Opinion issued June 28, 2018




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-17-00075-CR
                             ———————————
                     GERSAIN ARIAS MOLINA, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 185th District Court
                            Harris County, Texas
                        Trial Court Case No. 1502279


                           MEMORANDUM OPINION

      Appellant Gersain Arias Molina appeals his conviction for continuous sexual

abuse of a child. Molina argues that he is entitled to a new trial because (1) allowing

the minor complainant’s therapist to testify by Skype violated his Confrontation

Clause rights; (2) allowing the minor complainant to testify via closed-circuit
television also violated his Confrontation Clause rights; and (3) allowing the minor

complainant to testify via closed-circuit television deprived him of the presumption

of innocence. We address these arguments in turn and affirm.

                                    Background

      Molina was charged with continuous sexual abuse of Jane1, a child under the

age of 14. At trial, Jane’s mother Dana testified that, in January 2016, Jane, then

seven years old, lived with Molina and her. According to Dana, Molina was a father

figure to Jane. Molina and Dana shared joint conservatorship of Jane, and Jane

referred to Molina as “Daddy.”

      Dana testified that one day in January 2016, she left Jane at home with Molina

while she went to buy a wedding gift. When Dana returned home, the lights were off

in the house and it was unusually quiet. Dana went into her bedroom and saw Molina

jumping into bed and under the covers. She asked him where Jane was and he did

not answer. She asked him again and he pointed to the bedroom closet. Dana found

Jane standing in the dark closet without underwear.2 Dana took Jane in the other

room and asked her what happened. According to Dana, Jane got nervous and fidgety

and kept asking if she was in trouble. Eventually, Jane told Dana: “Daddy put his ta-



1
      To protect the complainant’s identity, we refer to her using the pseudonym “Jane.”
2
      At trial, the State introduced Jane’s underwear into evidence and presented expert
      testimony that Molina’s DNA could not be excluded from the DNA found on it.
                                           2
ta in my ta-ta.” Dana testified that “ta-ta” meant “private area” or “vagina.” Dana

checked Jane and noticed stray pubic hairs and blood in Jane’s private area. Dana

took Jane to her mother’s house and then to the hospital. Dana also met with police

officers and reported Molina.

      During trial, the State filed a motion requesting that Jane be permitted to

testify via closed-circuit television. The State argued that Jane “need[ed] the

protection of closed circuit television” because she was eight years old, she was

“emotionally distraught because of abuse perpetrated by the Defendant,” she feared

“ having to confront the defendant in person,” it would be “traumatic and very

difficult for the child to testify in front of the Defendant,” and it would create

“enormous stress” and be “damaging to [her] emotional stability and cause

significant psychological harm.”

      The trial court heard the motion outside of the jury’s presence. The court

permitted the State to present testimony on this motion from Sarah Wilson, Jane’s

therapist, via Skype because she was in Oregon, was in her seventh month of

pregnancy, and could not travel “due to pregnancy issues.” Molina’s counsel

objected to the presentation of Wilson’s testimony by Skype, but the trial court

overruled the objection, noting that Wilson was subject to cross-examination.

      Wilson testified regarding her professional and educational background and

the nature of her interactions with Jane. She stated that she had been treating Jane


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once a week for approximately one year for trauma related to the reported sexual

abuse, and Wilson had diagnosed Jane with posttraumatic stress disorder. Wilson

opined that it was “highly likely that [Jane] would experience setbacks and

regression in her mental health and treatment and her symptoms” if she testified in

front of Molina. In Wilson’s professional opinion, permitting Jane to testify through

closed-circuit procedures “would be necessary to protect her from the risk of

retraumatization.”

      The State also called Dana to testify in support of its motion. Dana testified

that when she spoke with Jane about the possibility of seeing her father (Molina) at

trial, Jane had a panic attack, cried, and repeated that she did not “want to see

Daddy.” Dana testified that Jane was potty-trained but, while preparing for trial, Jane

began urinating in her bed. Jane also had trouble sleeping and frequently had

nightmares about Molina. Dana had seen Jane shaking, wringing her hands, and

crying. Dana believed Jane would be traumatized if she had to see Molina—and that

Jane would suffer “extremely great” emotional distress.

      The trial court granted the State’s motion to permit Jane to testify by closed-

circuit television and made the following findings:

           “[T]he closed-circuit procedure is necessary to protect the welfare of
            this particular child.”

           The child is 8 years old, “very young,” and “has been in therapy for
            quite some time.”


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          The child has been able to speak not only with the therapist but also
           with Dana regarding the events that occurred in January 2016 and “any
           time there’s a discussion of seeing the defendant or the defendant being
           present or coming to court to see the defendant, it appears the child has
           some very serious reaction to that.”

          “[I]t does not appear . . . that the child was upset by coming into the
           courtroom, . . . but rather that . . . the emotional distress is the child
           having to see the defendant or having contact with the defendant.”

      The State presented Jane’s testimony by closed-circuit television. The trial

judge, the State’s counsel, and Molina’s counsel were present with Jane when she

testified. Jane took her oath and was subject to cross-examination by Molina’s

counsel. Following Jane’s testimony, Molina’s counsel confirmed on the record that

he met with Molina to determine whether to ask additional questions, and they were

“in agreement there were no further questions that needed to be asked.”

      Ultimately, the jury convicted Molina of continuous sexual abuse of a child

and sentenced him to 45 years’ confinement. Molina appeals.

                                    Discussion

      In three issues, Molina argues that the judgment should be vacated and he

should be entitled to a new trial because (1) permitting Wilson to testify by Skype

violated his Confrontation Clause rights; (2) permitting Jane to testify via closed-

circuit television violated his Confrontation Clause rights; and (3) allowing Jane to

testify via closed-circuit television deprived him of the presumption of innocence.

We disagree with Molina’s points of error and affirm.


                                         5
A.    Did permitting Wilson to testify over Skype violate Molina’s
      Confrontation Clause rights?

      Molina argues that allowing Wilson to testify via Skype―at a pretrial hearing

in which the jury was not present―deprived him of his constitutional Confrontation

Clause rights. Assuming that these rights applied in the pretrial setting at issue, we

find no Constitutional violation.

      Both the Texas and United States Constitutions guarantee a criminal

defendant the right “to be confronted with the witnesses against him.” U.S. CONST.

amend. VI; see TEX. CONST. art. I, § 10 (“In all criminal prosecutions the accused .

. . shall be confronted by the witnesses against him[.]”); see also Pointer v. Texas,

380 U.S. 400, 406, 85 S. Ct. 1065, 1069 (1965).

      Although the Sixth Amendment to the United States Constitution reflects a

preference for face-to-face confrontation, the United States Supreme Court has

explained that face-to-face confrontation “is not the sine qua non of the

confrontation right.” Maryland v. Craig, 497 U.S. 836, 847, 110 S. Ct. 3157, 3164

(1990) (“[W]e have never insisted on an actual face-to-face encounter at trial in every

instance in which testimony is admitted against a defendant.”); see Walker v. State,

461 S.W.3d 599, 605 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Craig,

497 U.S. at 849, 110 S. Ct. at 3165). The Texas Court of Criminal Appeals has

likewise “not read the right to confrontation guaranteed under our State Constitution

as affording appellant the right to face-to-face confrontation” in all circumstances.

                                          6
Gonzales v. State, 818 S.W.2d 756, 764 (Tex. Crim. App. 1991) (“[W]e will use the

same analysis applied in Craig to determine if the State Constitution has been

violated[.]”).

      The “central concern of the Confrontation Clause is to ensure the reliability

of the evidence against a criminal defendant by subjecting it to rigorous testing in

the context of an adversary proceeding before the trier of fact.” Craig, 497 U.S. at

845, 110 S. Ct. at 3163. Thus, when addressing a potential exception to face-to-face

confrontation, we examine “whether the method of electronic testimony used by the

State preserves the ‘salutary effects of face-to-face confrontation’ relevant to a Sixth

Amendment analysis.” Montague v. State, No. 03-14-00266-CR, 2016 WL 112378,

at *5 (Tex. App.—Austin, Jan. 6, 2016, pet. ref’d) (mem. op., not designated for

publication) (quoting Stevens v. State, 234 S.W.3d 748, 782 (Tex. App.—Fort Worth

2007, no pet.)). These salutary effects include: (1) the giving of testimony under

oath, (2) the opportunity for cross-examination, (3) the ability of the fact-finder to

observe demeanor evidence, and (4) the reduced risk that a witness will wrongfully

implicate an innocent defendant when testifying in his presence. Id. The presence of

these “other elements of confrontation—oath, cross-examination, and observation

of the witness’ demeanor”—can ensure that testimony is “both reliable and subject

to rigorous adversarial testing in a manner functionally equivalent to that accorded

live, in-person testimony.” Craig, 497 U.S. at 851, 110 S. Ct. at 3166; see also


                                           7
Gonzales, 818 S.W.2d at 764 (emphasizing that witness “testified under oath, was

subject to extensive cross-examination, and was observed by the judge, the jury and

appellant”).

      Applying these principles, Texas courts have at times allowed pregnant

witnesses to testify electronically when health risks associated with the pregnancy

limited the witness’s ability to travel and the other characteristics of in-court

testimony were preserved. See Montague, 2016 WL 112378, at *5 (electronic

testimony of pregnant witness did not violate defendant’s right to confrontation);

Acevedo v. State, No. 05-08-00839-CR, 2009 WL 3353625, at *8 (Tex. App.—

Dallas Oct. 20, 2009, pet. ref’d) (not designated for publication) (trial court did not

err in permitting pregnant witness to testify via two-way video conferencing system

where all other characteristics of in-court testimony were preserved).3

      That is what we face here. Assuming for these purposes that the Sixth

Amendment of the U.S. Constitution and Article I, section 10 of the Texas


3
      Texas courts have applied the same reasoning in other circumstances. See Rivera v.
      State, 381 S.W.3d 710, 713 (Tex. App.—Beaumont 2012, pet. ref’d) (“We conclude
      that under the circumstances, the preference for having witnesses testify in the
      courtroom must give way to the practical considerations involving Taylor’s military
      obligation that made his physical presence impractical.”); Paul v. State, 419 S.W.3d
      446, 459 (Tex. App.—Tyler 2012, pet. ref’d) (“Jordan’s serious health situation was
      an exceptional circumstance that warranted permitting her testimony by a computer
      video conferencing system.”); Stevens v. State, 234 S.W.3d 748, 782 (Tex. App.—
      Fort Worth 2007, no pet.) (“Ward’s tenuous health situation—documented by letters
      from his treating cardiologist—was an exceptional circumstance that warranted
      permitting his testimony by two-way closed circuit television.”).

                                           8
Constitution apply to this pretrial hearing, Wilson’s testimony did not violate

Molina’s confrontation rights. As in Acevedo and Montague, this case involves a

pregnant witness who asserted an inability to testify live due to her pregnancy. The

State here explained that Wilson “was not allowed to fly” due to “pregnancy issues.”

And Wilson herself testified that she was in her seventh month of pregnancy and did

not fly “due to health reasons.” “While we do not consider lightly the circumstances

warranting an exception to face-to-face confrontation, we consider the health of a

mother and her unborn baby no less important than a terminal illness or infirmity in

an elderly person.” Acevedo, 2009 WL 3353625, at *8.

      Wilson’s testimony preserved the salutary effects of face-to-face

confrontation. It is undisputed that Wilson was sworn in and testified under oath. It

is also undisputed that Wilson was subject to cross-examination, and Molina was

present while Wilson testified. The record also reflects that counsel for Molina and

the State were present in the courtroom when Wilson testified, Wilson could hear

counsel, and her testimony was audible in the courtroom.4 Moreover, Wilson’s

testimony did not go to the trier of fact; it was instead offered to the court outside of

the presence of the jury as evidence concerning Jane’s need to testify remotely. See

Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S. Ct. 989, 999 (1987) (The “right to


4
      Molina did not object below on the grounds that he or the trial court could not
      adequately see or hear her.

                                           9
confrontation is a trial right, designed to prevent improper restrictions on the types

of questions that defense counsel may ask during cross-examination.”). Wilson’s

testimony presents no Constitutional violation. See Montague, 2016 WL 112378, at

*5; Acevedo, 2009 WL 3353625, at *8; see also Craig, 497 U.S. at 845, 110 S. Ct.

at 3163.

      We overrule Molina’s first issue.

B.    Did permitting Jane to testify by closed-circuit television violate
      Molina’s Confrontation Clause rights?

      In his second issue, Molina argues that the trial court abused its discretion by

allowing Jane to testify by closed-circuit television. He argues that the admissible

evidence was insufficient to establish that Jane would suffer more than “de minimis”

emotional distress if she testified live. Thus, he contends, Jane’s testimony violated

his confrontation rights. We again disagree.

      1.     Standard of Review

      It is settled that “if 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.” Craig, 497 U.S. at 855, 110 S. Ct. at

3169; Marx v. State, 987 S.W.2d 577, 580 (Tex. Crim. App. 1999). The Texas Code

of Criminal Procedure codifies this principle: “On its own motion or on the motion

                                          10
of the attorney representing the state or the attorney representing the defendant, the

court may order that the testimony of the child be taken in a room other than the

courtroom and be televised by closed circuit equipment in the courtroom to be

viewed by the court and the finder of fact.” TEX. CODE CRIM. PROC. art. 38.071,

§ 3(a).

      The Supreme Court has explained that this special testimonial procedure

(testifying by closed-circuit equipment) may be used in a child abuse case when

necessary to prevent significant emotional trauma to the child witness caused by the

defendant’s presence. Craig, 497 U.S. at 855–56, 110 S. Ct. at 3169; Marx, 987

S.W.2d at 580. A trial court may admit closed-circuit television testimony of a child

if it determines that:

          (1) the use of the procedure is necessary to protect the welfare of the child
              witness;

          (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.’”

Craig, 497 U.S. at 855–56, 110 S. Ct. at 3169 (quoting Wildermuth v. State, 310 Md.

496, 524, 530 A.2d 275, 289 (1987)); see Gonzales, 818 S.W.2d at 762 (Craig’s

analysis applies under the Texas Constitution).

      As discussed above, the Craig Court concluded that the reliability of the child

witness’s testimony may be assured absent a face-to-face encounter through the
                                          11
combined effect of the witness’s testimony under oath, the witness being subject to

cross-examination, and the factfinder’s ability to observe the witness’s demeanor on

the video monitor. Craig, 497 U.S. at 849–51, 110 S. Ct. at 3165–66; Marx, 987

S.W.2d at 580.

      2.     Analysis

      Molina argues that the trial court abused its discretion by allowing Jane to

testify by closed-circuit television because Wilson’s testimony violated Molina’s

Confrontation Clause rights and the remaining testimony was legally insufficient to

justify depriving Molina of face-to-face confrontation. Following binding, well-

settled law, we disagree.

      As a threshold matter, we reject Molina’s first argument because we have

already concluded that Wilson’s testimony did not violate Molina’s confrontation

rights. See supra Section A.

      The evidence justified the use of closed-circuit television. Dana (Jane’s

mother) testified both that Jane would be traumatized if she had to see Molina and

that Jane would suffer “extremely great” emotional distress. Dana averred that when

she spoke with Jane about possibly seeing Molina at trial, Jane had a panic attack.

Dana also testified that, leading up to trial, Jane had trouble sleeping, had nightmares

about Molina, seemed scared, and urinated in her bed.




                                          12
      Wilson testified that it was “highly likely that [Jane] would experience

setbacks and regression in her mental health and treatment and her symptoms” if she

testified in front of Molina. In Wilson’s professional opinion, permitting Jane to

testify through closed-circuit procedures “would be necessary to protect her from

the risk of retraumatization.”

      This evidence supports the trial court’s conclusion that permitting Jane to

testify via closed-circuit television was necessary to protect her welfare, that she

would be traumatized by Molina’s presence, and that the trauma would be “more

than de minimis.” See Walker v. State, 461 S.W.3d 599, 606 (Tex. App.—Houston

[1st Dist.] 2015, no pet.) (mother’s testimony regarding daughters’ fears of appellant

was sufficient to demonstrate that use of CCTV was necessary); see also Craig, 497

U.S. at 855–56, 110 S. Ct. at 3169; Gonzales, 818 S.W.2d at 762.

      We overrule Molina’s second issue.

C.    Did permitting Jane to testify by closed-circuit television deprive Molina
      of the presumption of innocence?

      In his third issue, Molina argues that the admission of Jane’s closed-circuit

testimony impaired Molina’s presumption of innocence. He contends that displaying

Jane on the television monitor for the jury “was analogous to allowing a defendant

to sit through a jury trial while wearing handcuffs and leg shackles.”

      The Court of Criminal Appeals has rejected this argument. In Marx v. State,

987 S.W.2d 577 (Tex. Crim. App. 1999), the appellant challenged the admission of

                                         13
a child victim’s closed-circuit testimony, alleging that it deprived him of the

presumption of innocence. Id. at 581. The Court disagreed, concluding that it did

“not believe that the challenged practice tended to brand appellant with an

unmistakable mark of guilt.” Id. at 582.

      Molina attempts to distinguish his case from Marx, arguing that, in Marx, the

trial court instructed the jury “that the closed circuit television procedure about to be

employed was authorized by statute ‘in these types of cases,’” and the trial court

here offered no such instruction. Id. at 581. But the Marx Court concluded that the

“challenged practice” (testimony via closed-circuit television) did not impermissibly

brand appellant. Id. at 582. And it stated that “[e]ven in the absence of [the trial

court’s] instruction, the use of a closed circuit television procedure would probably

be viewed by the jury as suggesting that the witness was fearful of testifying in the

courtroom setting rather than fearful of testifying while looking at the defendant.”

Id. (internal quotation marks omitted); see also Lozano v. State, No. 05-98-00534-

CR, 1999 WL 793943, at *3 (Tex. App.—Dallas, Oct. 6, 1999, no pet.) (not

designated for publication) (citing Marx and rejecting argument that trial court erred,

in violation of defendant’s presumption of innocence, in refusing to instruct jury that

it could not draw adverse inferences against appellant from use of closed-circuit

television testimony; “the court further noted that even without such an instruction,

the appellant’s constitutional rights would not have been impaired”); Francis v.


                                           14
State, No. 07-05-0293-CR, 2007 WL 1490461, at *2–3 (Tex. App.—Amarillo, May

22, 2007, no pet.) (mem. op., not designated for publication) (similar).

      The admission of Jane’s testimony by closed-circuit television here did not

violate Molina’s presumption of innocence. We overrule Molina’s third issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Jennifer Caughey
                                                Justice

Panel consists of Justices Bland, Lloyd, and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).




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