In re A.M., 2026 Tex. App. LEXIS 2882 (Tex. Ct. App. 2026)

The Fifth Court of Appeals of Texas reversed a sex offense adjudication finding a violation of due process and the right to confrontation when a state investigator signaled to a child witness during their testimony at trial.

The court stated in relevant part: “Rather than being a permissible support person, Dear, looking like Santa, interjected himself in the proceedings during A.S.’s testimony and signaled to A.S. precisely when she “would freeze up.” Such interjection was noticed by and was of concern to the jury. As in Falcon, we conclude Dear’s engagement with A.S. rose to the level of being “testimonial” in that it could be interpreted as Dear’s agreement with what A.S. was saying and his approval of her continuing her testimony. See Falcon, 675 S.W.2d at 597-98. Said communication and conduct would have been expressly forbidden had Dear been an identified, approved support person. It is undisputed that the trial court, the prosecution, and the defense were unaware of Dear’s communicative behavior during the adjudicatory proceedings. After A.M.’s defense counsel was made aware of Dear’s conduct and was able to investigate the matter, counsel’s first opportunity to raise objections to the deprivation of A.M.’s constitutional right to confront Dear and cross-examine him was in the motion for new trial. . . . We further conclude that, after the record was developed during the hearing on the motion for new trial showing a violation of A.M.’s right to confront Dear and cross-examine him, amounting to harmful error, the trial court abused its discretion in denying the motion for new trial.”