Ex Parte Dutchover

779 S.W.2d 76, 1989 Tex. Crim. App. LEXIS 194, 1989 WL 129767

• Court: Court of Criminal Appeals of Texas
• Decided: November 1, 1989
• Docket: 70836
• Status: Published

Opinions

OPINION

PER CURIAM.

This is a postconviction petition for habe-as corpus relief pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of the offense of indecency with a child and assessed twenty five years to serve in the Texas Department of Corrections.

Applicant contends he was “unconstitutionally deprived of his right of confrontation and due process and due course of law on both federal and state grounds guaranteed by the Texas Constitution, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution when the video tape of complainant was admitted into evidence under V.A.C.C.P. Article 38.071 § 2.” He invokes our decision in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987).

In Long this Court held that Article 38.-071, § 2, supra, was “facially” unconstitutional as violative of 1) Sixth and Fourteenth Amendment right of confrontation; 2) right of confrontation as guaranteed under Art. I, § 10 of the Texas Constitution; 3) due process under the Fourteenth Amendment, and 4) due course of law as guaranteed under Art. I, § 19 of the Texas Constitution.

We consider first applicant’s claims premised upon the Texas Constitution. In Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989), we essentially held that an allegation of error which, though of state constitutional dimension, is' nevertheless subject to a harm analysis under Tex.R.App. Pro., Rule 81(b)(2), “is at best voidable, and as such is not subject to a collateral attack by writ of habeas corpus.” Id,., at 813. In Mallory v. State, 752 S.W.2d 566 (Tex.Cr.App.1988), we held in no uncertain terms that error in admitting videotaped testimony under Article 38.071, § 2, supra, is subject to a harm analysis under Rule 81(b)(2). Consonant with our holding in Ex parte Truong, supra, we now hold applicant’s claims, insofar as they depend upon Art. I, §§ 10 and 19 of the Texas Constitution, are not cognizable in a postconviction writ of habeas corpus brought pursuant to Article 11.07, supra.

*

Turning to his federal constitutional claims, we hold applicant has failed to allege facts which, if true, would entitle him to relief.

Recently the Court held that a contemporaneous objection is required to preserve Long error for purposes of obtaining collateral relief under Article 11.07, supra. Ex parte Crispin, 777 S.W.2d 103 (Tex.Cr.App.1989) (Plurality Opinion). Applicant does not allege he objected “when the video tape of complainant was admitted into evidence” at his trial. In the absence of an objection, applicant would not be entitled to the relief he seeks.

Furthermore, applicant fails to allege facts showing in context of his particular trial the Long error was not harmless beyond a reasonable doubt. In Ex parte Maldonado, 688 S.W.2d 114 (Tex.Cr.App.1985), the Court declined to entertain an application for writ of habeas corpus pursuant to Article 11.07, supra, which alleged fundamental defect in the court’s charge to the jury. Recognizing that since Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), a fundamentally defective jury charge would provide a basis for post-conviction habeas relief, notwithstanding Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1978), the Court nevertheless dismissed Maldonado’s application without prejudice for failure to allege reasons the purported jury charge error operated, in context of his trial, to deny him a fair and impartial trial. See also Ex parte White, 726 S.W.2d 149 (Tex.Cr.App.1987).

We are aware that in Ex parte Maldonado, supra, a showing of harm was an actual component of the constitutional error, such that failure to allege the requisite harm amounted to a failure to state facts establishing error of constitutional proportion. Here applicant’s constitutional right to confront his accuser would be denied the moment the jury was allowed to view the videotape, and no further showing (other than that he objected) is necessary to establish constitutional error. Such error is susceptible, however, to a harmless error analysis. Mallory v. State, supra. Harmless constitutional error provides no basis for relief in habeas corpus. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). It is true that in a direct appeal from a criminal conviction, any error mandates reversal “unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Tex.R.App.Pro., Rule 81(b)(2). In a collateral attack, however, where the burden is upon the applicant to establish the illegality of his restraint, we deem it appropriate to require an applicant to plead and prove facts showing the error did in fact contribute to his conviction or punishment. Ex parte Crispin, supra, at 109, n. 6 (Clinton, J., concurring). No less than in Maldonado, harm must be alleged and demonstrated before a habeas petitioner raising error under Long v. State, supra, will be entitled to relief on collateral attack.

This application is therefore dismissed without prejudice to file a new application in accordance with this opinion.

It is so ordered.

We recently held in Ex parte Hemby, 765 S.W.2d 791, at 794 (Tex.Cr.App.1989), that "Long v. State, supra, is to be afforded complete retroactive effect.” Obviously, in view of our holding here today, "retroactivity” of state constitutional claims under Long becomes a moot issue. To the extent that it speaks to retroactivity of the federal constitutional facets of Long v. State, supra, of course, Ex parte Hemby, supra, remains unaffected by our present holding. But see Ex parte Crispin, supra (Clinton, J., concurring) (Questioning cognizability of Long error under Article 11.07, supra, Hemby notwithstanding.)