¶1concurring.
¶2Tex.Code Crim.Proc.Ann. art. 38.071 (Vernon Supp.1993) is limited in scope and applies only to a proceeding in the prosecution of an offense defined by certain sections of the Penal Code. The offense must have been alleged to have been committed against a child of twelve years of age or younger. The article deals with and applies only to the statements or testimony of “that child”. Certain referred-to sections deal with elderly individuals.
¶3*248Section 3 of article 38.071 affirmatively provides that the court shall permit the defendant to observe and hear the testimony of the child involved and to communicate contemporaneously with his “defendant’s” attorney, either during periods of recess or by audio contact. And importantly, the court shall permit the attorney for the defendant adequate opportunity to confer with the defendant during cross-examination of the child. Also, upon application by the attorney for the defendant, the court is empowered to recess the proceedings before or during cross-examination of the child to allow the attorney for the defendant to confer with the defendant.
¶4The trial court is authorized to set other conditions and limitations on the taking of the child’s testimony that the trial court finds to be just and appropriate, always taking into consideration the interest of the child, the rights of the defendant, and other relevant factors. Section 4 provides similar safeguards. This article subserved a proper, competing interest so as to permit the use of certain procedural safeguards designated to shield a young child witness from the trauma of courtroom testimony. In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), Justice O’Connor, the writer of the majority opinion, decided that Maryland’s statutory procedure allowing for the use of one-way closed-circuit television systems for the receipt of the testimony by a child was not violative of the Sixth Amendment’s confrontation clause. The Justice wrote:
Although face-to-face confrontation forms “the core of the values furthered by the Confrontation Clause,” [California v. ] Green, 399 US [149], at 157, 26 L Ed 2d 489, 90 S Ct 1930 [1934], we have nevertheless recognized that it is not the sine qua non of the confrontation right. See Delaware v Fensterer, 474 US 15, 22, 88 L Ed 2d 15, 106 S Ct 292 [295] (1985) (per curiam) (“[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony”); [State of Ohio v. ] Roberts, supra [448 U.S. 56], at 69, 65 L Ed 2d 597, 100 S Ct 2531 [at 2540] (oath, cross-examination, and demeanor provide “all that the Sixth Amendment demands: ‘substantial compliance with the purposes behind the confrontation requirement’ ”)....
For this reason, we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant, (emphasis theirs)
¶5In Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991), the plurality opinion stated in substance that the state constitution has never required that the accused and the witnesses against him actually come “face-to-face” in all situations. The Court of Criminal Appeals reasoned that the process of confrontation has two purposes. The main and essential purpose is to insure the opportunity of cross-examination. But the right of cross-examination is not fixed and inflexible. The Court pointed out that exceptions exist as evidenced by the receipt of testimony of dying declarations and res gestae statements of deceased persons as well as certain reproductions of testimony given by witnesses where a prior opportunity for cross-examination had been fully accorded.
¶6Further, in Gonzales, Presiding Judge McCormick wrote:
[T]he Craigcourt outlined the important considerations which would justify a departure from a face-to-face confrontation. Those same considerations are equally applicable in the case before us today. Taking into account first, that there was confrontation in the form of cross-examination in the case before us, and second, the exigencies of the particular case before us, we will not read the right to confrontation guaranteed under our State Constitution as affording appellant the right to face-to-face confrontation. In short, we will use the same analysis applied in Craigto determine if the State Constitution has been violated in the case before us.
¶7*249The appellant here was afforded the safeguards that were approved in Maryland v. Craig, supra,and Gonzales v. State, supra;and hence, under these authorities the judgment below should be affirmed. I concur.