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Click here for the full text of this decision FACTS:The appellant was indicted for aggravated assault. 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. 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. Vasquez persisted in his refusal to testify, however, stating that, because he was “worried for [him]self 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. 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. The court reversed the judgment of the trial court and remanded the case to the trial court for further proceedings. 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 Amendment right to confront witnesses. HOLDING:Affirmed. The Sixth Amendment’s confrontation clause reflects a strong preference for face-to-face confrontation at trial. 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. 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. The physical presence element entails an accountability of the witness to the defendant. Accountability was compromised because the witness was permitted to hide behind his disguise. The presence element of confrontation was compromised. The present case also involves a failure to respect a second element of confrontation: observation of the witness’s demeanor. Although Vasquez’s tone of voice was subject to evaluation and some body language might have been observable, the trier of fact was deprived of the ability to observe his eyes and his facial expressions. The court does not see an important interest served in the present case, much less a compelling one. “One important, even compelling, interest might be to protect a witness from retaliation, but the disguise in this case did little to further such an interest because Vasquez’s name and address, but not his face, were already known to the defendant.” The court cannot say that the testimony was cumulative and thus harmless. OPINION: Keller, P.J.; Price, Womack, Johnson, Keasler, Hervey and Cochran, JJ., joined. Meyers, J., filed a dissenting opinion. Holcomb, J., filed a dissenting opinion. DISSENT:Meyers, J. “The majority says that two elements of the confrontation clause were compromised � that being presence and demeanor. While I’m unsure what compromise means here, I’m fairly confident that the witness was there face-to-face to testify, was cross-examined, and that his demeanor showed that he was scared to death of the defendant. In Texas, is an accused entitled to more than this? Apparently so. “I agree with the trial court’s decision to allow the witness to appear as secret agent man. Therefore, I respectfully dissent.” DISSENT:Holcomb, J. “After considering the record and the arguments of the parties, I conclude that an important state interest is implicated in this case. On this record, the trial court could have reasonably concluded that Vasquez’s disguise was necessary to further the important state interest in protecting the physical well-being of witnesses who have a well-founded fear of retaliation on the part of the defendant. “I also conclude that the trial court could have reasonably concluded that Vasquez’s disguise was necessary to further the important state interest in presenting key evidence to establish guilt in a felony case. “Finally, I conclude that the reliability of Vasquez’s testimony was otherwise assured.”

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