Burleson v. State

791 S.W.2d 334, 1990 Tex. App. LEXIS 1470, 1990 WL 82859
CourtCourt of Appeals of Texas
DecidedJune 20, 1990
DocketNo. 3-86-285-CR
StatusPublished
Cited by7 cases

This text of 791 S.W.2d 334 (Burleson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burleson v. State, 791 S.W.2d 334, 1990 Tex. App. LEXIS 1470, 1990 WL 82859 (Tex. Ct. App. 1990).

Opinion

GAMMAGE, Justice.

A jury found Randy Burleson guilty of aggravated sexual assault and assessed punishment at confinement for life in the Texas Department of Corrections. The trial court adjudged him guilty and sentenced him accordingly. We will affirm the judgment of the trial court.

The indictment alleged that Burleson “on or about the 26th day of May 1986 ... intentionally and knowingly cause[d] the sexual organ of ..., a child who was ... younger than 14 years of age and not the spouse of the Defendant, to contact the sexual organ of the Defendant,” thus charging Burleson with the offense and elements set out in Tex.Pen.Code Ann. § 22.021(a)(5) (Supp.1985),1 then in effect.

The trial court allowed the State to introduce, over Burleson’s objections, the nine-year-old child-complainant’s videotaped testimony made in compliance with Tex.Code Cr.P.Ann. art. 38.071, § 2 (Supp.1985),2 then in effect. When the defendant called her as an adverse witness, the court ordered, upon the State’s motion, that her testimony be taken in a room other than the courtroom and transmitted by closed circuit equipment to Burleson and the jury in compliance with art. 38.071, § 3,3 then in effect.

Burleson brings eight points of error. In his first three points of error, Burleson argues that the two previously-cited sections of the Texas Code of Criminal Procedure are unconstitutional. He complains that the admission of the videotaped testimony; the State’s failure to call the child during its case-in-chief, forcing him to call her as an adverse witness or waive all right and opportunity to confront and cross-examine her under oath; and the court’s order requiring the child’s in-court testimony be taken outside his and the jury’s presence violated his constitutional rights of confrontation and due process of law under the United States and Texas Constitutions. U.S. Const, amends. VI, XIV; Tex. Const. Ann. art. I, §§ 10, 19. The State argues that sections 2 and 3 of art. 38.071 are not unconstitutional or alternatively, even if they are, the introduction of evidence ad[336]*336mitted in compliance with such constituted harmless error.

Subsequent to the appeal of this case, the Court of Criminal Appeals decided Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988), and Briggs v. State, 789 S.W.2d 918 (Tex.Cr.App.1990). In Long, the Court held section 2 of art. 38.071 to be an unconstitutional infringement upon a defendant’s right of confrontation and due process under both constitutions. Later in Briggs, the Court modified Long, holding that, although “in a given case [section 2] may operate to deprive an accused of confrontation or due process and due course of law, [it] is [not] unconstitutional on its face.” Briggs, at 921.

The constitutionality of section 3 was not before the Court in either case; moreover, the Court stated in Long, “Whether [the] opportunity for cross-examination requires physical presence of both the child victim and the accused or just the attorney representing the accused is not the issue in this case; therefore, we express no opinion in this regard.” Long, 742 S.W.2d at 318 n. 16. Nor has the Court of Criminal Appeals addressed the constitutionality of this provision in any other cases of which we are aware. We note that the Eleventh Court of Appeals held the provision is not unconstitutional. Hightower v. State, 736 S.W.2d 949 (Tex.App.1987, pet. granted).

In keeping with the rule that courts do not address the issue of the constitutionality of a statute where consideration is no.t absolutely necessary to decide the case in which the issue is raised, Turner v. State, 754 S.W.2d 668, 675 (Tex.Cr.App.1988), we decline to address the constitutionality of section 3 or of section 2 as applied here. Rather, we overrule Burleson’s points of error regarding these provisions on the ground that, under Mallory v. State, 752 S.W.2d 566 (Tex.Cr.App.1988), even if the application of the provisions constitutes a constitutional infringement, such infringement is subject to harmless error review, and, as we explain below, such error in this case, if any, was harmless beyond a reasonable doubt.

In Mallory, the Court of Criminal Appeals held that the unconstitutional introduction into evidence of a section 2 videotape is subject to the harmless error standard announced by the United States Supreme Court for constitutional errors in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Because an unconstitutional application of section 2 may deprive the defendant of his right to contemporaneous cross-examination of the child as well as his right, if any, to be physically present during the testimony, it is only logical that the harmless error standard should be applied in the case that section 3 may be unconstitutional on the ground that it deprives the defendant of his right to be physically present during the testimony, noting that his right to contemporaneous cross-examination is left undisturbed under section 3.

The harmless error standard to be applied under Mallory is that set out in Tex. R.App.P.Ann. 81(b)(2) (Pamp.1990). Harris v. State, 790 S.W.2d 568, 584 (Tex.Cr.App.1989). Rule 81(b)(2) provides:

Criminal Cases. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

In Harris, the Court attempted to “articulate a coherent standard for determining when an error is harmless [under Rule 81(b)(2)].” Harris, at 584. Because the rule focuses upon the error and not the remaining evidence, the function of the appellate court’s harmless error analysis is not in determining whether the correct result was achieved despite the error; such an analysis “necessarily envisages what result it [the appellate court] would have reached as a trier of fact, thereby effectively substituting itself for the trial court or the jury.” Id. at 585. The appellate court should, instead, “calculate as much as possible the probable impact of the error on [337]*337the jury in light of the other evidence.... If overwhelming evidence dissipates the error’s affect [sic] upon the jury’s function in determining the facts so that it did not contribute to the verdict then the error is harmless.” Id. at 587.

In other words, while the presence of overwhelming evidence is not enough to automatically render an error harmless, that evidence may sufficiently dissipate the error’s effect to render the error harmless.

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Bluebook (online)
791 S.W.2d 334, 1990 Tex. App. LEXIS 1470, 1990 WL 82859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burleson-v-state-texapp-1990.