Opinion
No. 06-01-00215-CR.
Submitted March 17, 2003.
Decided March 18, 2003.
Appeal from the 336th Judicial District Court, Fannin County, Texas, Trial Court No. 20023.
Reversed and remanded.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Brandi Edwards appeals from her conviction by a jury for the offense of aggravated sexual assault of a child. The jury assessed punishment at forty years' imprisonment and a $10,000.00 fine.
Edwards contends (1) the trial court erred by admitting the child's videotaped statement into evidence, (2) the statute permitting the admission of such evidence is unconstitutional, (3) the State's experts were improperly permitted to provide opinion testimony about the perceived truthfulness of the child, and (4) the admission of testimony by the sexual assault nurse examiner about statements made by the child was violative of Edwards' right of confrontation. Edwards also contends that the cumulative effect of all these errors denied her right to due process under the United States Constitution and that the evidence is legally and factually insufficient to support the verdict.
We first address Edwards' contention the videotape of the interview with the child was improperly admitted into evidence. Edwards contends the State never moved the trial court to declare the child unavailable, no hearing was held on that matter, and the State never presented evidence to show the child was unavailable. She also argues that, because there was no specific finding the child was unavailable to testify in the presence of the appellant, the trial court violated Tex. Code Crim. Proc. Ann. art. 38.071, § 1 (Vernon Supp. 2003) and the Sixth and Fourteenth Amendments to the United States Constitution. See U.S. Const. amends. VI, XIV.
The child, a five-year-old female, did not testify in open court, but a videotape of an interview conducted with her was presented to the jury. Counsel objected on grounds including hearsay, confrontation, and the unavailability issue. The objections were overruled.
Does the evidence support a determination that the child was unavailable?
The right to confront witnesses is a fundamental right established by the Sixth Amendment to the United States Constitution and made applicable to the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400 (1965). Likewise, as explained below, the law has recognized that children who are victims of violent crimes may in some instances be so traumatized by testifying in open court in the presence of the accused that an accommodation should be made.
Texas, and many other states, have enacted statutes that allow a child abuse victim to testify, under limited circumstances, in settings outside the traditional in-court procedure. The United States Supreme Court in Maryland v. Craig, 497 U.S. 836, 844-46 (1990), declared such statutes constitutional if they meet certain requirements. The basic requirement is the trial court must be convinced such a procedure is necessary to protect the welfare of the child. Id. at 855. Without evidence of this nature and a review of such evidence by the judge, such out-of-court testimony is constitutionally inadmissible. Id. at 855-56. In reaching this conclusion, the Court held that:
[I]f the state makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case 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.; Marx v. State, 987 S.W.2d 577, 580 (Tex.Crim.App. 1999).
The Texas statute generally incorporates the mandate of Craig. It expresses the concept that a child may be "unavailable" to testify in open court in certain circumstances. Usage of such out-of-court testimony is authorized only after the court determines the child is unavailable to testify in the presence of the defendant. Tex. Code Crim. Proc. Ann. art. 38.071(1), (2). It sets out the type of evidence that must be considered by the trial court: the relationship of the child and the defendant, the alleged offense, age, maturity, and emotional stability of the child, and the time elapsed since the offense. Id.
Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon Supp. 2003).
It further allows the court to consider the emotional or physical effects on the child in confronting the defendant and whether the child would suffer undue psychological harm by testifying at trial. Cf. Lively v. State, 968 S.W.2d 363, 366 (Tex.Crim.App. 1998). In this case, no evidence was introduced for the trial court to consider.
Before a videotaped interview of a child may be used, the court must determine the child is unavailable based on proper reasons, including the factors set out by Tex. Code Crim. Proc. Ann. art. 38.071, § 8 (Vernon Supp. 2003). See Lively, 968 S.W.2d at 366-67. In Craig, the Supreme Court recognized that the central concern of the Confrontation Clause (of the Sixth Amendment) is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact. Craig, 497 U.S. at 844-46.
The requisite necessity to justify the use of such a special procedure in a child abuse case may be shown if the trial court hears evidence and makes a case specific determination that (1) the use of the procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) the child witness would be traumatized by the presence of the defendant; and (3) the trauma would be more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify. Id. at 856; Lively, 968 S.W.2d at 366-67; see Hightower v. State, 822 S.W.2d 48, 51 (Tex.Crim.App. 1991); Gonzales v. State, 818 S.W.2d 756, 760-62 (Tex.Crim.App. 1991).
In reviewing the trial court's implied finding of unavailability, we look to see whether the trial court abused its discretion in making that determination. See Marx, 987 S.W.2d at 580-81. We will not reverse a trial court ruling within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g).
In this case, the State presented no evidence of the necessity for the child to testify by videotape and the court permitted videotaped testimony from the child. In so doing, it allowed evidence into the record in violation of both the Texas statute and the United States Constitution. The ruling of the trial court is therefore outside the zone of reasonable disagreement. The State has not made the required adequate showing of necessity. See Craig, 497 U.S. at 855. In the absence of the constitutionally required showing that the child was unavailable and that special procedures were therefore authorized, we conclude the trial court abused its discretion by admitting the evidence.
Harm Analysis
This is not merely an error in the admission of evidence based solely on the misapplication of a rule or statute. It is a constitutional error violating the Confrontation Clause. Accordingly, our analysis is a harmless error review pursuant to Tex.R.App.P. 44.2(a), and we must reverse unless we determine beyond a reasonable doubt the error did not contribute to the conviction or punishment.
The evidence that Edwards committed the offense consists of the videotaped interview with the child, a discussion by an expert explaining the child's statements and actions on the videotape, opinions about the type of sex offender shown by the facts revealed by the interview, explanations about the types of questions asked in the videotape, and ways of determining the child's ability to distinguish fact from fiction. A school counselor also testified as the outcry witness that the child had told her she had sex with the defendant. A teacher's aide testified that the child "acted out" in a sexual manner in class and that she attempted to touch other children in what was described as an inappropriate manner.
The videotape sets out the actions of Edwards in a manner that does not appear elsewhere in the evidence. The only evidence unrelated to the interview is that of the school counselor and teacher's aide, and only the counselor, as the outcry witness, could testify regarding the child's statements. In light of the state of the evidence, we cannot conclude beyond a reasonable doubt the improperly admitted videotape did not contribute to the conviction or punishment in this case.
The judgment is reversed, and the cause is remanded to the trial court for further proceedings.