                                   NO. 07-11-0129-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                      MAY 15, 2012


                                  HIPOLITO ALVAREZ,

                                                                  Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                          _____________________________

            FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

           NO. 58,169-B; HONORABLE RICHARD DAMBOLD, PRESIDING


                                 Memorandum Opinion


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

      Appellant, Hipolito Alvarez, appeals his conviction for sexually abusing a child.

His sole issue involves the trial court‟s decision to allow the child victim to testify via

closed-circuit television. This allegedly was error because the Texas statute allowing

that violates the Confrontation Clause appearing in the Sixth Amendment to the United

States Constitution, as those requirements were purportedly interpreted in Craig v.

Maryland, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) and its progeny. That

is, it is not enough to merely satisfy the dictate of art. 38.071, §1 of the Texas Code of
Criminal Procedure, i.e. that the child be “unavailable to testify in the presence of the

defendant.” TEX. CODE CRIM. PROC. ANN. art. 38.071, §1 (West Supp. 2011). Rather,

the evidence must show that the child is unable to communicate or reasonably unable

to testify in court while in the presence of the defendant.1 We overrule the issue and

affirm the judgment.

        Appellant‟s attack upon art. 38.071 et seq. on the basis of its purported failure to

comport with the Confrontation Clause was not raised below. Nor did he contend that

the evidence had to allow the trial court to conclude that the child was “unable to

communicate” or “reasonably unable to testify” in the presence of the defendant, as

opposed to merely being “unavailable” to testify, i.e. any distress or trauma would be

more than de minimus or that significant emotional harm would result.                            Thus, the

arguments were not preserved for review. See Karenev v. State, 281 S.W.3d 428, 434

(Tex. Crim. App. 2009) (stating that facial challenges to the constitutionality of a statute

may be waived); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)

(holding that the grounds urged on appeal must comport with those mentioned at trial,

otherwise they are waived).

        Accordingly, the judgment is affirmed.


                                                           Brian Quinn
                                                           Chief Justice

Do not publish.


        1
        Appellant expressed in his brief that he did not dispute nor concede that “any distress or trauma
here was more than de minimus . . . or that „significant emotional harm‟ would result, if this complainant
were made to testify . . . before this appellant.” And, those were the two findings entered by the trial court
upon receiving evidence on the matter.

                                                      2
