Gonzales v. State

¶1concurring.

¶2I agree with the majority that face-to-face confrontation between child witness and appellant was not required by the Sixth Amendment in this case. I am also willing to accept the conclusion that Texas constitutional law, like its federal counterpart, does not absolutely forbid testimonial procedures other than face-to-face confrontation. I write separately to elaborate my own reasons for thinking that the constitutionality of alternative testimonial procedures does not depend upon the existence of enabling legislation, and that Article 38.-071 of the Code of Criminal Procedure does not represent an exhaustive treatment of Texas public policy for purposes of constitutional interpretation.

¶3Trial judges have inherent authority to receive evidence. No special legislation is necessary. If it were, virtually every kind of evidence would be objectionable upon the ground that a statute did not specifically allow it. But our system of adjudication does not work in this way. Unless the law excludes evidence, or makes it excludable at the option of a litigant, trial courts are free to receive it. Hence, it is not improper for a trial judge to permit the testimony of senior citizens through megaphones in jaywalking cases even without prior legislative approval. Nor, likewise, is the lack of specific statutory authority for receiving the testimony of nonvictim child witnesses over closed-circuit television in murder cases a bar to its admissibility. Some ground other than the absence of enabling legislation must form the basis for any objection to evidence in the courts of this State.

¶4In the present context, appellant does not urge a bar to the testimony here in question other than the Confrontation Clauses of the Sixth Amendment to the United States Constitution, and Article I, Section 10 of the Texas Constitution. Certainly a trial judge may not receive evidence in violation of these fundamental rights. But, insofar as the latter is concerned, I join the majority in its conclusion that Texas constitutional law has never really considered a face-to-face encounter absolutely essential to compliance with its Confrontation Clause. And, in case of the former, I am convinced that the question was authoritatively resolved contrary to appellant’s position in Maryland v. Craig, 497 U.S. —, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

¶5*767Although the procedure at issue in Craigwas prescribed by statute, there is nothing in the majority opinion there to suggest that the decision “whether use of the procedure is necessary to further an important state interest” must be made by the legislature. 110 S.Ct. at 3167. As I read the Court's opinion, so long as it is apparent that a state regards the welfare of its children as an important social interest, the need for and manner of implementing alternative testimonial procedures to effectuate that interest in individual cases is largely a question of fact to be resolved by trial judges under the test announced therein. Id. at 3169. Mandatory procedures enacted by the legislature can only serve to restrict the range of additional choices not offensive to the Confrontation Clause which might otherwise be available to the trial-level judiciary.

¶6This is undoubtedly the effect of Article 38.071. The procedure set out in that or in any other constitutionally acceptable statute would certainly be available to trial judges even absent legislation. Since alternative testimonial procedures which violate the Confrontation Clause cannot be authorized by statute at all, and those consistent with the Clause are not objectionable on confrontation grounds anyway, the question whether an alternative testimonial procedure is offensive to constitutional confrontation guarantees ultimately has nothing whatever to do with the existence of a statute purporting to authorize it. The essential holding of Craigmakes this clear:

[W]here necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.

¶7Id. at 3170.

¶8I am unable to find in this rule any requirement, either express or implied, that the alternative procedures to which the Supreme Court there referred must first be approved by a state legislature before they may be found acceptable to the Constitution of the United States. Neither can I discern any principled basis for thinking that the constitutional rule is, or ought to be, confined to victim witnesses or to cases of sexually abused children. Rather, both by its terms and by its rationale, the rule is applicable to all children testifying in criminal cases and to all alternative testimonial procedures, whether imposed by the legislature or by the courts.

¶9The contrary suggestion advanced by Judge Baird in his dissenting opinion fails to persuade me because his argument critically depends upon two circumstances which I find insignificant. He claims that, because Craigactually involved an alternative testimonial approach specifically authorized by statute, and because such statutes have become commonplace around the country, the Supreme Court must have intended to limit the scope of its holding to statutory procedures. However, I find very little practical reason for thinking this to be so, and no logical compulsion in the argument at all.

¶10In the first place, appearance of the issue in context of a statute seems to me entirely fortuitous. I cannot imagine that the same procedures would have been thought to present a significantly different constitutional question when implemented by a trial judge on his own authority. Moreover, reference in its opinion to the relative ubiquity of similar legislation throughout the country simply cites widespread acceptance of the practice, and does not amount to a decision by the Supreme Court that state policy can only be expressed by its legislature, a question plainly beyond that Court’s authority in any event. So far as I can discern, it is simply irrelevant for confrontation purposes who authorized the procedure in question.

¶11Of course, I agree that the courts should not establish basic public policy in Texas. But courts must necessarily look to find that policy when pertinent to the resolution of legal disputes. The question of policy under Craigis not whether the people of Texas have opted to suspend the Confron*768tation Clause in specific, well-defined cases. They are not at liberty to do that in any event. See Coy v. Iowa, 487 U.S. 1012,108 S.Ct. 2798,101 L.Ed.2d 857 (1988). Rather, the Craigholding seems to me more interested in generalized, widely accepted policies of sufficient social importance to justify careful and limited exceptions on an individual basis to the otherwise absolute constitutional requirement of confrontation in the flesh. That such an interest exists in Texas for the protection of children seems past meaningful dispute to me. Whether the general requirement that all testimony be given in the defendant’s presence should be compromised for the sake of a particular child is a question for the trial court.

¶12If 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 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. In short, the contention that Article 38.071 has anything to do with the issue before us is just mistaken. The essential question presented is solely a matter of constitutional exegesis, and does not involve statutory interpretation at all.

¶13Be that as it may, I sympathize with the concerns expressed by Judge Clinton in his dissenting opinion. Of course, to the extent he may believe that enabling legislation is necessary for the procedure employed in this case, I disagree for the reasons already expressed. But, inasmuch as he intimates that this Court should avoid sanctioning the receipt of evidence tendered under a statute which plainly does not cover it, his point has an appealing aroma. Here, the State, as proponent of the evidence, expressly did rely upon Article 38.071 for its admissibility. Yet, as repeatedly noted here and in the dissenting opinions, that statute does not approve the procedure in question.

¶14Nevertheless, our jurisprudence requires that a well-founded complaint be made at trial as a prerequisite to the assignment of judicial error on appeal. For present purposes, the only complaints which have reached us on discretionary review are that the procedure in question violated appellant’s rights of confrontation and the terms of Article 38.071. Because I am convinced that no such violations occurred in this case, I am obliged also to conclude that appellant’s trial objections were not well-founded. Accordingly, the judge did not err, in my opinion, to overrule them.

¶15The only remaining questions are whether the trial judge in the instant cause made the findings required by Craig, and whether those findings, if made, are adequately supported by the record. Again, I am satisfied that the evidence adduced by the State on this matter was sufficient to support a finding by the judge that face-to-face confrontation of appellant would have been severely traumatic to the witness, that an alternative procedure was necessary (not just a convenience to the witness), and that the alternative procedure actually employed was adequate to ensure effective, contemporaneous cross examination of her testimony by the appellant and meaningful observation of her testimonial demeanor by the jury. Moreover, even though the trial of this case predated Craigby more than a year, it appears that the judge did in fact base his decision to allow the alternative procedure upon findings sufficiently like those required by Craigas to satisfy, in *769my judgement, all pertinent concerns of the Confrontation Clause.

¶16This, I believe, is the essential teaching of Craig, that exceptions to physical confrontation be made by trial judges on an individual basis, and not, as in Coy, by legislatures on a generic basis. This is as it should be. Evidentiary rulings and decisions about courtroom procedure fall within the province of the trial judge, who has broad discretion in such matters. Indeed, he is constrained only by rules of law, the constitution and his own sense of fairness. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Kimithi v. State, 546 S.W.2d 323 (Tex.Cr.App.1977). Therefore, he may incorporate modem technology into courtroom procedure in any manner consonant with such limitations.

¶17While the United States and Texas constitutions afford a criminal defendant the right to confront his accuser, that right does not absolutely require the defendant and the witness to be in the same room. Modem technology has facilitated a less traumatic confrontation for child witnesses. Under appropriate circumstances, such as those present in this case, I believe the alternative is constitutional.

¶18For these reasons, I concur in the judgement of the Court.

¶19dissenting.

¶20Notwithstanding the acknowledged determination by the court of appeals that what the trial court allowed here is not authorized by Article 38.071, V.A.C.C.P., Gonzales v. State, 784 S.W.2d 723, at 728 (Tex.App.— San Antonio 1990), or for that matter any other extant legislative enactment, the majority “see[s] no reason why an expression of this important public policy must necessarily be in the form of an act or statute.” Further, it finds “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.” At 765. Accordingly, contrary to conventional wisdom that judges shall not make public policy through “judicial legislation,” but merely construe laws already made by traditional policy makers, the majority causes this Court to put its imprimatur on an otherwise unauthorized, if not unconstitutional, procedural law sanctioned by the trial court in this cause. Id., at 766.1

¶21That this Court is empowered to prescribe public policy does not mean it must exercise that power as a matter of course. Whether a court will judicially legislate its way to a solution to a particular problem in a given situation is an internal policy question. Here, all germane considerations counsel for judicial restraint.

¶22In his opinion for the San Antonio Court of Appeals, former Presiding Judge Onion pointed out the problem, viz:

“In the instant case we are dealing with a witness, a child witness, in a murder case. There is no statute declaring a public policy regarding the situation, nor any legislative finding of necessity. The State, however, relies exclusively upon TEX.CODE CRIM.PROC.ANN. art. 38.-071 [Testimony of Child Who is Victim of Offense] to carve out an exception to the right of confrontation under the circumstances presented.”

¶23Gonzales v. State, supra, at 727. Reviewing the history of legislative development of the present statute, Judge Onion concludes:

“... Neither version [of the statute], however, is applicable in murder cases nor to any witness except the child against whom the offense was committed. So on both scores the statute is inapplicable to the instant offense, and cannot operate as an exception to the *770constitutional core right of confrontation in the instant case.”

¶24Id., at 728.

¶25The Maryland statute as construed in Maryland v. Craig, 497 U.S. —, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), is similarly restricted to “child abuse victims.” See majority at 761.

¶26In his motion for rehearing to the San Antonio Court of Appeals the district attorney characterized his effort as “prosecuto-rial innovation,” and during oral argument his assistant district attorney submitted that it was simply an extension of the existing statute under the Constitution. With deference, this Court should be guided more by public policy findings of the Legislature than by singlehanded experimental efforts by the prosecutorial element in the criminal justice system.

¶27For those reasons, I respectfully dissent.

¶29dissenting.

¶30I respectfully dissent for two separate reasons. First, by not remanding this cause to the Court of Appeals for further consideration in light of Maryland v. Craig, — U.S. —, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the majority departs from our policy of reviewing “decisions” of the courts of appeals. Second, the majority departs from our proper role as a court of discretionary review and appoints itself “policy maker” for the State of Texas. For the following reasons, I would remand this cause to the Court of Appeals for further consideration in light of Maryland v. Craig, supra.

¶31I. DEPARTING FROM ESTABLISHED POLICY

¶32Since 1981, when the intermediate appellate courts obtained jurisdiction over criminal cases, it has been our policy to limit our power of discretionary review to “decisions.” The policy of only reviewing “decisions” is not unique to this Court. The United States Supreme Court has employed the policy for many years and just recently remanded two cases for our consideration in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). See Richardson v. State, 1991 WL 99949 (Tex.Cr.App.1991, No. 68,934, delivered June 12, 1991) and Boggess v. State, 1991 WL 87597 (Tex.Cr.App.1991, No. 69,990, delivered May 29, 1991).

¶33Recently Presiding Judge McCormick, who today speaks for the majority, recounted the history of this policy in Abdnor v. State, 808 S.W.2d 476, 479 (Tex.Cr.App.1991, McCormick, P.J., dissenting). Therein he recognized the policy had been criticized, but concluded that remanding a case to the court of appeals, for resolution of an issue not previously decided, was our policy and that we should not act contrary to “the policies we have imposed on ourselves.” Abdnor, 808 S.W.2d at 480. See and contrast Om v. State, 753 S.W.2d 394, 396 (Tex.Cr.App.1988) (Onion, P.J., dissenting and referring to the policy as launching cases into “heavenly appellate orbit”).

¶34We utilized the policy by remanding hundreds of cases to the courts of appeals to conduct a harmless error analysis in light of our decision in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988). We employed the policy most recently in Tate v. State, 811 S.W.2d 607 (Tex.Cr.App.1991), where Judge Miller, speaking for a unanimous Court, stated:

We therefore reverse the judgment of the court of appeals and remand this cause to that court for reconsideration of appellant’s first point of error in light of Boyer, [v. State, 801 S.W.2d 897 (Tex.Cr.App.1991).]1

¶35At pg. 608.

¶36Likewise, we remand a case to a court of appeals for reconsideration when the United States Supreme Court delivers a pertinent decision after the court of appeals has delivered its opinion. In State v. Wagner, 810 S.W.2d 207 (Tex.Cr.App.1991), Presiding Judge McCormick remanded the cause to the court of appeals “for further consideration in light of” Michigan v. Sitz, — U.S. —, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). At 208. See also King v. State, 800 S.W.2d 528 (Tex.Cr.App.1990).

¶37The Court of Appeals delivered its opinion on January 17, 1990. The State filed *771its petition for discretionary review on March 27,1990. Appellant filed a response to the State’s petition on May 7, 1990. We granted the State’s petition on June 13, 1990. However, Maryland v. Craig, supra, was not decided until June 27, 1990. Therefore, the Court of Appeals acted without the benefit of the authority we now use to reverse its judgment.

¶38Based on our established policy, we should remand this cause to the Court of Appeals for further consideration in light of Maryland v. Craig, supra. I believe it is improper for a majority of this Court to rely on authority to reverse a “decision” of a court of appeals without first providing that court with an opportunity to resolve the issue by utilizing the same authority. However, if we are to depart from our established policy we should at least provide the bench and bar with an explanation. Unfortunately, the majority opinion is silent on the subject. Therefore, the reason for today’s departure from the policy we “imposed on ourselves” shall remain a mystery.

¶39II. SELF-APPOINTED POLICY MAKER

¶40Rather than remand this cause to the Court of Appeals the majority addresses the confrontation issue and concludes the trial court did not err by permitting the child witness to testify outside of appellant’s presence. I believe the majority not only departs from our proper role as a Court of discretionary review, it also appoints itself “policy maker” for the State of Texas in order to hold that the trial court did not err. For the following reasons, I believe that both the majority’s self-appointment and ultimate conclusion is misguided.

¶41A. The Confrontation Clause of the 6th Amendment

¶42The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be con-, fronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

¶43The majority and I are in general agreement concerning the Sixth Amendment’s provision of confrontation. Justice Scalia thoroughly discussed the Confrontation Clause in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The CoyCourt reversed the Iowa Supreme Court’s judgment (which had affirmed Coy’s conviction for sexually assaulting two thirteen-year-old girls) by holding the Sixth Amendment guarantees a face-to-face encounter between the witness and the accused.2

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.” [Citation omitted,] It is always more difficult to tell a lie about a person “to his face” than “behind his back.” In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that *772we have had more frequent occasion to discuss — the right to cross-examine the accuser; both “ensur[e] the integrity of the fact-finding process.” [Citation omitted.] The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential “trauma” that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult.

¶44Coy, 108 S.Ct. at 2802.

¶45Justice O’Connor filed a concurring opinion agreeing the Confrontation Clause was violated, but adding “nothing in today’s decision necessarily dooms such efforts by state legislatures to protect child witnesses.” Coy, 108 S.Ct. at 2803 (O’Connor J., joined by White, J., concurring).

¶46The Supreme Court recognized an exception to the general rule of face-to-face confrontation in Maryland v. Craig, — U.S. —, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). In Craig, Justice O’Connor, writing for the majority, succinctly stated the issue:

This case requires us to decide whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant’s physical presence, by one-way closed circuit television.

¶47Craig, 110 S.Ct. at 3160.

¶48The Maryland statute permitted the fact-finder to receive, by one-way closed circuit television, the testimony of a child witness alleged to be the victim of child abuse, if the trial judge first determined that the courtroom testimony of the child victim would result in the child suffering serious emotional distress to the extent that the child could not reasonably communicate. The child in Craigwas six years of age. Such a determination was made and the child witness, prosecutor and defense counsel left the courtroom. The child witness was examined and cross-examined in a separate room while a video monitor recorded and displayed the testimony to the judge, jury and defendant in the courtroom. The defendant remained in electronic communication with defense counsel.

¶49Justice O’Connor noted:

We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with the witnesses against them at trial. Indeed, in Coy v. Iowa, we expressly “le[ft] for another day ... the question whether any exceptions exist” to the “irreducible literal meaning of the Clause: ‘a right to meet face to face all those who appear and give evidence at trial.’ ”

¶50Craig, 110 S.Ct. at 3163 [emphasis in original].

¶51After noting the many “hearsay exceptions” recognized by the Supreme Court, Justice O’Connor opined:

[A] literal reading of the Confrontation Clause would “abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.” [Citation omitted.] Thus, in certain narrow circumstances, “competing interests, if ‘closely examined’ may warrant dispensing with confrontation at trial.” ...

In sum, our precedents establish that “the Confrontation Clause reflects a •preference for face-to-face confrontation at trial,” [citation omitted] a preference that “must occasionally give way to considerations of public policy necessities of the case,” [citation omitted].

That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with. As suggested in Coy, our precedents confirm that a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimo*773ny is otherwise assured. [Citations omitted.]

¶52Craig, 110 S.Ct. at 3165.

¶53Justice O’Connor then restated the issue: “The critical inquiry in this case, therefore, is whether use of the procedure is necessary to further an important state interest.” Id. at 3167. Justice O’Connor recognized “a significant majority of States has enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such public policy.” Id. at 3167. After discussing the legislative history and intent of the Maryland statute, Justice O’Connor and a majority of the Supreme Court refused to “second guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying.” Id. at 3169.

¶54In short, Coystands for the general proposition that face-to-face confrontation between the witness and the accused is required under the Sixth Amendment. Craigprovides an exception to the general rule when it is necessary to further an important state interest, as established by the legislature, namely, protecting the psychological well-being of child abuse victims.3

¶55B. Is There A Sixth Amendment Exception?

¶56All parties recognize there was no face-to-face confrontation between appellant and the child witness. Accordingly, the question is whether this case falls within the ambit of exception provided by Craig.

¶57i. No Statutory Exception

¶58The majority recognizes that any exception to the general rule of face-to-face confrontation would be found at art. 38.071 Tex.Code Crim.Proc.Ann. As noted by the majority, the State relied upon Art. 38.071 in the case at bar. At 758.4 However, the majority correctly recognizes the statute does not permit a child witness in a murder case to testify outside the physical presence of the accused. At 765. Article 38.-071 provides:

Art. 38.071. Testimony of Child Who is Victim of Offense

Sec. 1. This article applies only to a proceeding in the prosecution of an offense defined by any of the following sections of the Penal Code ...

(1) Section 21.11 (Indecency with a Child);

(2) Section 22.011 (Sexual Assault);

(3) Section 22.02 (Aggravated Assault);

(4) Section 22.021 (Aggravated Sexual Assault);

(5) Section 22.04(b) (Injury to a Child or an Elderly Individual);

(6) Section 22.04(c) (Injury to a Child or an Elderly Individual), if the conduct is committed intentionally or knowingly;

(7) Section 25.02 (Incest^

(8) Section 25.06 (Solicitation of a Child), if the offense is a felony of the third degree; or

(9) Section 43.25 (Sexual Performance by a Child).

¶59By its express terms, Art. 38.071 applies only to the enumerated offenses. Two things are readily apparent from Sec. 1: First, the Legislature obviously gave a great deal of time and consideration to *774which offenses should be included, and 2) Section 19.02 (Murder) was specifically omitted.

¶60In Ex parte Mclver, 586 S.W.2d 851, 856 (Tex.Cr.App.1979), we held:

It is a well-known rule of statutory construction in this State and elsewhere that the express mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others. [Citations omitted.] This rule has been pronounced a logical, sensible, and sound rule of statutory construction. [Citations omitted.]

¶61Therefore, the Legislature, by not including murder in Section 1, expressly excluded that offense.

¶62In Lyons v. State, 812 S.W.2d 336 (Tex.Cr.App.1991), we were asked to determine if a trial court had the authority to fashion a sanction where the State had the video equipment required under Tex.Rev.Civ. Stat.Ann. art. 670K-1 note, Acts 1983, ch. 303, § 24 but did not to utilize the equipment pursuant to a policy of not videotaping individuals who consented to a breath test. In Lyonswe recognized that the Legislature had provided a sanction for such a circumstance, if the State failed to videotape a person arrested for DWI, that failure was admissible at trial. The LyonsCourt stated: “If the sanction in the statute proves ineffective to carry out the intent of the statute, it is the Legislature’s prerogative, not the courts’ prerogative, to add further sanctions.” At 340. Therefore, this Court is not authorized to judicially amend Art. 38.071 § 1 to include murder.

¶63ii. No Hearsay Exception

¶64The majority next attempts to find an exception within the Rules of Criminal Evidence. At 758. The Rules of Criminal Evidence provide twenty-seven separate exceptions to the prohibition of hearsay evidence; however, those exceptions do not cover the circumstances of the case at bar. In fact, this Court unanimously reversed two convictions recently where hearsay evidence was admitted without a recognized exception to the hearsay prohibition. See Deeb v. State, 815 S.W.2d 692 (Tex.Cr.App.1991), and Meador v. State, 812 S.W.2d 330 (Tex.Cr.App.1991).

¶65Hi. A Public Policy Exception?

¶66Failing to find either a statutory or evi-dentiary exception providing for less than face-to-face confrontation between the accused and a child witness in a murder case, the majority addresses the issue of public policy:

True, in Craig, the Supreme Court did talk in terms of the “State mak[ing] an adequate showing of necessity [such that] the state interest in protecting the child witness from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure_” — U.S. —, 110 S.Ct. at 3169, 111 L.Ed.2d at 685. And we recognize that in Coythe Court intimated that exceptions to face-to-face confrontation “would ... be allowed only when necessary to further an important public policy.” 487 U.S. at 1021, 108 S.Ct. at 2803. [footnote omitted] But we 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.

¶67At 765.

¶68This conclusion presents three distinct questions: a) Where should public policy be formulated? b) Who has the authority to establish public policy? and c) What is the public policy?

¶69a. Traditional public policy formulation

¶70Traditionally, legislative bodies have been considered the proper fora for the formulation of public policy. In that process, legislation is publicly introduced in the form of a bill. The bill is then assigned to a committee. The committee conducts public hearings on the proposed legislation to hear testimony from proponents and opponents of the legislation. The bill then *775goes to the floor of the legislative body for full debate and a record vote. This process provides an opportunity for every Texan to participate in the public policy debate, by either personally testifying before the committee or through the recorded vote of his/her duly elected representative.

¶71On the other hand, the judiciary is ill-equipped to formulate public policy. Appellate judges deal with a particular set of facts and should constrain themselves to address only the legal issues raised in that factual scenario. Par from being accessible to the public, only lawyers have an opportunity to communicate with appellate judges and even their communication is limited to the particular case under submission. Their communication is highly structured in the form of appellate briefs and oral arguments which are limited to the appellate record and the particular grounds for review. Other than the briefs and oral arguments, appellate courts operate in a totally secret environment. In fact the secrecy is so guarded that it is a felony offense to prematurely reveal the result or content of a proposed or actual opinion to any person outside the confines of the particular appellate court. Sec. 39.03 Tex.Penal Code Ann.

¶72In a democracy, public policy is better formulated in the bright light of legislative debate rather than behind the closed doors of an appellate conference room. The majority should exercise judicial restraint and leave the formulation of the State’s public policy to the Legislature.

¶73b. Is there authority for an appellate court to establish public policy?

¶74One should question whether an appellate court has the authority to establish public policy. The majority can find no precedent authorizing this Court to establish public policy. I believe the lack of precedent is sufficient reason not to enter into an area reserved for the Legislature, rather than authority for so doing.

¶75The majority grabs the authority to establish public policy by holding: “We understand and readily accept that we are at liberty to interpret our Constitution as providing greater safeguards than those provided under the federal constitution.” At 764. See Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). Unquestionably, we have the authority to interpret our Constitution; however, the authority to interpret our Constitution should not be transformed into the power to usurp the authority of the Legislature.

¶76Article 2, § 1 of the Texas Constitution provides:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another, and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

¶77I believe the majority violates the separation of powers doctrine by acting as 1) the Legislature by amending Art. 38.071; 2) as the Executive by ratifying the amendment; and 3) as the Judiciary by passing upon the constitutionality of the amendment. We should practice what we preach. See Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex.Cr.App.1990), Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987), and Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988).

¶78We should act in a slow, cautious and judicious manner consistent with our oath to preserve and protect our Constitution. We are not authorized to establish public policy; that function is constitutionally delegated to the Legislature.

¶79c. Is it really public policy?

¶80To determine public policy we should consider the actions of the recently completed Regular Session of the 72nd Legislature. Appellant was convicted on July 7, 1988. The Court of Appeals reversed the judgment on January 17, 1990. The 72nd Legislature convened, almost one year later, on January 8, 1991. The 72nd Legislature considered Senate Bill No. 1326 which pro*776posed amending Art. 38.071 to permit a child to testify outside of the presence of a defendant if the child witnessed a murder. However, the legislation did not pass, in fact it never even reached the House floor for debate.5

¶81If the proposed amendment to Art. 38.-071 could not pass the Legislature how can the majority proclaim that its actions today are in response to “unquestionable” public policy? At 766. Under such reasoning, the mere introduction of a bill establishes public policy or, stated another way, inaction by the Legislature on proposed legislation establishes public policy for the State. If this were true, every piece of legislation that died during the 72nd Legislature established public policy for the State of Texas.

¶82I believe the majority confuses public policy with “prosecutorial innovation.” At 765. A “prosecutorial innovation” which is neither statutorily permitted nor Constitutionally authorized is not public policy.

¶83C. Necessity

¶84A determination of public policy is only the threshold question. Craighas a second prong, a case-specific finding of necessity. Craig, 110 S.Ct. at 3169. In the case at bar no expert testimony was offered in support of the State’s motion. However, two witnesses did testify: Alverez, an employee of the District Attorney’s Office, whose job it was to prepare child witnesses for trial; and Ramos, the child’s grandmother. At 759.

¶85In Craig, the trial judge made a determination of necessity based upon expert testimony which substantiated that the child witness would suffer serious emotional distress to the extent the witness could not reasonably communicate. Craig, Id. at 3161.

¶86The majority glosses over this prong by merely stating: “the trial court’s case-specific determination that a certain procedure akin to that used in Craigwas needed to protect the child witness.” At 766. Additionally, the majority fails to address that portion of the Court of Appeals opinion stating:

It is true that in a supplemental transcript there is found “Findings of Facts and Conclusions of Law,” which instrument is undated and bears no file mark, although recorded in the minutes of the district court. The “findings of facts” are mere recitations of facts, listing appellant's objections and the State’s arguments. They do not involve the resolution of any factual dispute. [Emphasis added.] The “conclusions of law” are broad and general. The first states that the closed circuit system was necessary to further “the essential state interest in the protection of this child witness.” [Emphasis in original.] The “interest”is *777not otherwise identified. No statute is cited and no evidence is referred to as establishing such public policy. [Emphasis added.] The second conclusion is more of a finding of fact referring to “severe trauma” necessitating the use of television. The third conclusion merely states that the Coyrequirements were met.

¶87Gonzales, 784 S.W.2d at 728.

¶88The Court of Appeals is correct. Such generalized findings and conclusions are insufficient under both Coyand Craig.

¶89III. CONCLUSION

¶90The record in this case discloses the brutal and senseless killing of a child. Clearly, this is an emotional case for all concerned and we, as appellate judges, are not insulated from our emotions by the cold appellate record. However, we must resist the urge to turn our heads and ignore the mandates of the United States Constitution. We are sworn to uphold that hallowed document and resist the temptation to give in to our emotional sense of justice. As Justice Scalia said in Coy: “It is a truism that constitutional protections have costs.” Coy, 108 S.Ct. at 2802.

¶91For the foregoing reasons, I would follow the established policy of this Court and remand the cause to the Court of Appeals for further consideration in light of Maryland v. Craig, supra. However, since the majority departs from that policy and addresses the merits, I would conclude that the actions of the trial court violated the Confrontation Clause of the Sixth Amendment.6 Because the majority neither remands the case nor recognizes the violation, I respectfully lodge this dissent.

¶101dissenting.

¶102The conduct of the trial court in this case goes beyond what the Legislature intended in enacting Article 38.071 of the Texas Code of Criminal Procedure and, regardless of our sympathies, is the first step in extending the boundaries of a statute that, by its very terms, is meant to be restrictive in application. Certainly its application to the facts of this case is open to constitutional question. See Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); Maryland v. Craig, — U.S. —, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

¶103Public policy demands that we protect witnesses from abuse and particularly that we protect the child witness to the greatest degree possible; but not at the expense of fundamental law. A child as well as an adult can manipulate the truth. But a child because he or she is a child and for that reason alone, is sometimes more acceptable to the jury as being a truthful witness than an adult. We all want to believe children are truthful, particularly those who are testifying in an adult world; but who can forget the child who, when accused by his parents, fabricated strange yet believable tales for whatever reason and got away with it.

¶104Our system of confrontation by its operation is designed to obtain the truth. Segregation of a witness by the Judge from the environs of the Court has a tendency to place that witness in a status of unquestioned credibility. The plurality allows the segregation today with a child; tomorrow perhaps with the elderly; next week, with a pregnant woman and so on.

¶105The danger of diminution of the protection guaranteed by the confrontation clauses of both the State and Federal Constitutions is much too great if the conduct of the trial court in this case is allowed to stand. For this reason, I respectfully dissent.