Finley v. State

655 S.W.3d 504

Tayton Seth FINLEY, Appellant

v.The STATE of Texas

No. 02-21-00112-CR

Court of Appeals of Texas, Fort Worth.

Delivered: November 3, 2022

ATTORNEY FOR APPELLANT: WILLIAM R. BIGGS, WILLIAM BIGGS LAW.

ATTORNEYS FOR STATE: SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; JOSEPH W. SPENCE, CHIEF OF POST CONVICTION; DALLAS ANDERSON, CALEB BEACHAM, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS.

Before Kerr, Bassel, Walker, JJ.

OPINION ON REHEARING

Opinion on Rehearing by Justice Walker After reviewing the State's motion for rehearing, we grant the motion, withdraw our September 22, 2022 opinion and judgment, and substitute the following in their place.

Appellant Tayton Seth Finley appeals from his conviction for misdemeanor assault causing bodily injury to his ex-girlfriend, T.G.¹ Finley argues that the trial court denied him his Sixth Amendment Right to Confrontation by allowing T.G. to testify at trial while wearing a mask. We will reverse the trial court's judgment and remand the case for a new trial because the trial court erred in allowing T.G. to testify behind a mask without sufficient findings related to T.G.’s particular need to wear a mask, and because such error was harmful.

I. BACKGROUND

A. TRIAL PROCEEDINGS

1. T.G. Testifies While Wearing a Mask

Finley's jury trial took place in late July 2021. Masks were voluntary for anyone in the courtroom, including witnesses. T.G.—the sole complainant and eyewitness to the alleged assault—took the witness stand while wearing a surgical mask that covered her nose and mouth. Finley's counsel requested that the trial court require T.G. to remove her mask while she testified, citing Finley's Sixth Amendment right to face-to-face confrontation. Specifically, he worried that the mask would interfere with the jury's ability to evaluate T.G.’s facial expressions and demeanor.

The State countered that Finley's request was nothing more than an attempt to "harass and annoy the victim" and pointed to the "situation in the world" as the basis for allowing T.G. to keep her mask on. The State proffered that the issue boiled down to one of T.G.’s comfort amidst the COVID-19 pandemic:

[I]f [T.G.] feels most comfortable testifying with a mask on in a room with many[,] many people in it and ... she doesn't know their background or whether or not they are coughing. I believe it is entirely within her right and it does not affect Crawford or the 6th Amendment right to confront witnesses. I believe actually the Supreme Court orders from Texas have been very clear [that] we should do as much as possible to protect people during in-person proceedings. So for that reason, if she wants to wear a mask, I'd ask that she be allowed to wear a mask.

Finley's attorney responded that, in his estimation, proper social distancing accommodations had been made in the courtroom in accordance with then-current CDC guidelines and Texas Supreme Court COVID-19 emergency orders.² He did, however, concede that he might need to approach T.G. while she testified "to show her some documents."

The trial court denied Appellant's request, citing the emergency orders:

But I think that [the State] is correct. The overall tenure of these orders has been that we do whatever we can to protect each other, the community, from the Covid virus. So if [T.G.] wants to wear a mask, I'm not going to tell her she can't.

2. T.G.’s Testimony

T.G. testified that, after a night out drinking, she and Finley had gotten into an argument on their drive to his house. The argument escalated when they arrived at the house and Finley purposefully crashed his vehicle into a fence outside his house. He then pulled T.G. out of the car by her hair, and he beat her with his fists. According to T.G., Finley then dragged her into the house and continued to beat her with his fists which caused her to lose consciousness. After two days of persistent pain and swelling from the assault, T.G. went to the hospital. She initially reported that she sustained her injuries after falling from a horse. But after examining her injuries, hospital staff asked the police to come to the hospital to speak with T.G. Though reluctant, T.G. eventually explained to police that she had been assaulted by Finley.

3. Additional State's Evidence

A nurse testified that she had helped treat T.G. at the hospital. Her testimony consisted mainly of reading from T.G.’s medical records because, at the time of trial nearly two years after the incident, the nurse did not specifically remember treating T.G. The medical records showed that T.G. had indicated to the nursing staff that her injuries were caused by Finley beating her. These injuries included deep bruises to her chest and shoulder.

The State also called multiple police officers who had interviewed T.G. about the assault allegations. One of the officers who spoke with T.G. at the hospital noticed bruising on her arm and described her as "anxious" and "concerned." Another officer who spoke with T.G. on the phone testified that he had viewed photographs of T.G. after the alleged assault and that her injuries appeared consistent with those obtained during an assault. He also viewed photographs of the driveway where Finley reportedly crashed his vehicle and testified that "the ground appeared to be chewed up" and that part of the fence was missing its panels.

Finally, a victim assistance specialist for the police department testified as an expert about the various cycles of domestic violence. She testified that she did not know any details about Finley's case but that it was common for victims of domestic violence to be fearful of talking to law enforcement or of prosecuting an assault allegation. She also testified that it was common for victims to have trouble remembering certain details of a traumatic event.

4. The Verdict

During deliberations, the jury informed the trial court that it could not reach a unanimous decision. However, after receiving an Allen charge from the trial court, the jury returned a guilty verdict. See Allen v. United States , 164 U.S. 492, 501, 17 S. Ct. 154, 157, 41 L.Ed. 528 (1896). Finley was sentenced to 300 days in jail and fined $4,000. This appeal followed.

B. APPEAL ABATED FOR PARTICULARIZED FINDINGS

1. Abatement Order

Beyond the non-evidentiary arguments of the parties, no evidence was offered at trial to explain T.G.’s need to wear a mask, and the trial court failed to announce on the record or file any findings related to T.G.’s particular need to wear a mask. Accordingly, and on our own motion, we abated this appeal on July 15, 2022, and ordered that the trial court supply us with "case-specific, evidence-based findings pertaining to whether it was necessary for T.G. particularly to wear a mask while she testified." See Maryland v. Craig , 497 U.S. 836, 855, 110 S. Ct. 3157, 3169, 111 L.Ed.2d 666 (1990) (holding that the trial court must hear evidence and make case-specific findings that use of special courtroom procedure that permitted a child to testify in the absence of face-to-face confrontation of defendant was necessary "to protect the welfare of the particular child witness"); Haggard v. State , 612 S.W.3d 318, 325–28 (Tex. Crim. App. 2020) (applying Craig necessity-findings rule in Texas case involving an adult witness); see also Romero v. State , 136 S.W.3d 680, 684–85 (Tex. App.—Texarkana 2004) aff'd , 173 S.W.3d 502 (Tex. Crim. App. 2005) (same). We further ordered the trial court to "notify this court if the trial court require[ed] more than forty-five days to make and file these findings."

2. First Supplemental Record

On August 19, 2022, the trial court submitted its first supplemental clerk's record that did not include any particularized findings but merely supplemented the clerk's record with three documents devoid of any explanation: (1) a COVID-19 operating plan for the Tarrant County judiciary implemented by the local administrative judge, (2) an order of assignment showing that Finley's case had been assigned for all purposes to a retired judge, and (3) a case docketing sheet.³

The operating plan, which went into effect on June 7, 2021, permitted in-person proceedings but required judges to take "reasonable steps to protect judges and court staff from contracting COVID-19." People who had been exposed to or were showing symptoms of COVID-19 were prohibited from entering court facilities. Further, courts were ordered to establish policies and procedures to minimize the likelihood that court participants would violate social-distancing rules. The plan did not address the wearing of masks.

3. Abatement Hearing Record and Findings

On September 22, 2022⁴ —the same day that we issued our original opinion—the trial court supplemented the appellate record with a transcript of a non-evidentiary⁵ abatement hearing that had been held on August 17, 2022. This transcript includes thirty-six findings of fact orally pronounced by the trial court that were subsequently reduced to writing and filed with this court on September 29, 2022. Though lengthy, for context we will recite each written finding in its entirety:

1. This trial was held during a time of disaster declarations, declarations of public health disaster, and emergency orders issued by various governmental entities in response to a deadly global pandemic caused by a contagious virus.

2. This is not a case where face-to-face confrontation was denied. The witness was physically present in court along with all the other participants in the trial: [Finley], 1 defense counsel, 2 prosecutors, 2 bailiffs, 1 court reporter, 6 jurors, and 1 judge. The witness testified in open court in a public courtroom in the presence of [Finley] and his counsel. The witness did not testify via closed circuit television, Zoom or other electronic means, nor was the witness behind a screen or other similar barrier preventing [Finley] and his counsel, or other trial participants, including the jury, from physically viewing and observing

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