In re A.M., 2025 Tex. App. LEXIS 6540 (Tex. Ct. App. 2025)
The 5th Court of Appeals in Texas reversed a trial court’s judgment based on the state’s constitutional violations of the youth’s right to confrontation and offered the following language in support.
“There are specific rules in Texas related to the testimony of a child, including the provision of a support person identified as “any person whose presence would contribute to the welfare and well-being of a child.” Tex. Code Crim. Pro. art. 38.074 § 1(2). The court may set any other conditions and limitations on taking a child‘s testimony “it finds just and appropriate, considering the interests of the child, the rights of the defendant, and any other relevant factors.” Tex. Code Crim. Pro. art. 38.074 § 3(d).
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These rules specifically avoid the impermissible constitutional taint that is present here. Had these rules been followed, the jury would have known the identity of the support person, said person would have been in close proximity to A.S., and such an individual would not have been permitted to assist or influence the testimony of the child.
Dear was not appointed by the trial court as a support person and, by all accounts, not identified as such to the trial court, the prosecutor, or defense counsel. Although the record is silent regarding the other jurors’ impressions of Dear’s behavior, the record is clear that the jury discussed Dear during deliberations and may have been aware that he was an investigator with the district attorney’s office.
Contrary to the State’s argument, this is not a simple question of a child that “got reassured by someone in the courtroom who looked like Santa.” If the State thought there was a need for such reassurance, the rules provide for the same in keeping with the preservation and protection of the integrity of the adjudicatory proceedings, jury trials, and rights afforded an accused along with the protection of a child witness.
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 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, the trial court abused its discretion in denying the motion for new trial.”
