A witness from a trial died before the retrial required by jury charge error. Would prosecutors reading the witness's testimony from the first trial at the second trial violate the defendant's right to confront the witnesses against him? The Texas Court of Criminal Appeals ruled that it did not. Judge Charles Holcomb wrote the opinion for every judge on the court except Judge Lawrence E. Meyers, who dissented. This is an original appeal from a death penalty trial. The defendant, Raymond Deleon Martinez, brought seven points of error. He complained of the factual sufficiency of the finding that he would be a future danger and of the finding that he deliberately intended to kill a person. These claims are based on Clewis, which was overruled by Brooks, as readers of this blog know. The legal sufficiency of the evidence of his future dangerousness was manifest. Three other points of error were attacks on the constitutionality of statutes that had been found constitutional before.
So how did they find that a trial transcript didn't violate the rule requiring confrontation? Because he had a chance to confront the witness at the first trial. They didn't find that the different jury charge was a material difference in the trials. I'd be curious to find if the material difference in the jury charges was why Judge Meyers dissented.