filed a dissenting opinion.
Mr. Israel G. Romero, this is your lucky day. You’re going to get a new trial. The trial judge erred by allowing an eye witness to your crime to wear a ball cap, jacket, and sunglasses while testifying. And, even more amazing is that this type of error is immune from a harm analysis.1
The majority says that two elements of the confrontation clause2 were eompro-mised — 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. Since Mr. Vasquez spoke through an interpreter, I really think this whole controversy is probably “lost in translation.”
In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court discussed the purpose of the Confrontation Clause.
The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word “confront,” after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-exami*508nation of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of 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] at 242-243, 15 S.Ct. 337, 39 L.Ed. 409.
As this description indicates, the right guaranteed by the Confrontation Clause includes not only a “personal examination,” 156 U.S. at 242, [15 S.Ct. 337] but also “(1) 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; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) 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.” [California v.] Green, [399 U.S. 149] at 158[, 90 S.Ct. 1930],
The combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves 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 of Anglo-American criminal proceedings.
Craig, 497 U.S. at 845-46, 110 S.Ct. 3157.
But here’s the catch, the defense basically neutralized the witness’s disguise. Mr. Vasquez was the only one in the courtroom who thought he was The Phantom of the Opera. The only effect that wearing a hat and sunglasses had was to make Mr. Vasquez more comfortable on the stand and to limit the trauma he felt when testifying against someone whom he feared. This is similar to the cases cited by the parties, Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), and Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, in which measures were used to prevent face-to-face contact between the defendant and the witness in order to prevent trauma to the victims. However, unlike the screen in Coy and the closed circuit television in Craig, in this case, the outfit worn by Mr. Vasquez did not prevent or encroach upon face-to-face contact between the defendant and the witness.
Attorneys often change the appearance of witnesses appearing in court. Drunks are sobered up, addicts are cleaned up, and the homeless are dressed up; prostitutes even appear in business suits. These modifications are intended to persuade the jury that the witness is reliable. Mr. Vasquez’s additions were not intended to fool the jury. Rather it was simply a method to allay his fears about testifying. Nothing was compromised-just slightly camouflaged.
I agree with the trial court’s decision to allow the witness to appear as secret agent man. Therefore, I respectfully dissent.
. The court of appeals stated the following as to their harm analysis: “Although it is impossible for this Court to determine the likely damage caused by Vasquez’s testifying in disguise or the weight individual jurors may have attributed to his appearance, it posed an unacceptable threat to Romero’s right to a fair trial.” Romero v. State, 136 S.W.3d 680 (Tex.App.-Texarkana 2004). Apparently “threats” to a fair trial can now make an error harmful beyond a reasonable doubt. See Texas Rule of Appellate Procedure 44.2(a).
. The Appellant cites Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), stating that "the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.”