968 SW2D 363 - Lively v. State

MEYERS, Judge,

¶1dissenting.

¶2The majority answers the simplest question presented in this case by saying nothing different or more insightful than was said by the Court of Appeals.1 A more interesting and difficult question might have been presented, but is dependent upon the unusual facts in this case and unreachable due to procedural default. Even the question addressed by the majority is not clearly briefed and presented and thus should not have been entertained by this Court.2 At any rate, the majority does not resolve the issue in a legally meaningfiil manner, relying largely on the facts of this particular case rather than providing analysis of pertinent legal principles. This case ought to be held as improvidently granted.

¶3BAIRD and OVERSTREET, JJ., join.

¶4. The tougher question that might have been presented is whether Code of Criminal Procedure article 38.071 and Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), apply to a child witness who is an alleged co-defendant and principal actor. This issue is probably procedurally defaulted because it was not clearly articulated and argued in the Court of Appeals, and, even assuming it was adequately presented to that court, appellant does not complain before this Court of the Court of Appeals' failure to address it. The simpler question presented and addressed by the Court is whether Craigrequires the trial court to make explicit findings.

¶5. Before the Court of Appeals and before this Court in his petition for discretionary review, appellant argued the trial court should have made explicit findings under Craig. In his brief on his petition for discretionary review appellant argued for the first time that Craigdoes not apply at all.