it to the case at hand. We agree that wearing a surgical mask would make more than just a slight impact on a juror's ability to assess a witness's demeanor. Further, here, the trial court made no individualized findings on whether the masks were necessary to further a public policy goal. See Craig, 497 U.S. at 845, 110 S.Ct. 3157.

III(b)(3) — The Case at Hand is Most Analogous to Finley

In Finley, the trial court allowed a witness to wear a surgical mask without making case-specific findings that it was necessary to further a public-policy interest. Finley v. State, 707 S.W.3d 320, 325–26 (Tex. Crim. App. 2024) (plurality op.). However, the court of appeals and this Court stated that the witness was not entitled to “to wear a mask while testifying[,]” even though the witness “had specialized knowledge about the need to wear a mask” during COVID and that the witness “was a crime victim under ․ the Texas Constitution [and] was entitled to be treated fairly,” Id. at 328. When affirming the reversal of the conviction in Finley, this Court's plurality opinion relied heavily on three cases: Coy, Romero, and Haggard.

First, this Court emphasized that in Coy, the United States Supreme Court deemed a screen that “allowed the accused only ‘dimly to perceive the witnesses, but the witnesses to see him not at all’ ” as being “ ‘difficult to imagine a more obvious or damaging violation of the defendant's right to face-to-face encounter.’ ” Id. at 330 (discussing Coy, 487 U.S. at 1015, 1020, 108 S.Ct. 2798). Second, relying on Romero, this court highlighted that a juror's ability to “observe” not just the eyes, but also “facial expressions[,]” is of great importance. Id. (discussing Romero, 173 S.W.3d at 505). Third, the Court stated that where the Confrontation Clause is implicated, “there must be individualized findings by the trial court regarding the witness in question as to why the special procedure was necessary.” Id. (citing Haggard, 612 S.W.3d at 324).

III(b)(4) — Applying Finley to the Facts at Hand

Appellant's case is analogous to Finley. Moreover, the Appellant's Sixth Amendment right to confrontation is more egregiously violated than the defendant's rights in Finley for the following reasons: (1) in Finley, only one witness was wearing a mask whereas here, every witness was; (2) in Finley, the witness made an individual choice to wear a mask whereas here, the issue is a mask mandate that applied regardless of necessity; (3) in Finley, the trial court submitted findings of facts (which failed to show necessity) whereas here, no findings were made at all; and (4) the trial in Finley occurred in 2021 whereas here, the trial took place in January of 2023, after face masks were no longer required by the Supreme Court of Texas and after the Governor had issued an executive order prohibiting mask requirements.² Finley, 707 S.W.3d at 322–24. Consequently, the Sixth Amendment was violated here as it was in Finley. Id. at 322.

IV — Issue 2: The Lower Court Improperly Applied a Rule of Procedural Default in Finding No Showing of Harmlessness When the State Did Not Substantively Address the Issue of Harm in its Brief

IV(a) — Constitutional Errors Shall be Reversed, Unless the Court Determines that the Error was Harmless Beyond a Reasonable Doubt

When a trial court denies a defendant of physical, face-to-face confrontation, the onus is on the court of appeals to review this denial for harmless error. Coy, 487 U.S. at 1021, 108 S.Ct. 2798. “We review constitutional error in the admission of testimonial statements in violation of the Confrontation Clause under the standard specified in Rule 44.2(a) of the Texas Rules of Appellate Procedure.” Allison v. State, 666 S.W.3d 750, 763 (Tex. Crim. App. 2023). Under Rule 44.2(a), constitutional error must be reversed unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a).

In Chapman v. California, the Supreme Court of the United States held that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Additionally, the Supreme Court recognized that when a constitutional error is found by an appellate court, the harmless-error standard places “the risk of doubt on the State,” O'Neal v. McAninch, 513 U.S. 432, 439, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), and that the State has the burden of proving that the trial court's error was harmless. See Deck v. Missouri, 544 U.S. 622, 635, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005); Haggard, 612 S.W.3d at 328.

On the other hand, while the State has the burden to show a constitutional error is harmless, an appellee, such as the State in this case “is not required to file a brief[.]” Spielbauer v. State, 622 S.W.3d 314, 318 (Tex. Crim. App. 2021) (citing Volosen v. State, 227 S.W.3d 77, 80 (Tex. Crim. App. 2007); Tex. R. App. P. 38.8.).

IV(b) — A Reviewing Court Has an Independent Duty to Consider Harmlessness, Even When the State Fails Its Own Obligation Under Chapman

Because the State, as Appellee, was not required to file a brief, the State argues that the Court of Appeals erred by finding harm from the State's decision not to brief the issue of harmlessness.

The State alleges that the Fourteenth Court misread the U.S. Supreme Court's decision in Chapman presuming harm when the State fails to brief the issue of harm. The State argues both cannot be true—that appellate courts have a duty to conduct a review for harmless error in the absence of an appellee's brief while simultaneously an appellee's failure to address harmlessness in a submitted brief would result in a “default” win for the appellant. We agree. An appellee's “failure to file a brief would not relieve the appellate court of its duty to thoroughly review the appellant's claims and any ‘subsidiary issues that might result in upholding the trial court's judgment.’ ” Spielbauer, 622 S.W.3d at 318–19 (quoting Volosen, 227 S.W.3d at 80).

Furthermore, an appellate court does indeed have a duty to review for harm, both when the error is non-constitutional, Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001), and when the error is constitutional. Under Chapman, “before a constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. 824. In other words, an appellate court must “determine, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment” before the court of appeals can find harmless error. Tex. R. App. P. 44.2(a). Whichever way you put it, the court must determine whether a constitutional error was or was not harmless. Consequently, we hold that, regardless of whether the State abides by its own duty under Chapman to show that a constitutional error was harmless, a court of appeals must follow its own obligation under Chapman to determine whether a constitutional error was harmless.

To be clear, our opinion today cannot and should not be read as absolving the State of its own burden under Chapman. Indeed, it would be anomalous to say that the court of appeals erred by disregarding its role under Chapman while at the same time saying that the State can ignore its own role under Chapman. The Supreme Court has repeatedly emphasized the State's obligation:

Certainly error, constitutional error ․ casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment. There is little, if any, difference between our statement in Fahy v. State of Connecticut [375 U.S. 85, 86–87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)] about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.

Chapman, 386 U.S. at 24, 87 S.Ct. 824. The Supreme Court's focus on the State's burden to show that a constitutional error was harmless was not a flash-in-the-pan that stopped at Chapman. Twenty years later, in Satterwhite, the Supreme Court included the State's burden in its explanation of the Chapman harmless error rule:

Our conclusion does not end the inquiry because not all constitutional violations amount to reversible error. We generally have held that if the prosecution can prove beyond a reasonable doubt that a constitutional error did not contribute to the verdict, the error is harmless and the verdict may stand.

Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). Nearly twenty years after Satterwhite, the story remained the same in Deck, when the Supreme Court reversed a death sentence for the use of visible shackles during the penalty phase:

The State must prove “beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.”

Deck, 544 U.S. at 635, 125 S.Ct. 2007. And just recently, the Supreme Court again explained:

Chapman merely announced the default burden of proof for evaluating constitutional errors on direct appeal: The prosecution must prove harmlessness beyond a reasonable doubt.

Brown v. Davenport, 596 U.S. 118, 144, 142 S.Ct. 1510, 212 L.Ed.2d 463 (2022).

This Court in turn has repeatedly reaffirmed that the State has the burden under Chapman. See, e.g., Arnold v. State, 786 S.W.2d 295, 298 (Tex. Crim. App. 1990) (under the former Rule 81(b)(2), “as beneficiary of the error the State has the burden to show beyond a reasonable doubt that the error did not contribute to the verdict on punishment”); Williams v. State, 958 S.W.2d 186, 196 n.10 (Tex. Crim. App. 1997) (“the newly promulgated harmless error rule [Rule 44.2(a)] is identical to the previous Rule of Appellate Procedure 81(b)(2). Under this rule, the burden is on the State to prove that the error made no contribution to the defendant's conviction or punishment.”); Wall v. State, 184 S.W.3d 730, 746 n.53 (Tex. Crim. App. 2006) (quoting Chapman and explaining that, “in addressing whether constitutional error is harmless, the critical inquiry is whether the error may have contributed to appellant's conviction or punishment; the standard of review ‘requir[es] the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’ ”); Wells v. State, 611 S.W.3d 396, 411 (Tex. Crim. App. 2020) (“The State, as the beneficiary of the error, has the burden of proving that the constitutional error was harmless beyond a reasonable doubt.”); Haggard, 612 S.W.3d at 328 (“Constitutional error is harmful unless a reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction․ The State has the burden, as beneficiary of the error, to prove that the error is harmless beyond a reasonable doubt.”).

V — Conclusion

In conclusion, the court of appeals correctly found that the trial court's policy requiring witnesses to wear face coverings during Appellant's trial violated his right to confront the witnesses against him under the Sixth Amendment of the United States Constitution. However, the court of appeals mistakenly applied a rule of “default” when it reversed the trial court's judgment because the State failed to make an argument in its brief as to why the constitutional violation was harmless beyond a reasonable doubt. We hold that the court of appeals had an independent duty to determine harmlessness, regardless of whether the State briefed it.

We reverse and remand to the court of appeals to determine, under Chapman and Rule 44.2(a), whether the violation of Appellant's rights under the Confrontation Clause was harmless.

DISSENTING OPINION

This case poses the question of whether the trial court's policy requiring every person in the courtroom, including witnesses providing live testimony in the presence of jurors, to wear a mask violated Appellant's rights under the U.S. Constitution's Confrontation Clause. To be sure, the COVID-19 pandemic presented many courts with the same question concerning trials during the time in which state and national declarations of disaster were in effect; the answer to that question was uniform: masking requirements do not violate a defendant's confrontation rights.¹ Now, this Court is presented with that question for a trial occurring post-pandemic.² While the decision to require masks of all the trial's participants and observers was imprudent and (we are told) evidently political, I do not believe the interference with the juror's ability to observe witness demeanor somehow ripened into a Confrontation Clause violation.

In coming to the conclusion that there is no confrontation violation, the proper focus is whether Appellant's right to physical, face-to-face confrontation has been deprived and whether the distinct elements of confrontation have ensured its purpose. Had this issue arisen before or even in the midst of trial on mandamus, I would have liked to think we would grant relief as an administrative, if not constitutional, matter. In addition to whatever augmented interest Appellant might have in terms of his ability to observe witness demeanor unimpeded, the obstruction of the public's right to be present in court is at least as significant in my view. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580–81, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Judges do not own courtrooms. They serve in them.

Though improvident and improper, the mask requirement here nevertheless does not amount to a constitutional violation. I would hold that the mask requirement did not amount to a deprivation of the physical presence element in this case and Appellant's confrontation rights were accordingly not violated. Because the majority holds otherwise, I dissent.

BACKGROUND

The pertinent factual and procedural background concerns the course of trial proceedings. Appellant's trial commenced in Harris County in January of 2023, wherein the trial court required all persons to wear facial coverings while in the courtroom except if in-court identification was necessary. The requirement applied to all persons, including witnesses, and to all stages of trial. It was also apparently applied continuously by the trial judge and applied to all proceedings in that court. Still, by the time of trial, many orders and regulations that had permitted masking requirements in Harris County were no longer in effect or were subject to proceedings to conclusively eliminate them.³

Appellant's trial nevertheless proceeded under the trial court's masking requirement and without resort to any administrative attack by mandamus or otherwise, despite the various orders and regulations forbidding the practice at that point. Appellant objected to the requirement on Sixth Amendment grounds, arguing the masks inhibited the jury's ability to assess witness's demeanor and credibility. The trial court overruled the objection without a response from the State and did not issue findings of fact or conclusions of law.

The court of appeals held that the masking requirement violated the Confrontation Clause because it prevented Appellant from receiving the guarantee of physical, face-to-face confrontation.⁴ It reversed the judgment and remanded for a new trial, and we granted the State's petition for discretionary review.

DISCUSSION

I. THE COMBINED EFFECT OF THE FOUR ELEMENTS OF CONFRONTATION CLAUSE ENSURED ITS PURPOSE

The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 401, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

The Clause “guarantees a criminal defendant the right to directly confront adverse witnesses, cross-examine adverse witnesses, and be present at any stage of the trial that would enable the defendant to effectively cross-examine adverse witnesses.” Sixth Amendment at Trial, 54 Geo. L.J. Ann. Rev. Crim. Proc. 792, 804–05 (2025) (collecting cases). Functionally, the Clause “protects a defendant's right of cross-examination by limiting the prosecution's ability to introduce statements made by people not in the courtroom.” Smith v. Arizona, 602 U.S. 779, 783–84, 144 S.Ct. 1785, 219 L.Ed.2d 420 (2024). The Clause accordingly must be interpreted “in a manner sensitive to its purpose and to the necessities of trial and the adversary process.” Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).⁵ The U.S. Supreme Court “ha[s] never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (citing Kentucky v. Stincer, 482 U.S. 730, 748, 749–750, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (Marshall, J., dissenting)).

A. Demeanor and Physical Presence are Distinct Elements of the Confrontation Clause

The U.S Supreme Court has identified four elements that collectively ensure the right to confrontation: 1) physical presence; 2) oath; 3) cross-examination; and 4) observation of demeanor by the trier of fact. Craig, 497 U.S. at 846, 110 S.Ct. 3157. The “combined effect” of these distinct elements collectively “serve[ ] the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm ․” Id. Being different, they are not necessarily equal.

It is physical presence of the witness, as opposed to any of the other elements alone or in combination, that anchors the Craig analysis and, in turn, any evaluation of a claim of deprivation. “[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.” Id. at 850, 110 S.Ct. 3157 (emphasis added) (citing Stincer, 482 U.S. at 739, 107 S.Ct. 2658).

“Although demeanor evidence is ․ of ․ high significance, it is nevertheless well settled that it is not an essential ingredient of the confrontation privilege ․” Gov't of Virgin Islands v. Aquino, 378 F.2d 540, 548 (3d Cir. 1967). While the demeanor of a witness is also significant, infringements on that aspect of confrontation alone typically will not impede the core interest in forcing witness accountability for his or her testimony or amount to a categorical denial of the face-to-face encounter so critical to confrontation. See Romero v. State, 173 S.W.3d 502, 505–06 (Tex. Crim. App. 2005) (“The physical presence element entails an accountability of the witness to the defendant.”).

To date, the U.S. Supreme Court has never held—or considered—whether disruption of the demeanor element would, on its own, constitute a violation of the confrontation right. See Tim Donaldson, Gradually Exploded: Confrontation vs. the Former Testimony Rule, 46 St. Mary's L.J. 137, 189 (2015) (explaining how the demeanor element can be relevant but has not been recognized as an independent criterion). While many courts have discussed the demeanor element, they have typically done so in connection with a more serious absence of physical presence.⁶ Contrarily here, the witness was otherwise physically present and fully accountable for his or her testimony in any fashion that would affect its reliability.

Accordingly, only the physical presence element triggers the Craig analysis. See, e.g., United States v. Tagliaferro, 531 F. Supp. 3d 844, 851 (S.D.N.Y. 2021) (no denial of physical confrontation where jurors wore masks and defendant argued he was unable to assess credibility and demeanor); Morales v. Artuz, 281 F.3d 55, 59 (2d Cir. 2002) (holding Craig and Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), inapplicable as “clearly established” law foreclosed application where the defendant argued inability to assess demeanor, but not denial of face-to-face confrontation). When the physical presence element is at issue, the Craig analysis is two-fold: 1) first, it asks whether the defendant's right to the face-to-face component of the confrontation clause was denied; 2) if yes, it then triggers the second question of whether “denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850, 110 S.Ct. 3157.

Should the answer to the threshold issue of whether there is a denial of the face-to-face component of confrontation in the first place be no, the Craig analysis is simply not implicated. Id.; Finley v. State, 707 S.W.3d 320, 342 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (“[T]he Craig criteria ․ appl[ies] only where the procedure utilized actually denies the defendant the core aspect of confrontation altogether.”).

The court of appeals and the majority both operate on the assumption that the physical presence element has been denied, foregoing that initial step of the analysis which allows the assessment of public policy interests. As noted below, Appellant does not even allege a disruption of the right to physical presence in this case. Thus, without an affirmative finding of a denial of Appellant's right to physical, face-to-face confrontation, there should be no second step of the Craig analysis.

The antecedent question in this case should be whether Appellant's physical, face-to-face confrontation right was denied. Craig, 497 U.S. at 850, 110 S.Ct. 3157. To solve this issue, our task in is not exclusively to weigh the public policy interests of the trial court's mask requirement, as that evaluation would still assume that a physical, face-to-face denial occurred. Further, an unfavorable weighing of public policy alone does not necessarily mean that the Confrontation Clause was violated, nor that the violation caused harmful constitutional error. Cf. Maj. Op. at 6–9.

The majority simply defers to Romero and the Finley plurality and concludes Appellant's right to face-to-face confrontation was also denied here—without making the requisite distinction between physical presence and demeanor. See id. at 4–9. The Court in Romero quite properly addressed the threshold issue of whether there was a denial of physical presence in the first instance and found it to be so heavily disrupted as to permit the witness to avoid accountability for his testimony. Romero, 173 S.W.3d at 505. The plurality in Finley, though, did not explicitly address the issue before moving forward. 707 S.W.3d at 342 (Yeary, J., dissenting) (“[The] predicate question remains unaddressed, and its resolution appears necessary to a full and satisfactory disposition of the claims presented.”). To that end, the Finley plurality is not a holding of this Court, and “is not worth the data storage used to post it on the Court's website.” Wells v. State, No. PD-0669-23, 2025 WL 1699563, at *2 (Tex. Crim. App. June 18, 2025) (Newell, J., concurring).

As to the Court's consideration of demeanor in those cases, Romero considered both elements but ultimately determined that the Craig analysis was invoked after it determined that the presence element had been compromised. 173 S.W.3d at 502. In Finley, demeanor was considered as an additional impact, though the plurality simply invoked Craig with the bare finding that “Appellant's Sixth Amendment right to face-to-face confrontation was ultimately denied.” 707 S.W.3d at 331.

B. Defendant's Right to the Face-To-Face Component of the Confrontation Clause Was Not Denied In Any Event

Coming now to the core question, Appellant did not complain on direct appeal nor address on petition for discretionary review the predicate issue of the denial of his physical face-to-face confrontation right. Instead, Appellant complained on appeal that his confrontation rights were violated because the mask requirement would inhibit the jury's ability to assess demeanor and credibility.⁷ Those complaints alone do not invoke the Craig analysis. See Craig, 497 U.S. at 850, 110 S.Ct. 3157; Artuz, 281 F.3d at 59 (“Craig and Coy set[s] forth the appropriate test where the witness is physically separated from the defendant.”); see, e.g., Romero, 173 S.W.3d at 505–06 (applying Craig where the physical presence element of confrontation was compromised); Finley, 707 S.W.3d at 331 (applying Craig upon finding denial of face-to-face confrontation). Even assuming Appellant implicated the physical presence element, the mask requirement did not deprive Appellant of physical, face-to-face confrontation.

First, the witnesses were physically present in the courtroom during testimony, testified under oath, and were subject to cross-examination by counsel and observation by the jury throughout. Craig, 497 U.S. at 850, 110 S.Ct. 3157. In contrast to the facts in Coy and Craig, the witnesses in this case were actually present in the courtroom before Appellant and within his scope of vision. See United States v. Tagliaferro, 531 F. Supp. 3d at 844 (“In rejecting Tagliaferro's physical confrontation, cross-examination, and voir dire challenges, the Court is reinforced in its conclusion by the fact that Tagliaferro fails to marshal in support of his cause any ascertainable principle that is rooted in the history and tradition of the Confrontation Clause.”). Additionally, the jurors could assess witness credibility and demeanor by observing “body language” and “delivery.” See id. (citing Artuz, 281 F.3d at 60–62).

Second, unlike Romero, “the reliability of witness testimony” in this case “was otherwise assured; jurors were able to observe how witnesses moved, spoke, hesitated, and even cried,” the witnesses were not disguised, their eyes were visible, and had no degree of anonymity due to the ability to remove the masks for identification. See Holder, 2021 WL 4427254, at *9.

In conclusion, there was no denial of Appellant's face-to-face confrontation right as part of the physical presence element, and I disagree with the majority to the extent it implicitly finds otherwise.

II. THERE IS NO BASIS FOR RESOLVING THE HARM QUESTION ON BREIFING WAIVER

Next, I agree with the majority to the extent it disavows the court of appeals's resort to briefing waiver to answer the harm question. Maj. Op. at 9–13. However, I see no need to address the harm question beyond my disagreement with reliance on waiver as a method of avoiding a merits disposition.

Texas Rule of Appellate Procedure 44.2.(a) provides that, where there is constitutional error subject to harmless error review, “the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a). The Rule does not provide for automatic default where the State does not meet its burden akin to a waiver provision.⁸ Quite the opposite is true; the Appellee is under no obligation to file a brief, much less one that materially assists the court to an extent it finds helpful.

Where a court finds the briefing lacking, it may request or direct further briefing and assistance as necessary to permit “a satisfactory submission of the case.” Id. R. 38.9(b). But, it may not simply pick up the ball and go home. This point is made clear beyond just the briefing rules. The court “must not ․ reverse a judgment ․ for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct ․” Id. R. 44.3. And, regardless of the recalcitrance of counsel in refusing to amend or supplement a brief, it is for the court to determine whether the error contributed to the conviction. Id. R. 44.2(a).

While I commend my colleagues for embracing these rules, I am concerned by our repeated citation to authorities of this Court that appear to suggest otherwise. While it seems clear from our holding here that these decisions are incorrect insofar as they appear to invite non-merits resolutions and reversals of criminal convictions without actual discernment of the presence of harm, I believe we would be better served in expressly disavowing any such holding. Absent that explicit clarification, confusion in the lower courts may continue.

CONCLUSION

The central issue before us is whether Appellant's right to confront witnesses against him was violated by a trial court requiring those witnesses to wear masks during testimony. The predicate issue carried with it that must be answered—that both the court of appeals and the majority do not address—is whether there was a denial of face-to-face confrontation. I would find that Appellant was not denied face-to-face confrontation rights and accordingly hold that the Confrontation Clause was not violated. Therefore, I dissent.

FOOTNOTES

1.    MR. RAY: At this time we just respectfully – we understand the Court's mask policy, which requires us to wear the mask during the jury selection and during the trial, except when there's any sort of in-court identifications. We would just object under the ․ 6th ․ Amendment[.]․[D]uring live witness testimony, defense counsel ․ believes after during numerous jury trials, that to fully determine the credibility of the witnesses, a jury would want to see things such as smirks, pouting, things that their facial gestures could show and could show – put the emphasis of the way the statement or testimony is supposed to be delivered. Again, the masks would hinder that.So just under those blanket constitutional protections, we would just object to wearing a mask, specifically having the witnesses do so[.]

2.   The court of appeals thoroughly recounted how the situation changed from the initial COVID-19 precautions to the time of Appellant's 2023 trial:In March 2020, the Governor declared a state of disaster for all Texas counties due to COVID-19. See The Governor of the State of Tex., Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2095 (2020). Beginning March 13, 2020, the Supreme Court of Texas issued a series of emergency orders requiring all Texas courts to take certain precautions in both civil and criminal trials to avoid risk to court staff, parties, attorneys, jurors, and the public. See First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265 (Tex. 2020). For several months, the supreme court emergency orders, subject only to constitutional limitations, prohibited courts from conducting in-person proceedings, including in-person jury proceedings, that were inconsistent with the latest guidance by the Office of Court Administration (“OCA”). See, e.g., Twenty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 135, 136–37 (Tex. 2020). Before in-person jury trials could be held, the OCA required that the county local administrative judge submit an operating plan, which was to mandate face coverings be worn by all persons at all times during trials. See OCA, Guidance for All Court Proceedings During COVID 19 Pandemic, pp. 5–7 (effective October 1, 2020; updated December 31, 2020), https://www.txcourts.gov/media/1450221/guidance-for-all-court-proceedings-during-covid-19-pandemic.pdf.In response to a request from the Harris County Attorney, the Texas Attorney General issued an August 3, 2020 opinion stating that judges could require individuals in courtrooms to wear facial coverings if necessary to maintain order and safety. See Tex. Att'y Gen. Op. No. KP-0322, at *3–4 (2020). Consistent with the Attorney General's opinion, and pursuant to the OCA Guidance, the Harris County Local Administrative Judge submitted an operating plan along with a jury proceeding addendum, effective October 1, 2020. See Jury Proceeding Addendum to COVID-19 Operating Plan for the Harris County Judiciary 5 (eff. on and after Oct. 1, 2020), https://www.txcourts.gov/media/1450784/harris-county-jury-trial-plan.pdf. The plan required that all persons in a courtroom wear facial coverings during jury trial proceedings, from jury qualification through the end of trial. Id. The operating plan was re-adopted continuously until the requirements expired on August 1, 2022. See Sixth Re-Adoption of the COVID-19 Operating Plan for the Harris County Judiciary District Courts, County Courts at Law & Probate Courts (June 1, 2022) (on file with the Fourteenth Court of Appeals).In addition to the operating plan in Harris County, subsequent supreme court emergency orders applicable to all counties permitted district courts to conduct in-person proceedings if the local administrative judge adopted minimum standard health protocols that included masking, social distancing, or both. See Thirty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 897, 898 (Tex. 2021) (requiring face coverings to be worn over the nose and mouth); Thirty-Eighth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 900, 901 (Tex. 2021). The language requiring masking was removed from the supreme court's emergency orders beginning in August 2021. See Fortieth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 911 (Tex. 2021).Thus, supreme court orders, OCA guidance, and a local operating plan that previously supported courtroom masking requirements in Harris County district courts had terminated months before the January 2023 trial in this case.Meanwhile, the Governor issued an executive order on July 29, 2021 providing that “no government official may require any person to wear a face covering or to mandate that another person wear a face covering.” See The Governor of the State of Tex., Exec. Order GA-38 (issued July 29, 2021), 46 Tex. Reg. 4913, 4914–15 (2021). GA-38 stated that it would supersede any face-covering requirement imposed by any local government entity or official, subject to certain exceptions. See id. at 4. Harris County Judge Lina Hidalgo issued a contradicting directive on August 17, 2021, which granted Harris County district courts discretion to require masking in courtrooms. See Harris Cty. Judge Lina Hidalgo, Eighth Order Authorizing Fever & Health Screening & Face Coverings in County Buildings (issued Aug. 17, 2021), available at https://agenda.harriscountytx.gov/2021/20210812Order1.pdf. The county simultaneously sued the Governor to enjoin GA-38. See Abbott v. Harris County, 672 S.W.3d 1, 6–7 (Tex. 2023). A Travis County district court denied the state's plea to the jurisdiction and granted a temporary injunction prohibiting the Governor and the Attorney General from enforcing GA-38 in Harris County. Id. at 7. The Third Court of Appeals affirmed the injunction. Abbott v. Harris County, 641 S.W.3d 514, 530 (Tex. App.—Austin 2022), rev'd, Abbott, 672 S.W.3d 1. The supreme court granted review and reversed. Abbott, 672 S.W.3d at 21. The court held that GA-38, issued pursuant to the Texas Disaster Act, carried the force of law and superseded any contrary orders of local officials, including Judge Hidalgo's order. See id. at 12, 19. Though the supreme court did not decide the matter until June 30, 2023, GA-38 remained effective during the state's appeal because the trial court's injunction was automatically stayed. Abbott, 672 S.W.3d at 7 (citing Tex. R. App. P. 29.1(b)); Tex. Civ. Prac. & Rem. Code § 6.001 (state exempt from bond requirements in civil appeal); see In re State Bd. for Educator Certification, 452 S.W.3d 802, 804–07 (Tex. 2014). GA-38 expired in June 2023. Abbott, 672 S.W.3d at 9 n.23. Under these circumstances, County Judge Hidalgo's order could not have supported a witness masking requirement in a January 2023 jury trial.Smith, 693 S.W.3d at 790–92.

1.   See infra note 6; Smith v. State, 693 S.W.3d 781, 790 n.7 (Tex. App.—Houston [14th Dist.] 2024, pet. granted) (citing People v. Wandrey, 80 Cal.App.5th 962, 296 Cal. Rptr. 3d 460, 466 (2022); People v. Alvarez, 75 Cal.App.5th 28, 290 Cal. Rptr. 3d 346, 352–54 (2022); State v. Cuenca, 171 Idaho 603, 524 P.3d 882, 888-89 (2023); People v. Lanaux, No. 1-21-1038, 2023 WL 4561547, at *3-4 (Ill. App. Ct. July 17, 2022); State v. Hardy, 344 So.3d 821, 834 (La. Ct. App. 2022); State v. Hunt, 293 A.3d 423, 431–32 (Me. 2023); Farmer v. State, No. 1300, 2023 WL 2806062, at *6 (Md. Ct. App. Apr. 6, 2023); State v. Modtland, 970 N.W.2d 711, 717-21, 720 n.3 (Minn. Ct. App. 2022); State v. Voeltz, No. A22-0726, 2023 WL 5341512, at *5-7 (Minn. Ct. App. Aug. 21, 2023); State v. Mountain Chief, 413 Mont. 131, 533 P.3d 663, 672-73 (2023); Peters v. State, No. 82437, 2022 WL 17367580, at *1 (Nev. Nov. 30, 2022); State v. Jesenya O., 2021-NMCA-030, 493 P.3d 418, 430–32, rev'd, 2022-NMSC-014, 514 P.3d 445; Commonwealth v. Dixon, 276 A.3d 794, 805 (Pa. Super. Ct. 2022)).

2.   Governor Greg Abbott issued an executive order on July 29, 2021, prohibiting governmental entities from “mandat[ing] masks” and “requir[ing] any person to wear a face covering or [mandating] that another person wear a face covering.” The Governor of the State of Tex., Exec. Order GA-38, 46 Tex. Reg. 4913, 4914-15 (2021).

3.   Smith, 693 S.W.3d at 790–92; Abbott v. Harris Cnty., 672 S.W.3d 1, 21 (Tex. 2023).

4.   Smith, 693 S.W.3d at 793–94.

5.   U.S. Supreme Court Justice Alito has recently acknowledged the amorphous nature of the jurisprudence surrounding the interpretation of the Confrontation Clause with respect to its original meaning. Franklin v. New York, ––– U.S. ––––, 145 S. Ct. 831, 831, 221 L.Ed.2d 546 (2025) (Alito, J., statement respecting denial of certiorari) (“Despite repeated attempts to explain what Crawford meant by ‘testimonial statements,’ our Confrontation Clause jurisprudence continues to confound courts, attorneys, and commentators.”). I do not delve into interpreting the Clause's origin in this case.

6.   Federal courts have repeatedly found no denial of the physical presence element of the Confrontation Clause where masking protocols were enforced. See, e.g., United States v. Holder, No. 18-CR-00381-CMA-GPG-01, 2021 WL 4427254, at *9 (D. Colo. Sept. 27, 2021) (holding face-to-face confrontation not denied due to COVID-19 protocols and finding reliability of witness testimony was otherwise assured); United States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 WL 4917733, at *6 (M.D. Ga. Aug. 21, 2020) (holding mask procedure did not deny face-to-face confrontation because adverse witnesses were physically present, sworn under oath, and defendant had ability to cross-examine); United States v. James, No. CR-19-08019-001-PCT-DLR, 2020 WL 6081501 (D. Ariz. Oct. 15, 2020) (witness masking requirement only had a possibility of interfering with demeanor and did not interfere with physical presence, oath, or ability to cross-examine).

7.   The court of appeals did not address whether Appellant argued that the physical presence element was violated on direct appeal, and only cites that Appellant challenged demeanor and credibility. Smith, 693 S.W.3d at 785–86. Before this Court, Appellant does not posit that his right to the physical presence element of confrontation was denied and only argues that “a surgical mask at least in part affects the physical-presence element of the Confrontation Clause and the jury's ability to assess demeanor.” This is not a shortcoming on the part of the brief or counsel. There is simply no basis for asserting that a duly sworn witness who is present in the courtroom and subject to in-person cross-examination is not present and accountable for his or her testimony.

8.   The majority delves into an explanation of the State's burden to prove harmless error on appeal under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). While Chapman certainly provides guidance and clarity on the burden of proof required for the beneficiary of the error to show that the error was harmless, it is nevertheless up to the court receiving such proof—by means of the record if not the briefing—to make that determination.

Walker, J., delivered the opinion of the Court in which Richardson, Newell, Keel, and Finley, JJ., joined, and in which Parker, J., joined except as to Parts III(B)(3), III(B)(4), and IV(B).

Schenck, P.J., filed a dissenting opinion in which Yeary and McClure, JJ., joined.