
                                          NO. 07-08-0496-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                            MARCH 31, 2010

                                    ______________________________


                                      TOMMY CORONADO, APPELLANT

                                                  V.

                                     THE STATE OF TEXAS, APPELLEE

                                  _________________________________

                         FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

                             NO. CR-07L-208; HONORABLE ROLAND SAUL, JUDGE

                                   _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                               OPINION

      This case addresses the question of whether a defendant's Sixth Amendment rights  are  violated
when an unavailable complainant's testimonial hearsay statements are admitted into evidence  pursuant
to the statutory authority found in article 38.071, § 2(b).[1]  On November  19,  2008,  following  a
plea of "not guilty," Appellant,  Tommy  Coronado,  was  convicted  by  a  jury  of  the  offense  of
aggravated sexual assault[2] (Count I), a first degree felony, and indecency with a  child[3]  (Count
II), a second degree felony.  Following a  plea  of  "true"  to  the  allegations  contained  in  the
enhancement portion of the indictment, the jury assessed Appellant's sentence, as  to  each  offense,
at confinement for life and a fine of $10,000.  Because the trial court did not order  the  sentences
to run consecutively, by operation of law, the sentences run  concurrently.[4]   By  issues  one  and
five, Appellant contends the evidence is both legally and factually insufficient; and by issues  two,
three, and four, he contends his constitutional right to confront and cross-examine  the  complaining
witness was abridged.  We affirm.

                                              Background

      In early August 2007, Sylvester Dominguez noticed that the personality of  his  three-year  old
daughter, R.D.,[5] had dramatically changed.  In response to questioning as to whether  "anybody  had
touched her, anybody hurt her, anybody touch  her  cookie,"[6]  R.D.  responded  "yes."   When  asked
whether "Tommy" had done this, she again answered "yes."  Based upon these statements, on  August  8,
2007, R.D. was examined by Danielle Livermore, a sexual assault nurse examiner,  and  interviewed  by
Brandi Johnson, a forensic examiner associated with  the  Bridge  Children's  Advocacy  Center.   The
sexual assault examination revealed that R.D.'s hymen was irregular and  showed  evidence  of  healed
trauma.  Based on this examination, Livermore concluded that R.D. had been  sexually  assaulted.   In
the forensic interview, R.D. stated that Appellant had touched her "cookie" and that it hurt.   As  a
result of that information, on December 19,  2007,  Appellant  was  indicted  for  aggravated  sexual
assault and indecency with a child.

      On November 14, 2008, a pretrial hearing  was  held  to  determine  the  admissibility  of  the
videotaped recording of R.D.'s August 8, 2007, forensic interview at the Bridge  Children's  Advocacy
Center, in accordance with the provisions of article 38.071 of the Texas Code of Criminal  Procedure.
 At that hearing, the court heard testimony from  R.D.'s  mother,  Vanessa  Dominguez,  and  a  child
psychologist, Priscilla Kleinpeter, to the effect that  requiring  R.D.  to  give  testimony  in  the
presence of Appellant, or even by closed-circuit  television,  would  have  a  significant  traumatic
impact on the child.   The court then concluded that the child was "unavailable to  testify"  in  the
presence of Appellant, as that term is used in article 38.071.[7]  Appellant has  not  contested  the
trial court's determination of unavailability.  As a condition  precedent  to  the  admissibility  of
that recording, the court then ordered  that  Appellant  have  the  opportunity  to  present  written
interrogatories to the child through a subsequent recorded interview to  also  be  conducted  by  Ms.
Johnson.  After discussing the pros and cons of allowing the forensic  interviewer  the  "leeway"  of
following up on answers given by the child,  as  opposed  to  allowing  counsel  the  opportunity  to
present follow up written questions, the court determined that allowing leeway was "the best  way  to
do it."  Appellant's counsel did object  to  the  general  procedure  of  allowing  cross-examination
through the use of written interrogatories; however,  no  objection  was  made  as  to  the  specific
procedure of disallowing follow up questions.  Accordingly, the issue of follow up questions was  not
preserved for review and we express no opinion as to the propriety of this portion of  the  procedure
employed.  Following the conclusion of the pretrial hearing, the interview on written  questions  was
conducted that day.

      At trial, in lieu of R.D.'s live testimony, the State offered the videotaped recording  of  her
August 8, 2007, Bridge interview.  A videotaped recording of the court-ordered interview  on  written
interrogatories was also played for the jury.  In addition to the recordings of R.D.'s  two  forensic
interviews, the jury heard testimony from Vanessa  and  Sylvester  Dominguez,  as  well  as  Danielle
Livermore, Brandi Johnson, and Priscilla Kleinpeter.  In addition to testifying on  his  own  behalf,
Appellant offered the testimony of his mother, Maria  Quintana,  and  his  wife,  Victoria  Coronado.
Upon being duly charged, the jury returned a verdict of guilty  as  to  both  counts.   Judgment  was
entered and this appeal followed.



                                    Legal and Factual Sufficiency

      When, as here, an appellant challenges both the legal and factual sufficiency of the  evidence,
we are required to conduct an analysis of the legal sufficiency of  the  evidence  first  and,  then,
only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency  of  the
evidence.  Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).  We  review  legal  sufficiency
by viewing the evidence in the light most favorable to the verdict to  determine  whether,  based  on
that evidence and reasonable inferences to be drawn therefrom, any rational trier of fact could  have
found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia,  443  U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State,  214  S.W.3d  9,  13  (Tex.  2007).   The
conviction will then be sustained unless it is  irrational  or  unsupported  by  more  than  a  (mere
modicum( of evidence.  Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).   The  fact  finder
is the sole judge of the credibility of the  witnesses  and  of  the  weight  to  be  afforded  their
testimony.  Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994).  Reconciliation  of  conflicts
and contradictions in the evidence is within the fact finder's province and  is  usually  conclusive.
See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex.App.--El Paso 1996, pet. ref'd).

      When an appellant challenges the factual sufficiency of the evidence supporting his conviction,
the reviewing court must determine whether, considering all the evidence  in  a  neutral  light,  the
jury was rationally justified in finding the appellant guilty beyond a reasonable doubt.   Zuniga  v.
State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), overruled in part by Watson  v.  State,  204  S.W.3d
404, 415-17 (Tex.Crim.App.  2006).   In  performing  a  factual  sufficiency  review,  we  must  give
deference to the fact finder's determinations if supported by any evidence and may not  order  a  new
trial simply because we may disagree with the verdict.  Watson, 204 S.W.3d at 417.  As  an  appellate
court, we are not justified in ordering a new trial unless there  is  some  objective  basis  in  the
record demonstrating that the great weight and preponderance of the evidence contradicts  the  jury's
verdict.  Id.


      Additionally, as directed by the Texas Court of Criminal Appeals,  when  conducting  a  factual
sufficiency review, we must include a discussion of the most important  and  relevant  evidence  that
supports the appellant's complaint on appeal.  Sims v.  State,  99  S.W.3d  600,  603  (Tex.Crim.App.
2003).  This does not, however, mean that we are required to discuss all evidence admitted at  trial.
 See id.  See also Roberts v. State, 221 S.W.3d 659, 665 (Tex.Crim.App. 2007).


                                               Analysis


      In order to establish the offense of aggravated sexual assault, the State was required to prove
that Appellant intentionally or knowingly caused the penetration of the sexual organ of a  child  who
was then and there younger than 14 years of age.  See Tex. Penal Code Ann. §  22.021(a)(1)(B)(1)  and
(2)(B) (Vernon Supp. 2009).  In order to establish the offense of indecency with a child,  the  State
was required  to  prove  Appellant,  with  the  intent  to  arouse  or  gratify  his  sexual  desire,
intentionally or knowingly touched the genitals of a child who was younger  than  17  years  and  not
Appellant's spouse.    See Tex. Penal Code Ann. § 21.11 (a)(1) (Vernon Supp. 2009).


      Reviewing the evidence in the light most favorable to the verdict,  the  videotaped  statements
of R.D. alone were sufficient to establish every essential element  of  the  offenses  of  aggravated
sexual assault and indecency with a child.  While Appellant acknowledges that testimony of  a  single
witness can be legally sufficient to substantiate a finding of guilt, Castillo v. State,  913  S.W.2d
529, 535 n.3 (Tex.Crim.App. 1995); Rodriguez v. State, 955 S.W.2d 171, 174 (Tex.App.--Amarillo  1997,
no pet.), he contends that this  principle  has  no  application  where  the  defense  was  given  no
opportunity to rigorously cross-examine  the  complaining  witness.   Appellant  cites  no  authority
supporting his contention.  Without same, the issue is inadequately briefed and,  therefore,  waived.
See Tex. R. App. P. 38.1(h); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000).

      Furthermore,  because  Appellant's  contentions  concerning  his  right  to  cross-examine  the
complaining witness are more fully discussed  with  respect  to  issues  two,  three,  and  four,  we
overrule issue five challenging the legal sufficiency.

      Appellant contends the evidence is factually  insufficient  because,  other  than  the  medical
evidence of trauma to R.D.'s hymen, the State's case rests solely upon the testimony of a three  year
old child as recorded in the forensic interviews of Brandi Johnson and the hearsay statements of  the
child as  given  to  Priscilla  Kleinpeter.   Appellant  maintains  that  the  scarcity  of  evidence
undermines both the issue of whether an offense occurred, and whether he committed  the  offense,  if
one in fact did occur.


      In addition to the medical testimony and R.D.'s recorded statements  implicating  Appellant  in
the commission of both offenses, the State offered R.D.'s outcry  statement  to  her  father  to  the
effect that Appellant hurt her by touching her "cookie."  A child  victim's  outcry  statement  alone
can be sufficient to sustain a conviction for aggravated sexual assault.   Rodriguez  v.  State,  819
S.W.2d 871, 873 (Tex.Crim.App. 1991).


      Appellant's suggestion that he did not have an opportunity to commit the charged  offenses  was
contradicted by the testimony of R.D.'s mother, father, grandmother, and great-grandmother,  as  well
as Appellant's own testimony.  Furthermore, Appellant's  suggestion  that  R.D.'s  physical  symptoms
could be rationally explained by other possibilities does not  preclude  the  possibility  that  they
were caused by the criminal conduct of Appellant.  As such, the  jury  was  free  to  listen  to  the
evidence, judge the credibility of the witnesses, and make its own determination as to the  truth  of
the matters asserted.  Based upon the evidence presented,  we  cannot  say  that  the  jury  was  not
rationally justified in finding guilt beyond a reasonable doubt.  In other words, we  conclude  there
is no objective basis in the record demonstrating that the great  weight  and  preponderance  of  the
evidence contradicts the jury's finding of guilt.  See Watson, 204 S.W.3d at 417.  Appellant's  first
issue challenging the factual sufficiency is overruled.


                                      Confrontation of Witnesses


      Appellant contends that because he was allowed to cross-examine  R.D.'s  videotaped  statements
only through the use of written interrogatories, presented  by  a  third  person,  via  a  videotaped
interview, he was denied his right to face-to-face confrontation and cross-examination as  guaranteed
by the Sixth Amendment.  The State contends that Appellant was accorded  every  right  guaranteed  by
the Sixth Amendment when the trial court, consistent with  provisions  of  section  2(b)  of  article
38.071, allowed him to submit written questions that were then presented by a neutral individual  and
recorded under the same or similar circumstances as the original interview.  Thus, the  issue  before
this Court is whether the post-interview  submission  of  written  interrogatories  pursuant  to  the
procedure authorized by section 2(b) of article 38.071 is a meaningful and effective  substitute  for
in-court, sworn testimony, subject to face-to-face confrontation and cross-examination in a  criminal
trial.[8]


      The Sixth Amendment guarantees the accused, in every criminal prosecution,  the  right  "to  be
confronted with the witnesses against him."  U.S. Const. amend. VI.  This right is  secured  for  the
defendant in state as well as federal criminal prosecutions.  Pointer v. Texas, 380  U.S.  400,  404,
85 S.Ct. 1065, 13 L.Ed.2d 923  (1965).   The  Supreme  Court  has  determined  that  this  provision,
commonly referred to as the Confrontation Clause, bars "admission  of  testimonial  statements  of  a
witness who did not appear at trial unless [the witness] is unavailable to testify and the  defendant
has had a prior opportunity for cross-examination."  Crawford v. Washington, 541 U.S. 36, 53-54,  124
S.Ct. 1354, 158 L.Ed.2d 177 (2004).


      This right of confrontation has further been construed to include not only the right  to  face-
to-face confrontation, but also to the right to meaningful and  effective  cross-examination.   Davis
v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 39 L.Ed.2d 347  1974).   Professor  J.  Wigmore  has
described the "main and essential  purpose"  of  confrontation  to  be  the  opportunity  for  cross-
examination through the process of putting direct and personal  questions  to  the  witness  and  the
obtaining of immediate answers.   5 J. Wigmore, Evidence §  1395,  at  123  (3d  ed.  1940).   Cross-
examination is the principal means by which an accused can test the credibility of a witness and  the
truth of their testimony.  Davis, 415 U.S. at 316.  It provides the accused with  a  process  whereby
the motivation for testifying or bias of a witness can be exposed to truth-finding  function  of  the
trier of fact.  Id.



                                               Analysis


      Whether a particular out-of-court statement is testimonial is a question of law.  De La Paz  v.
State, 273 S.W.3d 671, 680 (Tex.Crim.App. 2008).  Generally speaking, an  out-of-court  statement  is
testimonial when the surrounding circumstances objectively indicate that the primary purpose  of  the
interview or interrogation is to establish or prove past facts  or  events  potentially  relevant  to
later criminal prosecution.  Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266 165  L.Ed.2d  224
(2006); De La Paz, 237 S.W.3d at 680.    Error in admitting evidence in violation  of  a  defendant's
right of confrontation is constitutional error, which  necessitates  reversal  unless  the  reviewing
court determines beyond a reasonable doubt that the error did not contribute  to  the  conviction  or
punishment.  See Tex. R. App. P. 44.2(a); Langham v. State, No. PD-1780-08, 2010 Tex.Crim.App.  LEXIS
21, at *34-35 (Tex.Crim.App. March 3, 2010); Wood v. State, 299  S.W.3d  200,  214  (Tex.App.--Austin
2009, pet. filed).


      Here, the primary purpose of the August 8th interview was to preserve a record  of  past  facts
or events for purposes of a later criminal prosecution and the purpose of  the  follow  up  interview
was to comply with the requirements  of  article  38.071  for  the  admissibility  of  that  original
recording during that prosecution.  The accuracy and truthfulness of R.D.'s statements  were  crucial
to the State's case against Appellant.  In both  situations,  R.D.'s  statements  clearly  constitute
testimonial hearsay for Confrontation Clause purposes.


      Having determined that the videotaped interviews  were  testimonial  under  the  United  States
Supreme Court decisions in Crawford v. Washington and Davis v. Washington, this case  highlights  the
tension existing between the  right  of  an  accused  to  confront  the  witnesses  against  him,  as
determined by decisions like Davis v. Alaska, and the State's policy of  protecting  child  witnesses
in sexual assault cases from further trauma.  Despite serious concerns pertaining to the  reliability
of child witness testimony, and  notwithstanding  the  due  process  significance  of  the  right  of
confrontation of witnesses, the trend among courts and legislatures has  been  to  relax  evidentiary
and procedural requirements pertaining to the admissibility  of  child  witness  testimony  in  child
sexual abuse prosecutions in an effort to balance these competing public policy  interests.   Article
38.071 is such an attempt.


      In Maryland v. Craig, 497 U.S. 836, 857, 110 S.Ct. 3157, 111  L.Ed.2d  656  (1990)  the  United
States Supreme Court recognized that the constitution does not guarantee the absolute right to  face-
to-face  confrontation.   In  Craig,  the  Court  approved  certain  limitations  on  the  right   of
confrontation,  holding  that  states  may  use  closed-circuit  television  or  other   methods   of
confrontation short of "face-to-face confrontation" where a court makes a case-specific finding  that
there is potential for trauma to a child witness from testifying in open court, in  the  presence  of
the defendant.  Id, at 857.


      Here, Appellant contends the trial court should have considered less  restrictive  alternatives
to the use of written questions in lieu of live, face-to-face cross-examination.  A similar  argument
was rejected by the  Supreme  Court  in  Craig  when  the  Court  declined  to  establish  "any  such
categorical evidentiary prerequisite," so long as the trial court makes a case-specific finding  that
the procedure employed was necessary under the facts of that particular case.  Id. at 860.


       Additionally,  whether  a  particular  method  of  confrontation  is  deemed  constitutionally
sufficient depends upon a determination as to whether  the  procedure  adequately  ensures  that  the
testimony is both reliable  and  subject  to  "rigorous  testing  in  the  context  of  an  adversary
proceeding before the trier of fact."  Id. at 845.  In this  context,  the  Confrontation  Clause  is
generally satisfied when the defense is given a full and  fair  opportunity  to  test  the  witness's
recollection, sift his conscience, observe his demeanor, judge the  manner  in  which  he  gives  his
testimony, and make a reasonable assessment of the credibility of the witness and the  weight  to  be
given his testimony.  Id.


      In Rangel v. State, the Fort Worth Court of Appeals held that (1) a child  victim's  videotaped
statement was "testimonial" and therefore governed by Crawford, and  (2)  by  providing  a  defendant
with the opportunity to submit written  questions,  section  2(b)  of  article  38.071  serves  as  a
constitutionally sufficient alternative  to  face-to-face  confrontation  of  witnesses.   Rangel  v.
State, 222 S.W.3d 523, 535-37 (Tex.App.--Fort Worth 2006, pet. dism'd).[9]


      While the right to confront our accusers through face-to-face cross-examination is not a  right
that is absolute and unbendable, it is a right that should not be quickly or carelessly  compromised.
 Although limited, section 2(b) of article 38.071 does provide the accused with a  means  of  testing
the testimony of the witnesses against him through the  submission  of  cross-examination  questions.
Where a video recording of the child-witness is  made,  the  fact  finder  is  further  afforded  the
opportunity to observe the child's demeanor, judge the manner in which he gives  his  testimony,  and
make reasonable assessments concerning the weight and credibility of his testimony.


      Furthermore, it should be noted  that  article  38.071  does  not  disqualify  the  child  from
testifying.[10]  It merely provides a means whereby a videotaped interview of the child may  be  used
when the trial court determines that the child is "unavailable" based on  certain  relevant  factors,
including the factors set out by article 38.071, §  8.   In  those  situations  where  the  child  is
physically available to be called as a witness, both the prosecution and the defense are  faced  with
the unenviable task of deciding whether to seek leave of the trial court to call  the  child  to  the
stand.  Not only do they face the uncertainty of knowing how a child of tender years might  react  to
the pressure of being placed under the piercing spotlight of interrogation, they also  run  the  very
real danger of seriously alienating the fact finder (usually a jury) for having  traumatized  such  a
tender witness.  In an attempt to find a suitable solution to this  Hobson's  choice,  while  at  the
same time providing a meaningful compromise  between  the  defendant's  right  of  confrontation  and
society's interest in protecting young child victims from additional  trauma  occasioned  by  placing
them within the crucible of confrontation and cross-examination in a courtroom setting, we find  that
the procedures governed by section 2(b) of  article  38.071  can  be  an  appropriate  constitutional
accommodation.


      Here the trial court made a case-specific determination, based upon competent  testimony,  that
the child was unavailable.  Appellant was accorded the opportunity to, and did, submit  questions  to
the child through the use of written interrogatories under the procedure outlined  by  section  2(b).
Under the facts of this case, we find no  error  in  the  trial  court's  decision  to  allow  cross-
examination through written questions only.  Accordingly, we find  no  error  in  the  trial  court's
decision to allow the admission of R.D.'s videotaped interview in face of  Appellant's  Confrontation
Clause objection.  Issues two, three, and four are overruled.


                                              Conclusion

      Having overruled each of Appellant's issues, the judgment of the trial court is affirmed.
                                                        Patrick               A.               Pirtle
                               Justice
Publish.
-----------------------
      [1]See generally Tex. Code Crim. Proc. Ann., art. 38.071 (Vernon Supp. 2009).  For convenience,
articles of the Texas Code of Criminal Procedure will subsequently  be  cited  as  (article  ___(  or
(Article ___(.

      [2]See Tex. Penal Code Ann. § 22.021(a)(1)(B)(1) and (2)(B) (Vernon Supp. 2009).

      [3]See Tex. Penal Code Ann. § 21.11 (a)(1) (Vernon Supp. 2009).

      [4]See Tex. Penal Code Ann. § 3.03 (a) (Vernon Supp. 2009).

      [5]To protect the privacy of the complaining witness, we refer to her by her initials.

      [6]"Cookie" was R.D.'s word for her vaginal area.
      [7]In making a determination of unavailability under article 38.071, the court  shall  consider
relevant factors including the relationship of  the  defendant  and  the  child,  the  character  and
duration of the alleged offense, the age, maturity, and emotional stability of  the  child,  and  the
time elapsed since the alleged offense, and  whether  the  child  is  more  likely  than  not  to  be
unavailable to testify because of: (1) emotional or physical  causes,  including  confrontation  with
the defendant;  or  (2)  the  child  would  suffer  undue  psychological  or  physical  harm  through
involvement at the hearing or proceeding. See Art. 38.071, § 8 (Vernon Supp. 2009).
      [8]To date, the Texas Court  of  Criminal  Appeals  has  not  squarely  addressed  this  issue.
Although petition for discretionary review was granted on a similar issue in  Rangel  v.  State,  222
S.W.3d 523 (Tex.App.--Fort Worth 2006), that petition was  subsequently  dismissed  as  improvidently
granted.  Rangel v. State, 250 S.W.3d 96 (Tex.Crim.App. 2008).   Rangel's  ground  for  discretionary
review read as follows:

      Whether [Rangel's] Sixth Amendment rights were  violated  when  the  unavailable  complainant's
      testimonial hearsay statements were admitted into evidence  pursuant  to  statutory  authority.
      [Article 38.071, § 2(b)].
      [9]See n. 8 supra.

      [10]Section 6 of article 38.071 does provide that the child may not be required to  testify  in
court if the trial court finds the testimony of the child  taken  under  sections  2  or  5  of  that
article is admissible into evidence.  However, even  if  the  child's  testimony  taken  under  those
sections is admitted into evidence, a trial court may  still  allow  the  child  to  testify  upon  a
finding of good cause.  Because we are not presented with the question of whether the trial court  in
this cause erred by denying the accused the right to call the child  as  a  witness,  we  express  no
opinion as to whether or not the denial of a defendant's right to call the complaining witness  as  a
witness at trial would affect  the  defendant's  due  process  rights  or  the  constitutionality  of
limiting his right of confrontation.

