Hightower v. State

736 S.W.2d 945
CourtCourt of Appeals of Texas
DecidedSeptember 10, 1987
DocketNos. 11-86-193-CR, 11-86-194-CR
StatusPublished

This text of 736 S.W.2d 945 (Hightower 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
Hightower v. State, 736 S.W.2d 945 (Tex. Ct. App. 1987).

Opinion

OPINION

DICKENSON, Justice.

These cases were tried together, and the punishments run concurrently. The jury found that Ray Hightower, Jr., was guilty of the offenses of aggravated kidnapping1 and indecency with a child,2 found that the two enhancement allegations were true,3 and assessed his punishment at confinement for life for each offense. Ray High-tower, Jr., appeals. We affirm both convictions.

Appellant briefs five points of error.4 He argues that: (1) the trial court erred in admitting certain items of evidence which were seized under an allegedly invalid search warrant; (2) his Sixth Amendment right to confront the witness [under the Federal Constitution] was violated by the trial court’s admission of the child victim’s testimony pursuant to Section 3 of TEX. CODE CRIM.PRO.ANN. art. 38.071 (Vernon Supp.1987); (3) his right to effective assistance of counsel and his right to confront the witness [under TEX. CONSTITUTION art. I, sec. 10] were denied by the trial court’s refusal to allow him to be personally present with his attorney during cross-examination of the child; (4) the child’s testimony was improperly admitted over objection because the “mandatory predicate provisions” of Section 3, Article 38.071, supra, were not followed; and (5) reversible error was committed in admitting testimony of the child’s outcry to her mother under TEX.CODE CRIM.PRO. ANN. art. 38.072 (Vernon Supp.1987). All points of error have been considered, and each is overruled.

There is no challenge to the sufficiency of the evidence. Viewed under the tests stated in Houston v. State, 663 S.W.2d 455 (Tex.Cr.App.1984), the record shows that appellant abducted a six-year-old girl who was playing in the backyard of her family’s home in Abilene on February 1, 1986. He drove off in an older model Ford pickup which had a noisy muffler; and, after eluding his pursuers, he took her to a secluded area south of Abilene. After taking off all of the little girl’s clothes and his blue jeans, he placed his mouth on her vagina and forced her to place her mouth on his penis. Later, he let her out of his pickup near a rural home. The little girl made a positive identification, and hairs like those from her head were found in his pickup.

First, we hold that the search warrant was valid. The district judge who [947]*947authorized the search and arrest warrant had a substantial basis for concluding that probable cause existed. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Whaley v. State, 686 S.W.2d 950 at 951 (Tex.Cr.App.1985); Eisenhauer v. State, 678 S.W.2d 947 at 952 (Tex.Cr.App.1984). The affidavit set out the details of the abduction and the sexual molestation of the child, related the child’s identification of the suspect from a photo line-up, and listed twelve specific items of potential evidence. Five of those items [gray feathers on a thong, man’s blue tee-shirt, man’s faded blue jeans with holes in them, toolbox, and man’s tennis shoes] were seen and described by the child. It was reasonable to look for a wig or toupee, light brown or blonde in color, in view of the difference in the appearance of his hair at the time of the abduction because the child was so positive in her identification of the suspect’s face. The suspect’s pickup matched the description given by the eyewitnesses to the abduction, and it was reasonable to look for the victim’s hair samples and semen stains in view of the child’s report of the sexual molestation. The other items [photographs of children, pedophilic literature, and pornographic materials] were reasonably included in the warrant because the officer testified that oftentimes child molesters had such materials in their homes. The first points of error are overruled in both appeals.

Next, appellant argues that his “Sixth Amendment” right under the Federal Constitution [“to be confronted with the witnesses against him”] was violated by the trial court’s admission of the child victim’s testimony under Section 3 of Article 38.071, supra. The Court of Criminal Appeals recently held that Section 2 of Article 38.071, supra, [dealing with a pre-trial videotape recording of a child victim] is unconstitutional insofar as it authorizes the admission of a videotape recording made outside the presence of the defendant and his attorney. See Long v. State (No. 867-85, Tex.Cr.App., July 1,1987) (not yet published).5 Footnote 16 of the majority opinion in Long makes it clear that the Court of Criminal Appeals was not expressing any opinion as to:

Whether [the] opportunity for cross-examination requires [the] physical presence of both the child victim and the accused or just the attorney representing the accused. (Emphasis added)

That is the principal issue in this appeal.

On the date of the offense Section 3 of that statute provided:

Sec. 3. The court may, on the motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom and be televised by close circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding. Only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys may question the child. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.

We hold that this statute is not unconstitutional, and we also hold that the procedure used by the trial court in this case is not unconstitutional.

[948]*948The record shows that the child, the attorneys for the State, appellant’s attorney, the official court reporter, and the district judge went into the jury room with the operator of the video equipment. The child’s live testimony was televised by closed circuit on two monitors in the courtroom. One monitor was used by the jury, and the other was used by appellant. The district judge gave instructions to the appellant and the bailiff that appellant would be permitted to interrupt the questioning at any time he wanted to confer with his attorney. Appellant’s attorney was also given the assurance that the questioning could be interrupted by him anytime he wished to confer with his client. We hold that this procedure was sufficient to satisfy the Sixth Amendment’s requirement that appellant “be confronted with the witnesses against him.” Appellant was given ample opportunity to confer with counsel and through counsel to cross-examine the witness who testified against him. We reject the reasoning in United States v. Benfield, 593 F.2d 815

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Related

Mattox v. United States
156 U.S. 237 (Supreme Court, 1895)
Douglas v. Alabama
380 U.S. 415 (Supreme Court, 1965)
California v. Green
399 U.S. 149 (Supreme Court, 1970)
Illinois v. Gates
462 U.S. 213 (Supreme Court, 1983)
United States v. Russell Wayne Benfield
593 F.2d 815 (Eighth Circuit, 1979)
Hodge v. State
631 S.W.2d 754 (Court of Criminal Appeals of Texas, 1982)
Whaley v. State
686 S.W.2d 950 (Court of Criminal Appeals of Texas, 1985)
Houston v. State
663 S.W.2d 455 (Court of Criminal Appeals of Texas, 1984)
Eisenhauer v. State
678 S.W.2d 947 (Court of Criminal Appeals of Texas, 1984)
Fierro v. State
706 S.W.2d 310 (Court of Criminal Appeals of Texas, 1986)

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Bluebook (online)
736 S.W.2d 945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hightower-v-state-texapp-1987.