Briggs v. State

Citation789 S.W.2d 918
Decision Date16 May 1990
Docket NumberNo. 154-89,154-89
PartiesMilton Leon BRIGGS, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Pamela J. Moore and Larry W. Moore (on appeal only), Fort Worth, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall and David L. Richards, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Indicted for aggravated sexual assault, appellant was convicted by a jury of the lesser included offense of indecency with a child. The court assessed his punishment at sixteen years confinement in the Texas Department of Corrections.

In an unpublished opinion the Fort Worth Court of Appeals reversed appellant's conviction on the authority of this Court's opinion in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987). Briggs v. State, (Tex.App.--Fort Worth, No. 2-87-112-CR, delivered December 15, 1988). Appellant lodged no objection on the basis of denial of confrontation or due process in the trial court. Nevertheless, the court of appeals held that because Long v. State, supra, declared former Article 38.071, V.A.C.C.P., unconstitutional on its face, that provision was void from its inception, and no objection was required in order to preserve error for appeal. Rose v. State, 752 S.W.2d 529, at 553 (Tex.Cr.App.1988) (Opinion on rehearing), citing Jefferson v. State, 751 S.W.2d 502 (Tex.Cr.App.1988). We granted the State's petition for discretionary review in order to determine whether the court of appeals was correct to apply the holding of Rose v. State, supra, in the present context. See Tex.R.App.Pro., Rule 200(c)(2).

I.

Trial commenced in late April of 1987, roughly two months before this Court delivered its opinion in Long v. State, supra. In its case in chief the State first called the twelve year old complainant, M.T., to the stand. She testified that sometime around the first of September, 1984, she was visiting her natural mother and appellant, her stepfather, in Arlington for the weekend. On Saturday night her mother got drunk and went to bed at around 10:30 p.m. M.T. soon followed, sleeping on a pallet at the foot of her mother's bed. In the middle of the night she awoke to find appellant with "his hands down in [her] panties ... moving his fingers ... [l]ike, well, up and down." When M.T. awoke, appellant "jerked" his hand out and told her he was trying to make sure she was not cold, although the weather was warm and the air conditioner was inoperative.

About a year later in a phone conversation with her mother, as M.T. related it:

"... I was telling her how I don't like [appellant], how he touched me and so then I started telling her, I was going--well, I was telling her about the night that he touched me on my vagina, you know."

Her mother became upset and hung up on her. M.T. then called her older half sister, N.B., to tell her appellant "had hurt her."

Appellant briefly crossexamined M.T., attempting to nail down exactly when the alleged offense occurred.

M.T.'s half sister, N.B., next testified that M.T. did call her in September of 1985. When she asked M.T. whether appellant had touched her "down there," M.T. acknowledged that he had. N.B. then apprised M.T.'s natural father of the situation, and the Texas Department of Human Services was alerted. Norma Thomas, M.T.'s stepmother, testified that on September 26, 1985, she took M.T. to an office of that agency to be interviewed. The interview was conducted by Debra Phelan of Child Protective Services, and was videotaped.

Subject to the testimony of Phelan, the State at this point offered the videotape into evidence. Appellant objected that all predicates of Article 38.071, § 2(a), supra, had not been met; that the interview contained leading questions; and that it contained allusions to inadmissible extraneous offenses. After viewing the videotape in camera, the trial court ruled it could be admitted up to the point at which M.T. began to relate an extraneous event involving appellant and N.B., her half sister. Phelan then testified, laying the statutory predicate required by Article 38.071, §§ 2(a)(1) through (6), supra. The videotape was published to the jury.

We have viewed the videotape. In it, in response to primarily nonleading questions from Phelan, M.T. tells substantially the same story that she testified to at trial. Later, somewhat abashedly, she retells the story with reference to anatomically correct dolls.

After appellant briefly crossexamined Phelan, the State rested its case in chief. Appellant moved for an instructed verdict, arguing that the State had failed to show appellant's finger penetrated M.T.'s vagina, as was necessary to meet its burden of proof to establish the offense of aggravated sexual assault as alleged in the indictment. 1 Although the trial court denied this motion, nevertheless, after appellant rested and both sides closed, the court instructed the jury it could convict only of the offense of indecency with a child. 2 The jury found appellant guilty.

Although appellant failed to object to admission of the videotape on grounds that it denied him either confrontation, due process or due course of law, the court of appeals reversed his conviction on those bases. As we understand it, the court of appeals reasoned that because this Court declared Article 38.071, § 2, supra, to be facially unconstitutional, Long v. State, supra, and an unconstitutional statute is void from its inception, Jefferson v. State, supra, appellant was "relieved of the obligation of objecting at trial." Rose v. State, supra, at 553. Along the way the court of appeals took note of Tex.R.Crim.Evid., Rule 103(d), which provides: "Nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." The court of appeals believed admission of the videotape in this cause thwarted the very constitutional protections this Court sought to uphold by striking down Article 38.071, § 2, supra, in Long v. State, supra. Finding the perceived error not to be harmless under Tex.R.App.Pro., Rule 81(b)(2), the court of appeals reversed.

II.

The court of appeals' conclusion appellant did not have to object to preserve error under Rose v. State, supra, is premised upon our holding in Long v. State, supra, that former Article 38.071, § 2, supra, is facially unconstitutional. Although the court of appeals' reasoning is valid, we now reject the premise that the statute, though in a given case it may operate to deprive an accused of confrontation or due process and due course of law, is unconstitutional on its face. We therefore hold that Rose is inapposite, and objection is necessary to preserve error.

A.

In Long v. State, supra, the Court held Article 38.071, § 2, supra, to be constitutionally deficient in three respects. 3 First, the Court found the statute to violate both state and federal confrontation clauses. By precluding counsel for the accused from being present during the videotaping of the child victim, § 2(a)(1) of the statute forecloses any possibility of crossexamination contemporaneous with the videotape. Absent the possibility of crossexamination at the time the videotape is made, the Court found Article 38.071, § 2, supra, to be overbroad in that, rather than allowing for a case by case determination whether any trauma to a child victim in having to testify in court would effectively render him "unavailable," it "assumes that confrontation in a particular class of cases will produce unnecessary trauma." 742 S.W.2d at 317.

The second and third deficiencies the Court found in Article 38.071, § 2, supra, involve due process and due course of law. The Court held it fundamentally unfair to impose upon the accused, as in many instances the statute would, the "Hobson's choice" between relinquishing his right to call the child victim to the stand in an effort to test his credibility, and invoking that right but thereby risking the wrath of the factfinder for subjecting the child to the very trauma the statute is supposed to obviate. 742 S.W.2d at 321. We also found it fundamentally unfair to permit the State, as the statute would seem to do, in essence to introduce its case in chief twice by allowing both live and videotaped testimony from the child victim. Id., at 322.

We now believe none of these perceived defects is such as to render the statute unconstitutional on its face.

B.

We recently held that Article 38.072, V.A.C.C.P., a statute authorizing admission of certain out of court statements of a child victim, was not facially invalid. Article 38.072, supra, permits the State to introduce the substance of "outcry" statements by child victims of certain enumerated offenses, notwithstanding the hearsay rule, if certain conditions are met. One of those conditions, in § 2(b)(3), is that the child be made available to testify and be crossexamined at trial. We held on the strength of this condition that the statute meets confrontation muster:

"[T]he opportunity at trial to crossexamine the declarant of an out-of-court statement may well, in a given case, provide all the confrontation the Federal Constitution requires. Thus, a statute allowing for admission as substantive evidence of a pretrial statement of a witness when that witness is made available to testify at trial would not seem to offend confrontation principles. Consistent with California v. Green, [399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ], only when the opportunity for 'full and effective crossexamination' of a child complainant pursuant to the statute proves impossible at trial would the two-prong analysis of Ohio v. Roberts, [448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) ], requiring particularized showings of 'necessity' and 'reliability,' come into play. Facially, Article 38.072, supra,...

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