Marx v. State

987 S.W.2d 577, 1999 Tex. Crim. App. LEXIS 8, 1999 WL 47377

• Court: Court of Criminal Appeals of Texas
• Decided: February 3, 1999
• Docket: 994-97
• Status: Published

Opinions

OPINION

MANSFIELD, J.,

delivered the opinion of the Court,

in which McCORMICK, P.J., and MEYERS, PRICE, and KEASLER, JJ„ joined.

At appellant’s trial for aggravated sexual assault of a child, two child witnesses testified via two-way closed circuit television, outside appellant’s physical presence and over his objection. We granted appellant’s petition for discretionary review to determine whether the admission of the child witnesses’ testimony violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article 38.071 of the Texas Code of Criminal Procedure.

The Relevant Facts

In August 1994, a Burnet County grand jury indicted appellant on three counts of aggravated sexual assault of a child. See Tex. Penal Code § 22.021(a)(l)(B)(i) & (2)(B). The named victim in each count was a thirteen-year-old girl, B.J. In April 1995, shortly before the case went to trial in the 33 rd District Court of Burnet County, the State filed written motions in that court asking that B.J. and another girl, six-year-old J.M., an alleged witness to the offenses, be allowed to testify via two-way closed circuit television, outside appellant’s presence. The State argued in the motions that the two girls, “if forced to testify in the presence and sight of the defendant, would suffer serious emotional and physical distress.” The State argued further that the girls’ closed circuit television testimony would be admissible under the Sixth Amendment, as interpreted in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), and Article 38.071.¹

The District Court held a pretrial hearing on the State’s motions, at which hearing four witnesses testified. Pat Fluitt, B.J.’s teacher at Burnet Middle School, testified that B.J. had “learning disabilities” and read at a six-year-old’s level. She testified further that B.J. had been “dreading” the possibility of testifying in appellant’s presence and had “cried a couple of times” about it in class. Fluitt also testified that B.J. was “quite fear-fid” and that requiring her to testify in appellant’s presence “would be a traumatic situation” for her.

Barney Raines, B.J.’s grandfather, testified that B.J. was “sixty percent” mentally retarded. He also testified that she had “shown fear” and had told him that appellant had threatened her. Raines testified further that he believed B.J. would suffer emotionally and perhaps physically if required to testify in appellant’s presence.

Crystal Hayden, J.M.’s mother, testified that J.M. was afraid of appellant but was nevertheless ready to testify in his presence. Hayden also testified, however, that J.M. was “real scared” and that she would probably be traumatized if required to testify in appellant’s presence, even if her testimony related only to what appellant had done to B.J.

Finally, Dr. Anita Calvert, a licensed mental health therapist, testified that she had been counseling J.M. for an extended period of time because of appellant’s many sexual assaults on her. Calvert testified further that J.M. was a “wreck,” that she had had nightmares, and that she had suffered serious psychological damage, all because of what appellant had done to her. Calvert also testified that J.M. had demonstrated “extreme sexual knowledge” and had “inappropriately advanced males in [Calvert’s] office,” again because of what appellant had done to her. Finally, Calvert testified that, although J.M. was “a very strong little girl” and “would probably testify okay” in appellant’s presence, she could not be certain of that.

Appellant objected to the use of closed circuit television testimony on both constitutional and statutory grounds. He argued first that use of such testimony would deny him his Sixth Amendment right to confront the witnesses against him. He argued second that use of such testimony would violate Article 38.071 “because [that statute] applies only to a victim of the offense for which the defendant is on trial, and the victim of that offense [must be] under [thirteen] years of age.” Appellant pointed out that B.J. was thirteen years old and that J.M. was not the alleged victim of the offense for which he was being tried.

At the conclusion of the hearing, the District Court found, as a matter of fact, that both B.J. and J.M. “would be traumatized by being required to testify in the defendant’s presence” and that “the emotional distress ... would be more than a minimum.” The court then rejected appellant’s legal arguments without explanation and granted the State’s motions for closed circuit testimony.

Shortly before B.J. and J.M. testified at the guilt/innocence stage of trial, appellant reiterated his previous objections to the use of closed circuit testimony and also argued, for the first time, that use of such testimony would impair his Fourteenth Amendment right to the presumption of innocence “because for a child to be presumed to be harmed [by testifying in his presence], then [one must] presume that this offense did, in fact, occur.” The District Court rejected all of appellant’s arguments, however, and, shortly thereafter, instructed the jury as follows:

Ladies and gentlemen, I’m going to give you an instruction at this time. Our stair utes provide that the testimony of children in these types of eases can be taken by what we call closed circuit television, and that is what’s going to be taking place here for the next couple of witnesses. So we’ll be seeing the witness on the closed circuit television, and [the attorneys] will be asking the witness questions from the podium there so that [the witness] can see the person who is asking the questions, and so forth. The rest of the procedure will go according to the Code of Criminal Procedure as we are bound by it, at any rate, and that will be the only change insofar as the testimony is concerned.

B.J. and J.M. then testified via two-way closed circuit television. The jury later convicted appellant of one count of aggravated sexual assault and assessed his punishment at imprisonment for 23 years.

On appeal, appellant reiterated the constitutional and statutory arguments discussed previously. The Third Court of Appeals, in a rather elaborate analysis, considered and rejected all of appellant’s arguments and affirmed the District Court’s judgment. Marx v. State, 953 S.W.2d 321 (Tex.App. — Austin 1997). We granted appellant’s petition for discretionary review to determine whether the Court of Appeals had erred. See Tex. R.App. Proc. 66.3(b) & (e).

The Right to Confrontation

We turn first to appellant’s argument under the Sixth Amendment. That amendment provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This right to confrontation was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, 110 S.Ct. at 3163. The Confrontation Clause reflects a preference for face-to-face confrontation at trial, but that preference must occasionally give way to considerations of public policy and the necessities of the case. Id. at 3165. Still, a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only when denial of such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured. Id. at 3166. In particular, “if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse ease is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.” Id. at 3169. The requisite necessity to justify the use of such a special testimonial procedure in a child abuse case may be shown if the trial court determines that use of the procedure is necessary to prevent significant emotional trauma to the child witness caused by the defendant’s presence. Ibid. The requisite reliability of the child witness’ testimony may be assured absent a face-to-face encounter through the combined effect of the witness’ testimony under oath (or other admonishment, appropriate to the child’s age and maturity, to testify truthfully), subject to cross-examination, and the factfinder’s ability to observe the witness’ demeanor, even if only on a video monitor. Id. at 3170. See Lively v. State, 968 S.W.2d 363, 366-367 (Tex.Crim.App.1998); Hightower v. State, 822 S.W.2d 48, 51 (Tex.Crim.App.1991); Gonzales v. State, 818 S.W.2d 756, 760-762 (Tex.Crim.App.1991).

Applying these settled principles to the case at bar, we discern no Sixth Amendment violation in the District Court’s admission of the two-way closed circuit television testimony of B.J. and J.M. The District Court explicitly found, as a matter of fact, that the special procedure was necessary to protect both B.J. and J.M. from the significant emotional trauma of having to testify in appellant’s physical presence, and the record evidence, discussed previously, reasonably supports that fact-finding.² See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Furthermore, the requisite reliability of the children’s testimony was assured because they testified after promising to do so truthfully, they were subject to cross-examination, and the jury was able to observe their demeanor.

The Presumption of Innocence

We turn next to appellant’s argument under the Fourteenth Amendment. Appellant claims that the admission of the closed circuit television testimony impaired his presumption of innocence. Specifically, appellant argues that “[t]he only reasonable inference that the finder of fact can draw from the [trial] court allowing a witness to testify in this manner, is that the person on trial has abused the witness to such a degree, that to allow the witness to testify in the ordinary manner, would traumatize the witness even further.”

The Fourteenth Amendment provides, in relevant part, that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” The right to due process of law includes within it the right to a fair trial, and basic to a fair trial is the presumption of the defendant’s innocence. Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976); Homan v. State, 662 S.W.2d 372, 374 (Tex.Crim.App.1984).

To implement the presumption, courts must be alert to factors that may undermine the fairness of the factfinding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.

The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Courts must do the best they can to evaluate the likely effects of a particular practice, based on reason, principle, and common human experience.

Estelle v. Williams, 96 S.Ct. at 1693 (citations omitted).

If a particular practice tends to brand the defendant with an unmistakable mark of guilt, it impairs the presumption of innocence and violates the Fourteenth Amendment’s guarantee of due process of law, unless it furthers an essential state interest. Holbrook v. Flynn, 106 S.Ct. at 1347. If, on the other hand, the challenged practice need not be interpreted by jurors as a sign that the defendant is particularly dangerous or culpable, it is not inherently prejudicial and does not deny due process.

Based on “reason, principle, and common human experience,” we discern no due process violation in the District Court’s admission of the closed circuit testimony of B. J. and J.M. Before B.J. and J.M. testified, the District Court carefully instructed the jury that the closed circuit television procedure about to be employed was authorized by statute “in these types of cases.” As the Court of Appeals noted, that instruction likely conveyed to the jury the state’s general desire to protect children from the intimidating courtroom environment rather than implying that the procedure was necessary because of the defendant’s guilt. See Marx v. State, 953 S.W.2d at 332. Even in the absence of such an instruction, the use of a closed circuit television procedure “would probably be viewed by the jury as suggesting that the witness was fearful of testifying in the courtroom setting rather than fearful of testifying while looking at the defendant.” W. LaFave & J. Israel, Criminal Procedure § 24.3 at 1015 (2 nd ed.1992). Thus, we do not think it likely that the use of the closed circuit television procedure had a subconscious effect on the jury’s attitude toward appellant. In other words, we do not believe that the challenged practice tended to brand appellant with an unmistakable mark of guilt.

Article 38.071

We turn finally to appellant’s argument under Article 38.071.³ As we noted before, appellant argues that the admission of the closed circuit television testimony of B.J. and J.M. violated Article 38.071 because that statute authorizes special testimonial procedures only for victims who are twelve years of age or younger. B.J. was thirteen years old at the time of the offense and at the time of trial, and J.M., although only six years old, was not the victim of the offense for which appellant was on trial.

Article 38.071, § 1, provides, in relevant part:

This article applies only to a proceeding in the prosecution of [certain specified sex and assaultive offenses, including aggravated sexual assault of a child] 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.

We must determine whether that statutory language prohibits the use of closed circuit television testimony in circumstances not enumerated in the statute.

When we interpret statutes, we necessarily focus our attention on the literal text of the statute in question. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). If the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted on it, we give effect to that plain meaning, unless doing so would lead to absurd consequences that the legislators could not possibly have intended. Ibid.

Section one of Article 38.071 states that the article applies “only” to the statements or testimony of a witness if certain circumstances, specified in section one, exist. That is, the article, read literally, does not apply to the testimony of a witness in circumstances not specified in section one, nor does the article, read literally, prohibit the use of special testimonial procedures in circumstances not specified in section one. Would it, then, lead to absurd consequences that the legislators could not possibly have intended if we were to give effect to the plain meaning of the statute? We do not believe so. That this statute does not cover all the circumstances that it might have covered cannot reasonably be deemed an absurd result that the legislators could not possibly have intended. Indeed, it is quite possible that the intent of the legislators who voted for Article 38.071 was simply to enact a narrow statute that would both facilitate the prosecution of certain serious child abuse eases and survive an inevitable Confrontation Clause challenge. We also think it likely that those legislators would have made their intent clear if they actually intended to prohibit, except under the enumerated circumstances, special testimonial procedures that, like the one used in this case, are constitutional. In short, we agree with the concurring opinion of Judge Benavides, joined by Judges Campbell and Overstreet, in Gonzales v. State, 818 S.W.2d 756:

If the legislature had elsewhere clearly expressed a policy that no courtroom testimony should be allowed except in the physical presence of the defendant, I might be inclined to think that Article 38.071 was meant as a list of specific exceptions to that general rule. But, in this instance, the general rule is expressed only in the Constitution, and the legislature has no authority to make exceptions. It follows that Article 38.071 cannot seriously be taken as an attempt by the legislature to prohibit the use of closed-circuit television [testimony] except under the enumerated circumstances. If that were the case, one might have expected it to say so explicitly, rather than to list exceptions against an unarticulated policy. And, although Article 38.071 might actually have been intended to limit the Constitution, it clearly cannot be effective to such end. Consequently, the only permissible interpretation of the statute, no matter how counterintuitive, is that it prescribes a specific alternative testimonial procedure under certain defined circumstances, leaving the courts free to develop different procedures under other circumstances, constrained only by constitutional prohibitions.

Id, at 768. We hold, therefore, that Article 38.071 did not prohibit the admission of the closed circuit television testimony of B.J. and J.M.

We affirm the judgment of the Court of Appeals.

KELLER, J., filed a dissenting opinion. HOLLAND, J., filed a concurring and dissenting opinion, in which WOMACK and JOHNSON, JJ., joined.

1 . Article 38.071 provides that, in certain specified circumstances, a child witness’ testimony may be taken via videotape or closed circuit television, outside the defendant’s presence. See generally 3 F. Maloney (ed.), et at., Texas Criminal Practice Guide § 73B.02[5][d] (1997).

2 . We concede that the District Court’s fact-finding with respect to J.M. is weakly supported by the record evidence, but we cannot say that that fact-finding is actually outside the zone of reasonable disagreement. In other words, we cannot say that the District Court clearly abused its discretion in finding that J.M. would suffer significant emotional trauma if required to testify in appellant's presence.

3 . See footnote one, supra.