Marx v. State

953 S.W.2d 321, 1997 Tex. App. LEXIS 3472, 1997 WL 364771
CourtCourt of Appeals of Texas
DecidedJuly 3, 1997
Docket03-95-00333-CR
StatusPublished
Cited by56 cases

This text of 953 S.W.2d 321 (Marx 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
Marx v. State, 953 S.W.2d 321, 1997 Tex. App. LEXIS 3472, 1997 WL 364771 (Tex. Ct. App. 1997).

Opinions

BEA ANN SMITH, Justice.

A jury convicted appellant, Jeffrey Steven Marx, of aggravated sexual assault of a child and assessed punishment at imprisonment for twenty-three years. See Tex. Penal Code §§ 22.011, 22.021 (West 1994 & Supp.1997). Marx brings seven points of error contending the trial court erred by: (1) allowing two child witnesses to testify by closed-circuit television; (2) not suppressing his confession; (3) failing to afford him a Batson hearing; (4) denying him six challenges for cause; (5) admitting evidence of extraneous wrongs; (6) not allowing cross-examination of the victim concerning possibly exculpatory evidence; and (7) allowing testimony by witnesses not on the prosecution’s witness list who were present in the courtroom during other testimony after the rule had been invoked. We will affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1994, thirteen-year-old B.J. told her grandfather and caseworkers at the children’s advocacy center that Jeffrey Marx had sexually assaulted her earlier that summer. The next day, Investigator Jimmy Hopkins of the Burnet County Sheriffs Department obtained a warrant for Marx’s arrest. While in custody, Marx confessed to having intercourse with B.J. when he and his wife took B.J. swimming at an area lake. He also admitted to engaging in sexual acts with four other girls, including two of his daughters and his niece J.M. Because Marx claimed he could not read or write, Chief Deputy Tim Moody entered the confession into a computer. A Bumet County grand jury subsequently indicted Marx for three counts of aggravated sexual assault against B.J. Count one of the indictment alleged genital penetration; counts two and three alleged penetration of the anus and digital penetration of the genitals, respectively.

Before trial, Marx filed two motions to suppress the confession, which he contended was taken in violation of his statutory and constitutional rights. See U.S. Const, amend. IV, XIV; Tex. Const, art. I, § 9; Tex.Code Crim. Proc. Ann. art. 38.22, § 2(a)(l-5) (West 1979). The trial court denied both motions. The prosecution filed a pretrial motion to allow B.J. and J.M., age six, to testify by two-way closed-circuit television. See Tex.Code Crim. Proc. Ann. § 38.071 (West Supp.1997). The trial court granted the State’s motion. The jury found Marx guilty of count one but not guilty of counts two and three. The jury assessed punishment at twenty-three years of imprisonment.

DISCUSSION

Testimony by Closed-Circuit Television

In point of error one, Marx contends the trial court erred by allowing the two girls to testify by closed-circuit television because such testimony: (1) did not meet the prerequisites of article 38.071; (2) as applied, violated his right to confront the witnesses; and (3) facially and as applied, violated his right to due process of law. See U.S. Const, amend. V, VI, XIV; Tex.Code Crim. Proc. Ann. art. 38.071.

[327]*3271. Statutory Compliance and Confrontation Challenge

Section 1 of article 38.071 allows testimony to be given by closed-circuit television in a prosecution for aggravated sexual assault only if

the offense is alleged to have been committed against a child 12 years of age or younger and if the trial court finds that the child is unavailable to testify at the trial of the offense, and applies only to the statements or testimony of that child[.]

Id, art. 38.071, § 1. Marx correctly notes that B.J. was thirteen years old at the time of this offense and J.M. was not the victim in this particular proceeding. He also contends the State failed to prove J.M. was “unavailable” as the statute requires. However, in Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991), the Texas Court of Criminal Appeals upheld a child witness’s testimony by closed-circuit television even though she was not the victim of the charged offense and even though the offense (murder) was not one enumerated in the statute. See id. at 765. Gonzales teaches that the statute is not the only basis for permitting closed-circuit testimony by a child victim in Texas:

[W]e see no reason why an expression of this important public policy must necessarily be in the form of an act or statute. More importantly, we have found nothing in any pertinent opinion from this Court or from the Supreme Court that would permit only the Legislature to make this “public policy” determination on behalf of the State.

Id. Gonzales involved a challenge to closed-circuit televised testimony on the ground it violated the defendant’s confrontation right. See U.S. Const, amend. VI. The court of criminal appeals expressly adopted the United States Supreme Court’s holding in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), that the State has a sufficiently important interest in protecting child victims from the traumatic effects of testifying to justify the use of closed-circuit televised testimony under certain circumstances. See Gonzales, 818 S.W.2d at 765 (citing Craig, 497 U.S. at 855, 110 S.Ct. at 3168-69). To justify the procedure’s use under Craig and now Gonzales, the trial court must determine that the procedure is necessary by hearing evidence and finding: (1) the procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) the emotional distress suffered by the child witness in the presence of the defendant is not de minimis (“more than mere nervousness or excitement or some reluctance to testify”). Gonzales, 818 S.W.2d at 765 (citing Craig, 497 U.S. at 855-56, 110 S.Ct. at 3168-69); Hightower v. State, 822 S.W.2d 48, 51 (Tex.Crim.App.1991). This finding of necessity supplants the requirement of unavailability described in article 38.071. See Tex.Code Crim. Proc. Ann. art. 38.071, § 8. Accordingly, as long as the record in this case supports the finding of necessity, the trial court did not err by allowing B.J. and J.M. to testify by closed-circuit television merely because they did not meet the other requirements of article 38.071.

We review the trial court’s rulings in a hearing on necessity for an abuse of discretion. See Hightower, 822 S.W.2d at 53; see also Act of July 20, 1987, 70th Leg., 2d C.S., ch. 55, § 2, 1987 Tex. Gen. Laws 180, 185 (Tex.Code Crim. Proc. Ann. art. 38.071) (stating preference for affording “sufficient discretion” to trial courts applying statute). Review of a necessity hearing typically involves reviewing a trial court’s findings of fact. See Hightower, 822 S.W.2d at 53; Gonzales v. State, 822 S.W.2d 189, 194 (Tex.App.—San Antonio 1991), pet. granted and remanded, 831 S.W.2d 326 (Tex.Crim.App.1992) (later case involving Gonzales with a second victim); Dufrene v. State, 853 S.W.2d 86, 90 (Tex.App.—Houston [14th Dist.] 1993, pet. ref'd). Here the trial court did not record findings of fact. However, Marx did not request and does not challenge the absence of such findings. Therefore, we will determine whether the record supports the trial court’s ultimate determination of necessity.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Michael Patrick Anderson v. the State of Texas
Court of Appeals of Texas, 2023
Daniel Mark Politte v. State
Court of Appeals of Texas, 2019
Mark Odin Chambers v. State
Court of Appeals of Texas, 2019
Zhigang Wang v. State
Court of Appeals of Texas, 2019
Caterrion Dwayne Backus v. State
Court of Appeals of Texas, 2019
Ivan Lopez-Salas v. State
Court of Appeals of Texas, 2017
Denva Joseph Sterling v. State
Court of Appeals of Texas, 2016
Luke Hampton v. State
Court of Appeals of Texas, 2016
Galo Gonzales v. State
Court of Appeals of Texas, 2014
Ciro Cuevas v. State
Court of Appeals of Texas, 2014
Larry Darnell West v. State
Court of Appeals of Texas, 2012
State v. McFarland
721 S.E.2d 62 (West Virginia Supreme Court, 2011)
Hassan v. State
346 S.W.3d 234 (Court of Appeals of Texas, 2011)
Adbihakim Hassan v. State
Court of Appeals of Texas, 2011
in Re Jeffery Steven Marx
Court of Appeals of Texas, 2011
Gerald Christopher Zuliani v. State
Court of Appeals of Texas, 2011
Desmond W. Bryan v. State
Court of Appeals of Texas, 2010
Kesha Michele Mitchell v. State
Court of Appeals of Texas, 2009

Cite This Page — Counsel Stack

Bluebook (online)
953 S.W.2d 321, 1997 Tex. App. LEXIS 3472, 1997 WL 364771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marx-v-state-texapp-1997.