


marx                                                                



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN






NO. 03-95-00333-CR





Jeffrey Steven Marx, Appellant





v.





The State of Texas, Appellee







FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 7693, HONORABLE CHARLES J. HEARN, JUDGE PRESIDING







 A jury convicted appellant, Jeffrey Steven Marx, of aggravated sexual assault of a child and
assessed punishment at imprisonment for twenty-three years.  See Tex. Penal Code §§ 22.011,
22.021 (West 1994 & Supp. 1997).  Marx brings seven points of error contending the trial court
erred by:  (1) allowing two child witnesses to testify by closed-circuit television; (2) not
suppressing his confession; (3) failing to afford him a Batson hearing; (4) denying him six
challenges for cause; (5) admitting evidence of extraneous wrongs; (6) not allowing
cross-examination of the victim concerning possibly exculpatory evidence; and (7) allowing
testimony by witnesses not on the prosecution's witness list who were present in the courtroom
during other testimony after the rule had been invoked.  We will affirm the conviction.
FACTUAL AND PROCEDURAL BACKGROUND

 In August 1994, thirteen-year-old B.J. told her grandfather and caseworkers at the children's
advocacy center that Jeffrey Marx had sexually assaulted her earlier that summer.  The next day,
Investigator Jimmy Hopkins of the Burnet County Sheriff's Department obtained a warrant for
Marx's arrest.  While in custody, Marx confessed to having intercourse with B.J. when he and his
wife took B.J. swimming at an area lake.  He also admitted to engaging in sexual acts with four
other girls, including two of his daughters and his niece J.M.  Because Marx claimed he could
not read or write, Chief Deputy Tim Moody entered the confession into a computer.  A Burnet
County grand jury subsequently indicted Marx for three counts of aggravated sexual assault
against B.J.  Count one of the indictment alleged genital penetration; counts two and three
alleged penetration of the anus and digital penetration of the genitals, respectively.
 Before trial, Marx filed two motions to suppress the confession, which he contended was taken
in violation of his statutory and constitutional rights.  See U.S. Const. amend. IV, XIV; Tex.
Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a)(1-5) (West 1979).  The trial court
denied both motions.  The prosecution filed a pretrial motion to allow B.J. and J.M., age six, to
testify by two-way closed-circuit television.  See Tex. Code Crim. Proc. Ann. § 38.071 (West
Supp. 1997).  The trial court granted the State's motion.  The jury found Marx guilty of count
one but not guilty of counts two and three.  The jury assessed punishment at twenty-three years
of imprisonment.




DISCUSSION

Testimony by Closed-Circuit Television
 In point of error one, Marx contends the trial court erred by allowing the two girls to testify by
closed-circuit television because such testimony:  (1) did not meet the prerequisites of article
38.071; (2) as applied, violated his right to confront the witnesses; and (3) facially and as
applied, violated his right to due process of law.  See U.S. Const. amend. V, VI, XIV; Tex. Code
Crim. Proc. Ann. art. 38.071.


1.  Statutory Compliance and Confrontation Challenge
 Section 1 of article 38.071 allows testimony to be given by closed-circuit television in a
prosecution for aggravated sexual assault only if 


the offense is alleged to have been committed against a child 12 years of age or younger and if
the trial court finds that the child is unavailable to testify at the trial of the offense, and applies
only to the statements or testimony of that child[.]




Id. art. 38.071, § 1.  Marx correctly notes that B.J. was thirteen years old at the time of this
offense and J.M. was not the victim in this particular proceeding.  He also contends the State
failed to prove J.M. was "unavailable" as the statute requires.  However, in Gonzales v. State,
818 S.W.2d 756 (Tex. Crim. App. 1991), the Texas Court of Criminal Appeals upheld a child
witness's testimony by closed-circuit television even though she was not the victim of the
charged offense and even though the offense (murder) was not one enumerated in the statute. 
See id. at 765.  Gonzales teaches that the statute is not the only basis for permitting closed-circuit
testimony by a child victim in Texas:


[W]e see no reason why an expression of this important public policy must necessarily be in the
form of an act or statute.  More importantly, we have found nothing in any pertinent opinion
from this Court or from the Supreme Court that would permit only the Legislature to make this
"public policy" determination on behalf of the State.




Id.  Gonzales involved a challenge to closed-circuit televised testimony on the ground it violated
the defendant's confrontation right.  See U.S. Const. amend. VI.  The court of criminal appeals
expressly adopted the United States Supreme Court's holding in Maryland v. Craig, 497 U.S.
836 (1990), that the State has a sufficiently important interest in protecting child victims from
the traumatic effects of testifying to justify the use of closed-circuit televised testimony under
certain circumstances.  See Gonzales, 818 S.W.2d at 765 (citing Craig, 497 U.S. at 855).  To
justify the procedure's use under Craig and now Gonzales, the trial court must determine that the
procedure is necessary by hearing evidence and finding:  (1) the procedure is necessary to protect
the welfare of the particular child witness who seeks to testify; (2) the child witness would be
traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) the
emotional distress suffered by the child witness in the presence of the defendant is not de
minimis ("more than mere nervousness or excitement or some reluctance to testify").  Gonzales,
818 S.W.2d at 765 (citing Craig, 497 U.S. at 855-56); Hightower v. State, 822 S.W.2d 48, 51
(Tex. Crim. App. 1991).  This finding of necessity supplants the requirement of unavailability
described in article 38.071.  See Tex. Code Crim. Proc. Ann. art. 38.071, § 8.  Accordingly, as
long as the record in this case supports the finding of necessity, the trial court did not err by
allowing B.J. and J.M. to testify by closed-circuit television merely because they did not meet
the other requirements of article 38.071.
 We review the trial court's rulings in a hearing on necessity for an abuse of discretion.  See
Hightower, 822 S.W.2d at 53; see also Act of July 20, 1987, 70th Leg., 2d C.S., ch. 55, § 2,
1987 Tex. Gen. Laws 180, 185 (Tex. Code Crim. Proc. Ann. art. 38.071) (stating preference for
affording "sufficient discretion" to trial courts applying statute).  Review of a necessity hearing
typically involves reviewing a trial court's findings of fact.  See Hightower, 822 S.W.2d at 53;
Gonzales v. State, 822 S.W.2d 189, 194 (Tex. App.--San Antonio 1991), pet. granted and
remanded, 831 S.W.2d 326 (Tex. Crim. App. 1992) (later case involving Gonzales with a
second victim); Dufrene v. State, 853 S.W.2d 86, 90 (Tex. App.--Houston [14th Dist.] 1993, pet.
ref'd).  Here the trial court did not record findings of fact.  However, Marx did not request and
does not challenge the absence of such findings.  Therefore, we will determine whether the
record supports the trial court's ultimate determination of necessity.
 B.J.'s grandfather, Barney Raines, with whom she lived at the time of the offense and at trial,
testified that B.J. was sixty percent mentally retarded.  B.J. had told her grandfather that Marx
had threatened her.  Raines felt that B.J. would suffer emotionally, and perhaps physically, if she
testified in court.  B.J. was in a special class for learning disabled students.  Her teacher, Pat
Fluitt, testified that B.J. had the educational level of a six or seven-year-old.  Fluitt also related
that B.J. dreaded testifying and had complained that she could not face Marx.
 J.M.'s mother, Crystal Hayden, took the stand to express her concern that testifying in court
would be harmful and traumatic to J.M.  The mother also testified that J.M. was wetting her bed
and having nightmares, although these had occurred before J.M. had been asked to testify.  J.M.'s
therapist, Dr. Anita Calvert, testified that J.M. was "a wreck" and did not want to see Marx.  Dr.
Calvert also testified, however, that J.M. was a strong girl and "would probably testify okay" if
she had to.  When the court inquired whether Dr. Calvert thought testifying in court would cause
J.M. any emotional or physical problems, Dr. Calvert answered "I couldn't say for sure that there
would not be.  I wouldn't expect it."
 In our opinion, this record supports the trial court's decision to permit the televised testimony of
both child witnesses.  Regarding the complainant B.J., the evidence was that she was very
frightened of facing Marx in court and testifying in his presence would cause her to suffer
psychological, perhaps even physical, harm.  The trial court was justified in concluding the
procedure was necessary to protect this fourteen-year-old victim who had the emotional maturity
of a six or seven-year-old.
 Although there is less compelling evidence of the emotional distress that the eyewitness J.M.
would suffer from testifying in the defendant's presence, the trial court was entitled to consider
her tender age of  six years and the fact that J.M. herself had allegedly been sexually assaulted by
the defendant.  The trauma to a child victim of confronting a perpetrator in the courtroom is not
necessarily diminished because the subject of her testimony is the defendant's assault on another
victim.  Indeed, Gonzales permitted closed-circuit testimony by a child witness who had
allegedly been sexually assaulted by the defendant.  See 818 S.W.2d at 765.
 After the trial court found it necessary to allow the complainant to testify by closed-circuit
television, it may have determined that it would be less of a comment on the defendant's guilt or
innocence to have both children testify in the same manner.  To allow the fourteen-year-old
complainant but not the six-year-old eyewitness to give closed-circuit testimony may have
endangered the defendant's presumption of innocence more by emphasizing that the complainant
alone needed special protection from this defendant.
 Finally, we note that in Craig the Supreme Court was reviewing the constitutionality of a statute
that allowed alternative testimony only if the child's trauma was "such that the child cannot
reasonably communicate."  Craig, 497 U.S. at 856.  But in finding that statute constitutional, the
Court did not hold that a child witness's trauma must always rise to that level before
closed-circuit testimony is constitutionally permissible.  Craig, and accordinglyGonzales, require
only that the emotional distress be caused by the defendant's presence and not the courtroom
generally, and that the trauma be "more than mere nervousness or excitement or some reluctance
to testify."  Id.; Gonzales, 818 S.W.2d at 762.  In light of this standard and the conflicting
testimony regarding J.M.'s ability to testify in the defendant's presence, we conclude that the trial
judge adequately balanced the defendant's constitutional rights against the state's interest in
protecting these children from being further victimized.  The trial judge was entitled to
determine the weight and the credibility to be afforded the testimony regarding the level of J.M.'s
emotional distress; likewise, the trial judge could have found it preferable to afford the same
protection to both child-witnesses, rather than single out the complainant B.J. for seemingly
special protection from the defendant.  We hold that the trial court did not abuse its discretion by
allowing the alternative testimonial procedure for both children.


2.  Due Process of Law
 Marx also asserts that the use of closed-circuit televised testimony deprives criminal defendants
of their constitutional guarantee to be presumed innocent under the Due Process Clause of the
Fifth and Fourteenth Amendments.  See U.S. Const. amend. V, XIV. (1)  He contends that a jury
viewing the modified manner of testimony will necessarily infer from the State's protection of
the witness that the defendant must have harmed the witness in some way.  Marx challenges the
practice of closed-circuit testimony, whether authorized by statute or by judicial discretion.
Neither the court of criminal appeals nor the United States Supreme Court has addressed this
specific constitutional challenge.
 The presumption of innocence underlies the criminal defendant's right to a fair trial.  Holbrook
v. Flynn, 475 U.S. 560, 567 (1986); Taylor v. Kentucky, 436 U.S. 478, 479 (1978); Estelle v.
Williams, 425 U.S. 501, 503 (1976).  The presumption embodies the principle that "one accused
of a crime is entitled to have his guilt or innocence determined solely on the basis of the
evidence introduced at trial, and not on grounds of official suspicion, indictment, continued
custody, or other circumstances not adduced as proof at trial."  Flynn, 475 U.S. at 567 (quoting
Taylor, 436 U.S. at 485).  Although the State cannot eliminate from trial every reminder that it
has chosen to seek conviction and punishment against a particular person, "certain practices pose
such a threat to the 'fairness of the fact-finding process' that they must be subjected to 'close
judicial scrutiny.'"  Id. at 568.
 To constitute reversible error based on the deprivation of a fair trial, the defendant must show
that some courtroom procedure entailed either actual prejudice or inherent prejudice-- "such a
probability that prejudice will result that it is deemed inherently lacking in due process." Estes v.
Texas, 381 U.S. 532, 542-43 (1965).  Specific challenges based on the right to be presumed
innocent require a finding that the challenged practice creates "an unacceptable risk of
impermissible factors" tending to erode the presumption of innocence.  Coy v. Iowa, 487 U.S.
1012, 1034 (1988) (Blackmun, J., dissenting); Flynn, 475 U.S. at 570; Williams, 425 U.S. at 505.
 Even a procedure found to be inherently prejudicial, however, may be justified if it furthers an
essential state interest.  Flynn, 475 U.S. at 568-69.  In Flynn, the Court upheld the presence of
four uniformed state troopers in the front row throughout the trial of six defendants accused of a
massive bank robbery.  Id. at 568.  The Court reasoned that because the jury more likely thought
the guards' presence was to maintain courtroom order, the State's interest in maintaining custody
over the defendants, who had been denied bail, overrode any slight prejudice that may have
existed in the jurors' minds.  Id. at 571-72.  Conversely, in Williams, the Court held that the
defendant's wearing prison clothing in the courtroom, when the defendant had requested civilian
clothing, violated his due process rights because the clothing was "so likely to be a continuing
influence throughout the trial" on the jury's judgment and furthered no essential state policy.
Williams, 425 U.S. at 505.  Likewise, the Texas Court of Criminal Appeals held that, without
evidence of violence or threatened violence during trial, even the gruesome nature of the crime
alleged against the defendant would not justify the use of shackles in front of the jury. Long v.
State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991), cert. denied, 112 S. Ct. 3042 (1992).  But
where the evidence overwhelmingly indicated that extreme measures were necessary to protect
those present in the courtroom, the court upheld the use of handcuffs and leg irons on a
defendant during the punishment phase of the trial.  Marquez v. State, 725 S.W.2d 217, 228-30
(Tex. Crim. App.), cert. denied, 484 U.S. 872 (1987); see also Illinois v. Allen, 397 U.S. 337,
344 (1970). (2)
 Marx claims the practice of testimony by closed-circuit television is inherently prejudicial.  Our
evaluation of this challenge must be based on reason, principle, and common human experience. 
Williams, 425 U.S. at 504.  In Coy v. Iowa, 487 U.S. 1012 (1988), Justice Blackmun, in a
dissenting opinion, addressed a similar argument that the trial court's use of a screen between the
child witness and the defendant violated the defendant's right to be presumed innocent.  See id. at
1034 (Blackmun, J., dissenting). (3)  He concluded that the use of the screen was not inherently prejudicial:


Unlike clothing the defendant in prison garb, or having the defendant shackled and gagged, using
the screening device did not brand appellant with an unmistakable mark of guilt.  A screen is not
the sort of trapping that generally is associated with those who have been convicted.  It is
therefore unlikely that the use of the screen had a subconscious effect on the jury's attitude
toward appellant.




Id. at 1034-35 (citations omitted).  Blackmun also noted that the trial court instructed the jury not
to allow the screen to influence the verdict in any way.  Id. at 1035.
 Unlike the mere use of a screen as in Coy, closed-circuit testimony completely removes the
child from the courtroom and prevents the child from seeing or hearing the defendant at all.  The
use of this uncommon, expensive, and elaborate procedure in a child abuse case may create an
inference of the defendant's guilt in the jurors' minds.  See generally Ralph H. Kohlmann, The
Presumption of Innocence:  Patching the Tattered Cloak After Maryland v. Craig, 27 St. Mary's
Law Journal 389, 412 (1996) ("Kohlmann") (arguing alternative testimonial procedures "have
the effect of placing shackles on the defendant in the eyes of the jury"); Robert H. King, Jr., The
Molested Child Witness and the Constitution:  Should the Bill of Rights Be Transformed into the
Bill of Preferences?, 53 Ohio St. L.J. 49, 97 (1992) (testimony by closed-circuit television poses
substantial risk of erosion of presumption of innocence).  But see Wildermuth v. State, 530 A.2d
275, 292 (Md. Ct. App. 1987) (finding jury likely assumed procedure was used to reduce trauma
any child might suffer through public testimony).
 However, the defendant's right to be presumed innocent is not absolute; even an inherently
prejudicial practice may be constitutionally permissible if there is an overriding state interest that
requires it.  See Craig, 497 U.S. at 844, 849; Flynn, 475 U.S. at 571-72; Marquez, 725 S.W.2d at
230.  In Craig and Gonzales, the essential state interest of protecting child witnesses from the
trauma of testifying was found sufficiently important to justify an exception to the defendant's
confrontation right.  In Craig, the Court stated:


Given the State's traditional and 'transcendent interest in protecting the welfare of children,' and
buttressed by the growing body of academic literature documenting the psychological trauma
suffered by child abuse victims who must testify in court, we will not second-guess the
considered judgment of the Maryland Legislature regarding the importance of its interest in
protecting child abuse victims from the emotional trauma of testifying.




Craig, 497 U.S. at 855; see also Osborne v. Ohio, 495 U.S. 103, 109 (1990) ("It is evident
beyond the need for elaboration that a State's interest in 'safeguarding the physical and
psychological well-being of a minor' is 'compelling.'").  Both psychological and legal
commentators recognize the traumatic effects of courtroom testimony on child victims.  See,
e.g.,Burgess & Holstrom, The Child and Family During the Court Process, in Sexual Assault of
Children and Adolescents 205 (1978) (failure to protect child results in further traumatization by
court procedures through which child must "relive" the sexual assault); Nancy W. Perry and
Lawrence S. Wrightsman, The Child Witness:  Legal Issues and Dilemmas 135-38 (1991) ("Even
defense attorneys acknowledge that involvement in legal proceedings can be devastating to
children.") (citation omitted); Libai, The Protection of the Child Victim of a Sexual Offense in
The Criminal Justice System, 15 Wayne L. Rev. 977, 978-79 (1969); Beth McAllister,
Comment,Article 38.071 of the Texas Code of Criminal Procedure:  A Legislative Response to
the Needs of Children in the Courtroom, 18 St. Mary's Law Journal 279, 295-97 (1986).  In
addition, the Texas Legislature has recognized a public policy of protecting child abuse victims
from the harms of courtroom testimony.  See Act of July 20, 1987, 70th Leg., 2d C.S., ch. 55, §
2, 1987 Tex. Gen. Laws 180, 185 (Tex. Code Crim. Proc. Ann. art. 38.071).  Therefore, we are
guided byCraig, Gonzales, the Texas Legislature, and the abundant literature on the harmful
effects of eliciting courtroom testimony from child victims to hold that, when the trial court finds
it is necessary for the individual witness's well-being, the use of closed-circuit televised
testimony does not violate the Due Process Clause of the Fifth and Fourteenth Amendments to
the United States Constitution.  We are confident that trial courts will exercise caution and
reason in balancing the defendant's important constitutional rights against the equally important
state interest of protecting child victims from further victimization in the courtroom.
 Because the procedure affects the defendant's presumption of innocence, however, its use
warrants an additional jury instruction to minimize the potential prejudice the accused may
suffer.  In balancing a defendant's confrontation right in Craig, the Supreme Court also
considered other means of assuring the reliability of witnesses' testimony and preserving the
adversarial nature of the trial.  Craig, 497 U.S. at 851.  The Court reasoned that the essence of
the confrontation right was safeguarded where the testimony's reliability was otherwise assured
by rigorous cross-examination and other adversarial safeguards. (4) Id.  The presumption of
innocence involves the inferences that may be drawn from the State's accusations against and the
manner of prosecution of the defendant.
[I]n a criminal case the term [presumption of innocence] . . . cautions the jury to put away from
their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and
to reach their conclusion solely from the legal evidence adduced." . . . [It cautions the jury to
consider] nothing but the evidence.




Taylor, 436 U.S. at 484-85 (quoting 9 J. Wigmore, Evidence § 2511 (3d ed. 1940)).  Its
importance has led to the policy of requiring trial judges in every criminal trial to impress upon
juries the defendant's presumed innocence.  See Taylor, 436 U.S. at 490.  An additional
instruction when closed-circuit television is used will strike an adequate balance between
preserving the defendant's presumption of innocence and fostering the State's interest in
protecting child victims.
 In the present case, before the televised testimony began, the trial court stated to the jury:


Ladies and gentlemen, I'm going to give you an instruction at this time.  Our statutes provide that
the testimony of children in these types of cases can be taken by what we call closed circuit
television, and that is what's going to be taking place here for the next couple of witnesses.




The court then explained how the procedure would work; he advised that the television would be
turned on and off in order to hear objections.  The court's explanation that "our statutes" allow
the procedure in "these types of cases" likely conveyed to the jury the state's general desire to
protect children from the intimidating courtroom demeanor rather than implying that the
procedure was being used in this particular case due to circumstances involving this particular
defendant. Although an additional instruction may have been desirable, (5) Marx did not request a
special instruction and the statute did not apprise the court of a duty to give one.  The trial court
did generally instruct the jury to presume Marx's innocence before considering the evidence
against him when it delivered the jury charge.  We accordingly hold that the use of closed-circuit
televised testimony was not unconstitutionally applied in this case.  We overrule Marx's first
point of error.


Batson Challenges
 In his second point of error, Marx contends the trial court erred by refusing to hold a Batson
hearing on whether the prosecutor's peremptory challenges were racially motivated.  See Batson
v. Kentucky, 476 U.S. 79 (1986); Keeton v. State, 724 S.W.2d 58, 66 (Tex. Crim. App. 1987). 
At jury voir dire and after each party exercised its challenges for cause, the State used two of its
six peremptory challenges to strike two of three African-Americans on the venire. (6)  The third
African-American served on the jury.  Marx objected that the strikes exercised against the two
African-Americans were racially motivated, and asked the trial court to conduct a hearing. The
trial court denied the motion because the defendant was not of the same race as the jurors who
were struck.  On February 6, 1997, we abated this appeal and ordered the trial court to hold a
hearing to allow the prosecutor to explain the reasons behind the peremptory challenges
exercised against the two African-Americans.  See Powers v. Ohio, 499 U.S. 400, 416 (1991) (a
defendant need not be of the same race as the wrongfully excluded jurors to make a cognizable
Batsonclaim); Linscomb v. State, 829 S.W.2d 164, 166 (Tex. Crim. App. 1992) (a defendant
need only present relevant evidence with "more than a modicum of probative value" to merit a
Batsonhearing).  The trial court held the hearing on March 18, 1997, and the supplemental
transcript and statement of facts from that hearing have been forwarded to this Court.  Marx has
not provided us with supplemental briefing or a point of error contending the prosecutor's
reasons given at the hearing were racially motivated.  Therefore, having been granted the desired
hearing, point of error two is now moot and may be overruled.  In the interest of justice,
however, we will address the point as including the argument that the prosecutor's professed
reasons for the two peremptory strikes were pretexts for racially motivated exclusion of the
African-American venire members.
 At the Batson hearing, the prosecutor who tried the case testified under oath giving his reasons
for striking the two African-American jurors, Myrtice Foster and James Louis Crawford.  Based
on his voir dire notes, he testified that he struck Ms. Foster because she claimed to be illiterate,
having only a seventh-grade education.  He testified he remembered learning that Mr. Crawford
had possibly been arrested for burglary.  Defense counsel attempted to impeach this testimony
concerning Mr. Crawford with the prosecutor's prior statements, made the day after Marx
requested and was denied the Batson hearing, that he struck Mr. Crawford because Mr.
Crawford's comments at voir dire indicated he would be unable to make a decision in a case of
this nature.
 In reviewing a trial court's rulings at a Batson hearing, we determine whether the trial judge's
decision was supported by the record so that it is not clearly erroneous.  See Vargas v. State, 838
S.W.2d 552, 554 (Tex. Crim. App. 1992).  Under this "clear error" standard of review, we
should defer to the trial court's decision unless we are left with a "definite and firm conviction
that a mistake has been committed."  Id. (quoting Hernandez v. New York, 500 U.S. 352 (1991)). 
We apply this standard by considering the record, including the voir dire and the racial makeup
of the venire, the prosecutor's neutral explanations, and appellant's rebuttal and impeaching
evidence.  Id. 
 We conclude that the trial court did not err in finding that the prosecutor's reasons for striking
these two jurors were racially neutral. (7)  The prosecutor's voir dire notes indicate that Ms. Foster
claimed she was illiterate and had a seventh-grade education.  In addition, both at the original
proceeding and at this Batson hearing, the prosecutor gave racially neutral reasons for striking
Mr. Crawford.  The fact that the prosecutor gave different reasons at the recent hearing and two
years earlier does not show that they were pretexts for racial discrimination; he could have had
more than one reason and not communicated the possible burglary arrest at the original
proceeding, since there was no formal Batson hearing.  The record does show that Mr. Crawford
had changed his position on whether he could presume the defendant innocent.  It is not unusual
that the prosecutor would forget this occurrence two years later but remember the possible arrest.
Considering the voir dire record, the prosecutor's racially neutral reasons, and the fact that the
third African-American on the venire actually served on the jury, we are not left with a firm
conviction upon review of this record that the prosecutor's peremptory strikes were racially
motivated.  We overrule point of error two.


Challenges for Cause
 In his third point of error, Marx contends the trial court erred in denying his challenges for cause
against six venirepersons.  In particular, Marx complains of rulings on his challenges to
prospective jurors Ulbricht, Sharp, McGuire, Carlile, Clark, and Goble.  The record shows that
defense counsel properly preserved error by exercising six peremptory challenges to exclude
these jurors, exhausting all of his peremptory challenges, and requesting six additional
peremptory challenges that were denied.  Marx contends he was forced to accept five
objectionable jurors on the jury as the result of the trial court's error in overruling his challenges
for cause.  See Felder v. State, 758 S.W.2d 760, 766-67 (Tex. Crim. App. 1988).
 To prevail on a challenge for cause, the defendant must demonstrate either a bias against
himself or against a rule of law upon which he was entitled to rely.  Cordova v. State, 733
S.W.2d 175, 179 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1240 (1988).  The trial court
must determine whether the potential jurors' views would prevent or substantially impair their
duties to act in accordance with the trial judge's instructions and jurors' oaths.  See Kemp v. State,
846 S.W.2d 289 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 918 (1993).  The trial judge's
determination, and our review, should be based on the voir dire examination of the prospective
jurors taken as a whole.  Mooney v. State, 817 S.W.2d 693, 701 (Tex. Crim. App.
1991);Cordova, 733 S.W.2d at 179.  A prospective juror who initially equivocates on her
answers is not challengeable for cause if she ultimately states she can follow the trial court's
instructions and render a verdict based on the evidence.  Adanandus v. State, 866 S.W.2d 210
(Tex. Crim. App. 1993), cert. denied, 114 S. Ct. 1338 (1994).
 Prospective jurors Ulbricht and Carlile initially indicated they would have difficulty being
impartial in this case.  Mr. Ulbricht's daughter had been molested, and Ms. Carlile taught at B.J.'s
school and often saw B.J. in the halls.  Nevertheless, Mr. Ulbricht emphatically stated that his
experience would not affect his ability to be fair and impartial.  Although Ms. Carlile originally
stated she might be more sympathetic to B.J.'s testimony, upon further questioning she stated
that she could put her personal knowledge of B.J. aside and base her decision solely on the
evidence.
 Prospective jurors Sharp and Clark indicated they would have difficulty considering the
minimum punishment if Marx were found guilty.  Upon further questioning, Mr. Sharp stated
that under the proper circumstances he could consider the minimum punishment.  Ms. Clark also
stated that, "if the evidence showed me there was a reason," she could consider the minimum.
 Mr. McGuire originally stated he presumed Marx guilty, but upon further voir dire stated he
would base his decision solely on the evidence adduced at trial.  Mr. Goble was acquainted with
Marx and thought he had questionable character.  However, Mr. Goble explicitly stated that he
could keep his opinion of Marx's character completely separate and was not biased against him.
 The voir dire examination of each of these prospective jurors, taken as a whole, indicates that
none of them was biased against the defendant or the applicable law.  Each testified he or she
would be able to consider the evidence impartially in reaching a verdict.  We hold that the trial
court did not err in denying Marx's challenges for cause in each instance.  We overrule point of
error three.


Confession
 In his fourth point of error, Marx contends the trial court erred in not suppressing his confession
because (1) it does not show on its face that Marx was given and waived hisMiranda warnings,
as statutorily required, see Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West 1979), and (2) it
was taken while he was in custody pursuant to an illegal arrest warrant.  SeeU.S. Const. amend.
IV, XIV.


1.  Compliance with Article 38.22
 Article 38.22, section 2, requires the mandatory warnings to be reflected on the face of any
statement used against an accused in a criminal proceeding.  Tex. Code Crim. Proc. Ann. art.
38.22, § 2 (West 1979).  Marx's confession consists of a form entitled "Voluntary Statement"
and two computer-printed pages containing the text of the confession.  The form lists the
warnings required by article 38.22 and states that the signer has been informed of and voluntarily
waived those rights prior to giving the statement.  The form then reserves space for a
handwritten statement.  However, because Marx could neither read nor write, his verbal
statement was transcribed and attached to the form.  Marx contends that because the
admonishments appear on the form but not on the computer-printed pages, the statement does
not comply with article 38.22.
 The State responds that Marx waived error by not objecting at trial to the statement's
noncompliance with article 38.22.  After the jury was sworn but outside its presence, the trial
court held a suppression hearing.  Defense counsel objected when the State offered State's
Exhibits 1 and 1-A, unedited and edited versions, respectively, of Marx's confession.  Defense
counsel objected to "the voluntariness and the validity" of the confession, and renewed this
objection later at trial when the State offered Exhibit 1-A.  The trial court overruled the
objections.  Defense counsel's objections to voluntariness properly preserved error on whether
the statement facially showed the required admonishments.
 In Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996) (opinion on rehearing), the court of
criminal appeals sought to determine whether the defendant's written statement complied with
the legislative intent expressed in article 38.22 by asking whether the defendant knowingly,
intelligently, and voluntarily waived the rights listed in the statute.  Id. at 386.  Here the trial
court found that Officer Hopkins had advised Marx of his constitutional rights, which Marx had
acknowledged and waived by signing the form.  The trial court concluded that because the form
referred to the computer-drafted statement, the admonishments constituted a part of the
statement.  Finally, the trial court found that Marx gave his confession freely and voluntarily,
without requesting an attorney or termination of the interview.
 We review a trial court's rulings at a suppression hearing for an abuse of discretion.  The trial
court is the sole trier of fact and judge of the credibility of witnesses and the weight to be given
their testimony.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).  The trial court
may accept or reject any or all of a witness's testimony or evidence offered.  Alvarado v. State,
853 S.W.2d 17, 23 (Tex. Crim. App. 1993).  In reviewing the trial court's decision, an appellate
court does not engage in its own factual review; it determines only whether the record supports
the trial court's finding.  Romero, 800 S.W.2d at 543.
 Marx admitted to signing the form both below the printed admonishments and below the
notation that the statement was taken on the computer.  In addition, the first two paragraphs of
the transcribed statement state that Marx gave the statement "voluntarily of his own free will and
without any promises or offers of leniency or favors, and without compulsion or persuasion by
any person or persons whomever."  The last paragraph, which appears alone on the next page,
states, "I can not read but this statement consisting of three page(s) was read to me. Each page
bears my signature, and I do affirm that all facts and statements contained herein are true and
correct." (8)
 At the hearing, Hopkins testified that he gave Marx the required warnings before Marx gave his
statement and that Marx said he understood his rights.  Hopkins wrote on the form that the
statement would be taken by computer, and both he and Marx signed the form.  As Marx
answered Hopkins' questions regarding the girls, Officer Moody typed the confession into the
computer.  After the interrogation ended, Officer Moody read each line off the computer to Marx
and asked if he wanted to change or add anything; Marx did not.  Hopkins handed the printed
statement to Marx, but Marx gave it back, saying he could not read. (9)  Hopkins then read the
statement to Marx, who afterward signed all three pages.
 Marx testified that he only agreed to give a statement after a deputy told him that Hopkins was
planning to arrest Marx's wife, Denise Wolverton.  Marx said he "felt threatened" by this
information and so he told the deputy he would give Hopkins whatever he wanted to prevent his
wife from being arrested.  Marx also testified that he did not remember the two computer
printouts being part of his statement.  He recognized his signature on the form and thought it
"seem[ed] to be" his signature on the computer-printed pages.  Marx claimed the
computer-generated pages were not his statement, that he merely repeated what Hopkins told
him to say.  Marx denied that the statement was read back to him.
 The trial court was entitled to believe the officer's testimony that he read the statement to Marx,
who voluntarily waived his rights by signing the statement.  Marx's signature appears twice on
the "Voluntary Statement" form and on each page of the confession.  Both documents state that
he waived the rights set out in article 38.22.  This is sufficient evidence of compliance with
article 38.22.  See Garcia, 919 S.W.2d at 386; Cannon v. State, 691 S.W.2d 664, 674 (Tex.
Crim. App. 1985), cert. denied, 474 U.S. 1110 (1986); Raetzsch v. State, 745 S.W.2d 520, 524
(Tex. App.--Corpus Christi 1988, pet. ref'd).  We conclude that the record supports the trial
court's findings that Marx was properly admonished and voluntarily gave the statement.
2.  Arrest Warrant
 Marx also contends his confession should have been suppressed because it was taken while he
was in custody pursuant to an illegal arrest warrant.  Officer Hopkins' handwritten affidavit in
support of the warrant stated:


VIDEO RECORDED STATEMENT OF VICTIM BURNET DOE 11-94 (10)
CORROBORATING STATEMENT OF WITNESS WRITTEN
FIRST CRY STATEMENT GIVEN TO THIS OFFICER IN PERSON
SUSPECT HAD ACCESS TO VICTIM AT THE TIME VICTIM WAS    SEXUALLY ASSAULTED




Officer Hopkins also prepared a second affidavit and obtained a second arrest warrant
concerning the sexual assault by Marx. (11)  Marx contends that the affidavits alleged insufficient
facts to support issuance of the arrest warrants.


 An affidavit supporting the issuance of an arrest warrant must contain more than merely
conclusory statements by the officer.  Gordon v. State, 801 S.W.2d 899, 913 (Tex. Crim. App.
1990).  It must contain sufficient facts supporting the officer's personal knowledge or belief of
the alleged facts such that a neutral and detached magistrate may determine whether probable
cause exists.  Id. at 914.  A written statement that is the product of an illegal arrest is
inadmissible as evidence against the accused.  Green v. State, 615 S.W.2d 700, 708 (Tex. Crim.
App.), cert. denied, 454 U.S. 952 (1981).
 Although the affidavits use fragmented statements to communicate the officer's knowledge, they
state more than mere conclusions.  Each affidavit alleges that Hopkins had viewed a
video-recorded statement of the victim, had personally heard an outcry from the victim and had
taken a corroborating statement from a witness who allegedly witnessed the offense.  The officer
had also verified that Marx had access to the victim at the time of the allegations.  The affidavits
provided the magistrate with enough information to determine that probable cause existed to
arrest Marx.  Because the arrest was not illegal, the trial court properly refused to suppress the
confession on that ground.  We overrule point of error four.


Evidence of Extraneous Offenses
 In point of error five, Marx complains the trial court erred in admitting the edited copy of his
confession because it contained phrases that constituted inadmissible character evidence under
Texas Rule of Criminal Evidence 404(b).  Specifically, the edited version of the confession
admitted in evidence contains the statements, "I ejaculated every time I did something," and "I
knew these girls were children when I did it."  Marx contends the italicized words in particular
convey to a jury evidence of assaults against children other than the victim.  He also claims the
prejudicial effect of these statements outweighs their probative value.  See Tex. R. Crim. Evid.
403.
 Evidence of extraneous acts is admissible if it has relevance beyond its tendency to prove
character and if its probative value substantially outweighs the danger of unfair prejudice. See
Tex. R. Crim. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). 
The admission of extraneous offense evidence lies within the sound discretion of the trial court
and will be reversed only for an abuse of that discretion.  Ransom v. State, 920 S.W.2d 288, 300
(Tex. Crim. App.), cert. denied, 117 S. Ct. 587 (1994); Montgomery, 810 S.W.2d at 391;Zuliani
v. State, 903 S.W.2d 812, 826 (Tex. App.--Austin 1995, pet. ref'd).
 The complained-of statements are probative of the appellant's motive and knowledge in
committing the offense charged--showing the motive of sexual gratification and knowledge that
B.J. was only a child.  Therefore, they were admissible for these purposes.  SeeTex. R. Crim.
Evid. 404(b); McDonald v. State, 513 S.W.2d 44, 51 (Tex. Crim. App. 1974);Cummings v. State,
651 S.W.2d 14, 17-18 (Tex. App.--Amarillo 1983, no pet.).  Moreover, it is not clear that the
statements refer to acts other than the three counts of sexual assault alleged in the indictment. 
The reference to "these girls" could have referred to the presence of the victim and the testifying
witness; it does not necessarily imply that the defendant assaulted anyone other than the victim. 
We hold the trial court did not abuse its discretion in admitting these statements as part of the
redacted confession.  We overrule point of error five.
Past Sexual Conduct
 In his sixth point of error, Marx contends the trial court erred by excluding evidence of B.J.'s
past sexual conduct.  Marx contends this evidence was relevant because it would have provided
the jury with another explanation for B.J.'s broken hymen.  Dr. Sandra Thomas conducted a
medical examination of B.J. on August 31, 1994, two months after the assault.  On
cross-examination, Dr. Thomas testified that she could not tell how long before the examination
B.J. had been penetrated--it could have been two weeks or two years.
 During B.J.'s testimony, defense counsel attempted to elicit testimony that B.J. had been
sexually abused by an uncle prior to this offense.  The trial court sustained the State's objection
to the evidence as being irrelevant and immaterial.  See Tex. R. Crim. Evid. 401, 412. Defense
counsel requested and made a bill of exception, during which B.J. testified that her uncle had
"put his thing in" her sometime before the incident with Marx.  The trial court again denied
Marx's request to introduce the evidence concerning the uncle in front of the jury.
 Texas Rule of Criminal Evidence 412 governs the admissibility of evidence of previous sexual
conduct.  Specific instances of a victim's past sexual conduct are admissible only if three
conditions are met:  (1) the evidence falls within one of the limited exceptions in Rule 412(b)(2);
(2) the defendant informs the court outside the jury's presence prior to introducing the evidence
or asking any such question of his intent to do so; and (3) the trial court finds that the probative
value of the evidence outweighs the danger of unfair prejudice.  Tex. R. Crim. Evid. 412
(emphasis added).  We review the trial court's decision to admit or exclude the evidence under
an abuse of discretion standard.  Wofford v. State, 903 S.W.2d 796, 799 (Tex. App.--Dallas
1995, pet. ref'd).
 First, appellant did not inform the court of his intention to inquire into the incident concerning
the uncle prior to asking the witness about it.  Instead, appellant attempted to ask about the
incident on cross-examination in front of the jury, whereupon the State objected.  Because Marx
did not meet Rule 412's procedural requirement for introducing this evidence, he cannot now
complain of its exclusion.  See Golden v. State, 762 S.W.2d 630, 632 (Tex. App.--Texarkana
1988, pet. ref'd).
 Moreover, even assuming Marx had informed the court of his intent to inquire into the incident,
we hold the trial court did not abuse its discretion in excluding the evidence.  Marx argues the
evidence was "necessary to rebut or explain scientific or medical evidence offered by the state." 
See Tex. R. Crim. Evid. 412(b)(2)(A).  The State introduced Dr. Thomas's testimony to show
that the thirteen-year-old B.J. had been sexually assaulted.  Dr. Thomas testified that she could
not tell when B.J. had been penetrated; thus her medical testimony did not tend to corroborate
B.J.'s identification of Marx as the assailant.  Therefore, the excluded evidence was not
necessary to explain or rebut the State's evidence; the fact that B.J. may have been assaulted
some other time was immaterial.  Furthermore, we gather from the record that the trial judge felt
that the unfair prejudice suffered by B.J. if forced to testify concerning the prior incident
outweighed the probative value of the testimony.  We agree the testimony did not meet the
balancing test.  See Tex. R. Crim. Evid. 412(b)(3); Allen, 700 S.W.2d at 930.  We overrule the
sixth point of error.
Witness Testimony
 Marx's seventh point of error complains that the trial court erroneously allowed witnesses to
testify who were not on the State's witness list and were present in the courtroom during the trial
even though the rule had been invoked.  See Tex. Code Crim. Proc. Ann. art. 36.05 (West 1981);
Tex. R. Crim. Evid. 613.  During the guilt-innocence phase of trial, the State called one rebuttal
witness; during the punishment phase, it called three other witnesses not on its witness list.
 We review a trial court's allowing the testimony of witnesses that were not on the State's witness
list for an abuse of discretion.  Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App.
1981).  In determining whether the trial court abused its discretion, we consider whether the
prosecutor engaged in bad faith by not disclosing the witness's name, and whether the defendant
could reasonably anticipate that the witness would testify although his or her name was not on
the list.  Id.; Clay v. State, 505 S.W.2d 882, 885 (Tex. Crim. App.1974).  Absent a showing of
bad faith, a trial court does not abuse its discretion by allowing the State to call a witness for the
sole purpose of rebutting unforeseen testimony.  Hightower, 629 S.W.2d at 925;Doyle v. State,
875 S.W.2d 21, 22 (Tex. App.--Tyler 1994, no pet.).
 The State called Darrell Wolverton as a rebuttal witness.  In response to defense counsel's
objection, the prosecutor stated that he did not anticipate calling Wolverton until that day. 
Wolverton testified on the existence and condition of the doorlock to the trailer in which the
offense occurred.  B.J. had testified that Marx locked the door with a slide-lock from the inside
during the commission of the offense; defense counsel had introduced impeachment evidence
that there was no way to lock the door from the inside.  On rebuttal, Wolverton testified that the
inside of the door had a chain-lock with a groove which the chain slid into.  The State was
entitled to call Wolverton to rebut the defense's impeachment evidence.
 At the punishment phase, the State called Vicki Sealy, Wanda Smith, and Sandra Wolverton. 
Vicki Sealy testified she had known appellant for nine or ten years.  Wanda Smith testified she
had known appellant for eight years.  Both Sealy and Smith are related to Marx's niece J.M. 
Sandra Wolverton was apparently related to Marx's wife, Denise Wolverton; she testified she
had known appellant for nine years.  All three women, when asked whether Marx's reputation in
the community for being a peaceful and law-abiding citizen was good or bad, answered that it
was bad.  Although these three witnesses were not on the State's list, Marx could have
reasonably anticipated that these three women who were related to him and had known him for
years would testify concerning his reputation.  There were no allegations of bad faith on the part
of the prosecution in failing to disclose these witnesses.  We hold the trial court did not abuse its
discretion in allowing them to testify.
 Marx also contends these witnesses' testimony was taken in violation of the rule allowing the
trial court to  require witnesses to remain outside the courtroom during the testimony of other
witnesses.  See Tex. R. Crim. Evid. 613.  Enforcement of the rule lies within the sound
discretion of the trial court; its actions will be disturbed only upon a showing of an abuse of
discretion.  Cooks v. State, 844 S.W.2d 697, 733 (Tex. Crim. App. 1992), cert. denied, 113
S. Ct. 3048 (1993).  In determining whether the trial court abused its discretion, we must
consider:  (1) whether the witness actually heard the testimony or conferred with another witness
without court permission; and (2) whether the witness's testimony contradicted the testimony of
a witness he actually heard from the opposing side or corroborated the testimony of a witness he
actually heard from the same side on an issue of fact bearing upon the issue of guilt or
innocence. Id.; Guerra v. State, 771 S.W.2d 453, 476 (Tex. Crim. App. 1988).  The admission of
testimony of a witness having no personal knowledge of the offense is not an abuse of discretion. 
Guerra, 771 S.W.2d at 476.
 When defense counsel objected to Darrell Wolverton's presence in the courtroom earlier in the
trial, the prosecutor told the court that Wolverton was removed from the courtroom as soon as
the State became aware he would be called to testify.  Wolverton's testimony was limited to the
issue of the existence and condition of the doorlock in an attempt to cure the impeachment
evidence introduced by the defense and did not bear on the defendant's guilt or innocence.  The
trial court did not abuse its discretion in admitting the testimony of Darrell Wolverton.
 Each of the three complained-of witnesses called during the punishment phase gave only
opinions as to Marx's reputation in the community.  Because such testimony was not relevant to
Marx's guilt or innocence, its admission was not an abuse of discretion.  We overrule the seventh
point of error.


CONCLUSION
 Testimony by closed-circuit television does not violate a criminal defendant's right to due
process of law when the trial court finds the procedure to be necessary to the well-being of the
child.  The trial court should instruct the jury that the televised testimony shall not be taken as a
comment on the defendant's guilt.  In this case, where the requisite finding of necessity was
supported by the record, and the defendant did not request a special instruction but the trial court
instructed the jury that Texas statutes authorize testimony by closed-circuit television, the
alternative form of testimony did not violate the defendant's right to be presumed innocent.  We
find the appellant's other points of error to be without merit and, accordingly, affirm the conviction.




 
     Bea Ann Smith, Justice
Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Affirmed
Filed:   July 3, 1997
Publish
1.        Marx does not bring a separate challenge under the Texas Constitution.
2.        Allen involved the trial court's removal of the unruly defendant from the courtroom.
Struggling with the defendant's confrontation right to be present at his trial, the Court stated "in
some situations which we need not attempt to foresee, binding and gagging might possibly be the
fairest and most reasonable way to handle a defendant who acts as Allen did here."  Allen, 397
U.S. at 343.
3.        The majority did not address the due process challenge because it reversed on
confrontation grounds, although it contemplated a possible exception to the confrontation right
might exist.  Coy, 487 U.S. at 1020.  Two years later the Court found that exception when it
upheld Maryland's statute in Craig.  Craig, 497 U.S. at 852.
4.        The Court noted that the child witnesses testified under oath, were subject to full
cross-examination, and were observed by the judge, jury, and defendant as they testified.  Craig,
497 U.S. at 857.
5.        See Kohlmann, supra, at 417.  Kohlmann's article provides several proposed jury
instructions and discusses the concerns that such an instruction should address.  See generally
id.at 416-419 nn.129-133.
6.        Because only twenty-eight persons remained on the venire after the parties made their
challenges for cause, the State was permitted six, rather than the usual ten, peremptory
challenges.
7.        At the Batson hearing ordered by this Court, the trial court refused to make findings of
fact regarding the defendant's Batson challenges because we did not specifically order it to do so
in our order.  We do not think we should have to spell out the steps a trial court should take in
holding a Batson hearing.  In the interest of judicial efficiency, we will review the record of the
hearing as containing an implicit ruling denying the defendant's Batson challenges because the
prosecutor's reasons were racially neutral. 
8.        Two copies of the statement were introduced into evidence, the only difference being that
"I have read this statement . . ." was changed to "I can not read but this statement . . . was read to
me."  
9.       On cross-examination, the prosecutor introduced a six-page handwritten letter, which
Marx admitted to having written to his wife.  Marx then stated he could not read or write "very
good."
10.        Officer Hopkins testified that court officials in Burnet County customarily use
pseudonyms for victims of sexual assault cases.  "Burnet Doe 11-94" was the pseudonym given
to the complainant. 
11.        "Burnet Doe 10-94" referred to another alleged sexual assault victim of Marx.  The
second affidavit was nearly identical:


VIDEO RECORDED STATEMENT OF VICTIM
FIRST CRY STATEMENT OF WITNESS
CORROBORATING STATEMENT OF A SECOND VICTIM WHO WITNESSED    THE
OFFENSE
SUSPECT HAD ACCESS TO VICTIM
VICTIM'S SIGNS OF SEXUAL ABUSE

ts discretion in admitting the testimony of Darrell Wolverton.
 Each of the three complained-of witnesses called during the punishment phase gave only
opinions as to Marx's reputation in the community.  Because such testimony was not relevant to
Marx's guilt or innocence, its admission was not an abuse of discretion.  We overrule the seventh
point of error.


CONCLUSION
 Testimony by closed-circuit television does not violate a criminal defendant's right to due
process of law when the trial court finds the procedure to be necessary to the well-being of the
child.  The trial court should instruct the jury that the televised testimony shall not be taken as a
comment on the defendant's guilt.  In this case, where the requisite finding of necessity was
supported by the record, and the defendant did not request a special instruction but the trial court
instructed the jury that Texas statutes authorize testimony by closed-circuit television, the
alternative form of testimony did not violate the defendant's right to be presumed innocent.  We
find the appellant's other points of error to be without merit and, accordingly, affirm the conviction.




 
     Bea Ann Smith, Justice
Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Affirmed
Filed:   July 3, 1997
Publish
1.        Marx does not bring a separate challenge under the Texas Constitution.
2.        Allen involved the trial court's removal of the unruly defendant from the courtroom.
Struggling with the defendant's confrontation right to be present at his trial, the Court stated "in
some situations which we need not attempt to foresee, binding and gagging might possibly be the
fairest and most reasonable way to handle a defendant who acts as Allen did here."  Allen, 397
U.S. at 343.
3.        The majority did not address the due process challenge because it reversed on
confrontation grounds, although it contemplated a possible exception to the confrontation right
might exist.  Coy, 487 U.S. at 1020.  Two years later the Court found that exception when it
upheld Maryland's statute in Craig.  Craig, 497 U.S. at 852.
4.        The Court noted that the child witnesses testified under oath, were subject to full
cross-examination, and were observed by the judge, jury, and defendant as they testified.  Craig,
497 U.S. at 857.
5.        See Kohlmann, supra, at 417.  Kohlmann's article provides several proposed jury
instructions and discusses the concerns that such an instruction should address.  See generally
id.at 416-419 nn.129-133.
6.        Because only twenty-eight persons remained on the venire after the parties made their
challenges for cause, the State was permitted six, rather than the usual ten, peremptory
challenges.
7.        At the Batson hearing ordered by this Court, the trial court refused to make findings of
fact regarding the defendant's Batson challenges because we did not specifically order it to do so
in our order.  We do not think we should have to spell out the steps a trial court should take in
holding a Batson hearing.  In the interest of judicia