Clark v. State

¶1OPINION

¶2In accordance with TEX.R.APP.P. 101, we hereby correct the previous opinion and judgment of this court. We hereby withdraw our prior unpublished opinion and judgment of March 18, 1987.

¶3Freddie Lee Clark appeals his conviction by a jury of the offense of aggravated sexual assault. See TEX.PENAL CODE ANN. sec. 22.021(a)(5) (Vernon Supp.1987). The jury assessed his punishment, enhanced by two prior felony convictions, at life imprisonment in the Texas Department of Corrections. Clark presents four points of error.

¶4We affirm.

¶5In his first and second points of error, Clark raises the issue of the constitutionality of the State’s use of a videotape of the complainant, as authorized by TEX. CODE CRIM.PROC.ANN. art. 38.071 (Vernon Supp.1987). We may not reach the question of the constitutionality of a statute unless a decision on its constitutionality is absolutely necessary for a decision of the case. Smith v. State, 658 S.W.2d 172, 174 (Tex.Crim.App.1983). We shall therefore first consider Clark’s remaining points of error.

¶6In his third point of error Clark complains that the videotape was not admissible into evidence because the tape was not made by a technician competent in the operation of electronic video recorders. Admissibility of videotapes into evidence must meet the same standards of reliability and accuracy as other sound recordings. Roy v. State, 608 S.W.2d 645, 649 (Tex.Crim.App.1980).

¶7These standards were first applied to criminal cases in Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977):

‘The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording. They also indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.’

¶8Id. at 733.

¶9In Edwards, the court further held that some of these requirements can be inferred from testimony, including the competency of the operator. Id.

¶10Jacky Paul Smith, the videotape operator, testified he was an eight year police officer, with a specialization in child sexual and physical assault cases. As a part of his job, he videotaped about twenty to thirty child victims per month. He testified that the videotape equipment he used to interview the victim in this case was competent and accurate. Although he has had no special training for operating video equipment, Smith testified that he had reviewed the basic operating procedures for the equipment when his office received the equipment about three years ago, and that he was familiar with the operating instructions.

¶11After reviewing Smith’s testimony, we hold it supports the inference that he was competent to operate the videotape equipment. See Holland v. State, 622 S.W.2d 904, 906 (Tex.App. — Fort Worth 1981, no pet.). We overrule point of error number three.

¶12In point of error number four, Clark complains the caption to S.B. 37, concerning jury instructions about parole and good time credit does not comply with TEX. *486CONST, art. Ill, sec. 35 because the caption does not inform the reader that section 4(d) prohibits introduction of evidence on the operation of parole and good conduct time laws. See TEX.CODE CRIM.PROC. ANN. art. 37.07 sec. 4(d) (Vernon Supp. 1987).

¶13This point of error has been precluded by the passage of an amendment to article III, section 35 of the Texas Constitution on November 4, 1986 as discussed by the Court of Criminal Appeals in its opinion in Baggett v. State, 722 S.W.2d 700, 701-02 (Tex.Crim.App.1987). The Court noted that as a result of the recent amendment it no longer has the power to declare an act of the legislature unconstitutional due to the insufficiency of the caption, consequently this court likewise is without such power. We overrule point of error number four.

¶14In point of error number one, Clark urges that the presentation of the complainant's videotaped testimony to the jury violated his right to be confronted by the witnesses against him, a right guaranteed by the sixth amendment to the United States Constitution and by TEX.CONST. art. I, sec. 10.

¶15The complainant was called to the stand by the State. He testified that the statements he made in the videotape were true. He gave certain additional testimony, but did not testify at trial concerning the specific act of oral intercourse with which Clark was charged. The child was subjected to cross-examination and, after re-direct questioning by the State, to re-cross-examination.

¶16The confrontation clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to a full and effective cross-examination. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Although the Greencase deals with a prior out-of-court declaration which was inconsistent with trial testimony, we find that an overall reading of the case would justify the same result in the case at bar. See Walker v. State, 473 S.W.2d 497, 499 (Tex.Crim.App.1971).

¶17Clark does not refer us to any United States Supreme Court or Texas Court of Criminal Appeals opinions which express a contrary conclusion. The facts in this case are distinguishable from two of this court’s prior opinions in cases arising under the videotape statute, Buckner v. State, 719 S.W.2d 644 (Tex.App. — Fort Worth 1986, pet. pending) and Romines v. State, 717 S.W.2d 745 (Tex.App. — Fort Worth 1986, pet. pending), and are also distinguishable from the opinion of the Dallas Court of Appeals, Long v. State, 694 S.W.2d 185 (Tex.App. — Dallas 1985, pet. granted), in that in none of those cases was the complainant who appeared in the videotape first called by the State as a witness and then tendered to the defendant for cross-examination. We do not find the procedure followed in the case at bar to be a violation of Clark’s right of confrontation because the complainant was present, was called by the State and testified, and was subjected to a full and effective cross-examination. We disavow any dicta in Buckneror Ro-mines which is inconsistent with this opinion. We would not agree with any statement in Longwhich might be construed as inconsistent with this opinion.

¶18In point of error number two, Clark complains that TEX.CODE CRIM.PROC. ANN. art. 38.071 deprives him of the right to a fair trial because it forces him to a choice of sacrificing cross-examination or to call a child-witness to testify before the jury-

¶19When challenging the constitutionality of a statute, it is incumbent upon the appellant to show that in its operation the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient. Parent v. State, 621 S.W.2d 796, 797 (Tex.Crim.App.1981); Daniel v. State, 704 S.W.2d 952, 954 (Tex.App. — Fort Worth 1986, no pet.). As we have previously noted, Clark, unlike the defendants in Bucker, Romines, and Long, was not put to the choice of sacrificing cross-examination or calling a child-witness to testify before the jury, because, in the case at bar the State, not Clark, called the witness to testify. We hold that the stat*487ute as applied in this case did not deprive Clark of a fair trial. We overrule point of error number two.

¶20The judgment is affirmed.

¶21concurring.

¶22I concur with the result reached by the majority, that article 38.071, section 2 was applied in a constitutional manner in this case. TEX.CODE CRIM.PROC.ANN. art. 38.071, sec. 2 (Vernon Supp.1987). However, I would hold that article 38.071, section 2 is constitutional and overrule this court’s holdings in two cases. Buckner v. State, 719 S.W.2d 644, 650-51 (Tex.App.— Fort Worth 1986, pet. pending); Romines v. State, 717 S.W.2d 745, 749 (Tex.App.— Port Worth 1986, pet. pending).

¶23The majority of our court has previously held that section 2 is unconstitutional. Specifically, our court held that section 2 does not provide the accused with the right of confrontation and cross-examination, because the criminal defendant is required to either call the child-victim to testify, incurring the jury’s possible wrath, or forego his right to cross-examination of his accuser. Buckner, 719 S.W.2d at 650-51; Romines, 717 S.W.2d at 745. Our court also held that the statute violates a defendant’s sixth amendment right to confrontation by failure to allow cross-examination contemporaneous with the videotaped statement. Buckner, 719 S.W.2d at 650; Romines, 717 S.W.2d at 752-53. Both Bucknerand Ro-mines were heard by en banc panels of our court.

¶24The majority of this panel finds that Bucknerand Rominespresented distinguishing facts from the instant case. Specifically, the majority holds that article 38.-071, section 2 was not unconstitutionally applied in this case because unlike the facts in Bucknerand Romines, the State called the complainant to the stand to testify after the videotape was shown. Thereafter, the complainant was subjected to cross-examination. These facts are clearly distinguishable from Bucknerand Romines, which rule the statute denies the defendant due process of law because it compells him to “ ‘forego either his right of confrontation or his right to remain passive.’ ” Buckner, 719 S.W.2d at 650; Romines, 717 S.W.2d at 752.

¶25However, I would go further and hold that the defendant’s right to confrontation and due process is not violated by article 38.071, section 2 regardless if the State calls the defendant to testify. Instead, I believe the statute is applied constitutionally regardless of whether the complainant is called to testify by the State. Instead, I would apply the logic reached by our sister courts which hold that if the defendant does not choose to call the complainant to the stand, he cannot complain on appeal that his constitutional right of confrontation by cross-examination was violated. Newman v. State, 700 S.W.2d 307, 312 (Tex.App. — Houston [1st Dist.] 1985, pet. granted); Jolly v. State, 681 S.W.2d 689, 695 (Tex.App. — Houston [14th Dist.] 1984, pet. granted). The statute requires that the child must be available to the defendant for live testimony.

¶26Additionally, I would hold that the defendant’s right to confrontation is not violated by article 38.071, section 2 because the defendant is denied cross-examination contemporaneous with the taped statement.

¶27I believe that the United States Supreme Court holding in California v. Green is controlling on this issue. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In Green, Justice White in writing for the majority stated:

Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.

¶28*488Id.399 U.S. at 158, 90 S.Ct. at 1935, 26 L.Ed.2d at 497.

¶29Justice White’s opinion also addressed the right to cross-examination that arises after a declarant’s out-of-court statements were admitted. Justice White held:

[T]he inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured full and effective cross-examination at the time of trial_ We cannot share the California Supreme Court’s view that belated cross-examination can never serve as a constitutionally adequate substitute for cross-examination contemporaneous with the original statement.

¶30Id.399 U.S. at 159, 90 S.Ct. at 1935, 26 L.Ed.2d at 497. Justice Farris criticizes my reliance on Green. However, our sister courts in Austin, Houston (1st District), Beaumont and Texarkana have relied on Greenin their decisions holding the statute constitutional. Pierce v. State, 724 S.W.2d 928, 929 (Tex.App. — Austin 1987, no pet.); Wkittemore v. State, 712 S.W.2d 607, 610 (Tex.App. — Beaumont 1986, pet. pending); Mallory v. State, 699 S.W.2d 946, 949 (Tex.App. — Texarkana 1985, pet. granted); Tolbert v. State, 697 S.W.2d 795, 798 (Tex.App. — Houston [1st Dist.] 1985, pet. granted).

¶31I must note article 38.071 has a number of safeguards. A videotape is admissible only if no attorney for either party is present when the statement is made; leading questions are not asked; every voice on the recording is identified (presumably both on and off camera); the person conducting the interview is present at the trial and available to testify for cross-examination purposes; the defense attorney is afforded an opportunity to view the recording; and the child is available to testify at the trial of the proceeding. TEX.CODE CRIM. PROC.ANN. art. 38.071, see. 2.

¶32In short, the legislature recognized a need for this legislation.1 The child victim is often victimized again in our courtrooms.2 The legislature attempted to fashion a procedure in which a child victim is not required to undergo the intimidating experience of being confronted with an adult suspect.3 Section 2 represents an effort to balance the rights of the victim with the right of an accused to a fair trial. With the use of new technology, I believe the legislature has fashioned a fair process that respects the rights of those accused while protecting the rights of victims.

¶33This is not to say that the application of article 38.071 will be trouble free. To the contrary, the application of the statute may, in some cases, violate due process where procedures do not adequately insure *489fundamental fairness.4Tolbert, 697 S.W.2d at 799. However, I trust that the trial courts of Texas will intervene so that the procedures used in making the videotape may be reviewed to determine if the evidence is sufficiently reliable and fairly presented so as to assure a fair trial.

¶34As a result, I concur with the majority’s opinion.