                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-06-399-CR


STEVEN RAY GAITAN                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                                   OPINION

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                                I. INTRODUCTION

      Appellant Steven Ray Gaitan appeals his conviction for two counts of

murder.    In two points, Gaitan argues that his Confrontation Clause

constitutional rights were violated when the trial court allowed a child witness

to testify by closed-circuit television. For the reasons set forth below, we hold

that the trial court did not err by permitting the child witness to testify by
closed-circuit television and, alternatively, we hold that any error was harmless.

Accordingly, we affirm the trial court’s judgment.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      On October 5, 2004, at about 10:30 p.m., X.P., who was eight years

old, and his brother C.P., who was two or three years old, drove with their

mother, Stella P., to the home of a family friend. As Stella P. and her sons

arrived at the residence, Gaitan and a passenger, Manuel Garza Gonzales,

simultaneously pulled up in front of the residence. Gaitan, Stella P., and her

sons all exited the vehicles. The boys went to the front yard of the residence

while Stella P. and Gaitan talked. A confrontation occurred between Stella P.

and Gaitan, and Gaitan shot Stella P.; she fell into the street, bleeding. Gaitan

tried to place Stella P. into the backseat of her vehicle, but when he was

unsuccessful, he simply drove away. Stella P. was left lying in the street where

she died.

      During the trial, the jury heard testimony via closed-circuit television from

X.P. and live testimony from Gonzales, along with others. At the conclusion

of the evidence, the jury convicted Gaitan for the murder of Stella P., and the

trial court sentenced Gaitan to life imprisonment and assessed a $10,000 fine.

This appeal followed.




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                        III. R IGHT TO C ONFRONT W ITNESSES

      In his first point, Gaitan argues that the trial court erred by permitting

X.P., a child witness, to testify by closed-circuit television.1 Gaitan contends

that the State failed to prove the necessity for this procedure and that,

consequently, he was improperly denied his right to face-to-face confrontation

of the child witness against him. In his second point, Gaitan contends that

Texas Code of Criminal Procedure article 38.071, section 3—the statute

authorizing a child to testify by closed-circuit television—is unconstitutional as

applied to him in this case because the State failed to prove an interest in

protecting X.P. from Gaitan’s presence. 2 These points are interrelated, so we

discuss them together below.




      1
       … It appears from the record before us that during X.P.’s testimony,
X.P., the attorneys and the judge went to an adjoining room and that X.P.’s live
testimony was broadcast from the adjoining room to the courtroom and was
viewed by Gaitan and the jury on a screen in the courtroom. During X.P.’s
testimony, the trial court repeatedly told Gaitan’s counsel that he could request
a break at any time to confer with his client.
      2
        … Gaitan properly raised his as-applied constitutional challenge in the trial
court. Accord Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995);
Barnett v. State, 201 S.W.3d 231, 232-33 (Tex. App.—Fort Worth 2006, no
pet.) (both recognizing that as-applied constitutional challenge is waived if it is
not raised in the trial court).

                                         3
      A.    The Law

      The Texas Code of Criminal Procedure authorizes a trial court to order

that the testimony of a child younger than thirteen years of age 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 if the trial court

determines that the child would be unavailable to testify in the presence of the

defendant about an offense, including murder. T EX. C ODE C RIM. P ROC. A NN. art.

38.071, §§ 1(1), 3(a) (Vernon Supp. 2007); see also Barnes v. State, 165

S.W.3d 75, 84-85 (Tex. App.—Austin 2005, no pet.).                  In making a

determination of unavailability, the trial court shall consider relevant factors,

including the relationship of the defendant to the child; the character and

duration of the alleged offense; the age, maturity, and emotional stability of the

child; the time elapsed since the alleged offense; and whether the child is more

likely than not to be unavailable to testify because of emotional or physical

causes, including confrontation with the defendant, or the child would suffer

undue psychological or physical harm through his involvement at the hearing or

proceeding. T EX. C ODE C RIM. P ROC. A NN. art. 38.071, § 8(a)(1)-(2).

      Because this statute operates to deprive a defendant of face-to-face

confrontation, the trial court must hear evidence and make a case-specific

determination: (1) that the use of the statutory procedure utilized is necessary

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to protect the welfare of the particular child witness who seeks to testify; (2)

that the child witness would be traumatized, not by the courtroom generally,

but by the presence of the defendant; and (3) that the emotional distress

suffered by the child witness in the presence of the defendant is “more than de

minimis, i.e., more than mere nervousness or excitement or some reluctance to

testify.” Hightower v. State, 822 S.W.2d 48, 51 (Tex. Crim. App. 1991);

Gonzales v. State, 818 S.W.2d 756, 762 (Tex. Crim. App. 1991).            These

findings are not required by the statute but are constitutionally required. See

also Maryland v. Craig, 497 U.S. 836, 855-56, 110 S. Ct. 3157, 3169 (1990);

Hightower, 822 S.W.2d at 51. If the trial court makes these findings, then the

Confrontation Clause does not prohibit the use of a procedure that, despite the

absence of face-to-face confrontation, ensures the reliability of the evidence by

subjecting it to rigorous cross-examination. Gonzales, 818 S.W.2d at 762.

      B.     The Facts

      The trial court conducted a pretrial hearing on “The State’s Motion to

Have Testimony of Child Witness Taken Outside the Courtroom.”             At the

hearing, the trial court heard testimony from Wichita Falls police officer Betty

King and heard expert testimony from Walter Swinhoe, a licensed counselor and

therapist.




                                       5
      Officer King testified that she talked to X.P. at the scene of his mother’s

murder.    Officer King said that X.P. had witnessed “a particularly violent

offense” and that he was in shock when she spoke to him.              X.P. was

concerned about his mother and kept asking Officer King when he would get

to see her. Officer King said that both X.P. and C.P. were worried about what

was wrong with their mother because they had observed her “laying at the end

of the driveway there on the ground and they weren’t really sure what was

wrong with her.”

      Walter Swinhoe testified that he was the director of the Taft Counseling

Center. Swinhoe testified that X.P.’s grandmother had arranged for X.P. to

receive counseling from him because X.P. was experiencing negative reactions

from his mother’s death, including nightmares, and needed help in grieving for

his mother. Swinhoe counseled X.P. on April 26, 2006; May 2, 2006; and May

9, 2006.    Swinhoe testified that X.P. showed increased “arousal signs,”

increased agitation, and signs of post-traumatic stress disorder (PTSD). 3 X.P.

was very guarded and avoided talking about the incident, other than to say that

he had heard a firecracker and saw something at the scene. Swinhoe said that




      3
       … Swinhoe testified that he was not able to trace the trauma creating
the PTSD to this incident and that before this incident occurred, X.P. started
out with a difficult lifestyle that involved frequently moving.

                                       6
X.P.’s avoidance of talking about the incident is “one of the greatest signs of

trauma.” Swinhoe testified that he asked X.P.’s grandmother to stop talking

about the incident because X.P. would cover his face, get visibly agitated, and

show some aggravation or anger when his grandmother would bring up

“momma or the incident.”

      When asked whether it would be harmful to X.P.’s welfare to have him

testify while in the same room with Gaitan, Swinhoe testified:

      I believe that if the perpetrator was in this room and due to the
      signs and symptoms, it would definitely exacerbate the signs and
      symptoms that are already present and create more night terrors,
      more of the internal conflict. He might not show it, but it would
      definitely exacerbate it.

Swinhoe explained that X.P.’s distress from testifying in Gaitan’s presence

would be much more severe than just nervousness, excitement, or reluctance

to testify and that it might even create a secondary trauma. 4 Swinhoe testified

that if the trial court required X.P. to testify in Gaitan’s presence, X.P. would

suffer undue psychological harm and that his emotional stability could be

harmed.


      4
       … Swinhoe explained that the secondary trauma that might result from
X.P.’s having to testify in Gaitan’s presence “might be worse or more difficult
to process than even the first trauma, because it’s almost like survivor’s guilt.
And . . . when he comes up with his own fears in reality, it would be worse
than the reality itself.” Swinhoe also stated that “the event that create[s] that
[anxiety and agitation] would create a lot more distress in a courtroom.”

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      Swinhoe said that the primary risk of trauma for X.P. in the courtroom

setting would be confrontation with the perpetrator of the offense and that if

confrontation with the perpetrator could be avoided, that would prevent undue

harm to X.P. Swinhoe explained that for X.P., it would be particularly traumatic

to be put in a room with Gaitan and a lot of people and ask X.P. to go through

the events of October 5, 2004, because X.P. would develop a new fear based

on Gaitan’s presence and the fear of getting in trouble for telling the people

who are present about what Gaitan did. Swinhoe based this conclusion on

X.P.’s request, expressed during counseling, to find a safe place where no one

could hear him or see him cry when he talked about his mother.

      At the conclusion of the hearing, the trial court ruled:

             Well, having heard the testimony given, I’ve taken into
      account all of the factors, including the relationship of the
      Defendant to the child, the character and duration of the alleged
      offense and the age, maturity and emotional stability of the child
      and the time elapsed and I come to the inescapable conclusion that
      significant trauma would be had should [X.P.] be required to testify
      in the same room with the presence of the Defendant in this
      matter.

             So I order that the testimony be taken by closed-circuit
      television. We will certainly give Mr. Gaitan every opportunity to
      confer with his attorney and Mr. Rasmussen will be able to take a
      break at any time he wishes to do so to confer with his client on
      that matter.




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       The trial court also signed an order granting the State’s motion. The

order states, in part:

       [T]he court finds that the child witness in this cause is unavailable
       to testify because he would suffer undue psychological and
       physical harm through his involvement at trial. The procedure
       provided for the child victim’s testimony to be taken in article
       38.071, section 3 of the Texas Code of Criminal Procedure is
       necessary to protect his welfare. Moreover, the Court notes that
       the child would be traumatized by the presence of the defendant in
       the courtroom, and that his level of emotional distress would be
       more than de minimis.

       C.     Application of the Law to the Facts

       The State’s evidence, outlined above, satisfies the statutory and

constitutional requirements needed to authorize the use of closed-circuit

television for the presentation of X.P.’s testimony. The evidence establishes

that   X.P.   is   “unavailable”    to   testify     under    the   statutory   definition

because—considering       the      relevant       factors—he     would    suffer   undue

psychological or physical harm through his involvement at the trial. See T EX.

C ODE C RIM. P ROC. A NN. art. 38.071, § 8(a)(2).            And the evidence likewise

illustrates that the trial court made a case-specific determination that the use

of closed-circuit television to present X.P.’s testimony was necessary to protect

X.P.’s welfare, that X.P. would be traumatized by being forced to testify in

Gaitan’s presence, and that the emotional distress that X.P. would suffer if

forced to testify in Gaitan’s presence would be more than de minimis and more

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than mere nervousness, excitement, or some reluctance to testify. See, e.g.,

Hightower, 822 S.W.2d at 51; Gonzales, 818 S.W.2d at 762. Thus, we hold

that the State met its burden and that the trial court’s decision—especially

considering that X.P.’s testimony was presented live via closed-circuit television

and that Gaitan had the opportunity to and did cross-examine X.P. at trial—did

not violate Gaitan’s Confrontation Clause rights. See Gonzales, 818 S.W.2d

at 762 (discussing Maryland v. Craig); Francis v. State, No. 07-05-00293-CR,

2007 WL 1490461, at *2 (Tex. App.—Amarillo May 22, 2007, no pet.) (mem.

op.) (not designated for publication). We further hold that, because the State

met its burden to present sufficient evidence of the requisite statutory and

constitutional factors, Gaitan’s as-applied constitutional challenge fails; article

38.071, section 3 did not operate unconstitutionally as applied to Gaitan in this

case.

        D.   No Harm in Any Event

        Moreover, even assuming that the trial court erred by allowing X.P. to

testify by closed-circuit television, X.P.’s testimony was such that it would not

have affected the jury’s deliberations or verdict. T EX. R. A PP. P. 44.2(a); Wall

v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006) (explaining that “[i]f an

appellate court rules that a constitutional error in the admission of evidence is

harmless, it is, in essence, asserting that the nature of that evidence is such

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that it could not have affected the jury’s deliberations or verdict”); see also

Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).

      Gaitan himself testified at the guilt-innocence phase of his trial that he

shot Stella P., albeit accidentally. And Gonzales’s testimony mirrored X.P.’s

testimony. Gonzales testified that he heard a gunshot but did not see Gaitan

shoot Stella P. Gonzales testified that he observed Gaitan trying to place Stella

P. into the car and that he saw Gaitan drive away, leaving Stella P. lying in the

street.   Thus, after carefully reviewing the record and performing the

appropriate harm analysis, even if the trial court erred by permitting X.P. to

testify via closed-circuit television, we hold that beyond a reasonable doubt the

trial court’s error did not contribute to Gaitan’s conviction or punishment

because other evidence admitted during the trial showed that Gaitan shot and

murdered Stella P. See T EX. R. A PP. P. 44.2(a); see Davis v. State, 203 S.W.3d

845, 853-56 (Tex. Crim. App. 2006) (holding that Crawford error—admitting

victim’s testimonial statements to officer that supported deadly weapon

finding—was harmless beyond a reasonable doubt because other evidence at

trial showed that appellant attempted to strangle victim with rope), cert. denied,

127 S. Ct. 2037 (2007); Wall, 184 S.W.3d at 745-46 (holding that error in

admitting statement made by victim at hospital was not harmful because the




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other witnesses who testified at trial overwhelmingly established appellant’s

guilt, even disregarding the erroneously admitted evidence).

     We overrule Gaitan’s first and second points.

                               IV. C ONCLUSION

     Having overruled both of Gaitan’s points, we affirm the trial court’s

judgment.




                                                 SUE WALKER
                                                 JUSTICE

PANEL A:    CAYCE, C.J.; HOLMAN and WALKER, JJ.

PUBLISH

DELIVERED: March 20, 2008




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