





NUMBER 13-05-188-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

JOSE MORALES,								Appellant,

v.


THE STATE OF TEXAS,							Appellee.


On appeal from the 319th District Court of Nueces County, Texas.

 

CONCURRING OPINION


Before Chief Justice Valdez and Justices Yañez and Castillo

Concurring Opinion by Justice Yañez

	The majority concludes that appellant is "estopped" from asserting that he was
denied his rights under the confrontation clause because he failed to utilize section 3 of
article 38.071, which provides that a child sexual assault victim may testify by closed-circuit
television. (1)  I find no authority, either in article 38.071 or in caselaw, supporting the
majority's holding that a defendant must "utilize all the provisions available under article
38.071" in order to preserve a claim under the confrontation clause.  Here, appellant
objected to the admission of all three of the child victim's recorded statements on grounds
that they failed to comply with section 2 of article 38.071 and violated his right to
confrontation.  Accordingly, I would hold that appellant was not estopped from complaining
that his right to confrontation was denied.  However, because I agree that the trial court did
not abuse its discretion by overruling appellant's objections and admitting the recorded
statements, I respectfully concur in the judgment.   
	The majority states that "article 38.071 section 3 provides an alternative method of
confrontation that Morales could have elected to use" to cross-examine the victim.  The
majority then concludes that "Morales did not take advantage of this opportunity and now
cannot claim that he was denied any rights under the confrontation clause."  In support of
this contention, the majority cites Fultz v. State, 940 S.W.2d 758, 761 (Tex.
App.-Texarkana 1997, pet. ref'd).  However, Fultz stands for the unremarkable proposition
that a defendant fails to preserve error on a confrontation rights claim when his trial
objections do not comport with his arguments on appeal. (2)  The only other authority cited
by the majority is Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999).  The cited
section in Prystash simply distinguishes waiver from invited error and notes that "the law
of invited error estops a party from making an appellate error of an action it induced." (3) 
Neither case supports the majority's contention that by failing to utilize the alternative
method of confrontation provided for in section 3, an appellant is estopped from
complaining that his confrontation rights were violated.  
	The majority states that appellant "acquiesced by submitting questions under
section 2 and electing to request a recording under section 3."  The majority also states
that appellant is estopped from complaining that his confrontation rights were violated
because "the trial court afforded the relief he requested on the method of confrontation he
chose."  The record reflects, however, that appellant did not "choose" to proceed under
section 2 of article 38.071.  Rather, the State filed a motion to admit the child victim's
videotaped testimony under section 2, which the trial court granted.  At the March 30, 2004
hearing on the State's motion, the State made it clear that it was requesting to proceed
under section 2.
[Court]: All right.  Let me ask you this, assume that we do the two--well, the
first tape is already done--we do the second tape.  Under Section 3 of this
article, then-- 

[Prosecutor]: We're proceeding under Section 2, Your Honor.  There are two
different venues.

[Court]: Okay.

[Prosecutor]: Section 3 deals with closed-circuit TV.

[Court]: Okay.

[Prosecutor]: I have not asked for that because I don't think the child would
be capable of handling that.

[Court]: Okay.  Section 3 says that either the attorney for the State or the
attorney representing the defendant may request that the testimony of the
child be taken via closed-circuit TV.  I presume if--even if we do the two
tapes, [appellant's counsel] would still request that the child be interviewed
via closed-circuit TV at the time of the trial.

[Prosecutor]: Well, I had [sic] never seen it done both ways.  But I presume
he can request that.  We would object to it because I think the only thing
that's going to happen is the child is going to freeze up, scream, cry, and run
under the table.  And if [appellant's counsel] wants that televised to the jury,
you know, from a prosecutor's stand point that can be very effective.  But
from a human personal standpoint, the State would object to it so as not to
put the child through that trauma.
	But I think the Court is correct in that the statute does not say that if
the Court has allowed the videotape under Section 2, that that prohibits
somebody from making a request under Section 3.

[Court]: And what if Mr.--I'm just asking these questions, because I don't
know the answers.  What if [appellant's counsel] wants to at trial call the child
as a witness?

[Prosecutor]: Your Honor, I haven't looked up that issue, but the admission--
one of the findings the Court has to make before ruling under Section 2 is
whether the child is unavailable for trial.  Presumably if the Court finds that
the child is unavailable for trial because it would cause undue harm,
psychological or physical harm to the child, then presumably, the child
cannot be called as a witness.
	And this hurts the State in a number of ways, Your Honor, because
I can't, for example, put on the testimony of the outcry.  Because the outcry-
I mean, specifically the words the child said to her mother.  Because the
outcry is only available if the child is available or subject to being called.  So
I have to give up something in order to make this request.  So it's certainly
not a request that I'm making lightly.  And I think that the--even if it's not
explicitly laid out in the statute, I certainly think it's implicit in the statute if the
Court makes a finding of unavailability, then the child is not to be called.
 
[Court]: Which is the outcry section?

[Prosecutor]: That's 38.072.  And specifically, the section I'm talking about
is Section 2-B, Subsection 3, the very last line.

[Court]: Okay.  38.071 is the child is unable to testify in the presence of the
Defendant.  So that would permit the tapes to be introduced.  If the child was
called via closed-circuit TV-- 

[Prosecutor]:  Then I think the outcry statement could come in.

[Court]: Then the outcry would be admissible because the child is available
to testify at the  proceedings--  

[Prosecutor]: Exactly, Your Honor.

[Court]: --or in any other manner provided by law, which would be closed-circuit TV.

[Prosecutor]: And that's one of the reasons that it's extraordinarily unusual
for the State to ask for the videotapes, because it's the least desirable
position as far as the State is concerned.  And if I felt that the child was
capable of testifying via closed-circuit TV, then I would have made that
request, so that I could get the outcry at [sic] well. 
	Of course the outcry is always admissible if there's some other
exception.  I haven't found one yet, though. 
 
[Court]: Of course the outcry may well be the first videotape.

[Prosecutor]: Well, then that would fall under the different--the different
statute.

[Court]: Okay.  I will allow you to proceed under Section 2 and make the
second videotape.  And then we'll--once that's done, then [appellant's
counsel] will be able to make whatever objections he deems appropriate at
the time.

[Appellant's counsel]: Okay.  
	The record thus reflects that the State requested admission of the victim's
videotaped testimony under Section 2 and would have requested that the victim testify by
closed-circuit television under Section 3 if it believed the victim was able to do so.  The
burden of proof in a criminal case is on the State, and it is incumbent on the State to prove
every element of the offense beyond a reasonable doubt. (4)  If, as here, the State chose to
proceed under section 2, but errors are committed in the course of section 2 proceedings,
the majority's position requires the defendant to not only specifically object to such errors,
but to request that the State present evidence against him (often the only evidence) via the
victim's testimony by closed-circuit TV.  I find nothing in the record to support the majority's
position that appellant "chose" to proceed under section 2 and similarly, find no authority
for the contention that he was required to request that the victim testify under section 3 in
order to preserve his objections under section 2.
	Having concluded that appellant preserved his objections, I now turn to his
objections and whether the trial court abused its discretion in overruling them.  With
respect to tape one, appellant objected at the March 30, 2004 hearing to the admissibility
of tape one on grounds that it denied him the right to confrontation.  Appellant also
objected to tape one on grounds that it "wasn't fairly done."
	Appellant objected to tape two on grounds that it failed to comply with the
requirements of section 2 and denied him the right to confrontation because (1) many of
the questions propounded by appellant pursuant to section 2 paragraph (b) were not asked
by the interviewer, (2) some questions were asked by the interviewer that were not
propounded by appellant, which resulted in the victim testifying about extraneous offenses,
and (3) tape two was therefore unfair and prejudicial.  Appellant objected to the third tape
on grounds that it violated section 2 because (1) the statute does not expressly provide that
more than two videotapes may be made and (2) his right to confrontation was denied.
	A trial court has discretion to decide the admissibility of evidence and, absent an
abuse of discretion, its rulings will not be overturned. (5)  As long as a trial court's ruling was
within the zone of reasonable disagreement, the appellate court should affirm. (6) 
	I conclude that the trial court's ruling admitting the three tapes was within the zone
of reasonable disagreement and therefore, the court did not abuse its discretion.  The trial
court granted the State's motion to proceed under section 2 and allowed appellant's
counsel to propound questions to the victim pursuant to section 2 paragraph (b).  Appellant
objected to the second tape on grounds that some of the questions he propounded were
not asked by the interviewer.  The trial court recognized that some of appellant's questions
were not asked on the second tape and noted that the interviewer "can't be the screener
of the questions and decide what he's gonna ask and not ask."  Although appellant
objected to a "third interview," the trial court stated that it was not "a third tape," but "a
continuation of the second tape."  Although paragraph (b) of section 2 refers to "the
recording," and paragraph (c) refers to "a recording made under Subsection (b)," the
statute does not expressly limit a paragraph (b) "recording" to a single videotape, nor does
it prohibit a "continuation" of a "recording."  I conclude that the trial court did not abuse its
discretion in determining that the three tapes were in compliance with section 2
requirements.  
	Appellant also objected to admission of the tapes on grounds that his right to
confrontation was violated.  The standard for addressing a confrontation complaint in the
context of article 38.071 was modified by the United States Supreme Court's decision in
Crawford v. Washington. (7)  In Crawford, the Supreme Court held that, pursuant to the
Confrontation Clause of the United States Constitution, testimonial statements of witnesses
absent from trial are inadmissible unless the witness is unavailable and the defendant has
had a "prior opportunity" to "cross-examine" the witness. (8) 
	In Rangel v. State, "a case of first impression in Texas," the Fort Worth Court of
Appeals recently addressed a confrontation clause claim, post-Crawford, in the context of
article 38.071. (9)   The Rangel court held that (1) a child victim's videotaped statement was
"testimonial" and therefore governed by Crawford and (2) by providing a defendant with an
opportunity to submit written interrogatories to a child victim, article 38.071 section 2
provides a defendant with an opportunity for cross-examination. (10)
	I agree with the Rangel court that article 38.071, section 2, which provides a
defendant an opportunity to submit written interrogatories to a child victim, provides a prior 
opportunity for cross-examination, and thus, meets the requirements of Crawford. (11) 
	For the foregoing reasons, I agree that the trial court did not abuse its discretion in
overruling appellant's objections to the admission of the three tapes.  Accordingly, I would
overrule appellant's issues and would affirm the trial court's judgment. 
  
 LINDA REYNA YAÑEZ,
							Justice


Publish.  Tex. R. App. P. 47.2(b).
Concurring opinion delivered and filed 
this the 9th day of November, 2006.
1.  See Tex. Code Crim. Proc. Ann. art. 38.071  § 3 (Vernon 2005).
2.  Fultz v. State, 940 S.W.2d 758, 760 (Tex. App.-Texarkana 1997, pet. ref'd).
3.  Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). 
4.  See Tex. Pen. Code Ann. § 2.01 (Vernon 2003); Johnson v. State, 673 S.W.2d 190, 194 (Tex. Crim.
App. 1984). 
5.  Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).    
6.  Id.  
7.  Crawford v. Washington, 541 U.S. 36 (2004). 
8.  Id. at 68.
9.  Rangel v. State, 199 S.W.3d 523, 535 (Tex. App.-Fort Worth 2006, no pet.).      
10.  Id. at 535-37.  In Rangel, the defendant failed to submit written interrogatories to the victim pursuant
to section 2 of article 38.071, and thereby waived his confrontation clause challenge on appeal.  Id. at 537. 
11.  Id. at 536.

