Pierce v. State

Court of Criminal Appeals of Texas

Pierce v. State

753 S.W.2d 403, 1988 Tex. Crim. App. LEXIS 135, 1988 WL 66877

CourtCourt of Criminal Appeals of Texas

DecidedJune 29, 1988

DocketNo. 273-87

StatusPublished

This text of 753 S.W.2d 403 (Pierce v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pierce v. State, 753 S.W.2d 403, 1988 Tex. Crim. App. LEXIS 135, 1988 WL 66877 (Tex. 1988).

Pincite

Opinion

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

Appellant was convicted by a jury of indecency with a child and assessed punishment by the court at imprisonment for twenty years in the Texas Department of Corrections.

At trial, over appellant’s objection, the videotaped testimony of the child victim was introduced as then authorized by Article 38.071, Section 2, V.A.C.C.P. The Court of Appeals affirmed the conviction. Pierce v. State, 724 S.W.2d 928 (Tex.App.-Austin 1987). We vacate that judgment and remand to the Court of Appeals.

In his appeal appellant claimed the admission of the videotaped testimony: (1) violated his right to confrontation under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution; (2) was error for the court not to permit cross-examination of the child witness during the State’s case in chief thereby placing two of appellant’s constitutional rights directly contra to each other, i.e., the right to confrontation versus the right to not have the burden of going forward with evidence of innocence; and (3) Article 38.071, supra, denied appellant the right to counsel at a critical stage of the criminal proceeding against him, namely at the time the videotape evidence was made.

In an opinion subsequent to the Court of Appeals’ opinion in this case, we found Article 38.071, Section 2, supra, unconstitutional in that it denied a defendant the right of confrontation as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution. Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied — U.S. -, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988).

Additionally, this Court recently held that errors such as those in Long were subject to harmless error analysis as required by the Texas Rules of Appellate Procedure, Rule 81(b)(2). Mallory v. State, 752 S.W.2d 566 (Tex.Cr.App.1988). In this case no harm analysis was performed.

Therefore, the judgment of the Court of Appeals is vacated and the case is remanded to that court to consider appellant’s [404]*404points of error in light of Long and Mallory.

ONION, P.J., dissents to remand.

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

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

Appellant was convicted by a jury of indecency with a child and assessed punishment by the court at imprisonment for twenty years in the Texas Department of Corrections.

At trial, over appellant’s objection, the videotaped testimony of the child victim was introduced as then authorized by Article 38.071, Section 2, V.A.C.C.P. The Court of Appeals affirmed the conviction. Pierce v. State, 724 S.W.2d 928 (Tex.App.-Austin 1987). We vacate that judgment and remand to the Court of Appeals.

In his appeal appellant claimed the admission of the videotaped testimony: (1) violated his right to confrontation under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution; (2) was error for the court not to permit cross-examination of the child witness during the State’s case in chief thereby placing two of appellant’s constitutional rights directly contra to each other, i.e., the right to confrontation versus the right to not have the burden of going forward with evidence of innocence; and (3) Article 38.071, supra, denied appellant the right to counsel at a critical stage of the criminal proceeding against him, namely at the time the videotape evidence was made.

In an opinion subsequent to the Court of Appeals’ opinion in this case, we found Article 38.071, Section 2, supra, unconstitutional in that it denied a defendant the right of confrontation as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution. Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied — U.S. -, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988).

Additionally, this Court recently held that errors such as those in Long were subject to harmless error analysis as required by the Texas Rules of Appellate Procedure, Rule 81(b)(2). Mallory v. State, 752 S.W.2d 566 (Tex.Cr.App.1988). In this case no harm analysis was performed.

Therefore, the judgment of the Court of Appeals is vacated and the case is remanded to that court to consider appellant’s [404]*404points of error in light of Long and Mallory.

ONION, P.J., dissents to remand.

Cite This Page — Counsel Stack

Bluebook (online)

753 S.W.2d 403, 1988 Tex. Crim. App. LEXIS 135, 1988 WL 66877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-state-texcrimapp-1988.

Opinion

Related

Cite This Page — Counsel Stack